Law, ethics and pandemic preparedness: the importance of cross-jurisdictional and cross-cultural perspectives
Professor Belinda Bennett, Faculty of Law, University of Sydney, New South Wales 2006. Fax: (02) 9351 0200; e-mail email@example.com
Objective: To explore social equity, health planning, regulatory and ethical dilemmas in responding to a pandemic influenza (H5N1) outbreak, and the adequacy of protocols and standards such as the International Health Regulations (2005).
Approach: This paper analyses the role of legal and ethical considerations for pandemic preparedness, including an exploration of the relevance of cross-jurisdictional and cross-cultural perspectives in assessing the validity of goals for harmonisation of laws and policies both within and between nations. Australian and international experience is reviewed in various areas, including distribution of vaccines during a pandemic, the distribution of authority between national and local levels of government, and global and regional equity issues for poorer countries.
Conclusion: This paper finds that questions such as those of distributional justice (resource allocation) and regulatory frameworks raise important issues about the cultural and ethical acceptability of planning measures. Serious doubt is cast on a ‘one size fits all’ approach to international planning for managing a pandemic. It is concluded that a more nuanced approach than that contained in international guidelines may be required if an effective response is to be constructed internationally.
Implications: The paper commends the wisdom of reliance on ‘soft law’, international guidance that leaves plenty of room for each nation to construct its response in conformity with its own cultural and value requirements.
A revised version of a paper presented at the 2nd Annual Biosecurity Symposium ‘Integrating Knowledge, Implementing Change’ 9–10 February 2009 Footbridge Theatre, University of Sydney. Research for this paper is supported by a Discovery Grant from the Australian Research Council.
There were three influenza pandemics during the 20th century (in 1918, 1957 and 1968), the first of which killed at least 40 million people worldwide, far exceeding the 8.3 million military deaths during World War I.1 In recent years, outbreaks of highly pathogenic avian influenza (H5N1) and an increasing number of human cases of H5N1 infection, have led to growing concern about another potentially deadly world pandemic of human influenza. In 2009, the World Health Organization (WHO) declared the first influenza pandemic of the 21st century – not from H5N1 as feared, but from the international spread A/H1N1 swine influenza.2 Although the H1N1 pandemic has been relatively mild to date, WHO has warned countries in the northern hemisphere to prepare for a second wave of the pandemic3 and the potential for H5N1 and H1N1 viruses to combine into a new deadly influenza strain remains a sobering possibility.4 The WHO has recognised the importance of legal and ethical issues to pandemic planning in its proposed ‘unified’ approach, but responding to pandemic influenza raises a great number of social equity, health planning, regulatory and ethical dilemmas that may prove problematic. Pandemic influenza, either in the form of the current A/H1N1 pandemic or in the form of human-to-human transmission of the avian (H5N1) influenza virus, should it emerge, may well affect Australia's regional partners, greatly compounding dilemmas posed by diversity of cultural, legal and value systems within the region.
