Public Health etc (Scotland) Bill: Stage 1

– in the Scottish Parliament at 2:41 pm on 17th April 2008.

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Photo of Trish Godman Trish Godman Labour 2:41 pm, 17th April 2008

The next item of business is a debate on motion S3M-1560, in the name of Nicola Sturgeon, on the Public Health etc (Scotland) Bill.

Photo of Shona Robison Shona Robison Scottish National Party 3:20 pm, 17th April 2008

The Public Health etc (Scotland) Bill is a vital piece of legislation. Principally, it is about the protection of the public health from infectious diseases and contamination. Current legislation dates back to 1889 and is no longer fit for purpose if we are to ensure the best level of health protection from current public health threats for the people of Scotland.

The key proposals underpinning the bill were developed and consulted on by the previous Administration, and I acknowledge its contribution. We have added to the proposals in one important respect. Part 8 of the bill contains a power for ministers to ensure that sunbed users are given accurate information about the risks of sunbed use. We have worked closely with Kenneth Macintosh on provisions to give further protection to sunbed users that he will bring forward at stage 2. I will say a little more about the issue in my closing remarks, but I leave it to Mr Macintosh to outline the proposals during the debate.

It is important to put the bill's key provisions into context. Infections cause more than a quarter of all illnesses in the world and a fifth of all deaths. They still account for more than 10 per cent of deaths in the United Kingdom. In 2007, the World Health Organization said that new infections or diseases are emerging at an historically unprecedented rate. Old threats, such as tuberculosis, are re-emerging, and many strains are now multidrug resistant. In addition, the world faces greater than ever risks from chemical, biological or radiological contamination, whether caused by accident or by criminal action. The fairly recent incident of anthrax in the Borders is evidence of the fact that Scotland is not immune from those threats. Globalisation of travel and trade mean that, potentially, diseases that were formerly restricted to far-flung corners of the world could reach us in a matter of hours.

Legislation needs to be proportionate to the risks that are posed. In the vast majority of cases, people who are infected or contaminated take voluntary measures to reduce the risk to other individuals. However, it has long been recognised that legislation is necessary for the circumstances in which they do not do so, or those in which public authorities need to step in to apply protective measures for the community at large. The few who do not accept advice or do not take voluntary action have the potential to undermine measures to limit the spread of a serious and potentially catastrophic epidemic. Civil contingencies legislation is in place and could be used in more serious public health situations, but the emergency powers for which that legislation provides are wide ranging, powerful and designed for use only in extreme circumstances. The bill will bridge the gap between voluntary compliance with public health measures and the use of more extreme emergency legislation. We recognise that a balance needs to be struck between our duty to protect the public and the rights of the individual. We believe that that balance is achieved in the bill, which is fully compliant with the European convention on human rights.

The bill is large and complex. I will not touch on all the proposals that it contains, but I will say a little about what I consider to be its key provisions. I will address issues raised by other members in my closing remarks.

The bill clarifies the roles and responsibilities of Scottish ministers, health boards and local authorities for public health purposes. That will require a limited transfer of responsibility from local authorities to health boards in relation to action against individuals who pose a public health risk and do not accept advice or take measures voluntarily. The changes are about ensuring accountability for actions taken.

The bill will in no way reduce the good partnership working on health protection that already takes place between health boards and local authorities, which I acknowledge. In fact, that partnership working will be further enhanced by a specific duty of co-operation between health boards, local authorities and other relevant interests, as set out in part 1.

There is also a requirement for health boards and local authorities to designate "competent persons" to undertake the functions that are assigned to them under the bill. It is extremely important that we ensure that those charged with responsibilities that might entail some restriction of an individual's liberty or an action that affects a person's property have the professional expertise to do so and the full confidence of the public. We also need to ensure that we fully utilise the skills of public health professionals, whatever their background, provided that they can demonstrate that they have the necessary skills and expertise.

There has been broad support for the concept of competent persons although, naturally, there has also been a great deal of debate among health professionals on what the qualifications and skills of competent persons might be. The proposed qualifications, which have been drawn up by an expert working group, will be contained in regulations that we will issue shortly for consultation. I have informed the Health and Sport Committee of the proposed qualifications, so they are in the public domain. Before it reaches a final decision, the Government will continue to listen carefully to the views of all stakeholders on the issue.

Part 2 of the bill updates our current arrangements for the notification of diseases and health risk states by registered medical practitioners and the notification of organisms by laboratories. Those arrangements are the first line of defence in protecting public health and will enable health boards to identify the risk, assess it, and, when necessary, provide a response to potential public health incidents and outbreaks at the earliest possible opportunity. Although it is supportive of the principles of notification, the Health and Sport Committee has asked us to look again at a number of issues of detail. Those are currently under consideration and, if necessary, we will lodge amendments at stage 2.

We are mindful of the requirements of the Data Protection Act 1998 and the advice of the Scottish Information Commissioner's office on the use of personal information. We are satisfied that the requirements for notification purposes in part 2 and information sharing more generally to investigate a public health incident under the bill are in line with our statutory obligations.

Part 3 of the bill sets out the powers of those investigating public health incidents. Part 5 outlines the powers and functions of local authorities to prevent the spread of infectious disease or contamination in respect of premises. All those powers are designed to deal with gaps in current hazard or workplace-specific legislation.

The majority of public health incidents are—and will continue to be—investigated without the need for recourse to statutory powers. Individuals are usually only too willing to help find the source of infection or contamination and prevent its spread. When required, food safety or health and safety at work legislation, for example, can be used. However, such legislation is not relevant to all public health incidents. We have, therefore, listened to our public health and environmental health colleagues, who advise that the powers in the bill will provide a useful backstop to ensure the protection of public health in a number of scenarios.

The committee was concerned that there should be greater clarity in the relationship between the provisions on the appointment of public health investigators and those on the designation of health board and local authority competent persons. I will reflect further on the issue before stage 2. We also recognise the committee's concerns on the court procedures that will be used under these provisions and under other parts of the bill. We intend at stage 2 to lodge amendments—to which the Law Society of Scotland has agreed in principle—to address the committee's concerns.

Part 4 sets out the powers and functions that are available to health boards. It is fully acknowledged that these are strong powers, but they can be used only in strictly defined circumstances, when the person concerned poses a significant risk to public health.

There is concern about what constitutes

"a significant risk to public health", but it is important that we retain an element of flexibility to deal with new and emerging public health conditions. To be more prescriptive would jeopardise our ability to identify and respond to new illnesses and conditions where the causative agent is not known. For example, in the early stages of the severe acute respiratory syndrome—SARS—epidemic a few years ago, we had a totally new disease that could not be identified, but which required urgent public health action.

The World Health Organization recognises the need for action in such circumstances. New international health regulations that seek to prevent and protect against the international spread of disease have moved away from actions that are required for specific diseases to those that are concerned with disease in the more general sense, including infection and contamination. I refer to diseases that present, or could present, significant harm to humans.

It is also important to note that the majority of the powers under part 4 already exist and have not been abused. The bill updates and enhances existing powers, taking into account the establishment of the national health service and modern-day public health threats. However, I recognise the concerns of the Health and Sport Committee in a number of areas, and I will reflect on them before stage 2.

The Public Health etc (Scotland) Bill is essential to the current and future protection of the people of Scotland from infectious disease and contamination. The provisions are common in legislation throughout Europe and other countries worldwide. I am pleased that the Health and Sport Committee, after a comprehensive scrutiny of the bill's provisions, has recommended to the Parliament that the general principles of the bill be agreed to. I have also considered carefully the views of the committee on a number of issues of detail, and I will respond to them as positively as I can, consistent with the fundamental principles of the bill. On that basis, I hope that the measures that are contained in the bill can move to the next stage of consideration with broad support.

I move,

That the Parliament agrees to the general principles of the Public Health etc (Scotland) Bill.

Photo of Trish Godman Trish Godman Labour

I call Christine Grahame to speak on behalf of the Health and Sport Committee. You have nine minutes, Mrs Grahame.

Photo of Christine Grahame Christine Grahame Scottish National Party 3:31 pm, 17th April 2008

I indeed speak with my convener's hat on. I know that I have nine minutes in which to speak in this worthy—but perhaps not the most exciting—debate. I promise not to speak for those nine minutes just because I have been given them. We can tell that the subject is worthy because of the level of press interest.

