The
Committee consisted of the following
Members:
Chairman:
Mr.
Edward O'Hara
Atkins,
Charlotte
(Staffordshire, Moorlands)
(Lab)
Blunkett,
Mr. David
(Sheffield, Brightside)
(Lab)
Carswell,
Mr. Douglas
(Harwich)
(Con)
Challen,
Colin
(Morley and Rothwell)
(Lab)
Creagh,
Mary
(Wakefield)
(Lab)
Davies,
David T.C.
(Monmouth)
(Con)
Kelly,
Ruth
(Bolton, West)
(Lab)
Lamb,
Norman
(North Norfolk)
(LD)
Malins,
Mr. Humfrey
(Woking)
(Con)
Merron,
Gillian
(Minister of State, Department of
Health)
Mulholland,
Greg
(Leeds, North-West)
(LD)
Munn,
Meg
(Sheffield, Heeley)
(Lab/Co-op)
O'Brien,
Mr. Stephen
(Eddisbury)
(Con)
Salter,
Martin
(Reading, West)
(Lab)
Wilson,
Mr. Rob
(Reading, East)
(Con)
Winnick,
Mr. David
(Walsall, North)
(Lab)
Eliot Barrass, Committee
Clerk
attended the
Committee
Sixth
Delegated Legislation
Committee
Tuesday
23 February
2010
[Mr.
Edward O'Hara in the
Chair]
Draft
Health Protection (Part 2A Orders) Regulations
2010
4.30
pm
The
Minister of State, Department of Health (Gillian Merron):
I beg to
move,
That
the Committee has considered the draft Health Protection (Part 2A
Orders) Regulations
2010.
The
Chairman: With this it will be convenient to consider the
draft Health Protection (Local Authority Powers) Regulations 2010 and
the draft Health and Social Care Act 2008 (Consequential Amendments)
Order 2010.
Gillian
Merron: The regulations will bring existing health
protection powers into the 21st century. They will enable local
authorities to act quickly, and with legislative backing, to tackle
health threats resulting from infection or contamination if people do
not act voluntarily. They will also protect peoples rights when
action is taken to deal with such threats and ensure that we are ready
and prepared for dangers that were unimaginable when the previous
legislation was drafted.
Todays
global society means that new strains of infection can emerge and
spread rapidly. We face increasing risks from contamination, either
accidental or deliberate. I am sure that everyone will remember that
not so long ago radiological contamination in London cost
Mr. Litvinenko his life. That contamination had the
potential to cause widespread further harm. Fortunately, that was
averted through the swift action of the authorities, but they were not
helped by the limitations imposed by the legislation then in force,
some of which go back to the Victorian era.
Existing
health protection legislation is outdated and incapable of protecting
public health. The regulations are the nuts and bolts that complement
the amended primary legislation, allowing us to complete the picture.
The new powers are not to be used lightly, and we hope that they will
be invoked only rarely. This is not new territory, although it is
limited. It is estimated that justices of the peace in England
currently make about 10 orders a year to deal with risks to public
health, mostly in respect of drug-resistant tuberculosis and when the
people concerned are being referred to hospital. However, it is right
that we should be as prepared as we can be, while still being
responsive to need and safeguarding peoples rights.
Health
protection legislation is needed only in those rare cases when someone
refuses to take action to protect others and there is no other way to
deal with the potential harm. The amended legislation and the
regulations strike the right balance between the protection of human
health and individual rights. The regulations provide an effective way
to deal with threats, but also include many
safeguards.
For the
benefit of the Committee, I shall briefly describe the measures in
detail. The Health Protection (Part 2A Orders) Regulations 2010 allow
JPs to make orders to protect human health. The regulations set out
requirements on the evidence that a JP must have before making such an
order. They also provide further safeguards for those who might be
affected by an order, including a duty on the local authority to notify
interested parties and to provide the subject of the order with
information.
Orders
relating to a person are restricted to a maximum of 28 days, and all
applications for orders must be reported to the Health Protection
Agency. I believe that that will give us a new transparency. I give a
commitment to the Committee that we will publish summarised information
on orders that have been sought and made. The regulations extend the
human rights protections given in primary legislation, and deliver all
the commitments made by the Government when the health protection
measures in the Health and Social Care Act 2008 were debated in another
place.
