Clause 119

Health and Social Care Bill – in a Public Bill Committee at 6:30 pm on 22nd January 2008.

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Public health protection

Photo of Anne Milton Anne Milton Shadow Minister (Health)

I beg to move amendment No. 247, in clause 119, page 68, line 31, at end insert—

‘(8) All orders made in accordance with subsection (1) above shall be reported to Parliament.’.

Although it feels late in the day, may I say what a pleasure it is to serve on this Committee under your chairmanship, Mr. Conway? I have not had the opportunity to say that before.

I am hoping that we will have the opportunity to have a stand part debate. There has been a bit of a leap in subject matter. Part 3 of the Bill will update the Public Health (Control of Diseases) Act 1984 and has been widely welcomed. This part has not had a huge amount of publicity, but concerns have been raised about some of the powers that it gives. However, I re-emphasise that it has been largely welcomed.

Public health measures have been used since ancient times. The Chinese had a technique that was very similar to vaccination to prevent the spread of smallpox. Many of us are familiar with the public health measures in Roman times. It is as well that from time to time Governments update public health laws.

The amendment is essentially very simple. It reflects concerns that have been raised, not least by the National AIDS Trust, the Terrence Higgins Trust and a couple of other bodies. They are not against the powers and feel that it is important that they are substantial, but it could be said that the powers are draconian, albeit necessary, unfortunately. The National AIDS Trust was disappointed that those who had submitted  views to the consultation process were told of the Government’s conclusions and the consequential legislative provisions only the day after the Bill was presented to Parliament.

There is some concern about the extension of the powers. In particular, a justice of the peace could previously make an order for a medical examination and move someone with a notifiable disease to a hospital or detention hospital. Under the Bill, a justice of the peace will additionally be able to order quarantine, disinfection or decontamination, and the wearing of protective clothing, and to require an individual to provide information and answer questions, require the monitoring of an individual’s health, require an individual to attend training or advice sessions on risk reduction, restrict where an individual goes or with whom they have contact, and require that they abstain from working or training.

I am sure the Minister would agree that while all those powers might be necessary, they are draconian. Many of the organisations that I mentioned, especially the Terrence Higgins Trust, have welcomed the Government response to the consultation. It is clear that the Government have been measured. The amendment would simply ensure that there was a safeguard in Parliament by giving Parliament an opportunity to look at orders that are made. A great deal of publicity has been given to the detention of people in recent years, albeit in relation to matters other than public health. Our society will be significantly interested in monitoring the situation.

Photo of Greg Mulholland Greg Mulholland Shadow Minister (Health)

We think that this is a sensible amendment, but is it really supposed to introduce subsection (8)? There is no mention of deletion, so should it not refer to subsection (9), or possibly (8A)? The key point is clearly that when there is a risk of significant harm to human health, it should be reported to Parliament. We broadly support the aim of the proposal.

Photo of Ben Bradshaw Ben Bradshaw Minister of State (Regional Affairs) (South West), The Minister of State, Department of Health

I completely accept that the restrictions or requirements that justices of the peace can place on individuals could impact on their human rights, so it is very important that we are debating this and I am grateful to the hon. Member for Guildford for raising the issue. We agree that the powers must be used responsibly, which is why we have put them in the hands of an independent JP and included the requirement for the Secretary of State to make regulations about the evidence that should be presented to the JP before he or she makes a decision.

However, the amendment would require all orders made under new section 45G of the 1984 Act to be reported to Parliament and we think that that would be a little excessive. For example, we do not require social workers to report to Parliament each time they detain a person with a mental illness, or the police to report to Parliament each time they arrest a potential criminal. We are very well aware of the concerns of the organisations that the hon. Lady mentioned, including the National AIDS Trust, and my officials have been working very closely with them in developing the JP order regulations, which we will debate at a later stage.  Given that, and the existing safeguards in legislation, we do not think there is a need for Parliament to be informed of every use of the provision, so I ask her to withdraw her amendment.

Photo of Anne Milton Anne Milton Shadow Minister (Health)

I thank the Minister for his response. I can see from his face that he genuinely shares our concerns about this. None the less, it would be a pity if these figures were available to Members only if they tabled parliamentary questions. Perhaps the Minister would consider putting those figures in the Library or making them available to the Select Committee. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Photo of Greg Mulholland Greg Mulholland Shadow Minister (Health)

I beg to move amendment No. 138, in clause 119, page 68, line 33, leave out ‘justice of the peace’ and insert ‘local authority’.

