Clause
116
Education
and training of approved mental health
professionals
Question
proposed, That the clause stand part of the
Bill.
6.30
pm
Mr.
O'Brien:
I will be extraordinarily brief as this is my
final flourish on part 2 as we romp through it and into part 3. The
clause is about the education and training of approved mental health
professionals. I shall do no more than say that the emphasis that we
put on training is equal to that on all other aspects of the Bill. I
think that that reinforces the Minister’s approach. We have not
lost sight of the fact that the Bill is intended to be not just
regulatory, but positive in giving support to those
concerned.
Question
put and agreed
to.
Clause 116
ordered to stand part of the
Bill.
Clause
117 ordered to stand part of the
Bill.
Schedule
10
agreed
to.
Clause
118
ordered to stand part of the
Bill.
Clause
119
Public
health
protection
Anne
Milton:
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.
Greg
Mulholland (Leeds, North-West) (LD): 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.
Mr.
Bradshaw:
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.
Anne
Milton:
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.
Greg
Mulholland:
I beg to move amendment No. 138, in
clause 119, page 68, line 33, leave
out ‘justice of the peace’ and insert ‘local
authority’.
The
Chairman:
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’.
Greg
Mulholland:
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.”
Mr.
O'Brien:
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.
Greg
Mulholland:
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?
6.45
pm
Mr.
Bradshaw:
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.
Greg
Mulholland:
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.
Mr.
Bradshaw:
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.
Mr.
O'Brien:
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.
Anne
Milton:
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.
Mr.
Bradshaw:
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.
Anne
Milton:
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.
7
pm
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.
Mr.
Bradshaw:
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.
| 