The local
authority powers regulations set out the powers of local authorities to
take the action necessary to protect health without having to apply to
a JP for an order. They empower the authorities to keep a child away
from school if he or she could put others at risk from infection or
contamination; to require details of other children at the school; and
to prevent access to dead bodies that pose a risk. They allow the local
authority to make a formal request to someone to co-operate for health
protection purposes, and to disinfect or decontaminate anything or any
premises on request. If those powers are not sufficient to deal with a
health protection problem, the local authority may apply to a JP for an
order under the terms of the amended
Act.
For
the sake of completeness I refer to the draft order, which amends the
Water Industry Act 1991. It is required as a consequence of a change to
the Public Health (Control of Diseases) Act 1984, and it has no other
effect.
I hope that
the Committee will see fit to support the statutory
instruments.
4.34
pm
Mr.
Stephen O'Brien (Eddisbury) (Con): It is a pleasure to
serve under your chairmanship, Mr. OHara. Mindful of
what was agreed earlier, is it in order for me to address all the
statutory instruments, although only one has been
introduced?
The
Chairman: Indeed. When we come to the remaining two, I
shall ask the Minister to move them formally, so there will be no
further
debate.
Mr.
O'Brien: I am grateful for that clarification. I shall
address all the points comprehensively. Because of that approach, which
I had hoped for and therefore anticipated, it may help to place briefly
all the statutory instruments in context. Although they deal with
somewhat different things, they are of course interrelated and sit
underneath what might best be described as the public health
agenda. I shall make a few introductory comments, which will bear
relation to what follows in perhaps more
detail.
I
begin by reminding the Committee that although the statutory
instruments put in place measures to tackle dangerous cases of
contamination and infection,
we must not forget in our discussions today the importance of prevention
in the public health agenda, and the role that public health schemes
can play in increasing the publics awareness of how we can work
together as a society to protect our own and other peoples
health. The Conservatives have proposed a strong set of public health
policies, with ring-fenced public health budgets at a local level
distributed by local public health boards, and I hope that the
Government will agree with us on that, and perhaps focus not just on
public health emergencies, which is the priority of the statutory
instruments. We need to keep a focus on the broader preventive agenda,
and I therefore hope that the Minister will take the opportunity when
she replies to tell the Committee which public health campaigns might
be at risk in relation to, for instance, the Personal Care at Home
Bill, which is topical and is going through the other place. In case it
looks as if I am straying too far off piste, that is relevant because
the third statutory instrument deals with the Health and Social Care
Act
2008.
After
the events of the past few weeks, I bring up the social care agenda
because funding is crucial to knowing whether initiatives will happen.
The response to a parliamentary question on the Personal Care at Home
Bill divided the £420 million that the Department is to
contribute
into
nearly
£50 million from indicative advertising and communications
spending, over £60 million from management consultancy spending
and over £20 million in reduced administration
costs.
In
addition, a saving of £62 million will be achieved by
transferring responsibility for research activity from other
departmental budgets to the Department's ring-fenced research and
development budget. That budget will rise to over £1 billion in
2010-11. The research it currently funds will continue as
planned.[Official Report, 8 December 2009; Vol.
502, c.
296W.]
That
is relevant because some of the research budget has a direct connection
to, and indeed a crossover with, public health, and there is a question
mark over where the ring-fencing sits. The answer outlines where the
money comes from to make up the promised £420
million, but the figures total only £192 million. We want to
know, therefore, where the rest of the money will come from, and that
is why I hope that the Minister will take the opportunity to ensure
that we do not divert future research budgets into
administration.
The
Chairman: Order. I am listening carefully to the hon.
Gentleman, and although I think that it is legitimate to make
contextual reference to such budgetary matters, the debate should not
focus too heavily on
them.
Mr.
O'Brien: I am grateful, Mr. OHara. I
was concluding my comments on that introductory contextual area. It
does, however, have a direct impact because, without knowing where the
funding for what has been announced is coming from, there is a large
question mark, not just in my mind but in many of the representations
that I dare say other members of the Committee have received. Where
will the funding for the public health powers envisaged by the
regulations come from if, for instance, the money has already been
diverted to fund the proposed personal care under the social care
legislation?
As
the Minister outlined, the draft Health Protection (Part 2A Orders)
Regulations 2010, which I shall now look at in detail, fill a gap in
existing public health
legislation concerning the power of local authorities to intervene in
cases in which individuals or their possessions pose a severe risk to
human
health.
