Appendix 3: Letter dated 7 January 2008 from Ben
Bradshaw, Minister of State for Health Services, Department of
Health
1. Thank you for your letter dated 6 December 2007
on the Bill.
2. I am pleased that you agree that, in so far as
seeking to enhance protection of the rights of patients and users
of health and social care services, the Bill has a positive, human
rights enhancing role.
3. Your letter however asked for a further explanation
of the Government's view that the proposals in the Bill are compatible
with the Convention rights guaranteed by the Human Rights Act
1998 (HRA). I am writing to provide a response to the questions
raised in your letter and, in doing so, to provide this further
explanation. I have dealt with each of your questions in turn.
(1) Compulsory Powers
and Public Health (Part 3 of the Bill)
(a) General
1. Can the Government provide evidence, either
from the past application of the Public Health (Control of Disease)
Act 1984, or otherwise, that the powers in that Act are inadequate
to deal with "today's public health concerns". Have
there been any cases where the powers in that Act, or in other
legislation, such as the Civil Contingencies Act, have been inadequate
to meet a significant risk to public health. In particular have
there been:
a. Any cases of potential contamination, such
as cases of radiation poisoning, during which local authorities
or central Government were unable to respond adequately to a serious
risk to public health; and/or
b. Any cases or outbreaks of diseases not covered
by existing legislation, during which local authorities or central
Government were unable to respond adequately to a serious risk
to public health; and/or
c. Any cases where a person was suspected of being
infected by a relevant disease, but was not suffering from symptoms,
and so was not covered by the existing legislation, where local
authorities or central Government were unable to respond adequately
to a serious risk to public health.
4. Public health threats are fortunately reasonably
rare, but tend to be unpredictable. It is the responsibility of
government to ensure that preparations are in place to protect
the public from public health threats.
5. The Law Commission, in their report in 2005, stated
that:
"The Commission remains of the view that
modernisation of [public health law]
is desirable. It is true that the powers in the 1984 Act are rarely
invoked. It is also the case that the recently enacted
Civil Contingencies Act 2004 sets out new powers to deal with
civil contingencies, though these have been conceived primarily
to deal with issues arising from terrorist attacks or other
serious emergencies. The fear remains, therefore, that the effectiveness
of the British response to a major outbreak of contagious
disease could be significantly impaired by the defects in the
law."
6. The Government published a consultation document
in March 2007 setting out proposals for updating public health
law. Virtually all those who commented, including local authorities,
Primary Care Trusts (PCTs), and other relevant front line stakeholders,
agreed that the 1984 Act needed updating.
7. One reason for seeking to update the legislation
is the advice of the World Health Organisation (WHO) that all
countries should be able to carry out any of the actions listed
in Article 18 of the International Health Regulations 2005 (IHR),
if the WHO were to make such a recommendation in response to an
international health emergency. While the Government have chosen
not to enable all of the actions, for example the Bill prohibits
compulsory medical treatment including vaccination, it would be
prudent to ensure that the majority of actions can be taken.
8. The Government has a duty to ensure that there
are suitable mechanisms to facilitate public health protection.
It would be wrong to create or update legislation only when a
tragic event proved that the existing legislative framework was
inadequate to deal with the situation. The job of government is
to think ahead and create the legislative framework that ensures
that, should an event arise, the appropriate bodies have appropriate
powers to deal with it.
9. That said, several recent incidents have supported
the Government's belief that public health law should be updated.
These include the Polonium 210 incident in London in 2006. Had
this incident been an accident rather than a crime, the existing
public health legislation would have been inadequate to take and
enforce the action required. As it was, many scenes of contamination
were controlled as crime scenes, allowing suitable health protection
measures to be applied.
10. In 2002-2003 SARS (severe acute respiratory syndrome)
claimed the lives of 774 people, and there were 8098 recorded
cases in 26 countries. The UK was fortunate not to be one of the
26 countries. Health protection experts believe that had the UK
been affected the existing legislation would probably have proved
inadequate. This is supported by the WHO's judgement that it was
the use of control mechanisms, such as compulsory quarantine,
isolation, health monitoring, and travel restrictions, that brought
about an end to the spread of the disease. In response to SARS
other countries, such as Canada, have updated their quarantine
provisions accordingly.