I thank the Minister for Transport, Infrastructure and Climate Change for taking up a bit of this afternoon's time with his earlier statement, which has made things a lot easier for some of us. I thank the witnesses, who were focused and helpful in uncovering quite a few holes in the bill as introduced, and colleagues on the committee, who are—listen carefully—a pleasure to work with, so far.

Our scrutiny of the bill was truly a collective effort, with expertise coming not only from witnesses, but sometimes from committee members—they know who they are—who gave us evidence while sitting beside us. We always know when the medical comments that are made by our witnesses are endorsed, thanks to those members and their joint nodding of heads and smiles. Not least, I thank our clerks.

While I am in thanking mode, I also thank the minister for her helpful and detailed letter to the committee of 14 April, in which she responded to many of our concerns. I will touch on only a few of them—that will give other committee members something to talk about.

As the minister said, the bill restates and updates the law on public health protection. It was drafted with the help of extensive consultation and participatory events that were held by the previous Executive. The result is truly a joint parliamentary effort.

The minister made passing reference to some strange statutes that I did not know existed, despite my legal background, such as the Infectious Disease (Notification) Act 1889 and the Public Health (Scotland) Act 1897. Shall we be sorry to see them go? I did not know that we were still operating under the rules in that legislation. I also note the revocation of, for example, the Public Health (Aircraft) (Scotland) Regulations 1971 and the comparable regulations for ships. We live and learn.

We are seeing those pieces of legislation go not because some things are old and therefore worthless—I am living proof of that—but because lifestyles have changed over the decades at an ever accelerating pace, particularly in relation to people's mobility, be they at war, work or play. That mobility has brought with it a substantial increase in our collective exposure to disease, contamination and, notably, mutating viruses. Perhaps I should leave that area to the medical men on the committee. As we were told, a simple epidemic of measles could have serious implications for resources and health. We cannot move fast enough to identify and contain serious health threats. However, the legislative and operational tools are simply not in place at present to do so.

Let me give as an example the anthrax case in the Scottish Borders, to which the minister referred and which claimed the life of Pascal Norris and is now the subject of a fatal accident inquiry. That case exposed great flaws in the legislation that we have to hand. The authorities quarantined Mr Norris's house—a relatively isolated cottage in a hamlet—but the identification of anthrax in the case took about six weeks. Officers wearing the full panoply of protective clothing were quite a daunting sight on a sunny, leafy summer's afternoon in the Borders—it was like something out of "Doctor Who". The press were there, with all their cables, as were the barricades, the police and so on. However, they were in the wrong place, because it was not at his house but at Smailholm hall that the unfortunate Mr Norris contracted anthrax.

In the intervening weeks, rumours were rife that Mr Norris had inhaled the spores from skins that he had imported to make his own drums, that the stream at the bottom of his garden was poisoned and that a badger skin was the source. None of that was true. He had gone to drumming lessons at Smailholm hall with a group of other people. While drumming on drums that had been imported from Africa and which were made from wild goat skins—which are used because of the timbre of the sound that they produce—he inhaled the anthrax spores that the skins carried, and because he had leukaemia, he was particularly vulnerable. For six weeks, there were rumours and the wrong place was isolated.

Not only was the wrong place isolated; the authorities—we will come to who was in charge—could isolate only one place, so they chose the house. They had to obtain a voluntary agreement for the isolation of the hall. That position will change under the bill. During stage 1, Dr Richard Simpson highlighted the fact that it might be important to isolate places where people work.

If and when such incidents occur, a clear command route must be established. Ross Finnie, who has a firmer grasp of the issue that I do—it gave me headaches—might comment on the distinction between a designated person and a competent person, on which I began to get lost. It is clear from the incident in the Borders that we must have clear lines of command.

I have dealt with premises, but there are other issues. The bill engages in a balancing act involving the protection of the public and the rights of the individual. The minister is aware of our concerns, and they are not just about a potential breach of the ECHR, which enshrines the rights to family life, to enjoyment of one's property and to a fair hearing.

Another issue that we raised concerned medical examination without consent. I do not agree with the argument that there is no point in going to court to appeal against a medical examination that has already taken place. Such legal action would reveal the standards that were applied. There is a want of consistency in the procedures that are outlined in the bill. In some cases, people will have to go to court but, in others, they will not. In some cases, they will have a right of appeal but, in others, they will not. That issue must be examined.

I return to the anthrax case in the Borders. The disease was eventually identified by the Government's laboratory at Porton Down in Wiltshire, which, as we all know, does not lie within the Scottish Parliament's jurisdiction. That is why I raised the issue with the Minister for Public Health during her evidence to the committee and why it is dealt with in paragraph 60 of the committee's report. How could a 10-day period for the notification of a disease by a laboratory outwith Scotland be enforced? We cannot enforce measures the scope of which goes beyond our own jurisdiction unless we have an agreement with the relevant legislature. Some tests might be carried out in laboratories that are well beyond the United Kingdom's shores. The issue must be addressed.

I will leave sunbeds for Kenny Macintosh to talk about, but not because I do not think that they are an important issue—in fact, the committee might have to take evidence on sunbeds at stage 2, because the present provision is merely a marker; the detail has not yet been provided.

Some of the existing processes must be changed, but I repeat to the minister that when changes are made, a balance must be carefully and transparently struck between the protection of society and the rights of the individual. Whenever possible, the opportunity must be provided for an individual whose property is to be isolated or whose liberty is to be curtailed or denied in its entirety to be represented and to have their case heard. I thank the minister, because I think that she is addressing that issue. I look forward to the lodging of constructive amendments at stage 2 that reflect the concerns that the committee has so ably identified.

We learn something new every day—and not just about old legislation. I refer to part 9, "Statutory nuisances"—which, I hasten to add, does not cover politicians. Section 91(3) advises that a specified subsection of the Environmental Protection Act 1990

"does not apply to insects that are wild animals".

It is important for the minister and the Parliament to know that, notwithstanding any view to the contrary that we might have, the Scottish midge is a wild animal. It is therefore not a statutory nuisance under the terms of the bill. I am sure that all the midges in Scotland are pleased to hear that.

Photo of Trish Godman Trish Godman Labour

I call Dr Richard Simpson—[ Interruption. ] I am sorry; I call Margaret Curran. I was just testing.

Photo of Margaret Curran Margaret Curran Labour 3:40 pm, 17th April 2008

I apologise for that hiccup, Presiding Officer.

I welcome the debate. I am sure that all members agree that we need new legislation on public health. As has been said, the bill was prepared under the previous Administration. As Christine Grahame said, some public health legislation dates back to 1897, and the face of public health has changed substantially since then. As the minister said, we face the task of combating new infectious diseases, such as SARS and avian flu. We need to take seriously our responsibility to protect the health of Scotland's people and it is imperative that the bill accomplishes that successfully.

We all appreciate the great need for the bill, but it has some problems, on which I will focus and which the Health and Sport Committee's report outlined. I note that the minister is willing to engage on and address those problems. I am not a member of the committee, to which I pay tribute for its work. I know Richard Simpson's work well and I know of his commitment to and detailed work on the bill, but all committee members have done a thorough job of scrutinising the bill.

The main issue, which the Law Society of Scotland raised, is that the court procedures to which the bill refers are not competent. The committee noted its surprise that the bill had been introduced without referring to competent court procedures and I am sure that many of us share that surprise. I have experience of the pressure that legislative teams in the civil service are sometimes under, but they are not overpressed with legislation now, so I hope that the provisions can be sorted out. I understand that the minister will address the issue at stage 2 and I hope that she will commit to liaison with the Law Society.

I will touch on several other issues that have been highlighted. The committee said that it was

"not satisfied with the Minister for Public Health's position that there would be no practical purpose in appealing a sheriff's decision to authorise the medical examination of a person other than to enable the individual to obtain compensation".

That concern is valid. As I am sure many members will say, we need to preserve the person's right to appeal when they feel that the decision to examine them was unjustified. I clarify that I am not saying that they should be able to appeal a medical examination before it has happened, as that would not be in the interest of public health. However, allowing them to appeal a sheriff's decision after an examination had occurred would achieve a more proper balance between the rights of the individual and the protection of public health.

People need to be told what is going on with their treatment, although I understand that informing them can be difficult in some circumstances, such as when quick access is needed to a translator or when they must be treated immediately to protect public health. However, they must be informed about their treatment as soon as possible, even if that happens after they have been treated. The minister has said that she is willing to engage to address those issues.