Regulation
3 places a duty on the local authority to issue a notice to any
individual who poses a threat to human health, outlining its
intention to intervene in the situation by obtaining an order from a
justice of the peace. The order enables the authority to take
appropriate action to contain or prevent infection or contamination. I
support the need for the local authority to give notice of its
application for a part 2A order to the individuals listed in paragraph
(4), but there is seemingly no requirement for the local authority to
give such individuals warning about the possible charges for which they
might be liable once the local authority is granted an order. Under
regulation 7, the local authority is given the power to charge the
individuals for the cost of taking health measures to combat the threat
to public health posed by either the property or the possessions of the
individual. However, the local authority does not have to alert the
individual to the possibility of such costs before applying for the
order.
Can
the Minister shed some light on why, under one of the statutory
instruments that we are discussing today, local authorities are bound
to inform individuals of any penalties that they might incur if they do
not follow the order in relation to school attendance but, under
another set of regulations, local authorities are not required to
inform the adult subject to an application that they might be liable
for charges? What is more, section 45F(6) of the Public Health (Control
of Disease) Act 1984 states that regulations made under section 45C,
for which the part 2A orders regulations
qualify,
must
provide for a right of appeal to a magistrates court against
any decision taken under the regulations by virtue of which a special
restriction or requirement is imposed on or in relation to a person,
thing or
premises.
Could
the Minister explain to the Committee why no such provision for a right
of appeal has been made in the regulations with regard to the power of
a local authority to charge individuals for the cost of taking health
measures or with regard to the decision made by a JP to grant a part 2A
order? Despite the fact that section 45F(2)(e) of the Act enables
health protection regulations
to
provide
for appeals from and reviews of decisions taken under the
regulations,
the
Government have chosen not to include that provision in the
regulations. In doing so, they have neglected to protect the interests
of individuals affected by these local authority powers, as they have
no means of appealing against action taken by the local authority. That
strikes me as inconsistent, particularly as the person in question
might not have been able to prevent the contamination or infection for
which they are responsible under the order. Therefore, they might not
consider themselves liable for the cost of intervention. Patently, some
form of notice is needed if the system, in effect, amounts in legal
terms to strict
liability.
My
second concern with regulation 3 is that a local authority does not
have to give notice to the individual subject to the part 2A
application
where
exceptional circumstances exist which mean that notifying such a
person
P
would
not be in Ps best interests.
Given that we are
conferring on local authorities significant powers to evict people from
their homes or place them in quarantine, I am sure the Committee will
understand my concern that the wording appears to be more than a little
vague. Can the Minister clarify the sort of situation that would
qualify as exceptional circumstances and inform the
Committee of any guidance she intends to issue to local authorities
about how to judge whether a notice needs to be given to an individual
who is subject to a part 2A
application?
Similar
clarification is needed for regulation 3(8). How does a local authority
make a judgment as to whether a
person
is
likely to abscond or otherwise take steps to undermine the order
applied
for?
Again,
can the Government give examples of what sort of scenario might result
in a notification not being
given?
In
the light of the concerns, it surprises me that regulation 4 contains
no requirement for the local authority to report on their reasons for
not giving notice to an individual when making their application to the
JP through that regulation. Will the Government consider introducing
such a requirement? It would help the local authority to adopt an
evidence-based approach to whether to give notice and abate the risk of
the power to withhold a notice being abused. I am thinking particularly
of vulnerable individuals, such as those with learning disabilities or
some older people, or those suffering from mental health problems. The
local authority may make a judgment that such individuals lack the
capacity to comprehend the consequences of a notice, but giving them
appropriate notice may alleviate their distress at having to move away
from a premises, hand over a possession or enter hospital. Surely the
welfare provisions of regulation 9 should apply to the period prior to
the order being issued as well during the period when action to contain
the infection or contamination is being
taken.
In
addition to the threat posed to vulnerable individuals by the
regulations, National AIDS Trust emphasises the negative impact that
the statutory instrument could have on AIDS sufferers. The original
Public Health (Control of Disease) Act 1984 gave a list of conditions
to which local authorities could apply their powers of intervention.
Historically, the only power applied to AIDS was the power to order a
medical examination. However, the new regulations submit all diseases,
including AIDS, under every power outlined in the
instrument.
Mr.
Humfrey Malins (Woking) (Con): On that very point, the
National AIDS Trust contacted me to say that it has a great number of
concerns about this issue and that more than 30 sexual health
organisations are concerned that the Government will not exclude HIV
and other sexually transmitted infections from the scope of the
measures. It hopes that the measures will be monitored for any
unforeseen, or other harmful impacts, on sexual health services. I am
sure that my hon. Friend would think that that is a fair
point.