11. While more extreme public health threats hit
the headlines, the Health Protection Agency have provided examples
of instances where the Public Health (Control of Disease) Act
1984 currently falls short of providing adequate powers to support
the day-to-day requirements of protecting public health. They
have pointed to outbreaks of Q fever in Cheltenham and Birmingham,
where the local authority had to rely on voluntary cooperation
from universities and the Met office to gather essential information
on wind travel that was pertinent to locating the initial source
point of the disease. Had the organisations been uncooperative
the authority would have been unable to carry out the investigation
and control the spread of the disease. The regulation making powers
in the new section 45C could be used to create requirements that
organisations provide local authorities with information relevant
to a public health investigation.
12. In 2006 a musician died of suspected anthrax
contamination contracted from untreated hides imported from Africa
that he had been using to make drums. A health protection investigation
revealed that several buildings where he and his drums had been
present were contaminated with anthrax. The local authority determined
that the buildings needed decontaminating to reduce the risk of
the contamination spreading. However, this could only be achieved
through voluntary cooperation. Disputes over who should foot the
bill for the decontamination led to delays of approximately a
year in the decontamination procedure. During this time the contaminated
buildings were left unused. This posed a health threat because
people could have entered the buildings and become contaminated.
The legislation does not currently cover contamination so the
Act could not be used to require instant decontamination and apportioning
of costs.
13. Updating the Public Health (Control of Disease)
Act 1984 is not only about ensuring that relevant health protection
agencies are able to respond to new and broader public heath threats.
It is also about ensuring that the response given is the most
appropriate and proportionate one. For example, currently a justice
of the peace, presented with an infected person who is not cooperating
voluntarily to protect the public, only has the power to order
medical examination, or removal to or detention in hospital. The
power is also not available in respect of non-symptomatic infection
or contamination such as measles, meningitis or anthrax. The updated
legislation will provide a suite of potentially less intrusive
measures that could be applied more proportionately to the circumstances
of an individual on a case by case basis. It may, for example
be possible to quarantine an individual in their own home, or
simply require them to stay off work and stay away from individuals
with weak or compromised immune systems. The new powers also allow
conditional orders increasing the flexibility of response.
2. I would be grateful if
you could provide the Committee with a copy of any draft Regulations
prepared or proposed for the purposes of Part 3 of the Bill.
14. Policy statements are attached to this letter
outlining in general terms the regulations the Government intend
to make under the two main regulation making powers contained
in the new sections 45B and 45C (clause 119). All the regulations
the Government will need to make at the outset are intended to
be the subject of thorough consultation.
(b) Contamination and the Right to
Liberty: Application of Article 5(1)(e) ECHR
3. Can the Government provide evidence, either
from the past application of the Public Health (Control of Disease)
Act 1984, or otherwise,
that the application of powers granted to either the Secretary
of State or a justice of the peace, will lead to restrictions
on individuals which amount generally to an infringement of their
right to respect for private life under Article 8, rather than
a deprivation of liberty for the purposes of Article 5 ECHR?
15. You refer in your letter to the possibility mentioned
in the Explanatory Notes that quarantine may not amount to more
than a restriction on freedom of movement falling short of a deprivation
of liberty.
16. The difference between a restriction on freedom
of movement engaging Article 8 ECHR and a deprivation of liberty
within the ambit of Article 5 is one of degree or intensity, rather
than of nature or substance (see Engels
v Netherlands (1976) 1 EHRR 647) that
depends on criteria such as the type, duration, effects and manner
of implementation of the measure (see Guzardi
v Italy (1980) 3 EHRR 333). Duration of
detention is not necessarily decisive as to whether an Article
5 right has been violated, but rather the intention of the authorities
imposing detention appears to be more relevant (see X v Sweden
7 DR 123 (1976)). The
intention when imposed by order of a justice of the peace broadly
would be to protect others from the risk of being infected or
contaminated with disease which presents or could present significant
harm to human health. Section 45L(3) limits the maximum period
of detention that can be imposed in an order under section 45G(2)(c)
or (d) to 28 days.