I agree with the committee's concern about the bill's use of the term "clinically significant pathogen". That could be seriously problematic, as it could damage the current confidentiality system for individuals who have sexually transmitted diseases. I hope that the minister will seriously consider the implications of that, which might be unintended. Richard Simpson will address those points.

We should have a tighter definition of "health risk states"—I note what the minister has said about that. The British Medical Association Scotland has said that the definition is

"so vague as to be unusable."—[Official Report, Health and Sport Committee, 16 January 2008; c 449.]

A broad definition could benefit public health, but it could also be so broad that it ended up meaning nothing. I am not suggesting for one minute that the minister would abuse her power, but we must not leave the provision open to any possible ministerial abuse of power. If the scope of the minister's authority to manage public health were too wide, the consequences could be significant. I take her point that flexibility is needed, given the unexpected and unknown illnesses that we might face in the future, but we must strike a more proper balance.

Unlike the other speakers so far, I want to address the important issue of sunbeds, which has currency among the population of Scotland, given the health risks that sunbeds pose. It is an issue for the whole of Scotland. I have heard interesting evidence from my constituency that gives me cause for concern. Ken Macintosh has raised an important issue, which the Parliament now has an opportunity to address.

In my fleeting glimpse of the television this morning, I think I saw a headline that said that Denise Van Outen is concerned about sunbeds, because her use of them has scarred her skin. I hope that I have got that right; perhaps someone who followed the story in more detail can reassure me about that. However, I welcome the fact that women such as Denise Van Outen are beginning to flag up the real health risks of using sunbeds. We really need to create a culture change around that.

In my constituency, I witness young women in particular putting themselves at risk of melanoma and serious skin problems later in life. We have to ask questions about why we use sunbeds and about how we view beauty and assess looks in our culture.

We have seen the number of skin cancer cases increase by almost 300 per cent in the past 20 years. That is a staggering figure, with which we must come to terms. Many of the sunbed facilities that my constituents use—I am sure that the situation is similar throughout Scotland—are unregulated and possibly unsafe. There are 810 sunbed salons in Scotland, and I understand that 44 of them are unsupervised—that is too many. Ken Macintosh has done the Parliament a service by asking us to think through the implications of such lack of supervision. I know that he wants us to discuss that further. I understand from Christine Grahame and others that the Health and Sport Committee wants to test the arguments about unsupervised sunbed facilities at stage 2.

Ken Macintosh has outlined arguments for banning the use of sunbeds by under-18s; outlawing stand-alone or unstaffed, coin-operated facilities; and requiring operators to provide advice on the risks of using sunbeds. The Parliament must test those strong arguments.

Photo of Christine Grahame Christine Grahame Scottish National Party

I am sure that Margaret Curran is aware that the committee can decide to take evidence on that at stage 2 once we have seen the relevant amendments; there is nothing to prohibit that.

Photo of Margaret Curran Margaret Curran Labour

I encourage the committee to do that, given that sunbed use is an important dimension of the debate. I will be interested to see the outcome of that.

I hope that the minister can reassure us about the work that will be undertaken at stage 2 to address some of the significant detail of the proposals. We know that a number of amendments are required and that evidence will be further tested at stage 2. There are significant matters to address and I hope that we can work together constructively to provide effective legislation.

Photo of Mary Scanlon Mary Scanlon Conservative 3:48 pm, 17th April 2008

The Conservatives welcome and support the bill, which reviews and updates legislation on public health after 109 years. Given that some of the existing approaches were in place before the inception of the NHS, there is no doubt that the bill before us is necessary. As others have said, it is essential to prepare our response to potential threats, whether from SARS or pandemic flu.

The bill has not been controversial in its passage through the committee to date. It has even been surprisingly interesting at times. It has certainly been more interesting that I anticipated at first glance, although it has not exactly been exciting.

The minister addressed many of the issues raised in the committee's stage 1 report and I acknowledge the commitments that she has made.

I am pleased that the Government has reflected on the competent person issue and will lodge amendments on that at stage 2. I am sure that Ross Finnie will also be pleased about that. He is our expert on the competent person issue, given that he is a very competent person himself.

I also welcome the fact that stakeholder consultation prior to guidance being issued will be addressed more thoroughly. There is no doubt that we have to learn from experience. The guidance on free personal care contradicted the act that introduced it, specifically in relation to food preparation. That led to significant confusion in implementation, so I am pleased that the need for consultation prior to guidance has been recognised and addressed.

As Margaret Curran said, the Law Society—and, indeed, our legally minded convener—gave excellent evidence on the legal issues in the bill. Given that the Law Society states that

"references to summary application are incorrect", appeals provisions are "problematic" and that provisions in the bill do not accurately reflect current Scottish civil procedure, it is obvious that serious amendments are required at stage 2. It is incredible that this bill raised such significant concerns from the Law Society.

I have welcomed the evidence that was given by our convener, so it is only right to acknowledge the evidence that was given by the two doctors on our committee, which was also helpful.

I welcome the provisions dealing with the notification of diseases to funeral directors, which are long overdue. It is only right that we extend to those who are responsible for the removal and disposal of bodies a duty of care and information on risks to public health. However, the Government should reconsider the withdrawal of the fee to GPs for the notification of diseases. The bill increases the requirements for GP notification and extends the list of diseases quite exceptionally. In those circumstances, I would have thought that it was more appropriate to, at the very least, maintain the current GP fee.

Photo of Shona Robison Shona Robison Scottish National Party

Would Mary Scanlon acknowledge that, at the moment, 80 per cent of the current payments relate to the notification of chickenpox and food poisoning, which are no longer notifiable? That means that there will be a lighter workload, rather than a heavier one, which is why we feel that our position on the fee is appropriate.

Photo of Mary Scanlon Mary Scanlon Conservative

The GPs and the BMA do not think that it is appropriate. That is something that we will discuss further at stage 2.

I am not sure about the balance between the protection of public health and the need to uphold the rights of the individual. My instinct is that, if a person is a threat to public health, his or her rights and liberties should be secondary to the greater good of the greater number. In that respect, I disagree with the BMA, but I will certainly give further thought to the matter. That is one of the major issues for discussion at stage 2.

Photo of Christine Grahame Christine Grahame Scottish National Party

It is fine to start from the point that, if someone poses a substantial threat to public health, their rights might be taken away, to some extent. However, the problem lies in establishing that they pose such a threat—their rights must be protected during that process.

Photo of Mary Scanlon Mary Scanlon Conservative

That is why it is important to get the balance right. That point underlies the difficulty that faces us. However, if there is an established and known risk to public health, the rights of the individual should be secondary to the rights of the greater public.

I look forward to hearing more information about sunbeds, to developing an approach to the issue and to working with Kenneth Macintosh.

As is our usual way, the Scottish Conservatives will thoroughly scrutinise the bill and will work constructively to ensure that it is right and appropriate for people in Scotland and that it addresses the threats to public health that we might face in future.

Photo of Ross Finnie Ross Finnie Liberal Democrat 3:54 pm, 17th April 2008

The Liberal Democrats welcome the bill and all that it tries to do to modernise public health legislation in Scotland. As the minister said, it is essential legislation. Many have made the point that the bill repeals legislation going back to 1889. However, I point out that no legislation later than 1945—save for the AIDS (Control) Act 1987—will be repealed. One does not want to take these things too far—one wants, obviously, to retain an element of mature legislation on which to build.

This is a serious bill, and the general principles on which we are voting today provide much greater clarity than we have at present. In particular, the vast range of sections that deal with the public health functions of health boards and the public health boards of local authorities are to be welcomed, as are the sections on notifiable diseases, competent persons and embracing modern developments in terms of international health provisions. However, I have been in this place for nine years now and I cannot recall another bill that, to echo Mary Scanlon's remarks, is in so many ways not well drafted. It is disappointing that this bill is a sad exception. Quite a number of provisions, as Mary Scanlon mentioned, are simply not competent. There are strange and curious things. For example, from section 1 onwards terms are defined to be used throughout the bill, yet in section 104 we find an interpretation section. That is just sloppy draftsmanship.