Asian countries are already experiencing a heavy proportion of human global cases of H5N1: of 440 cases, including 262 deaths, from avian influenza to August 2009, Indonesia experienced 141 cases (115 deaths), Vietnam 111 (56 deaths), and Thailand 25 (17 deaths).5 H1N1 has been far more widespread. By late August 2009 the WHO Regional Office for the Americas had recorded 110,113 cases with 1,876 deaths, WHO's European office reported more than 42,557 cases with at least 85 deaths, WHO's South-East Asian office had reported 15,771 cases with 139 deaths and WHO's Regional Office for the Western Pacific had reported 34,026 cases with 64 deaths.6 These figures are, however, almost certainly an underestimate of the number of actual cases as countries are no longer required to test and report individual cases of H1N1.6 While the number of human deaths so far appears relatively small by comparison with the pandemics of the 20th century, the potential for another deadly pandemic is very real. The pool of human infection with H5N1 is such that the WHO noted in 2005 that “[a]ll prerequisites for the start of a pandemic had been met save one, namely the onset of efficient human-to-human transmission”.1 On 23 May 2005 the World Health Assembly therefore called on Member States to develop and implement national preparedness plans.7 Australia and the South East Asian region have developed national influenza preparedness plans based on WHO guidelines.1,8 The Australian Management Plan for Pandemic Influenza was released for comment in June 2005 before being finalised in 2006,9 the same year the Interim National Pandemic Influenza Clinical Guidelines were published.10
Estimates of the impacts of a flu pandemic are highly speculative. Between its 2006 modelling of a ‘worst case’ scenario of 71 million deaths worldwide and its most recent predictions in mid 2008, the World Bank revised its assessment of loss of world gross domestic production. Earlier it has estimated a 3.1% drop (or about US$ 2 trillion) but now puts this as high as 4.8% (or US$ 3 trillion).11,12 Furthermore, it has been noted that developing countries would be hardest hit, because of their higher population densities and poverty that accentuate the economic impacts.12 A recent New Zealand Treasury Report estimated that the economic impact of the A/H1N1 pandemic would be less than the 0.7% drop in GDP modelled under a mild pandemic scenario.13 While the milder-than-expected impact of H1N1 to date is encouraging, particularly in light of the global financial crisis, the pandemic is not yet over and it will be some time before we are in a position to make final assessments of the full impact of this pandemic on the global economy.
Whatever the range of impacts, the features of the flu pandemics encountered to date predispose them to affect both the undeveloped and the developed world, and to do so at times not tied to the usual ‘winter flu’ season or to target the usual sub-populations of the old and the young, Tong14 points out. Although influenza typically strikes hardest at the very young and the very old, the WHO has noted that during the 1918 pandemic “99% of deaths occurred in people younger than 65 years”.1 This disproportionate impact on the young is also evident in the current H1N1 pandemic with WHO noting: “To date, most severe cases and deaths have occurred in adults under the age of 50 years, with deaths in the elderly comparatively rare. This age distribution is in stark contrast with seasonal influenza, where around 90% of severe and fatal cases occur in people 65 years of age or older.”3
These features challenge orthodox ethical and legal frameworks, such as potentially altering the calculus of theories of distributional justice (favouring treatment of the most gravely ill), or liberal principles regarding construction of legislation to balance achievement of social goals against incursions on individual rights. However, responses to ‘emergencies’ and the resolution of difficult ethical conundrums may not necessarily attract a single consensus of the type presumed by WHO and other guidelines for national action.
Legal preparedness in Australia and its region
In common with other countries influenced by Chadwick's championing in 19th century Britain of the clean water, sanitation and quarantine models of public health, Australia has an extensive array of emergency management tools with which to respond to a pandemic.15 However, these tools work best for regional issues arising within the borders of the States and Territories that are the successors in title to all except the quarantine powers of their colonial predecessors.