Photo of Derek Conway Derek Conway Conservative, Old Bexley and Sidcup

With this it will be convenient to discuss the following amendments: No. 139, in clause 119, page 68, line 34, leave out ‘justice’ and insert ‘local authority’.

No. 140, in clause 119, page 69, line 1, leave out ‘justice of the peace’ and insert ‘local authority’.

No. 141, in clause 119, page 69, line 2, leave out ‘justice’ and insert ‘local authority’.

No. 142, in clause 119, page 69, line 28, leave out ‘justice of the peace’ and insert ‘local authority’.

No. 143, in clause 119, page 69, line 29, leave out ‘justice’ and insert ‘local authority’.

No. 144, in clause 119, page 69, line 38, leave out ‘justice of the peace’ and insert ‘local authority’.

No. 145, in clause 119, page 69, line 39, leave out ‘justice’ and insert ‘local authority’.

No. 146, in clause 119, page 70, line 9, leave out ‘justice of the peace’ and insert ‘local authority’.

No. 147, in clause 119, page 70, line 10, leave out ‘justice’ and insert ‘local authority’.

No. 148, in clause 119, page 70, line 43, leave out ‘justice of the peace’ and insert ‘local authority’.

No. 149, in clause 119, page 70, line 44, leave out ‘justice’ and insert ‘local authority’.

Photo of Greg Mulholland Greg Mulholland Shadow Minister (Health)

Amendments Nos. 138 to 149—I do not understand why the group is listed as “138+139 to 149”, but I accept that there is a lot I need to learn about parliamentary procedure—are really about a point of principle, but, more importantly, they attempt to question the practical changes in this part of the Bill. The Minister will be well aware that there are serious concerns about the implication of those changes.

On the point of principle, we believe that the power to impose health control measures in relation to objects and premises to prevent the spread of infection or contamination, which we all agree is important, is better in the hands of local authorities than of justices of the peace. The amendments would make that change. The intention is to remove the requirement that the Bill would impose on local authorities to seek a  legal ruling before taking measures in relation to things or premises to prevent the spread of infection or contamination.

As the Minister will know, we have not tabled amendments to proposed new section 45G, which addresses the power to order health measures in relation to persons. That is quite deliberate so that a higher standard of proof would be necessary in those cases before health measures could be ordered. We believe that councils, as the bodies in control of local areas and the only bodies that can put measures into practice quickly, need the power to protect the people whom they serve from contamination and infection.

The Minister will be well aware that the Local Government Association and individual councillors have broadly welcomed the changes to public health legislation. The LGA believes that they are

“mainly sensible and will consolidate existing legislation into a framework that will meet new and emerging challenges.”

Photo of Stephen O'Brien Stephen O'Brien Shadow Minister (Health)

The hon. Gentleman might recall that during the oral evidence sessions, the Minister was not persuaded that there would be a requirement for repeated applications to a justice of the peace. I suggested—not that I got an answer, because it was more a rather loud aside—that one problem in the case that I had mentioned was that it involved a series of licensed premises. I wondered whether that might have made a difference to whether there would be separate or combined applications by the local council, notwithstanding the change in the role and responsibility of magistrates in relation to licensed premises. I wonder whether the Minister has had a chance to reflect on that and to establish whether there will be a problem of licensed premises giving rise to a serial need for applications, rather than a collective application.

Photo of Greg Mulholland Greg Mulholland Shadow Minister (Health)

I thank the hon. Gentleman for that helpful intervention, which has saved me from mentioning that part of the evidence sessions. As far as I am concerned, the question remains up in the air. I hope that the Minister has had a chance to reflect on it and that he will be able to respond.

As the Minister knows, the key issue is whether he challenges the view of local authorities that the provision will be an additional layer of bureaucracy and an extra step in the process that could lead to delays in the response to incidences of infection and contamination. That is clearly a valid concern. On top of the hon. Gentleman’s question to the Minister about repeated applications, I wish to ask him, first, why he believes the change will speed up the process and improve its effectiveness. If it will not, it would clearly be foolish to introduce it. Secondly, what are the costs involved? They cannot be nothing, and I would be surprised if they were negligible. Has a cost assessment of the changes been carried out, as well an assessment of their effectiveness?