The question that Mary Scanlon raises on the deficiencies of the bill in terms of Scots law is serious. We do not wish either to lose sight of that or to overdo it, but when a bill is introduced that is not compliant with Scots law in four places—sections 27, 59, 73 and 79—and we find that those sections are flawed with regard to a person's access to appeal, then, regrettably, the minister cannot claim without hesitation that that bill is ECHR compliant. I do not wish to get into an argument with the minister because she has been very open about trying to deal with the matter. We did not know that that was the case until those matters were exposed, but if there are issues over a person not having proper access to an appeals procedure, there is a prima facie case for saying that the bill as introduced is not ECHR compliant. I am aware that the minister is taking measures to deal with the problem, but with regard to parliamentary procedure it is an extraordinarily serious matter. I am grateful, as we all are, that the minister is joining with the Law Society to remedy those fundamental matters.

There remain one or two issues to do with appeal, particularly that to which Mary Scanlon referred, which was raised by the convener of the Health and Sport Committee, concerning section 33 and the question of no right of appeal in relation to compulsory orders for medical examination. I know that the cabinet secretary is giving that full consideration and I hope that we do not regard the possible impediment of such a right stopping the examination as a reason for not having access to an appeal. The question very much concerns a post-event appeal.

I do not entirely agree with the way in which the point was put, although I may have misheard, but it is not a matter of saying that a person's human rights are extinguished simply because they might be posing a public health risk. The essential purpose of the legislation is to ensure that, in situations in which a person poses a public risk, their rights are protected in a reasonable and balanced way. That is what the legislation seeks to do and one does not subjugate someone's human rights simply because one does that. One is recognising the risk and putting it into a proper concept.

The exemption from the duty to provide an explanation is a continuing concern. If the medical professions believe—Dr Richard Simpson might agree, although he did not mention it today—that it is not in their best professional interest to adopt that position, we must consider that very carefully.

It is all very well to say that the existing fees were for chickenpox and that that is not applicable now, but that is being changed by a different extension.

Minister, you responded to the committee's points about exclusion orders at section 37 by saying that that you cite and quote health professionals. I respectfully ask you to read the committee's report, which reflects the views of a health legal professional who raised with us concerns about how that section is currently drafted. I hope that when you reflect on that, you will not simply cite health professionals in your defence, because that is not the point.

I share the view that the potential legislation on sunbeds is most welcome, with regard to skin cancer, and look forward to the more detailed provisions. We must focus not on having a regime in which we would necessarily interfere with individual liberties, but on seeking to protect the rights of individuals in relation to the damage to which they may be exposed.

The Liberal Democrats support the bill, but much still has to be considered. Fortunately, the minister promised substantive amendments, which we look forward to considering in detail.

Photo of Alasdair Morgan Alasdair Morgan Scottish National Party

I remind members that other members should be addressed through the chair, and not directly using the second person pronoun.

Photo of Ian McKee Ian McKee Scottish National Party 4:00 pm, 17th April 2008

It is refreshing to be able to debate an important and exciting bill that, broadly, commands cross-party support.

As we have been told, the legislative framework that governs public health in Scotland is rather ramshackle. Some provisions are more than 100 years old. The bill will transform that framework and endow us with legislation that will be the envy of many countries.

Scotland has a proud record in public health medicine. The rapid increase in the size of Glasgow at the beginning of the industrial revolution brought health problems on a massive scale. One Victorian commentator said:

"In the very centre of the city there was an accumulated mass of squalid wretchedness unequalled in any other town in the British Dominions ... Dunghills lie in the vicinity of dwellings, and from the extremely defective sewerage, filth of every kind constantly accumulates."

Some may say—although I would not—"Plus ça change." The city was hit by typhus and typhoid, and 3,000 citizens died in a great cholera epidemic in 1832. After the further cholera epidemics of 1848 and 1853 and the introduction of compulsory notification of causes of death in 1855, Dr James Russell, who was one of Glasgow's medical officers, persuaded an initially reluctant city council to invest in a clean water supply from Loch Katrine. In the next 25 years, 50 miles of sewers were laid, and medical officers of health forced a reluctant population to remove the middens and dunghills and submit to vaccinations.

Other cities went through a similar transformation. In Dundee, the rapid expansion of the jute industry in the middle of the 19th century led to a population explosion that was not matched by provision of the appropriate facilities. In 1850, it was recorded that there were only five water closets in the entire city, three of which were in hotels. Again, sanitary departments and medical officers of health led the way in improving conditions for the populace. In Edinburgh, the collapse of an overcrowded tenement in the High Street led to the appointment of Sir Henry Littlejohn as the first medical officer of health in Scotland. He was only the third such officer in the United Kingdom. Sir Henry persuaded the council to obtain an act of Parliament that required the compulsory notification of infectious diseases. That was the first such law in Britain. It led to a national measure.

Tuberculosis—that scourge of the 19th century and the first part of the 20th century—was tackled in Edinburgh by Sir Robert Philip, who founded the Victoria dispensary for consumption in 1887, only five years after the infective origin of that disease was discovered. Sir Robert pioneered education, better housing, the safe disposal of sputum specimens and contact tracing of people who had been infected by the disease. Those methods were eventually copied around the world. Indeed, Sir Robert became the first professor of tuberculosis in the world; he relinquished the post only on his death in 1938.

Photo of Tricia Marwick Tricia Marwick Scottish National Party

Will the member also pay tribute to Professor Sir John Crofton's work on TB and other diseases?

Photo of Ian McKee Ian McKee Scottish National Party

Indeed. Edinburgh's proud record in the field continued under his inspired leadership. He is still alive and well today. I remember the huge chest X-ray campaign that took place in 1957, when I was a schoolboy. An astonishing 84 per cent of Edinburgh's adult population was X-rayed—many in tents that had been erected in Princes Street gardens. Some 423 people who were identified as having active pulmonary TB were treated. Within a few years, Edinburgh had one of the lowest mortality and incidence rates for the disease in Europe. That change in circumstance was entirely due to the perseverance and wisdom of the pioneers whom I have mentioned and their colleagues, and it led to Crofton's methods being followed throughout Europe and North America.

However, circumstances change. Who, in the 19th century, would have forecast the health hazards of today? Cholera came to Glasgow in 1832, carried by sailors from all parts of the world. Today, people fly from Scotland to destinations all over the world and risk returning with more souvenirs than an album of holiday snaps or a bottle of duty free. SARS is highly infectious and deadly, yet it was not even known to exist 10 years ago. In addition, diagnosis of many so-called exotic diseases is handicapped by the fact that most GPs will never have previously seen anyone with those particular symptoms and delay in treatment may occur. The early pioneers of public health medicine would not have been able to conceive of hazards such as radioactive substances, let alone the danger to health of exposure to sunbeds.

What we have here, subject to some tweaks that the minister has promised us as the bill passes through its various stages, is a modern legislative framework to deal speedily and efficiently with all the health hazards that the 21st century can throw at us. The mechanism is here for the early detection of infectious diseases via practitioner and laboratory notification; for a speedy, efficient and co-ordinated response by health and local authority officials; and for maintaining a careful balance between the rights of the individual and the wider rights of the society to which he or she belongs. Scotland is again at the forefront of public health legislation and I commend the bill to the chamber.

Photo of Kenneth Macintosh Kenneth Macintosh Labour 4:06 pm, 17th April 2008

I will restrict my remarks to the section of the bill that deals with sunbeds. Colleagues may be aware of the story that came out last week, when Parliament was in recess, about a 13-year-old boy from Wales who went into a sunbed salon in his home town. There was no one there, so he put his coins in a machine and had three sessions—one of nine minutes and two subsequent ones of six minutes each. That is more than 20 minutes in one go. Members will not be surprised to hear that he ended up in hospital with infected burns. I am sure that that young man has the sympathy of everyone here. He wanted to look good, but he ended up with scarring, which is a harsh lesson for anyone to learn. It is not the first time that has happened: there have been similar cases in Scotland and there have been cases of a similarly serious nature involving unstaffed salons. Those cases alone should give us a timely reminder of the need to outlaw unsupervised coin-operated machines.

Disturbing and worrying though such instances are, they are still the extreme cases. Far more worrying is the long-term damage that sunbed users—young sunbed users in particular—are doing to their bodies. Year after year, the number of people with skin cancer in Scotland is going up and up. The incidence of skin cancer has trebled in little more than 20 years. Why? Quite simply, because of our obsession with tanning. We are paying a terrible price for foreign holidays and what too many of us still regard as looking good—a healthy tan, which can be a contradiction in terms.

