Joint Committee On Human Rights Eighth Report

Appendix 1: Letter dated 26 November 2007 from Ben Bradshaw MP, Minister of State for Health Services, Department of Health

The Health and Social Care Bill was introduced in the House of Commons on 15 November 2006. There is of course a summary of the human rights issues potentially raised by the Bill in the Explanatory Notes. I am writing to provide the Committee with more detailed information on this subject than can be included in Explanatory Notes, which I hope will assist the Committee in its scrutiny of the Bill.

The Department consider that some aspects of Part 1, Part 2, Part 3 and Part 5 of the Bill may arguably engage some of the rights set out in the European Convention on Human Rights, but its view is that all of the measures within the Bill can be exercised compatibility with the rights set out in the Convention.

I attach a copy of the Bill and a copy of the Explanatory Notes for the Bill.

Part I (the Care Quality Commission)

Chapter 1 of Part 1 establishes a new independent regulatory body called the Care Quality Commission ('the Commission'). The Commission will be responsible for the registration, review and inspection of certain health and social care services in England (but not any care services that are regulated by Ofsted). It will replace the Healthcare Commission and the Commission for Social Care Inspection, established under the Health and Social Care (Community Health and Standards) Act 2003. The functions currently performed by the Mental Health Act Commission will be transferred to the Commission and the Welsh Ministers. The Commission will be a public authority for the purposes of section 6 of the Human Rights Act 1998 and it must therefore act in a way which is compatible with Convention rights.

Chapter 2 of Part 1 creates a system of registration for providers and, in some cases, managers of health and adult social care. Regulations will set out the health and social care activities (referred to as 'regulated activities'), which a person will not be able to carry on unless that person is registered to do so.

Clauses 26 and 27 provide for an urgent procedure for cancellation of registration (on application to a justice of the peace) or suspension of registration (by the Commission). In the case of cancellation, it must appear to a justice of the peace that here is a serious risk to a person's life, health or well-being before an order can be made. In the case of suspension, the Commission must have reasonable cause to believe that unless it acts any person will or may be exposed to the risk of harm. The use of these urgent procedures may engage rights under Article 6 and Article 1 of the First Protocol of the Convention. In so far as Article 6 is concerned, we are of the view that the provisions are compatible since there are full rights of appeal to the Tribunal established under section 9 of the Protection of Children Act 1999, against both an order of the justice and the decision of the Commission.

In so far as Article 1 of the First Protocol is engaged by the power to cancel or suspend registration, the requirements are compatible with Convention rights since, in controlling the use of property in accordance with the general interest, the requirements strike a fair balance between the private interests affected and the public interest in ensuring that adult social care and health services are properly regulated.

Clauses 58 to 61 provide the Commission with powers for the purposes of carrying out inspections of providers of regulated activities for the purposes of its registration and review functions. Such powers include powers to require information (clause 60), enter and inspect premises used for the carrying on of a regulated activity (clause 58), and seize or remove any document or material (clause 59). Whilst carrying out that inspection, that person may, amongst other things, inspect and take copies of any documents (including medical records) and may, subject to the person's consent (unless they are incapable of giving it, in which case the examination should only be made if it is in the patient's best interests and there is no conflict with a decision of a donor of a lasting power of attorney or a deputy appointed under the Mental Capacity Act), medically examine that person in private.

The exercise of the powers as regards the right of entry, the right to inspect, copy and remove items, and the right to require an explanation may engage the right to respect for private and family life guaranteed by Article 8 of the Convention.

These provisions of the Bill however pursue a number of legitimate aims. In relation to the Commission's registration functions, these include public safety, the protection of health (by the provision of high quality health and social services), the prevention of crime (offences in relation to registration), and the protection of the rights and freedoms of others. In respect of the use of these powers for the purposes of the Commission's review functions, it is considered that any interference pursues the legitimate aims of protecting the economic well-being of the country, in relation to publicly funded services, the protection of health (by reviewing the overall quality of a service/service provider year-on-year), and the protection of the rights and freedom of others.