17. A curfew or order preventing an individual from
leaving a particular area are examples that do not constitute
a deprivation of liberty (see Cyprus v Turkey (1976)
4 EHRR 482). The Department notes that in relation
to a mere restriction of freedom of movement the person would
be lawfully free, and wouldn't need provision for review under
Article 5(4) of the ECHR. Nonetheless, as regards the regulation
making powers in the new section 45C, the provisions of section
45F(7), amongst other provisions, providing for rights of appeal
and review would ensure that regulations could be made compatibly
with human rights. Sections 45M and 67 of the 1984 Act also provide
for rights of variation, revocation and appeal with regard to
the order of a justice of the peace.
18. Recent case law including Austin and Saxby
v Commissioner of Police of the Metropolis,
CA 15/10/2007 (police cordon around demonstrators
in Oxford Circus) has upheld responsible measures taken by competent
authorities in the public interest. However the task of a court
is not to align a case with the least dissimilar of the reported
cases, but to seek to give fair effect, on the facts of the case,
to the principles laid down by the European Court of Human Rights
(see judgment of Lord Bingham, paragraph 19, in Secretary of
State for the Home Department v. JJ and others HL,
31 October 2007, a recent case involving control
orders).
19. Given the range of possible measures and the
flexibility with which they can be combined in an order, imposition
of such measures by a justice of the peace in their duration,
effects, or manner of implementation need not amount to a deprivation
of liberty in all cases. The requirement for a decision maker
imposing such a measure to ensure proportionality, other restrictions
on exercise of the powers (in sections 45D and 45F(8) and (7)),
together with the procedural requirements of section 450, including
affirmative resolution by each House of Parliament, should ensure
that where In regulations under section 45C only a deprivation
of liberty would achieve the public health aim, Article 5 would
not be infringed.
4. Can the Government provide masons for its view
that the exception to the individual right to liberty in Article
5(1)(e) of the ECHR can be read broadly to include detention for
the purpose of the prevention of the spread of contamination?
20. Article 5(1)(e) enables a restriction of liberty
to be imposed for the prevention of the spreading of infectious
diseases. However the Convention is a living instrument to be
interpreted in light of current circumstances. Article 3 of the
IHR (principles) requires that implementation of the IHR be with
full respect for the human rights of persons. Given, that the
IHR now recognises diseases caused by contamination, the Government
considers that Article 5(1)(e) may now be read as allowing restriction
of the right to liberty for the prevention of contamination.
21. The Government also notes that in circumstances
of urgency such as may apply when an application is made to a
justice of the peace for detention, states are allowed more leeway
in the interpretation of Article 5(1)(e), for example, to detain
without medical confirmation of a medical disorder (see X v UK
(1981) 4EHRR 188). It is not always clear with a new disease,
as it wasn't with SARS, what the nature of the disease is, or
even whether it is caused by infection or contamination.
(c) Proposed Compulsory Powers of Justices of
the Peace (New Section 45G—45J)
5. In
light of the importance of this decision, I would be grateful
if you could explain (a) what evidence the Government considers
should be relevant to this decision and (b) why it is appropriate,
in relation to a power capable of interfering with liberty, to
leave these matters to secondary legislation rather than spell
them out clearly on the face of the Bill.
22. The Government believes that, when making regulations
as to the evidence to be available to a justice of the peace before
the justice can be satisfied as to the matters mentioned, a careful
balance will need to be struck between protecting an individual
from actions taken on a mistaken suspicion of infection or contamination,
and the risk posed if no action is taken and the individual is
in fact infected or contaminated. This balance may vary between
diseases according to ease of transmission and severity of outcome
for an infected or contaminated or irradiated individual. As indicated,
regulations are intended to be the subject of thorough consultation
to ensure that the level of evidence required does not hinder
local authorities in their duty to protect the public from health
threats, but is high enough to ensure that action is not taken
inappropriately.