Problems arise in crafting a coordinated approach to a national challenge, due to the latitude for different approaches to implementation of pandemic planning between the States/Territories, as illustrated when Queensland followed the national pandemic plan and briefly encouraged food stockpiling during the 2009 swine flu episode, before falling into line with the national view that this would unsettle the public. Federal divisions of power and responsibility are a particular issue,16,17 as is the potential for division of approach between the two levels of government,18 consequent on the political legacy of sovereign power of the States. The various techniques and avenues for harmonisation of laws are one way of dealing with this,19 including consideration of options such as a checklist for each jurisdiction to use for benchmarking, consultation around elimination of more egregious forms of disharmony, a ‘model act’, referral of powers or national legislation based on federal powers.18
To date, the milder checklist or guideline measures have been favoured in Australia,9,10 but this was tested by the recent A/H1N1 outbreak of swine flu. In the US, the Pandemic and All-Hazards Preparedness Act of 2006 adopted a similar low-key cooperative strategy of developing and deferring to ‘action plans’ across the different levels of government, but it was criticised for its lack of national guidance and planning failure during the notorious Hurricane Katrina episode.20 Concerns included the lack of specificity of the evidence-base in national frameworks for assessing compliance by emergency preparedness plans and entitlement to federal funding (potentially compounding lack of preparedness in non-complaint jurisdictions).20 Such reservations about cooperative federalist models of governance resonate with Australian experience of ‘blame game’ federalism, indicating that similar issues may arise in this country. Clarity of purpose of the plan is another potential problem. Even renovated laws in a well-prepared State jurisdiction such as North Carolina (where pathbreaking legal and ethical planning was conducted), make fine distinctions between ‘isolation’ and ‘quarantine’ orders that the public (and professions) may find hard to follow.21 Other problematic aspects include: defining the ‘emergencies’ able to trigger the special powers; deciding how ‘much’ preparedness is adequate; and measuring actual (as compared to apparent) readiness.22 While some of these differences can be accounted for by the different historical, constitutional and cultural legacies of Australia and the US, it casts some doubt on the prevailing models of governance of the issue. More broadly, differences may arise between competing approaches, such as between liberalism and communitarianism, both in crafting overall regulatory responses of national governments to such emergencies, and in shaping confidence in such measures depending on the values and beliefs held by members of the public.23 For instance the US leans much further towards so-called classical liberalism (privileging autonomy or the ‘right to be left alone’) while Australia broadly favours a utilitarian liberal rationale permitting overriding of autonomy on the basis of harm to others, or undue risk.
The importance of clarifying relationships between different levels of government was highlighted in a Canadian report on the experience of dealing with severe acute respiratory syndrome (SARS). Drawing on a metaphor of firefighting to articulate the need for emergency preparedness, the Canadian report noted:
“We expect that firefighters and fire engines from different jurisdictions will come together seamlessly to contain an emergency. In the public health field, this seamlessness can only come about from effective preparedness and coordination by public health authorities at the local, provincial, federal and territorial levels. As with firefighting, there must be knowledge of common operating procedures, compatible training and equipment, and most importantly, prior agreements for mutual assistance in emergencies requiring a sudden surge capacity.”24
Clarity in the legal frameworks for public health is a critical part of providing an enabling infrastructure to support the work of public health officials when responding to public health emergencies. The confusion and duplication potentially created by lack of legal clarity can complicate and obstruct effective emergency responses.
There is also a critically important ‘supra-national’ element to any effective national response, due to the mobility of populations and ease of international travel in a globalised world. The capacity for infectious disease to spread along international travel routes dramatically shortens the time needed for the spread of a pandemic, compromising our capacity to respond if large parts of the world are affected simultaneously. To date these pressures have resulted in support for ‘soft-law’ initiatives or cooperative models of governance. In recent times this global governance dimension has found expression in initiatives such as the International Health Regulations,25,26 and, closer to home, guidelines developed by regional organisations such as APEC.27 In 2007, the WHO's revised International Health Regulations (2005) (IHR (2005)) took effect.28 The purpose and scope of the IHR (2005) are, in the words of Article 2, to “prevent, protect against, control and provide a public health response to the international spread of disease in ways that are commensurate with and restricted to public health risks, and which avoid unnecessary interference with international traffic and trade”. The IHR (2005) require States to develop the capacity “to detect, assess, notify and report” public health events (Article 5.1) and assess and notify events that may constitute a “public emergency of international concern”. The IHR contain a decision instrument to assist states in this process. While the IHR are an important tool in international public health law t here are also other more radical and as yet largely unexplored sources of international law, including the Security Council of the UN, which might potentially play a role in managing a major pandemic disaster in light of changed assessments of risks to security within a globalised world29 and the growing understanding of the potential for infectious diseases to present risks to domestic and global security.30
The Asia-Pacific Economic Cooperation (APEC) has developed guidelines to assist Member States in planning for pandemic influenza. The APEC Guidelines also recognise the role for law in pandemic planning, calling on APEC Members to inter alia:
- •“Work towards ‘preventive action’ as a priority initiative, including improved regional capacity on surveillance and detection, infection control, containment and communication strategies as well as reviewing and reinforcing relevant laws.”27
- •“Take steps to ensure that border control, quarantining, surveillance and screening measures are designed to comprehensively address containment and infection issues while limiting the impact on trade in most goods and services.”27
- •“In line with the International Health Regulations (2005), and WTO Agreements, to prevent, protect against, control and provide a public health response to the international spread of disease in ways that are restricted to public health risks, and which avoid unnecessary interference with international traffic and trade.”27
As argued above, legal frameworks play a vital role in supporting effective public health responses to infectious diseases. Yet legal frameworks do not emerge in a vacuum. They are informed by ethical, cultural and historical assumptions and principles that guide the direction of legal development. Law and public health ethics (in its various forms or schools31) are both critical parts of pandemic planning and emergency preparedness.