It depresses me that, despite all the advances that we have made in recent years—winning the battle against so many cancers through screening and even vaccination programmes—the figures for skin cancer are going in the opposite direction. Skin cancer is more treatable than other cancers because it is more accessible, but no one should be fooled into thinking that it is any less devastating. It is painful, disfiguring and, ultimately, fatal.

However, as I discovered through the cross-party group on cancer, it is also a cancer that we can do so much more to prevent. One step that we could take in that direction would be regulation of sunbed salons. That suggestion originally came from the cross-party group on cancer. Although it has taken far too long to get here, Parliament now has the opportunity to take action to reduce the toll of this terrible disease.

Essentially, I propose three measures that I wish to move as amendments at stage 2 of the bill. First, we need to outlaw unstaffed or unsupervised premises. Secondly, we need to set a minimum age of 18 for the use of commercial premises. Thirdly, we must ensure that all sunbed users are provided with information on the dangers of tanning to their health.

Sunbed salons are not the sole reason for the rise in the incidence of skin cancer, but they play a part. It was the explosion in the number of salons over recent years that prompted me to introduce what was initially a member's bill on the subject. Tanning salons are found on too many shopping parades, but it is even more worrying that they are targeted at poorer communities. Sunbeds attract many users but appeal specifically to the aspirations of those who cannot go abroad. The net effect is that they widen the health inequality between rich and poor.

Some local authorities have shown us what can be done. The eight authorities that have introduced licensing schemes should be applauded for their efforts, but we need one clear and unambiguous national health message: tanning is dangerous and using tanning salons and sunbeds can kill. Is that the message that people hear? Do young people in particular hear that message as they become aware of their bodies and their looks and as they watch television or read magazines in this celebrity-obsessed world?

Most of my proposals will apply to people of all ages, but one proposal will set a minimum age of 18. When young people walk down the high street, they see that they may not buy alcohol or cigarettes until they are 18. That might cause frustrations, but no one misses out on the clear message that smoking and drinking are bad for health. Why do we not treat high-street sunbed salons in the same way? I am not one to keep young people in cotton wool—colleagues will know that I object to our increasingly risk-averse society—but we need to recognise that a balance must be struck. Children and young people, including 16 and 17-year-olds, need the protection of the law not because of the immaturity of their reasoning but because of the physical immaturity of their skin. Young skin is particularly vulnerable and is at high risk in the development of skin cancer. My proposals are not about banning sunbeds altogether. They are about allowing us, as adults, to make an informed choice by giving people of all ages the information that they need.

As members will be aware, I originally proposed a local government licensing scheme. I am grateful for the support that my proposal received from members of all parties, but I am particularly grateful for the Government's support for including the measures in the Public Health etc (Scotland) Bill. I have written here that this is a "gritted teeth moment", but that is unfair because the support has been genuine and is appreciated. Members of the Health and Sport Committee will be aware that I have compromised slightly in reaching an agreement with the Government. A licensing scheme would have advantages—specifically, by providing a robust and regular inspection regime that would allow local authorities to close down salons—but that was not on offer. However, I believe that it is more important, if not essential, that we have the full force of Government and of the public health system behind the measures.

I always felt slightly uncomfortable that the proposal would be introduced in a member's bill. This is a major public health issue that should enjoy the full support of the public health system. On that note—

Photo of Alasdair Morgan Alasdair Morgan Scottish National Party

On that note, the member should conclude.

Photo of Kenneth Macintosh Kenneth Macintosh Labour

We led the way in tackling lung cancer; let us make a start on tackling skin cancer.

Photo of Michael Matheson Michael Matheson Scottish National Party 4:12 pm, 17th April 2008

As the minister outlined in her opening comments, it is important that Scotland has modern public health legislation that allows us more effectively to respond to potential public health challenges. For that reason, I welcome the bill, which has been supported by members of all parties so far in today's debate, and which I am sure will carry Parliament's support at 5 o'clock this evening.

Before going any further, I want to acknowledge the considerable amount of hard work that was put in to enable the committee to draw together its stage 1 report. On that note, I offer particular thanks for the hard work of the committee's clerks, who had to deal with the sometimes incoherent ramblings of committee members as they tried to get a clear idea of what members intended to say in the report. I will not name those whose ramblings were incoherent.

I also take this opportunity to thank the minister for her detailed response to the committee's recommendations. In the past almost nine years, it has not always been the practice for ministers to respond in such detail to committee recommendations prior to the stage 1 debate. That has not always been helpful. In my experience, committees have usually been in the dark on exactly what the Executive intends to do at stage 2. I thank the minister for the helpful way in which she has informed today's debate by giving us a clear idea of where the Government intends to go. I hope that that practice will continue.

I am conscious that one problem for anyone who makes a speech later in a stage 1 debate is that few new factors can be raised that have not already been mentioned. However, some of the issues are so important that I intend to repeat points that have been made by other members. I will reiterate those points for any members who missed them when they were originally made.

The minister will be aware that section 7 of the bill will place on health boards a duty to prepare joint public health protection plans in consultation with the relevant local authority or authorities in their area. The Society of Chief Officers of Environmental Health in Scotland expressed concerns about the way in which plans will be drawn up under that provision. I note that concern was also expressed by the Scottish directors of public health group and the Faculty of Public Health. It is important to note that a key element of successful implementation of the provisions will be the relationship between local authorities and individual health boards. The minister stated that that should not be addressed in the bill. If it is to be addressed in guidance, it is important that that be done explicitly to ensure that there is an effective joint approach between health boards and local authorities.

Several members mentioned public health investigation warrants and the proposed summary application procedures. I raised the issue when the minister and her officials gave evidence to the committee at stage 1. As other members have said, the proposed summary application process is, in effect, alien to the Scottish justice system. The Law Society of Scotland put it as diplomatically as it could when it stated that the provisions

"do not always accurately reflect current Scottish civil procedures".

As Ross Finnie said, the process has no place within Scottish law. That is not the minister's responsibility, in that it is not her fault, but when I raised the matter at stage 1 her officials were unfortunately unable to explain how we had got to the stage of having in a bill a proposal that does not fit within Scottish law. Was it because of a mistake in the drafting instructions that were sent to the draftsmen, or did the draftsmen misinterpret the instructions? We need clarification of how that fundamental mistake was allowed to occur in the first place so that we can ensure that it is not repeated. I note, however, that staff are under a lot of pressure in drafting legislation.

I do not concur with Ross Finnie's view on the bill's ECHR compliance, which he questioned. The ECHR does not state that there must be an element of appeal in every section within a bill that contains a legal provision. He should also be aware that the bill's ECHR compliance is a matter for the Presiding Officer to consider and certify. I do not think that we should question the bill's compatibility with the ECHR; instead, we should ensure that we have the best possible process.

I will support the amendments that Ken Macintosh intends to lodge at stage 2. We need to consider further the enforcement of any regulations that are introduced to deal with sunbed parlours. Unfortunately, we cannot regulate the sun in Scotland, but we should regulate sunbed parlours because of the increasing problem of skin cancer. We need to consider enforcement, and ensure that any new regulations are implemented effectively.

Photo of James Kelly James Kelly Labour 4:18 pm, 17th April 2008

I support the general principles of the Public Health etc (Scotland) Bill. As other members have said, this might not be the most exciting debate, but there have been a number of interesting and informative speeches on this important issue.

We often talk about the big issues of tackling heart disease, lung disease and cancer and reducing health inequalities. The Government has various levers at its disposal to do that, including the £11 billion health budget, the setting of health priorities, and legislation. The bill will be crucial in underpinning all that work. As Ian McKee made clear in his historical perspective, if we do not get the administration of public health right, we will not be able to tackle some of those major issues. As a result, I welcome the bill as a step in the right direction.

Other members have stressed the importance of joint working. Generally, in politics, such co-operation leads to the establishment of better policy priorities and better service to the public. In that respect, joint protection plans are something that NHS boards and local authorities can very much work together on. I note the Health and Sport Committee's comments on the need for those bodies to collaborate rather than to consult, and I hope that that will be emphasised in stage 2 amendments.

The bill's proposed amendments to the Environment Protection Act 1990, particularly the various additions to the list of statutory nuisances that local authorities can act on, will be important in protecting communities. As members have pointed out, the nuisances include insects emanating from premises, artificial lighting and land that is covered with water. The introduction of fixed penalty notices should help to prevent the spread of such nuisances. Such environmental provisions tie in with Parliament's strong messages on protecting communities and individuals from antisocial behaviour, on abuse of the environment and so on. That kind of behaviour is simply unacceptable; indeed, the actions that are covered in the bill can pose health risks, so we must act strongly against the individuals and bodies that perpetrate such actions.