23. The first set of regulations under section 45G(7)
will be subject to full debate before each House of Parliament
under the affirmative resolution procedure provided at section
45Q, so that Parliament will have the opportunity to comment and
decide whether the correct balance has been struck. In future,
the nature of the evidence that should be required may need to
be altered to take account of new diseases and new methods of
disease detection. It is therefore appropriate that these provisions
are in secondary legislation.
6. In light of the importance of these safeguards
to the protection of individual rights to respect for physical
integrity, to liberty and to peaceful enjoyment of possessions,
I would be grateful if you could explain:
a. what type of investigation the Government considers
will be covered by a medical examination;
b. what considerations the Government considers
will be relevant to the manner in which measures under a Part
2A Order are undertaken;
c. who the Government envisages will be responsible
for executing and enforcing such measures;
d. what considerations the Government considers
will be relevant to a decision
on costs associated with public health measures under a Part 2A
Order;
e. in what circumstances compensation or expenses
[will] be payable in connection with these measures, and, if compensation
is to be discretionary, with whom the relevant discretion should
lie.
24. As defined at section 45S(3), medical examination
includes microbiological, radiological
and toxicological tests. The Government has no plans at present
for regulations under section 45N(2)(a). However regulations may
be needed in future to take account of new diseases and new methods
of disease detection.
25. When carrying out a measure ordered by a justice
of the peace consideration will need to be
given to how to facilitate the undertaking
of the measure. For example, if an
individual is to be quarantined in their own home, consideration
will need to be given to the support that
will need to be in place to ensure the individual has access to,
for example, food, medical advice or advocacy. If an order requires
health monitoring, consideration will need to be given to the
mechanisms for monitoring the individual's health. For example,
it may be appropriate in some circumstances to use an electronic
reporting device to measure a person's temperature
rather than require a health visitor to make regular visits.
26. In most cases the Government envisages that execution
and enforcement of an order will be carried out by the local authority
which applied for the order. It may also be appropriate in some
circumstances for other relevant health protection authorities
to execute a measure. For example, if an individual is to be detained
in a hospital it may be appropriate for the hospital trust to
ensure that the measure is carried out, while if the measure were
a group order for health monitoring the Health Protection Agency
might be better placed to facilitate execution of the order.
27. Regulations on the costs associated with public
health measures might be needed to address the possibility of
a perverse incentive. For example if the local authority must
always meet the cost of the measure there may be an incentive
for an individual to not take action voluntarily. Additional considerations
might include acceptable business risk and insurability.
28. The Government's aim in regulations would be
to provide a framework within which the competent authority, not
the Government itself, would be able to make sensible judgments
on the circumstances in which compensation or expenses should
be payable.
7. In light of the importance of these safeguards
to the protection of individual rights to respect for physical
integrity, to liberty and to peaceful enjoyment of possessions,
I would be grateful if you could explain
why the Government considers that it is appropriate to leave these
matters to secondary legislation rather than spell them out clearly
on the face of the Bill.
29. It is important that the powers of a justice
of the peace are in line with modern practices, new and changing
diseases and scientific knowledge. Secondary legislation can be
adjusted and maintained to respond to changing circumstances.
As such the framework within which justice of the peace orders
can be made will be kept up to date. Regulations may also help
to ensure consistency of practice amongst justices as to the provisions
included in an order.
8. In light of these limited safeguards, I
would be grateful if you could provide a further explanation of
the Government's view that these provisions are sufficiently certain
to be considered accessible and accompanied by adequate safeguards
to ensure that these powers are exercised in a manner which ensures
that any interference with individual rights, including to liberty,
are strictly required by the danger posed to public health.
