The Joint External Evaluation Tool and the Role of Law: Simple Fixes at the One-Year Mark

The Joint External Evaluation Tool and the Role of Law: Simple Fixes at the One-Year Mark

To mitigate the cross-border and national impacts of infectious disease threats, the Global Health Security Agenda (GHSA) was launched in 2014 to foster a collaborative approach to improve nations’ capacities to detect, prevent and respond to threats whether occurring naturally, deliberately or by accident. Law itself is not an explicit part of the overall GHSA, except in one package, Respond 2, that links public health with law and a multi-sectoral rapid response.  Law has become an element of the Joint External Evaluation (JEE) tool, launched in February 2016, and now on the table for revision (WHA 68/22 Add .1.). In May the World Health Assembly will take up consideration of progress towards a 2016 goal of 50 country assessments and next steps. WHO has begun a review of the JEE tool and requests for feedback are circulating.  This update focuses on the JEE element of legislation and proposes some simple fixes.     

That legislation was added to the JEE tool and placed first is an incredibly important development in health security and health sector reform. The whole point of the JEE is to assist a country to identify gaps and develop a comprehensive national plan to implement the International Health Regulations (IHR). To implement the IHR means that a wide set of actors including government and private sector must function, perform or behave in certain ways essential to the fulfillment of the IHR obligations and meet GHSA targets. This requires an orchestration of many actors such as providers of health care services, those that perform traditional public health activities of epidemiology, reporting, laboratory and surveillance and more, health professionals, the medicines regulator and members of that sector, provincial and central governments, law enforcement, the military, and other branches of government.  To carry the metaphor, law is the conductor and the score providing direction on what the actors are to do and be coordinated.  

The tool has 19 technical areas designed to evaluate a country’s capacity to prevent, detect and respond by adopting a multi-sectoral national and international coordination approach. Recognizing that achieving these goals is a multi-sectoral activity, a wide range of stakeholders are implicated by the tool. Many are outside the domain of health, especially true for the sphere of law and include branches of law enforcement, the military, informal justice mechanisms such as professional council disciplinary committees and internal review boards.   

The JEE tool measures “capacity” defined for each element. For national legislation, policy and financing, a description of capacity is that “State Parties should have an adequate legal framework to support and enable the implementation of their obligations and rights to comply with and implement the IHR”(JEE Tool WHO/HSE/GCR/206.2, page 9).  The two indicators are general and broad:  (1) “Legislations, laws, regulations, administrative requirements, policies, or other government instruments in place are sufficient for implementation of IHR.” and (2) “The State can demonstrate that it has adjusted and aligned its domestic legislation, policies,  and administrative arrangements to enable compliance with the IHR.” With only these two broad indicators the results of the JEE in the realm of law cannot begin to illuminate any aspect of law relevant to the 18 other areas which comprise the substantive public health dimensions of the global health security.  A simple fix is to add a legislation indicator for each other element of the tool in addition to the general overview indicators.     

The indicators are very broad and conclusory such that there is insufficient specificity to be of use in the development of a national action plan. To date, there is no consensus or even analysis of what makes a legal framework adequate (Forzley M., et al. Law as a Guide to Regulatory System Design for the Health Sector: An Essential Tool for Regulating the Private Health Sector in Afghanistan and Other Developing Countries).  Revising the term adequate is urgent as its use suggests to those unfamiliar with the law, that there is some best practice that does not exist. Moreover, the tool uses the term legislation which by itself is not of concern but coupled with the lack of fluency of most health professionals, its use can be misinterpreted to mean that the only solution to gaps is new laws and that means going to Parliament. A discouraging idea at best and at the worst it means that the variety of other readily available legal instruments are not considered.

The term “legislation” is addressed in the significant body of work in the realm of IHR legislative implementation and a set of tools created by WHO (IHR (2005): Toolkit for implementation in national legislation: Questions and answers, legislative reference and assessment tool and examples of national legislation).  These materials address the question of legislation by clarifying what legislation is or might be and approaches the subject by looking at the sub-components of a legal framework that supports and enables IHR implementation. It is unfortunate that it does not appear that any of this excellent comprehensive work backed by experience on its use was referenced or used.    While no tool is perfect, a simple fix is to adopt the existing legislation tool.

Additionally, the utility of scoring results is further devalued by a prevailing misapprehension of how law functions and how the manner in which the evaluation process is conducted.  In only some of the evaluations to date is a lawyer included as an expert. In some cases, a non-lawyer managed that aspect of the JEE.   For example, in one JEE, the question of mandatory reporting arose. In consultation with the nursing council, it was clear the council act empowered the council to require nurses to report notifiable events but this had not been done.  No law existed titled reporting but law did exist that enabled the establishment of mandatory reporting. The council was unaware of IHR and the ministry had not communicated to it the need to establish the public health activity of reporting.  A simple fix is to only have the legislation component conducted by a lawyer and second to add a tutorial on law at the outset of the JEE process so that the fundamental information law provides is in hand at the start.

The current approach to legislation in the JEE is a disservice to the goal of building IHR capacity given the importance of law, its rise in importance in global health discourse as exemplified by the 2017 World Development Report titled Governance and the Law and SDG 16 on Rule of Law.  Simple fixes can be adopted such as those mentioned and others that will align the tool, process, and results to the current vogue in development discourse and more importantly substantively support countries that are in this process so the JEE process is of real utility to the countries that undertake it.