A role for ethics
The WHO has recognised the importance of according separate attention to the ethical issues raised in pandemic planning. In its Checklist for Influenza Pandemic Preparedness Planning, the WHO highlights the importance of legal frameworks to support the required response measures during a pandemic. These measures commonly include ethical minefields such as: limitations on freedom of movement with the enforcement of quarantine, use of private premises for hospitals, off-licence use of medicines, compulsory vaccination and maintenance of essential services.32 Other legally contentious issues identified by WHO include: “the advantages or disadvantages of a declaration of a state of emergency during a pandemic”; the legal and policy basis for vaccination of healthcare workers, essential services workers and individuals at high risk; liability for unforseen adverse events from vaccines or anti-viral medication; and the inclusion of influenza within occupational health and safety laws.32
A range of ethical issues also arise in pandemic planning. These issues include: priority setting for access to vaccines and antiviral medications; rights and duties related to social distancing measures, isolation, quarantine and border control; the duties of health professionals to treat patients during a pandemic; and international ethical obligations to provide assistance to poorer countries and countries in need.33 As WHO has noted: “A publicly discussed ethical framework is essential to maintain public trust, promote compliance, and minimise social disruption and economic loss.”33
While an effective vaccine is a key part of pandemic planning,34 no country has sufficient vaccine supplies and the lead time of three to six months to develop an effective vaccine for a new strain means that non-pharmaceutical measures will be important, particularly in the early stages of a pandemic.35 Non-pharmaceutical measures include community hygiene such as cough etiquette, social distancing measures such as closure of schools and cancellation of major sporting events, infection control within hospitals (during the SARS crisis healthcare workers were disproportionately among those infected36), isolation and quarantine, and restrictions on cross-border and international movement of people.37–39
Responding to pandemic influenza raises a great number of social equity, health planning, regulatory and ethical dilemmas, few of which have yet been addressed. For example, one vital issue stemming from limited vaccine supply is the ‘distributional justice’ issue of resource allocation, including identification of priority and high-risk groups for receipt of vaccines and the ethical foundations for decisions. In common with other ‘triage’ issues in allocation of health resources,40 there are various ways of domestic rationing of vaccines,41 including possible priorities for essential workers, children, intergenerational equity questions, and social justice issues regarding the poor or the powerless. At the economic or regulatory level, questions arise about optimal incentives for manufacture of vaccines, streamlining and harmonising overlapping regulatory requirements for new medicines, and liability for unforseen adverse events associated with emergency use of new vaccines.41
There are also global and regional equity issues for poorer countries, similar to issues in world poverty and international development. Inequality, poor health and disease are ready partners. Despite the impact of infectious disease on large numbers of people across the globe, western bioethics has traditionally paid little attention to infectious diseases.42 These issues are not simply issues for the developing world. Global health inequalities are both unethical and contrary to the interests of individual countries.43 In the increasingly globalised world that we all live in, risks to health are shared by us all. SARS provided a dramatic reminder of this a few years ago26,44 and avian influenza may yet provide a far more dramatic reminder. Poorer countries may lack the health resources and infrastructure necessary to meet the challenges of a severe pandemic.45 It is commonly pointed out that germs do not recognise borders and outbreaks of infectious disease can escalate rapidly across the globe. The development of effective public health infrastructures in all countries, both rich and poor, is an essential aspect of managing health risks in a globalised environment.