The right of entry and inspection, and to inspect and take copies of or seize documents or other material or thing, are therefore compatible with an individual's rights under Article 1 of the First Protocol. Any interference would be expected to be proportionate to the end of protecting public safety and public funds as well as for the general prevention of crime and protection of the health and rights and freedoms of others.

Clause 48 provides that the Commission and the Welsh Ministers will become responsible for the general protection of detained patients by keeping under review the exercise of powers and the discharge of duties under a new section 120 of the Mental Health Act 1983 (as inserted by clause 48 of, and paragraph 8 of Schedule 3 to, the Bill). Those powers include:

  • the power to enter a hospital or other establishment in order to visit, interview and (in relation to a registered medical practitioner or approved clinician) examine a patient (new section 120(4)(a)), and
  • the power to require the production of, or inspection of, any records relating to the detention or treatment of a person who is or has been detained under the Mental Health Act, or who is a community treatment patient (new section 120(4)(b)).

The new section 120(4) of the Mental Health Act therefore touches on Article 8 rights. However, it is compatible with the right to respect for private life since access to detained patients, and access to records relating to the detention and treatment of patients, is necessary, in the context of the Commission and the Welsh Ministers' section 120 functions, for the protection of health and the protection of the rights and freedoms of others.

Part 2 (regulation of health professions and health and social care workforce)

Fitness to practise proceedings by health care regulators fall within Article 6 of the Convention. Clause 91 establishes the Office of the Health Professions Adjudicator ("the OHPA") to determine fitness to practise cases relating to the medical and optical professions. Paragraph 4 of Schedule 7 inserts a new section 35ZA into the Medical Act 1983 and paragraph 29 of that Schedule inserts a new section 13AA into the Opticians Act 1989. These new sections require the OHPA to take account of guidance published by the General Medical Council ("the GMC") and the General Optical Council ("the GOC") about factors which they consider to indicate that a particular sanction should be imposed on a person whose fitness to practice is found to be impaired. OHPA is also required to take account of GMC or GOC guidance about whether a warning should be given to a person whose fitness to practise is found not to be impaired.

We are of the view that this requirement does not compromise the impartiality of the OHPA for the purposes of Article 6. Firstly, the obligation to take account of the GMC and the GOC's guidance will be relevant only at the stage at which the OHPA is considering the imposition of sanctions. It will not in any way compromise the OHPA's independence in determining whether the facts alleged against an individual have been proved. Moreover, the penalties themselves are not established by the GMC or the GOC but laid down in legislation. Also, an obligation to "take account of" guidance is less onerous than an obligation to "act under" it, although it does require reasons to be given for a departure from it (see R v North Derbyshire Health Authority ex parte Fisher (1998)38 BMLR 76). The OHPA will therefore be able to depart from the guidance in appropriate cases.

The new section BOA of the Health Act 1999 (as inserted by clause 104), provides that the standard of proof applicable in fitness to practise proceedings for health professionals is the standard applicable in civil proceedings. The European Court of Human Rights held in the case of le Compte, Van Leuven and De Meyere v Belgium (1982) 4 EHRR 1 that proceedings which determine a doctor's right to practise medicine involve a determination of civil rights and must therefore be compliant with Article 6 of the Convention. The decision of the Privy Council in Chaudhary v GMC [2002] UKPC 41 confirmed that the European Court of Human Rights' analysis also applies to fitness to practise proceedings in the United Kingdom.

Article 6 does not prescribe the standard of proof to be applied in civil proceedings and we are of the view that the adoption of the civil standard is compatible with Article 6. Further, there is established case law to the effect that the civil standard of proof is, in relation to England and Wales, a flexible one. In cases of alleged serious misconduct which could also amount to a criminal offence, the likelihood is that the courts would require a panel deciding fitness to practise proceedings to adopt the "heightened" civil standard and to have strong and cogent evidence justifying a finding that the factual allegations have been proved. In such cases, the application of the civil standard is unlikely in practice to differ or lead to different outcomes than the use of the criminal standard (Sadler v GMC [2003] 1 WLR 2259 at para 74 and McAllister v GMC [1993] AC 388 at page 399). In Scotland, although all civil cases must be determined on a simple balance of probabilities, the Scottish courts have noted that this is not to ignore the fact that it is more difficult to prove, according to the required standard, more serious allegations. More weighty evidence will be required in such cases.