30. The Government is of the view that the new provisions
introduced by the Bill and the Regulations made under them will
be sufficiently certain to ensure compliance with the Convention
rights. The legislation has been framed to enable Part 2A Orders
to be made only where there is a risk of significant harm to public
health and where they are needed. The test set out in relation
to each type of Part 2A is clear. Regulations will support the
exercise of powers by justice of the peace. Significant safeguards
are outlined in my earlier letter to you. The responses in this
letter also give further clarification of the Government's view
regarding the certainty and accessibility of the legislation.
Whilst the legislation has been carefully framed to ensure compliance
with the Convention rights, it is the HRA itself that provides
the legal certainty that the Convention rights will be respected
in the exercise of powers given by Parliament to the local authorities
and justices of the peace.
9. The proposed power for the Secretary of
State to make regulations imposing restrictions or requirements
on people, things or premises such as quarantine or compulsory
medical examination; is limited to circumstances where there is
a "serious and imminent threat to public health". Can
the Government explain why the power to make Part 2A orders of
a similar kind should not be similarly limited to the most serious
of cases?
31. An order is made in relation to a single case,
or at most a group sharing similar facts. The availability of
an order might prevent the need for regulations to be made, if
by orders the incidence or spread of infection or contamination
can effectively be prevented or controlled. An order in relation
to one case of TB or pneumonic plague (which also has comparatively
low transmissibility) might prevent those who share the person's
accommodation from infection causing significant harm. But one
incidence of a particular disease may not, constitute a serious
and imminent threat to public health however great the risk the
infection or contamination might present to others. The nature
of the interest protected by an order is different to that addressed
by regulations.
32. In each case, regulations or an order can address
only an infection or contamination which presents significant
harm to human health. In each case, imposition of a measure needed
to address the infection or contamination must be reasonable and
proportionate to the interest sought to be protected. However
in the case of an order, the intrusiveness on the human rights
of a person affected by a measure must be balanced against the
potential harm that infection or contamination might cause to
other persons. Medical examination or quarantine of a person suspected
of being infected with TB or pneumonic plague who would not otherwise
seek treatment is likely to be reasonable and proportionate to
reduce the risk of infection of others in proximity to the person.
In the case of regulations, for example in relation to a fast
spreading disease such as smallpox or SARS, the intrusiveness
on the human rights of a person affected by a measure must be
balanced against the risk to public health. The threat posed by
TB would need to be of a different nature to justify imposition
of medical examination or quarantine of any person in the community
suspected of being infected with TB.
33. An order is aimed at the risk, of significant
harm that an infected or contaminated person may pose to the health
of others. The power to make regulations enabling the imposition
of medical examination, removal, detention, quarantine or isolation
is aimed at a serious and imminent threat of infection or contamination
which may cause significant harm to public health. The Government
believes that the words used to describe the circumstances in
which an order is available are apt for the purpose they serve.
10. Why does the Government consider that it is
appropriate for justices of the peace, rather than magistrates
courts, to exercise the broad compulsory powers envisaged In Part
2A?
34. The Government believes that justices of the
peace, who currently make decisions about the medical examination
and detention of individuals under the Public Health (Control
of Disease) Act 1984, are qualified and experienced to make those
decisions. The Government believes it is necessary that a decision
can be made 24 hours a day, because every decision is about a
potential risk of significant harm to the health of others. Magistrates'
courts need to be convened and generally operate during normal
office hours. The Government does not believe it appropriate to
tie such important decisions to 'normal office hours'. To do so
would hinder the local authority's ability to protect people from
significant harm to their health.
35. Similarly the Government does not see a need
for an order obtained out of hours to be reviewed automatically
by a magistrates' court. A person affected by an order may apply
under section 45M(4) for the order to be varied or revoked.
(d) Proposed regulation making powers
11. I would be grateful if you could provide
a more detailed explanation of the Government's view that these
proposals are sufficiently certain and accompanied by adequate
safeguards to ensure compatibility with the Convention rights
considered in the Explanatory Notes, in your letter and in the
Impact Assessment accompanying these provisions.