Difference and public health ethics
The ethical challenges posed in the management of pandemics throw into high relief differences between the practice of clinical medicine and public health.46 Much of health and medical law has traditionally focused at the individual level, concentrating on interactions between doctors and their patients, and the legal and ethical issues associated with new technologies such as assisted conception and genetics. In contrast, public health law focuses on the law's role in supporting health at the community and population level.46
Clinical medicine is based mainly on catering to the immediate suffering or needs of individual patients, and is often personalised around the values and preferences of known individuals, and the emotional tug that, say, intensive care of premature babies may have on the public. Public health by contrast is focused on longer-range population-wide measures, taking the form of preventive interventions or other parametric changes to disease vectors. Its ultimate aim is to reduce the future incidence of disease and morbidity, such as through anti-smoking campaigns, reduction of cholesterol levels or avoidance of obesity. Yet the ethical base for public health measures to deal with issues on the scale of a pandemic are less well developed than for clinical medicine.47 For example, it raises more squarely principles of ‘distributive justice’ associated with the protection of vulnerable populations such as the disabled, the poor, children and the elderly, and ethnic or NESB minorities.48
One manifestation of the difference is in the way triage questions present. In clinical medicine hard choices about rationing of medical care are avoided as inappropriate, or are implicitly sought to be defended (in areas such as care of the frail aged) on the basis of measures such as favouring the foreseeable ‘adjusted quality years of life’. In public health the temptation is to rely on objective cost-benefit assessments, and longer time horizons. In disaster management triage this has been summed up some commentators as ‘doing the most for the most’, irrespective of age or perceived ‘worth’.40 This does not mean that public emotions like fear of disaster will not play a part. As Quigley and Harris49 point out, the cost of stockpiling tamiflu (oseltamivir) in anticipation of an avian flu outbreak is high and of dubious utility. It may be good public relations, but its efficacy (if any) and distributional impact (will it ‘save’ the old rather than the likely very high numbers of young and fit victims) is unknown, though a scientific case can be mounted for taking better advantage of any future inter-pandemic years.34 As Gostin and Gostin have recently argued, this may call for a new ethical paradigm, a ‘population-based’ perspective, where “utility is not measured by enhancing short-term individual preferences, but by maximising overall societal welfare; savings in pain, disability and life within the populace”.50 Other ethical differences, however, present in determining the form of the legislative (quarantine and emergency powers) and public policy dimensions of public health responses to pandemics. Important issues arise in determining the balance between coercive state powers and human rights,15,47,51 and the role for law in assisting and supporting preparedness across diverse cultural and legal contexts.52,53 Differing weightings of factors, or indeed differences in the overall ethical paradigms, have been found to account for variation in the laws and policies in Europe.54 The same was true of the highly regarded ethically-grounded framework for pandemic response planning developed in North Carolina, where that state endorsed most of the values and priorities developed by the Joint Centre for Bioethics in Ontario, Canada, save for a sharp rejection of the Canadian inclusion of ‘communitarian’ principles of solidarity and stewardship.14
Closer to home, in the Asia-Pacific region, differing ethical outlooks and perspectives are also important. The defining characteristic of the countries of the Asian region is their difference over many variables, including not only the architecture (and origins) of their legal system, but their cultural, economic and social status. This has important ramifications for the extent to which harmonisation of laws, institutions or health practices is desirable, or the capacity to harness and mobilise ‘social capital’ in an emergency response.55 The emphasis on Confucian family and community values ahead of individual autonomy,52 for example, highlights the need for development of ethical and legal frameworks for pandemic preparedness that are culturally relevant. Quarantining of individuals is less viable in rural subsistence economies dependent on family labour, or isolated from medical services and information. Children as a source of spread of infection may not be so readily managed by the device of closing schools or public places, when life is crowded and communal. The social capital predicated as available under Confucian values may be the envy of more ‘selfish’ western developed societies, but changed labour markets and social mobility may have undermined its social reality, paradoxically leaving a minimalist state health and welfare system unable to cope with demands of a large-scale pandemic.