Photo of Ben Bradshaw Ben Bradshaw Minister of State (Regional Affairs) (South West), The Minister of State, Department of Health 6:45 pm, 22nd January 2008

As hon. Members will remember, the Local Government Association told us, during its evidence session, that requiring a local authority to seek an order from a justice of the peace in order to carry out measures in relation to infected or  contaminated things or premises would cause a delay. However, that was wrong, because it suggests that the local authorities had those powers all along, and that the new safeguard provided by the justices of the peace would be a hindrance to an otherwise smoothly-running system. However, that is not the case. The Public Health (Control of Disease) Act 1984 does not extend to any premises or things that are contaminated, which is why we are taking these powers. The powers in relation to infected premises and things are patchy, which again is one of the reasons we need to amend the 1984 Act.

In many cases, local authorities have had to rely on other legislation, such as food safety, environmental protection or health and safety legislation, to deal with infected or contaminated premises and articles. Where there have been gaps, local authorities have had to rely on voluntary co-operation. The provisions in proposed new sections 45H and 45L will fill those gaps. However, we think that significant interference with, or even loss of a person’s home or property, deserves a degree of judicial oversight. Hon. Members will be interested to know that the responses to the consultation supported that view by 10:1.

The powers in new section 45 are to be used only when necessary. A justice of the peace is unlikely to reach a decision that an order is necessary, if the local authority has not already exhausted other reasonable methods. In addition, a JP is unlikely to deem an order necessary if it is sought as an alternative to using other more appropriate legislation, such as that on health and safety.

On the timing issue, hon. Members will remember that the LGA implied that the 1984 amendments would force local authorities, at great expense, to apply individually for 47 separate orders. That is not correct. New section 45J makes it clear that the local authority could seek a single group order for all premises relating to a single contamination incident. I remind hon. Members also of the evidence given by Pat Troop, from the Health Protection Agency, who was very relaxed about the speed of process involving a JP, in contrast to the speed of process involving local authorities.

In response to the point raised by the hon. Member for Leeds, North-West about powers relating to things and premises, rather than to people, we agree that direct interference in the rights and freedoms of people is of a different order and requires the oversight of a JP. However, interference with a private dwelling or other premises, or with the enjoyment or possession of private properties, is also quite serious and deserves such oversight. Given that, I hope that he will withdraw his amendment.

Photo of Greg Mulholland Greg Mulholland Shadow Minister (Health)

I am glad that the Minister agrees with me on one point; it might be the first time that he has in this Committee stage.

As I made clear, the LGA, local authorities and—I am sure—the Committee, agree that the tidying-up, to which the Minister alluded, is very important for the process. However, he has a little more work to do to convince, certainly, the LGA and local authority leaders that this is not an additional step in the process and that there is no possibility of delay. I urge him to engage in further dialogue to allay those concerns. I did  not get an answer to the question about costs, and I ask him to bear them in mind and to respond at some stage with an idea of how much the changes will cost. That is an important point. However, we have teased out the main points, and I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Photo of Ben Bradshaw Ben Bradshaw Minister of State (Regional Affairs) (South West), The Minister of State, Department of Health

I beg to move Government amendment No. 242, in clause 119, page 76, leave out line 1 and insert—

‘General

45RA Application to territorial sea

The provisions of this Part have effect in relation to the territorial sea adjacent to England or Wales.’.

Clause 119 amends and updates the existing provisions of the Public Health (Control of Disease) Act 1984. Part 2 of the Act includes provisions ensuring that a local authority or port health authority has jurisdiction over vessels on waters in or near the port and that regulations can be made in relation to coastal waters up to the old boundary of the territorial sea for public health protection measures.

Photo of Stephen O'Brien Stephen O'Brien Shadow Minister (Health)

I am grateful to have the opportunity to debate the amendment and beg the indulgence of the Committee. I am afraid that the only thing as a lawyer that I, apparently, excel at is international public law, especially the law of the sea. This amendment does not, as it happens, relate to my speciality, which is the configuration and operation of the law of the sea as applied to archipelagic states, which, as one can imagine, is both geographically and legally extraordinarily fraught when one considers states such as the Philippines or Indonesia.

Here I see, for the first time applied to the UKas a matter of law—although I hope the Minister will be able to prove me wrong and show how far behind I have become in my legal understanding of these areas—the question of territorial sea, as applied internationally and in recognised terms through the treaty, under the auspices of the United Nations law of the sea. Because of devolution, we have to look carefully at how the measure applies to England and Wales. The amendment says:

“the territorial sea adjacent to England and Wales.”

It certainly begs the question of such places as the Isle of Man, which sits between measurements relating to both Ireland as well as the Province of the United Kingdom, namely, Northern Ireland.