36. The Impact Assessment, Explanatory notes and
paragraphs 20-30 of the letter I sent to the Committee on 26 November
set out in detail why the Government believes the powers are ECHR
compliant. If the Committee has specific concerns on some of the
details the Government would be happy to address these further.
12. In particular, I would be grateful if
you could explain the purpose that these powers will serve and
why the Government considers that these powers are necessary for
the protection of public health. I
would be grateful if the Government could provide the Committee
with any evidence it has that the broad powers proposed for justices
of the peace will be inadequate to meet any risk of significant
harm to public health.
37. The regulation making powers in section 45C are
meant for a different purpose to that for the powers of a justice
of the peace. That is why there are particular restrictions on
the use of certain of the regulation making powers, if they impose
or provide for the imposition of measures similar to those available
to a justice of the peace. For example, where a local authority
is enabled through regulations to impose a measure that a justice
of the peace could impose, it must be in response to or expressed
in regulations to be contingent on there being a serious and imminent
threat.
38. The regulation making powers also could enable
action to be taken in a uniform manner. For example, in the unlikely
event that there was a large outbreak of a highly infectious disease
(such as Ebola or SARS), rather than allowing local authorities
to overwhelm justices of the peace and lose valuable time by seeking
orders for all those who were unwilling to comply voluntarily
with measures to control the spread of the disease, regulations
under section 45C might enable a local authority or other relevant
health protection authority to place a requirement on a person
who was unwilling to comply. (Making regulations for such provision
would be a precautionary measure, in that most people would probably
choose to comply with measures to protect their own health.) This
approach would save time and ensure a uniform response to a serious
and imminent threat that could save lives.
39. Certain measures that the regulation making powers
provide for cannot be exercised by a justice of the peace. For
example, the regulation making powers would allow the Secretary
of State to prohibit a large gathering (such as large music concerts
or football matches) if it was believed that this could prevent
the spread of disease by preventing the mingling of infected and
non infected individuals. A justice of the peace could not do
this because the provisions only permit a justice of the peace
to close premises if the premises are infected or contaminated.
A justice could use the power to 'restrict where P goes and with
whom P has contact', but this could only be applied to those who
were, or were suspected of being infected, and not those at risk
of being infected by going to the venue.
40. Measures in regulations can be applied to individuals
who are not infected as well as to those who are. This enables
measures that are precautionary. For example, during an outbreak
people visiting highly contagious patients in hospital could be
required to wear protective clothing to ensure that there was
no onward spread of the disease. A justice of the peace could
not place these requirements on relatives of an infected person,
as it is not within their power to do so.
13. In your letter, you refer to proposed
safeguards which accompany these provisions:
a. You rely upon the requirement on the Secretary
of State to consider whether
a measure will be "proportionate to what is sought to be
achieved by imposing it". I would be grateful if you could
explain why the proportionality provisions in the Bill do not
refer to the risk to public health which the Secretary of State
seeks to address.
41. The imposition of a measure might be an essential
step in a number of steps in regulations that together address
a threat to public health. The particular measure must be proportionate
to what imposition of the measure is intended to achieve and necessary
to meet the threat to public health the regulations address, even
though the test does not refer expressly to the risk to public
health.
42. Provision which interferes with a person's human
rights under Articles 8, 9 and Article 1, Protocol 1 ECHR can
in some instances be justified if the interference amongst other
things is for the protection of public health or in accordance
with the general interest including that of public health. However
the restrictions in section 45D(1) and (2) are not intended to
replace the assessment under section 6 of the HRA, that the appropriate
Minister as a public authority makes when making regulations,
of ensuring that they are compatible with Convention rights.
b. The Secretary of State will only be able to
impose specific requirements or restrictions on individuals when
regulations are made either a) in response to a "serious
and imminent threat to public health" or b) where the imposition
of a requirement or restriction is expressed to be contingent
on there being such a threat "at the time when it is imposed".
- Can you explain why it would
be necessary for the Secretary of State to exercise any regulation
making powers under these provisions before a serious and imminent
threat arises, particularly in light of the broad proposed powers
for justices of the peace?