Within the Pacific region, pandemic preparedness is complicated by the fact that most public health laws in the Pacific are out of date often having been originally based on British public health laws, and there is a lack of resources to update them.56 Such updates are necessary to incorporate contemporary understandings of public health law, particularly in relation to the operation of state powers, and in order to ensure that Pacific nations are able to meet their obligations under the International Health Regulations.56
WHO has recognised the need to adapt global guidelines for local contexts, noting: “Since specific decisions will depend on local circumstances and cultural values, it will be necessary to adapt this global guidance to the regional and country-level context, with full respect to the principles and laws of international human rights.”33
The importance of recognising difference and cultural specificity in the development of appropriate legal and ethical measures for pandemic preparedness presents complex issues about whether it is ever truly possible to develop a ‘global bioethics’.57 Additional complexities arise when bioethics meets human rights,58–60 for human rights are typically expressed in terms of universal values and entitlements, and tend to best guarantee so-called ‘negative’ or liberal rights (such as to autonomy) rather than ‘positive’ rights such as a right to health or other social rights of citizenship. Indeed, as bioethics is reshaped by human rights discourses there are new possibilities to develop deeper, more nuanced understandings of ethics premised on the inherent dignity of all persons and an express recognition of the need for bioethics to address global inequities and disadvantage.
As Rosemarie Tong14 has observed in respect of western legal systems, “the kind of ethics most likely to persuade people to do their duty and more is not a rights-based, duties-based, or utility-based ethics, but a care-based ethics”. Ethical approaches based on care and relational ethics14,61–63 provide another indication of the need to look beyond the dominant individual-focused ethics shaping clinical care, where Kantian autonomy (consent to healthcare) or Millean principles of ‘harm to others’ are uppermost (e.g. in the use of coercion in mental health treatment). Wendy Parmet for example has recently questioned the appropriateness of a Millean harm to self/others rationale for US quarantine laws on the bases that too much room is left for executive power (and arbitrariness) and that it fails Mill's test of showing a sound ethical foundation for the public health services themselves.64 This is slightly unsettling given the prominence of utilitarian liberalism as the foundational paradigm for public health legislation, but as Gostin and Gostin observe, the assumptions such as that actions are either self- and other-regarding actions, or that actors either have or lack capacity, are much more nuanced than many analyses may suggest.50
Of course there is still purchase in public health policy, especially for ethical frameworks that address the bases and limits around the use of coercion to isolate, or treat victims of a pandemic. But the calculus of risk/harm is not the usual one contemplated by philosophy and private law (such as the tort of negligence). Instead of determining the proportionality of the coercive intervention based on the individual risk to the public by reason of being infected, the debate in public health management is about levels of global statistical risk within populations, the pathways of spread of infection to the disease-free portion of the population, and the ‘critical mass’ effects of given levels of infectivity within the population. While the first of these is familiar as the philosophical grounding for measures such as mass immunisation of children or compulsory seat belt laws, the latter two are more challenging. Pathways of spread of infection, and the critical mass of infected individuals within a population do not follow a straight line. They often involve either geometric curves or even sudden jump changes in risk levels, as small increases in numbers of infected individuals lead to escalating risk levels or cliff effects. As a consequence, individuals find themselves almost instantly converted from being trusted to autonomously self-govern their disease to someone who is to be compelled to enter perhaps very spartan quarantine facilities. As demonstrated by the reaction of the members of the Australian lacrosse team placed in isolation in South Korea during the recent A/H1N1 episode,65 the philosophical foundation or ‘fairness’ of such public health actions is not understood at all by the public and the popular media.