By one measurement, the Isle of Man is closer to the landfall of Scotland. One only has to think of the Mull of Kintyre to recognise that that poses a challenge, given that Scotland is not mentioned in the clause. I am not seeking to be picky, but I do think that this is a serious issue. Devolution often poses many questions where the whole of the law internationally has been framed upon the basis that the United Kingdom is a nation for the purposes of application of treaty law.

We domesticate that law and make it enforceable. If we then reflect on the devolutionary settlement that has taken place over the past decade, that poses a question. For example, the boundary between England and Scotland is in the Solway Firth. Is that a direct division  and an equal length of measurement between the coast of north-west Cumbria and the south-eastern coast of Dumfriesshire? What does one do, for instance, with Lindisfarne, assuming that that is an English territory?

Although it is important to recognise that this can get bogged down in a geography lesson, and as is patently clear to all, I probably left out the most convenient example because I have reached the limit of my own geography off the top of my head, the amendment seems to beg questions about whether the measure has been imported without genuinely recognising the complexity of the international treaties that give rise to the law of the sea and therefore the definition of territorial waters. Interestingly, “territorial sea” as a term has not normally been recognised. Normally it is territorial waters that is applied to the British Isles, remembering that that includes the international state and neighbour of Ireland, across which we have our only land border. It also relates to the fact that we have a continental shelf measurement. That is different from the normal laws of the sea as would apply, say, to the Philippines, if one were measuring the territorial waters that extended to the normal 200-mile limit in an archipelagic state. Therefore, we have some serious issues to contend with here. I am sorry to take up the Committee’s time, but having seen the amendment, I could not resist ensuring that that matter has been thought through.

Photo of Anne Milton Anne Milton Shadow Minister (Health)

I rise simply because my hon. Friend’s contribution cannot pass without remark. It was absolutely remarkable and we are all glazed over in awe. I have read the amendment many times. I know that the public health issues in relation to ports are enormously complicated and, for the first time since the Committee’s proceedings started, I feel somewhat sorry for the Minister in having to respond.

Photo of Ben Bradshaw Ben Bradshaw Minister of State (Regional Affairs) (South West), The Minister of State, Department of Health

Let me assure the Committee that I am not at all glazed over, but leapt to attention when I heard the hon. Gentleman’s comments, not least because, as a former fisheries Minister, I grappled with the complexities of devolution in relation to our coastal waters when dealing with the Marine Bill. I am well aware of the issues and hope to reassure him by saying that Scotland is working to develop its ship regulations so that they mirror the English provisions and Northern Ireland will develop its own regulations once it has a public health Bill.

Amendment agreed to.

Question proposed, That the clause, as amended, stand part of the Bill.

Photo of Anne Milton Anne Milton Shadow Minister (Health)

I am conscious that I must not keep the Committee unnecessarily but think I that, in the light of the amendments that we have discussed, it is important to go through a few of the issues. I am not one to quote large sections of text, but I think it is worth drawing attention to a recent article in the Medical Law Review which described a Swedish case where the enforcement of public health legislation was judged to conflict with the European convention on human rights. In the conclusion, the author wrote:

“Law has the potential to be a very useful tool for the attainment of public health. Bad law, however, can serve to create obstacles to public health. Public health consultants in England and Wales have been cautious in using detention powers, even in  cases of serious risk of disease spread by a non-compliant patient, because of lack of clarity of the status of these powers in relation to human rights. Enhorn illustrates that similar concerns exist in relation to legislation elsewhere in Europe. There have been many calls for reform of public health legislation in the United Kingdom by academic commentators and public health consultants...Public health law has undergone a process of reform in other jurisdictions that had adopted their public health laws from English law, following the SARS scare in 2003. Any doubt as to the implications of the Human Rights Act 1998 for the Public Health Act 1984 must now have been settled by the decision...Once again we can only call upon the government to make reform of public health an issue of the highest priority and not to wait for the threat of a new or re-emerging disease in order to pass with haste emergency legislation.”

This part of the Bill serves to do exactly that. The Minister mentioned human rights issues, which have come up from time to time during the Committee’s discussions, and the amendment relates to that. It is important to be mindful of that and of the continuing public concern about the use of powers by officials to detain people.

I was pleased to see that there was unanimous agreement in the responses to the Government’s consultation on updating the law, but as in so many parts of the Bill, the devil will be in the detail. Although we have had some of the regulations, we have not had all of them, so I look forward to seeing those and ensuring that they do not cause any further concerns than those that have already been raised.