It is also appropriate that the bill includes provisions to investigate public health incidents, given that at the moment there is no legislation in that area. In setting out five circumstances in which an investigation might take place, the bill is clearly working in the public interest.

Members have already indicated that the bill's provisions on the summary application procedure for public health investigation warrants are not competent. Although I accept the minister's assurances that the issue will be dealt with at stage 2, I am disappointed that such a situation has occurred—after all, the Government's legislative programme is rather light at the moment.

Ken Macintosh has already dealt comprehensively with sunbeds. I pay tribute to him not only for his speech but for his work in raising the issue in a number of forums, and his success in getting his proposals incorporated in the bill. As he said, the incidence of skin cancer—especially among young people—from sunbed use is a matter of great concern, so proposals to ban under-18s from using sunbeds and to ban coin-operated sunbeds, and to provide more information for users will be helpful. Mr Macintosh pointed out that eight local authorities have introduced sunbed licensing. Such moves have certainly been effective, especially in preventing sunbed premises from being used in other inappropriate ways.

The bill is useful and will make progress in a number of areas in public health. The Health and Sport Committee asked for clarification on some matters, so I hope that the minister will take its comments on board. I look forward to the bill's development at stage 2.

Photo of Rhoda Grant Rhoda Grant Labour 4:25 pm, 17th April 2008

It is clear that the general principles of the bill have been accepted and supported by the Health and Sport Committee and consultees. Much of what is in the bill occurs in practice, but there was a need to put practice on a clear statutory footing by bringing together and updating existing legislation to meet modern challenges.

However, there are several issues of contention in the bill that need to be dealt with at stage 2, many of which are to do with the balance between the rights of individuals and the rights of the wider community. The public good must be paramount, but we must ensure that there are also sufficient safeguards to protect individuals whose liberty is at stake. That principle is acknowledged in human rights legislation.

I am not exaggerating when I say that at its most draconian the bill will allow a person to be quarantined without receiving a reasonable explanation for the action. There might be cases when that has to happen to protect the public, for example if someone who does not speak English is suspected of carrying a virus or disease whose spread would have major health implications. We need to ensure that there are robust safeguards to protect individuals in such situations, and we need to ensure that such people receive an explanation at the first possible opportunity. Let us be clear: being quarantined in such a way could be a terrifying ordeal. The minister said that the powers will be used only when co-operation is not forthcoming, but it is difficult for a person to co-operate when he or she has had no explanation for what is happening.

The bill will allow for health boards and local authorities to appoint a competent person to carry out their responsibilities. The definition of a health board's "competent person" is wide, and health boards that cover sparsely populated areas are concerned that, given the geographical challenges that they face, a tighter definition might mean that the competent person would be located some distance from the incident, which would delay action.

The competent person would have delegated powers to obtain an order to submit an individual to an intrusive medical examination without the necessity of an explanation—indeed, the person would have no right of appeal. The committee argued that an explanation should be given immediately and that there should be a right of appeal, even if the appeal had to take place after action had been taken, because a delay would have public health implications. Even if the appeal took place after the event, it would enable the individual to examine the decision that had been made on their case and to consider the decision making of the competent person. The competent person would be held to account and would not take lightly a decision to force examination if they knew that their decision would be open to scrutiny by the court. It is unthinkable that we should give an individual the power to force a person to have a medical examination without providing a means whereby the decision could be scrutinised.

As members have said, the court processes for which the bill provides must be legally competent. I understand that the Government is addressing the issue and am grateful for that. The processes must also be workable. Someone who has been quarantined and needs access to justice must be able to obtain legal advice and to access the court process in a way that does not carry additional risk to the public.

There is little information in part 8, on sunbeds, so committee scrutiny has been difficult. We will probably have to take additional evidence at stage 2, when we have more detail about how part 8 will be amended. The proposed approach appears to involve regulation without licensing. Some local authorities already operate licensing regimes, so for the bill to prevent them from doing so would represent a backwards step. We should explore the idea of a Scottish licensing scheme, under which the operation of sunbeds would be subject to the same regulation in all local authorities. Such an approach would not increase the workload for environmental health officers, who would have to police operators' compliance with regulations. Licensing would give EHOs greater powers to ensure compliance.

I pay tribute to Kenneth Macintosh's work in relation to sunbeds, which has made it possible for legislation to be proposed. He has taken a pragmatic decision to accept the Government's stance, but the Health and Sport Committee should consider whether we should go further and introduce a licensing scheme.

Other sections are of concern. For instance, the provisions on fixed penalties for those who create a nuisance need to be clarified and tightened, because they could be interpreted to mean that the payment of a fixed penalty discharges any liability to prosecution. That happens currently with fixed penalties and the bill suggests that the same will happen with fixed penalties for nuisance. How does that fit with prosecution for persistent nuisance? Given that the bill includes light nuisance, if someone had a faulty halogen light shining in their neighbour's window, would payment by the person of a fixed penalty mean that they need take no further action? Any confusion in the provisions would lead to less action to deal with nuisance, either by fixed penalty or prosecution.

The bill will give authorities powers to medically examine people, restrict their movements and place them in quarantine. Those powers are required to protect the greater good, but we must ensure that checks and balances are in place so that the powers are used properly. Misuse of the powers could have a devastating effect on an individual. The likelihood of its happening is slim, but one case would be one too many. I therefore urge the Government to take on board the Health and Sport Committee's views.

Photo of Jamie Stone Jamie Stone Liberal Democrat 4:31 pm, 17th April 2008

In her opening remarks, Shona Robison was kind enough to pay tribute to the work of the previous Administration. That generous intent is recognised. Setting the context for the bill, she reminded us that the World Health Organization has warned of the new diseases that are continually emerging and the old enemies that are re-emerging and are now resistant in a way that they were not in the past.

The minister was the first to mention the outbreak of anthrax in the Borders. Much of what she said struck a chord with me, particularly her comments on the co-ordination of all skilled health professionals. The Government's willingness to work with the Health and Sport Committee is important. The Parliament can be very good indeed when the Government and committees work together. The minister described the bill as essential, and she is entirely correct to do so.

Christine Grahame, who spoke as the convener of the Health and Sport Committee, was the first of two members—Ian McKee was the other—to add colour to the debate, which has been much more than interesting. One of the great beauties of making a summing-up speech is that one learns quite a lot as the debate goes on. Christine Grahame's description of the anthrax case in the Borders was extremely interesting and chilling for us all. Although her remarks about midges were light-hearted, they struck a chord with me, as I represent a Highland constituency.

Margaret Curran was the first member to go straight at the perceived problems in the bill, as did Ross Finnie. The fact that potential court proceedings would not be competent under Scots law is deeply worrying. In my limited experience, when the Law Society of Scotland makes the sort of comments that it has made, it must be listened to carefully. Margaret Curran touched on the issue of sunbeds, as did Kenny Macintosh.

Mary Scanlon reminded us that the bill tidies up legislation from the 19th century. She indicated the Conservatives' support for the bill, which I am sure is welcomed. I am sure that that sentiment is shared throughout the Parliament. I was intrigued by the idea of notification of disease to funeral directors—I had not thought about that previously, although I should have picked it up in the Subordinate Legislation Committee. That is a pertinent point that we could easily have missed. Mary Scanlon reminded us that we must revisit at stage 2 the notification of infections, the fee regime for that and whether chickenpox should be on the list.

Ross Finnie dwelt on the clarity that the bill provides about the public health functions of health boards and local authorities. Michael Matheson did that too, but Ross Finnie also said that the bill is poorly drafted. It is easy to blame people, but we should all learn from that in a friendly and co-operative way. The better drafted bills are, the better it is for us all. Ross Finnie argued that the bill is somewhat lacking in its competence in relation to the ECHR, although Michael Matheson did not agree.

Photo of Shona Robison Shona Robison Scottish National Party

Does the member appreciate that the Presiding Officer deems whether a bill is ECHR compliant? The Presiding Officer deemed the bill to be ECHR compliant.

Photo of Jamie Stone Jamie Stone Liberal Democrat

I accept that. Our attention was drawn to that earlier.