We propose that provision will also be made in secondary legislation under the Bill to ensure that there is no ambiguity as to the standard of proof which will be applied in cases which are ongoing, or shortly to commence, at the time at which the standard of proof is changed.

Under clause 112 (co-operation between prescribed bodies), regulations may make provision requiring specified bodies to co-operate with each other in relation to any question or matter arising as to the conduct and performance of health care workers which could pose a risk to patient safety. The duty to disclose information may engage the right to respect for private and family life under Article 8 of the Convention. The purpose of disclosure under clause 112 will be to protect the health and rights of patients or the general public, which fall within Article 8(2) as being legitimate aims, and disclosure should therefore be compatible with Article 8.

Part 3 (public health protection)

Clause 119 (public health protection) inserts new sections 45A to 45S in the Public Health (Control of Disease) Act 1984. Measures adopted under these new provisions might engage a number of Convention rights. The Department is however satisfied that these provisions are compatible with the Convention. Particular consideration has been given to provisions relating to quarantine, detention, medical examination and powers of entry in respect of public health investigations. The purpose of these provisions is to protect the public from significant public health risks and the Convention itself envisages that certain rights can lawfully be interfered with on public health grounds. Safeguards, such as limits on the period in respect of detention, quarantine or isolation, are also built into the legislation to minimise the impact on individuals.

Health protection regulations under new section 45B (international travel, etc.) for health threats at borders may make provision for preventing danger to public health or the spread of infection or contamination by means of conveyances arriving at or for preventing the spread of infection or contamination by conveyances leaving any place in England and Wales. Measures under these powers might involve provision of information on, detention, isolation, quarantine or medical examination of or the application of disinfection, decontamination or other sanitary measures to persons.

Domestic health protection regulations under section 45C may make provision for preventing, protecting against, controlling or providing a public health response to the incidence or spread of infection or contamination. By section 45A(3), the infection or contamination is limited to that which presents or could present significant harm to human health. Section 45D(3) prohibits such regulations from imposing requirements directly for medical examination, detention, quarantine or isolation. Section 45D(4) does allow these types of measures to be imposed by a decision maker in the event of a serious and imminent threat to public health. The decision maker must consider the measure when imposed to be proportionate to what is being sought to be achieved by imposing it (section 45D(2)), and the regulations must also provide for a right of appeal against such a decision and a right of periodic review of a continuing measure. The regulations would be subject to an affirmative resolution procedure.

There are also powers for a justice of the peace to make an order under new section 45G, 45H or 451 (referred to as a "Part 2A order") providing for measures in relation to individual persons, things, premises, or groups of these. An order under new section 45G might include provision that a person submit to medical examination, be disinfected or decontaminated, wear protective clothing, attend training or advice sessions, be subject to restrictions on movement, be removed to or detained in hospital or other suitable establishment, or be kept in isolation or quarantine. It might also include provision that a person, or any person responsible for that person, provide information or answer questions about the person's health or other circumstances, or that the person be subject to health monitoring.

Before a Part 2A order can be made however, the justice of the peace must be satisfied amongst other things that the infection or contamination causes significant harm to human health (section 45G(1)(b)), and that the order is necessary to remove or reduce the risk that the subject of the order might infect or contaminate others. Section 45G(7) requires the Secretary of State to make regulations setting out the evidence that needs to be provided to the justice of the peace to help him decide if an order is necessary in relation to a person, and section 45H(7), 451(7) and 45N(1) enable the appropriate Minister to set up a further framework in regulations to guide the justice of the peace in making these decisions.

Also, a warrant under section 61 of the Public Health (Control of Disease) Act 1984, or similar provision in an order under new section 45K(6) might enable entry to premises (including a private dwelling), and include power to search, require information, or seize and detain or remove documents or property.