To skip through various aspects, new section 45A deals with the definition of contamination or infections and, I believe, for the first time introduces radiation as a form. Global security is seriously threatened, which has made it necessary to include radiation, but we must also be aware of our own concerns about radiation, regarding not only nuclear power stations, but much hospital equipment that is in use.

New section 45B deals with international travel and allows the appropriate Minister to update UK law without recourse to Parliament, or when there may be amendments to, or developments in, the law. For those who cannot sleep this evening, I recommend the World Health Organisation website, which describes the main features of the measures.

New section 45G has been referred to, and the LGA and HPA have raised concerns, but I shall reiterate some points. My greatest concern is about what the Minister said in oral evidence about the LGA not being clear about what was needed in the Litvinenko case. He will have to go to considerable lengths to ensure that local authorities and public health physicians do have very clear guidance. Many powers will be used in an emergency, in haste and rarely, making it imperative that council officers and public health physicians are fully conversant with the law and where they stand. It was worrying to hear what the LGA said.

New section 45L will govern the length of detention, which is currently 28 days, so it will be helpful to compare this legislation with the emergency procedures for sectioning a patient with mental illness. Emergency sectioning of a patient with mental illness in the community requires one doctor and an approved social worker or nearest relative. If the patient is already in hospital, the patient’s consultant—currently, a doctor,  but in the future from any profession—or their nominated deputy can make the section. In both instances, the patient can be detained for no longer than 72 hours. For detention longer than that, two doctors, one of whom must be approved, and an approved social worker, or possibly the nearest relative, are required. If the patient has not already appealed against detention, the hospital must arrange one after six months. Renewal of detention is required at six-month intervals for 18 months, and after 18 months, sectioning is done annually.

Given that comparison, and the 72-hour limit on someone needing to be detained under the Mental Health Act 2007, 28 days appears somewhat extreme. Will the Minister elaborate on that provision and tell us why he feels that 28 days are needed? Several issues have been raised, and on Second Reading my hon. Friend the Member for Worthing, West (Peter Bottomley) raised the issue that Liberty also raised. He said:

“When a magistrate signs a detention order—which is only one of the powers available to him—it may be challenged, although on many occasions it will be accepted. If the order is challenged, could it not be put to the magistrates’ court for confirmation?”—[Official Report, 26 November 2007; Vol. 468, c. 74.]

The Picker Institute’s head of policy, Don Redding, said:

“Patients could be subject to quite draconian orders. There’s an evident danger that patients will not want to report concerns to their GPs if they think it may lead to these actions,” which may be an unintended consequence of the powers. He continued:

“This should be tested quite clearly in Parliament so the government gives a clear explanation of why these powers have been developed”.

Will the Minister explain exactly what future scenario he envisages, with particular reference to those 28 days? I see the Minister nodding, I do not need to reiterate the fact that the powers are draconian, very serious and must not be taken lightly.

I welcome an updating of the law. I note the concerns raised by the Liberal Democrats in their amendment, about allowing local authorities rather than JPs to hold power. The seizure of somebody’s premises is very serious—it could involve taking away their livelihood and I think that having that power resting with JPs is a positive measure. I would be grateful for the Minister’s comments on whether, particularly in the case of an appeal, the matter could go to the bench rather than one JP.

Photo of Ben Bradshaw Ben Bradshaw Minister of State (Regional Affairs) (South West), The Minister of State, Department of Health 7:00 pm, 22nd January 2008

In respect of the 28-day detention and the comparison with the Mental Health Act, my understanding is that the Mental Health Act is not restricted to 72 hours, but is 28 days as well. I do not know whether that helps reassure the hon. Lady. The 28-day duration is based on the potential length of incubation for certain diseases. On her concerns that the law might be updated without recourse to Parliament, let me reassure her that new section 45F(3) allows UK law to be amended, but only through affirmative resolution agreed by both Houses. In an emergency, the regulations can be in place for 28 days, but will fall as soon as they are rejected by Parliament or if they are not debated within that time.

The hon. Lady has made an excellent contribution to the debate. I do not intend to address all the concerns she raised, as she was generally very supportive but sought reassurances about the safeguards. On the appeals concern, yes, one will be able to appeal to the Crown court under section 67 of the Public Health (Control of Diseases) Act 1984. In light of the discussions that we have had on the amendments, I ask hon. Members to approve the clause.

Question put and agreed to.

Clause 119, as amended, ordered to stand part of the Bill.

Clause 120 ordered to stand part of the Bill.