Ian McKee set the context for us by reminding us of the awful but historically important 1832 cholera outbreak. The community that was worst hit by that outbreak was a small fishing village called Inver, which is in my constituency. To this day there is a cholera graveyard that is looked after by locals. It is remembered as a sad fact in local history that the people who were dying of cholera had nowhere to go but had to flee into the dunes around the village and died there alone. Members will forgive me for digressing to say that the surgeon would not travel the few miles from Tain to Inver because the poor Inver people could not raise the price of one guinea between them, so they died like flies. That is what public health is all about. It is easy to think that it is just a side issue of health, but it is not, because if one gets it wrong the price can be truly terrible.

In his thoughtful and relevant speech, Kenny Macintosh addressed something that is hugely pertinent to us; why we follow the great god of the suntan. Renaissance artists painted people with pale faces as it was not fashionable in the 15th century for people to be suntanned, but that changed. If one does not receive treatment for a melanoma at an early stage, one can quickly become very ill. Although melanoma is easily treated and can be completely removed, it is a dangerous cancer.

Michael Matheson, like Ross Finnie, talked about the flawed drafting of the bill. Rhoda Grant mentioned geographical aspects and James Kelly mentioned the sunbed issue.

As a former councillor, like Michael Matheson, I would like to mention the importance of co-ordination between the national health service and local authorities.

Photo of Michael Matheson Michael Matheson Scottish National Party

I have never been a councillor—although I have given some counselling in my time.

Photo of Jamie Stone Jamie Stone Liberal Democrat

I am so sorry—I stand corrected. Michael Matheson is a former employee of a local authority.

Good and co-ordinated work has been done thus far. Many issues will have to be revisited at stage 2—the legal issues in particular—but by tidying up the legislation this bill will represent a step forward for Scotland. It recognises the importance of public health and will take us on into the century. I support the bill and look forward to the stage 2 proceedings.

Photo of Jackson Carlaw Jackson Carlaw Conservative 4:37 pm, 17th April 2008

When, last year, the Government declared its intention to introduce a public health bill, the announcement was welcomed on all sides. The previous Administration was working to achieve such a measure as well, as has been acknowledged. I doff my cap yet again. Inevitably, the consensual tone has been reflected in this debate and in the published report of the Health and Sport Committee.

Interesting—or, as Mary Scanlon might put it, "interesting but not exciting"—points have been made by members in all parts of the chamber. I have no doubt that the Government will reflect on them.

I wish to focus on the withdrawal of fees for general practitioners and the extent of the powers that are being sought to compel the examination, quarantine or detention of individuals.

Like the members of the Health and Sport Committee, I note Shona Robison's comments about the withdrawal of fees to general practitioners in respect of the reporting of notifiable diseases. I have some sympathy with the minister's view. The sums that are currently paid are relatively minor and claims are not always made. As she said during an intervention, the claims relate mainly to chickenpox.

I attended a local GP practice recently and raised the issue with the partners. The initial reaction was quite gung ho—"If fees are no longer to be paid, we will no longer be notifying"—but it quickly became apparent that only the practice manager was aware of the system or the fee payable. When the GPs understood the actual sums involved, tempers cooled and shoulders shrugged. I suggest to the minister that timing is everything and that the proposal to end fees is being seen by GPs in the general context of their current disgruntlement in relation to practice contracts. The perception is that an agreement reached some years ago to protect a GP network that was failing to attract new doctors is being undermined piecemeal with each annual settlement.

This is not an argument to support the retention of a fee, but the Government should reflect on the politics of its intention and, at the very least, ensure that it does not allow the argument to become an overblown headline. It should demonstrate the effect of the change to individual GP practices. By so doing, it should ensure that GPs are persuaded such that they can support the change.

I share the concerns that other members, including committee members, have expressed about the proposed exemption from giving an explanation for compelling an individual to be medically examined, quarantined or detained, or to providing an appeal process. I have read the minister's explanation with care, but I remain sceptical—as does Christine Grahame—about some of the associated issues that arise. It seems that when Governments draft legislation—I do not mean this Government in any particular way—they establish, quite properly, specific circumstances for an event, but then tack on at the end a general sweep-up section. It could be argued that that section renders all the particular circumstantial sections redundant. It is a bit like a job description in which someone is told that their job will be to do this, that and the next thing, but that they will also be responsible for anything that those who wrote the job description have forgotten about. As a member of the Subordinate Legislation Committee, I have noted examples of that quite regularly.

At Westminster, there is a similar debate about the Government's proposals regarding the length of detention without charge. Although it may be the Government's role to seek to secure such provisions, it is Parliament's role to scrutinise them and, in principle, to resist them. If a proposal does not withstand proper scrutiny, it is our duty to resist it strongly.

I share the Health and Sport Committee's concern that the Government has not yet explained satisfactorily why it may be necessary to detain or examine people without explanation or appeal. I note that the minister will reflect on including provision for a post-event appeal and an obligation to provide an explanation without delay—but the Government in Zimbabwe is under a similar obligation to provide, without delay, the result of its election.

I accept that it may be uncharitable to compare our Government in any way to that of Zimbabwe, but I remain nervous about incorporating into legislation sweep-up sections that can be characterised as draconian—although I share the concerns of Mary Scanlon and others about the balance between the protection of public health and the need to uphold the rights of the individual. I look forward to hearing the Government's further thinking on that issue.

Like other members, I look forward to the incorporation in the bill at stage 2 of proposals in support of Ken Macintosh's proposed bill on sunbeds. The member has pursued the issue assiduously, with all-party support, and has argued his point cogently to the Health and Sport Committee and here again today. I hesitate to go as far as to pay tribute to Ken Macintosh, for fear of reading about that in a local leaflet, but his engagement with the issue has been impressive.

Other points of substance have been identified in committee; I am sure that the Government will reflect further on them. Notwithstanding those points and the comments that have been made about drafting, all members can congratulate the Government on the progress that it has made and on its constructive attitude to the issues that have been raised. In that spirit, we will support the bill today.

Photo of Richard Simpson Richard Simpson Labour 4:42 pm, 17th April 2008

This has been an interesting debate. As Jamie Stone said, interesting colour was provided by the historical perspective of my older colleague, who referred to events that took place well before my time. It is important to take an historical perspective on the bill. Although we do not see mass cholera deaths, the bill prepares us for the possibility of catastrophic events. A SARS epidemic did not occur and an avian flu pandemic has not yet occurred, but we need to be prepared for such events. The pandemic planning that has been undertaken and the Public Health etc (Scotland) Bill put us in a better position.

When I followed Ian McKee into medical school, we had an excellent lecturer on infectious diseases, whom Ian McKee will remember—Dr Murdoch. Although his lectures were good, they were poorly attended because most doctors believed that they had solved the problem of infectious diseases. Dr Murdoch said cogently that we should watch out, as mother nature has a way of biting back. What has happened since that time? We have had HIV, SARS, Ebola, MRSA, the potential for avian flu, and extensively resistant tuberculosis. The health protection annual report for last year referred to the anthrax outbreak that Christine Grahame mentioned. There was also an outbreak of Q fever at Bridge of Allan meat plant in my constituency. It is important that we modernise our legislation to deal with such situations.

The only discordant note in the legislative process, which has been a hugely co-operative effort between the Health and Sport Committee, the Government and witnesses, has been occasioned by the sloppy drafting or incompetent legislation to which many members have referred. That must be addressed. It is a double shame that the problem has occurred when very little legislation is being introduced. The Parliament can only hope that it does not recur.

Why do we need the bill to be carefully drafted? I will read to members from the international edition of the New York Herald Tribune, which states:

"The ... Hospital ... is like a prison for the sick. It is encircled by three fences topped with coils of razor wire to keep patients infected with lethal strains of tuberculosis from escaping.

Escaped patients have been tracked down and forced to return; the hospital has quadrupled the number of guards. Many patients fear they will get out of here only in a coffin."

As many members have said, the bill must balance the protection of the public and individual freedom. If we do not achieve a balance, we could have the appalling situation that is found in South Africa, which has three prison hospitals of that sort in which people are incarcerated until their death. The balance between individual freedom and protection of the public is important.

We have to get the definitions, including the definition of the competent person, right. I think we have that. We need to have joint health protection plans that do not arise from consultation, as the bill sets out, but that are agreed between the local authority and the health board. Consultation is not good enough—God knows, we have had enough trouble as a result of health boards consulting on issues. If we leave them to consult, it will not be sufficient. Several members, including Michael Matheson and James Kelly, mentioned that. The duty of co-operation in section 6(3) is not enough and I ask the minister to look at it again.