A number of these potential measures, such as requirements as to quarantine, detention, medical examination, and wearing protective clothing, might engage a person's right to private and family life including bodily integrity protected by Article 8 or, potentially, the right to liberty and security protected by Article 5. However, the Bill provides that such measures shall only be adopted where necessary to prevent significant harm to human health, or proportionate to the threat arising from the incidence or spread of infection or contamination.

A quarantine or other detention under these provisions may not amount to more than a restriction on freedom of movement engaging Article 8. The difference between a restriction on freedom of movement and a deprivation of liberty within the ambit of Article 5 is one of degree or intensity, rather than of nature of substance. Nonetheless, where there is a deprivation of liberty, Article 5(1)(e) enables a restriction of liberty to be imposed for the prevention of infectious diseases, which we consider may now be read as allowing restriction of the right to liberty for the prevention of contamination. However, proportionality is required for application of the exception for infectious disease (or contamination) in Article 5(1)(e), and the powers allow for this.

Protection for Convention rights is provided not only by the wider range of measures to be available under the Public Health (Control of Disease) Act 1984 than at present allowing for proportionality, but also as a result of supplementary powers in new section 45K enabling a Part 2A order to be tailored to the individual's circumstances. A measure can take effect subject to conditions specified in the order, for example if a person complies with health monitoring requirements there is no need for that person to submit to quarantine. In addition, the new powers are subject to express provision for procedural safeguards, including the requirement to specify the period for which a restriction or requirement imposed in an order is to be in force (new section 45L), and the possibility to apply for an order to be varied or revoked.

Measures under these powers, including powers to enter premises, or charges for the application of such measures might potentially affect property interests (Article 1 of the First Protocol). However, a State is able to enforce laws it deems necessary to control use of property in accordance with the general interest or to secure the payment of contributions. These powers are justified due to the public interest in investigators being able to carry out effective public health investigations, or to prevent the spread of disease, and any interference with the peaceful enjoyment of possessions is a proportionate interference with property rights. In addition new sections 45F(2)(g), 45N(2)(e) and 45K(7) enable provision to be made in regulations, or for a justice of the peace to order, that compensation or expenses be paid so as to ensure that any Convention rights under Article 1 of the First Protocol are met.

Further, rights to apply for variation or revocation of a Part 2A order under new section 45M(4), to appeal under section 67 of the Public Health (Control of Disease) Act 1984, or for provision to be made for appeals from and reviews of decisions made under regulations made under new section 45C (new section 45F(6) and (7)), ensure that Article 6 rights are met.

Part 5, clauses 132 and 133 (weighing and measuring of children)

Clauses 132 (weighing and measuring of children: England) and 133 (weighing and measuring of children: Wales), amend Schedule 1 to the National Health Service Act 2006 and Schedule I to the National Health Service (Wales) Act 2006 respectively, and make provision in relation to the collection and use of child height and weight information. These activities are at present undertaken under the National Child Measurement Programme in England. Wales do not currently have a national weighing and measuring programme, although this is the subject of a feasibility study by the National Public Health Service. As part of the Government's strategy on tackling obesity, the NCMP records the height and weight of children (currently in Reception and Year 6) in maintained primary and middle schools in England and Wales during the academic year.

It is proposed to use data obtained from the weighing and measuring of children for the purposes of local planning and delivery of services for children, audit and local performance management processes, and development and commissioning of prevention and healthcare interventions. A power to obtain and further process personal information (including child height and weight information) without explicit consent engages Article 8.

We are of the view that the proposed use of data will pursue the legitimate aim (included within Article 8(2)) of the "protection of health'. The procedures which would be required to obtain explicit consent would reduce the value of weighing and measuring programmes as the number of those taking part would then fall significantly. It is also considered that any interference with the right would be reasonable and proportionate for the following reasons: the information will be gathered in accordance with the data protection concept of fair processing; the information will be gathered in familiar school surroundings in circumstances where the privacy of the child is protected; personal details will be removed from the information before it is used for research or surveillance; and, other uses of the information will be restricted. Finally, regulations will enable parents to opt their children out of weighing and measuring exercises.

Department for Health

November 2007

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