The ethical challenges are not confined to the interests of citizens who become infected. The question of the expression and limits of the ethical duty to treat on the part of health workers faced with risks of serious illness or death,66–68 including, at the extremes, the case for the medical equivalent of military conscription should the pool of workers fall too low, or place unreasonable burdens on particular groups (such as young singles) needs to be considered. Furthermore, we need to recognise that health professionals in developing countries may be at greater risk of infection than their developed country counterparts due to the impact of global disparities in health resources, running the risk that as Reiheld noted in the American Journal of Bioethics in 2008 “[a]n absolute duty to treat thus demands more of those who have less”.69 Even in less fraught circumstances there are distributional justice issues with regard to whether danger money incentives should be paid. Similar questions are posed for other essential services workers, along with tricky economic and social decisions about what the core activities may be.14
Together with the challenges of deciding priorities for rationing access to treatment and other necessary supports, there is a rich set of complex ethical questions to be answered in pandemic planning.
This paper has analysed the role of legal and ethical considerations for pandemic preparedness, including cross-jurisdictional and cross-cultural perspectives bearing on the feasibility of harmonisation of laws and policies both within and between nations.
As the WHO has noted, law is an essential ingredient in the construction of sound national polices for managing a flu or other pandemic, because the choices and issues entailed are such that: in the words of the WHO “[t]hese decisions need a legal framework to ensure transparent assessment and justification of the measures that are being considered, and to ensure coherence with international legislation (International Health Regulations)”.32 Ethical issues are critical to the development of legal frameworks for pandemic influenza because as WHO notes “[t]hey are part of the normative framework that is needed to assess the cultural acceptability of measures such as quarantine or selective vaccination of predefined risk groups”.32
The soft-law guidance by the WHO towards development of national pandemic plans is superficially attractive to the extent that it leaves scope for variations in national approaches that reflect cultural, institutional or other differences. However, it carries some considerable baggage. The US experience with Hurricane Katrina and in tailoring plans to local state conditions suggests that soft-touch governance and cooperative federalism, have their limitations and highlight the need for these limitations to be expressly considered as part of pandemic planning. For developed economies, the implicit endorsement of western philosophical concepts of individual autonomy, and utilitarian liberal bases for public health interventions, is shown to be problematic for certain sections of the public who come from different cultural traditions or who do not share those assumptions. For Asia and the Pacific, it is argued that the challenges are heightened by factors such as markedly lower levels of resources, sharply limited roles of the state in the domain of health and government services, and cultural traditions that emphasise collective extended family or community responsibility. Checklists that assume a rural division of labour, or a service capacity to support an individual outside their subsistence economy and isolated community, will require considerable adaptation to accord with local conditions. As the swine flu experience in Australia has so graphically demonstrated in exposing the limitations of pre-ordained plans with presumptive actions linked to pandemic ‘stages’, what is critical is the capacity to make flexible and responsive decisions in light of public health assessments of the actions required.
Our argument is that the cultural and ethical acceptability of pandemic planning measures require to be more flexible and more nuanced than is currently envisaged in international guidelines if an effective response is to be constructed internationally. As shown by the APEC Guidelines, there is potential for regional measures to supplement (and refine) international instruments and guidelines. These may take the form of institutional coordination of planning, training and responses to regional disease outbreaks, or even culminate in bi-lateral or regional treaties. Time will tell, but such options are consistent with the argument in this paper regarding the fallacy of the notion that ‘one size fits all’, and the wisdom of reliance on soft law international guidance that leaves plenty of movement for each nation to construct its response in conformity with its own cultural and value requirements, and for the scope of this movement to be expressly included in pandemic planning.