Mary Scanlon's comments on the balance between the rights of the individual and those of the community are important in relation to anonymity. Although I agree with the minister that we have the data protection measures pretty much right, I am glad that she has said that the Government will include schools and places of work in them—as I suggested in committee. That will assist if there are outbreaks at nurseries, butchers' shops and so forth. Notwithstanding that commitment, we have to ensure that the right to anonymity is adequately protected. I strongly suggest that, when we make the regulations, a privacy impact assessment should be undertaken, as the information commissioner proposed.

The definition of health risk needs to be tight. There could be unintended consequences of the bill, although I am sure that that will not happen under the present Government or the future Labour Government. In America, people cannot get into education unless they have been vaccinated. If we do not draft the bill clearly and correctly, future Governments could introduce that sort of restriction on an individual going to school simply by regulation. There is the risk of exclusion simply because someone is not vaccinated.

We need to inform people. In committee, I spoke out strongly on section 31(5). Indeed, I went so far as to say that the proposed power is draconian and must be removed. Jackson Carlaw referred to it as a "sweep-up" section. We cannot allow, as the bill would, the absolute excuse not to inform an individual. The committee recommended strongly that that provision be amended as quickly as possible. I welcome the fact that, in her various correspondences with the committee, the minister has accepted the point and said that she will address it.

A considerable number of members have referred to sunbeds. The tributes that have been paid to Kenneth Macintosh are entirely appropriate. We have some tough decisions to reach. Kenneth Macintosh has said that unstaffed sunbed parlours should go, that 18 should be the minimum age of anyone who uses a sunbed, and that a requirement for individuals to be properly informed of the risks should be added into the bill.

I would go slightly further. By way of amendment at stage 2, we must ensure that nothing should stop local authority licensing departments licensing parlours as they see fit. I would go yet further and suggest that the Government should seriously consider taking reserved powers to introduce a licensing system, should that become necessary at some point in the future. Enforcement is important, and so is the need to ensure balance between the individual's right to use these machines and their protection from the development of melanoma. I hope that that will be considered.

The bill is vital for the public interest. As many members have said, it will achieve—it must achieve—protection for the public while maintaining a balance between individual freedoms and the public interest. It is a good illustration of the sort of engagement that the Parliament has been set up to undertake—engagement between the Government, parliamentary committees, experts and the public—to create a legislative framework that will ensure adequate protection and sustain individual freedoms.

I welcome the minister's responses of 6 February, 28 February and 14 April, in which she accepted many of the points the committee raised. We look forward to the stage 2 amendments that will incorporate the changes that we seek.

Photo of Shona Robison Shona Robison Scottish National Party 4:50 pm, 17th April 2008

I thank members for their contributions to today's debate, which has been very constructive indeed. The level of debate on the issues that the bill covers emphasises the importance of health protection in Scotland, which, as Minister for Public Health, I warmly welcome.

Members have acknowledged that there is a need for up-to-date and effective legislation to protect the people of Scotland from potentially life-threatening infectious diseases and contamination. That our public health and environmental health professionals have worked so effectively within a legislative framework that is based on the public health threats of the 19th century is a tribute to their professionalism. Of course, the majority of public health incidents are dealt with without recourse to statutory powers. That is to be welcomed.

It is acknowledged that public health threats cannot always be predicted and that it is necessary for any legislation in this area to be flexible enough to deal effectively with new and emerging conditions. Although it is uncomfortable for us to consider the fact that individuals might not co-operate with health professionals at the time of a public health incident, we require powers to deal with such a situation if and when it arises.

Photo of Sandra White Sandra White Scottish National Party

I come to the debate so late because I am not a member of the Health and Sport Committee and I wanted its members to have their say first. Will the minister consider an amendment on notifiable diseases? The bill mentions

"the patient's circumstances (including age".

Will she consider including a reference to the patient's profession? I ask because of a case of TB in Glasgow. The person concerned was a schoolteacher, but was not asked their profession. Might there be circumstances in which it would be beneficial to know the profession of the patient?

Photo of Shona Robison Shona Robison Scottish National Party

The issue would involve an assessment of the public health risk posed by the person at the time, which would of course take into account all such factors.

The bill provides health boards and local authorities with appropriate powers to protect public health and the community at large, but it contains safeguards that ensure minimum impact on, and access to justice for, the individual—a point that several members have made. The more restrictive provisions of the bill should be used only when no other action will achieve the public health objective. Any sheriff will need to be clear that there is, or may be, a significant risk to public health before they grant an order. We expect the powers requiring a sheriff's order to be used very rarely.

A number of issues of detail that the Health and Sport Committee raised are still under consideration. As I have made clear, we will make appropriate amendments at stage 2 if necessary.

Margaret Curran spoke about health risk states, and suggested that the definition is too wide. I reiterate the importance of retaining flexibility in monitoring new illnesses and conditions, in line with our European and international health obligations. Comprehensive guidance will be provided to registered medical practitioners on health risk states and the duty to notify, and on how arrangements will work in practice. I hope that that goes some way towards reassuring the member.

Margaret Curran also spoke about

"Any other clinically significant pathogen found in blood".

The expert working group that developed the list of notifiable organisms that is provided in schedule 1 considered that it would be wise to include that phrase to enable public health professionals to be alerted to any new threats. I acknowledge, however, that the committee and stakeholders identified that wording as an important issue. I recognise that the description is wide and that it could include organisms that it was never intended should be reported. I have listened to the concerns of the committee and stakeholders and I plan to lodge amendments at stage 2 to remove that phrase from the list of notifiable organisms.

Ross Finnie, Rhoda Grant and other members mentioned the issue of explanations not needing to be given in certain circumstances. On the vast majority of occasions, and in line with health professionals' general duty of care, they will be able to give a full explanation of the action to be taken and, which is important for the person who is posing a significant risk to public health, an explanation of why it is to be taken. In its scrutiny of the bill, the Health and Sport Committee acknowledged that that might not be possible in exceptional circumstances—for example when the infectiousness of a disease is such that the affected person is unconscious and therefore unable to receive such information. I am content that, in such circumstances, such an explanation should be given as soon as is practical thereafter. I am sure that that would happen even without a legislative requirement to that effect, but in the light of the concerns that have been raised we will lodge an amendment at stage 2 to ensure that there is clarity on that issue.

Rhoda Grant said that clarification is necessary of the fixed penalty notice scheme that is dealt with in part 9. We are aware that such clarification is required, and appropriate amendments will be lodged at stage 2. I hope that that gives her the reassurance that she requires.

Michael Matheson and Richard Simpson said that strong guidance is required on the joint public health protection plans. I accept that recommendation and will ensure that we progress it appropriately.

Michael Matheson and others mentioned drafting issues. I will not get into a legal debate about what is or is not competent in Scots law. Suffice to say that we have accepted that the summary application procedure is not the most appropriate procedure to use in the bill and that we will lodge suitable amendments at stage 2. We have made that extremely clear.

I said in my opening speech that I would use my closing speech to say a few words about the proposed provisions to regulate sunbed use. We have had a good debate on the issue, and I am pleased to note that, in the main, members are supportive of the proposals that have been agreed between the Scottish Government and Kenneth Macintosh. I believe that we have struck the right balance between regulation by Government, particularly to protect young people from the health impacts of sunbed use, and an individual's personal responsibility to make choices that minimise the risk to their health.

If Parliament agrees to include those provisions in the bill, Scotland will take a leading role in the introduction of health protection measures against the inappropriate use of sunbeds. The process that we have gone through on sunbeds is a demonstration of how well the Scottish Government can work with members of the Parliament on issues of mutual concern. I thank Kenneth MacIntosh for his work and co-operation on the issue.

We cannot eradicate the risk of public health threats. Whenever possible, we deal with them without resorting to legislation, but we need to ensure that our public health professionals have at their disposal—if necessary through statutory controls—the tools to deal quickly and effectively with potential threats so that they can reduce the spread of disease or contain it. That is the principal aim of the bill. We will continue to take into account the views of the committee and others as we proceed with the bill and seek to bring its measures into effect. Finally, I again thank members for their comments.

Photo of Alex Fergusson Alex Fergusson None

That concludes the debate on the Public Health etc (Scotland) Bill. I must suspend the meeting until decision time at 5 o'clock.

Meeting suspended.

On resuming—