43. As explained above, the powers of a justice of
the peace and the regulation making powers do not serve the same
purposes. The Committee asks why it would be necessary to make
regulations when there was not a serious and imminent threat.
The power in section 45C(3)(a) is intended to be exercised to
make regulations to require registered medical practitioners to
notify local authorities about certain diseases (see policy statement
at Annex B). The requirement to notify is intended not only to
apply where there is a serious and imminent threat.
44. The vCJD example (example c of the policy statement
on Local Authority regulations at Annex B) shows why it may be
necessary for the Secretary of State to impose a restriction or
requirement that is not contingent on there being a serious and
imminent threat
- Can you explain the Government's
view that regulations which enable the Imposition of restrictions
by the Secretary of State, conditional on a serious and imminent
threat will be compatible with the requirement for legal certainty
imposed by the Convention and the common law? In thee circumstances,
who will determine that a threat is serious and imminent?
45. If regulations enable the imposition of a restriction
or requirement that can only be included if the measures are imposed
in response to or are contingent on there being at the time the
measure is imposed a serious and imminent threat (section 45D(4)),
the Secretary of State, as appropriate Minister as respects England,
will need (i) to have determined that the threat the measures
respond to is or will be a serious and imminent threat, and (ii)
is adequately described so as to provide for legal certainty.
The discretion to impose the measure would need to be made subject
in the regulations, however, to a requirement that the Secretary
of State who is given the discretion consider at the time the
measure is imposed: (i) whether the threat the Secretary of State
as decision maker responds to is the serious and imminent threat
described in the regulations, and (ii) whether imposition of the
measure is proportionate to what is sought to be achieved by imposing
it (section 45D(2)).
46. It is the Secretary of State as appropriate Minister
who makes the regulations who will have determined that the threat
the measures respond to, or will be in response to, is or will
be a serious and imminent threat As the decision maker identified
in the regulations the Secretary of State must apply the regulations.
However before the regulations could be made they would need to
be laid before, debated and approved by resolution of each House
of Parliament. Parliament would have the opportunity to determine
that the threat described in the regulations is or will be a serious
and imminent threat, and is adequately described so as to provide
for legal certainty. Given the nature of the subject matter, the
Government considers that the powers are appropriate and the procedures
provide for the legal certainty required by the Convention and
the common law.
- In this context, does the
Government consider that a restriction or requirement Imposed
under these provisions should remain in place after the threat
level has decreased from a level which is considered serious and
imminent? If so, could you explain the Government's view that
this continued use of compulsory powers would be compatible with
the Convention rights.
47. Where a measure in regulations is contingent
on there being a serious and imminent threat, the regulations
would be drafted so that the measure would not be available when
there was no such threat present The Government believes that
where measures are put in place in response to a serious and imminent
threat, when the threat has passed it will normally be appropriate
to remove the additional safeguard measure.
48. The Government anticipates that regulations for
additional safeguard measures for a serious and imminent threat
will be rare. However where provisions in such regulations turn
out to be useful for preparedness, provided that they are proportionate
after the initial threat has passed, they could remain on the
statute book. The Government does not believe this would contravene
Convention rights.
c. The Bill provides that the Secretary of State
may for the purposes of giving effect to any international agreement
or 'arrangement" amend any enactment I would be grateful
if you could explain (a) what 'arrangements" the Government
consider will be implemented using this provision;
49. Section 13(1)(c) of the Public Health (Control
of Disease) Act 1984 currently makes provision for carrying out
any arrangements with any other country. By way of example, an
arrangement with which the Government has complied is the resolution
described it agenda item 11.1 of the Fifty-ninth World Health
Assembly WHA59.2, noting that the IHR would not enter into force
until 15 June 2007 and calling upon Member States to comply immediately
on a voluntary basis with provisions of the IHR considered relevant
to the risk posed by avian influenza and pandemic influenza.
(b) whether this provision will enable the broader
amendment of the Public Health (Control of Disease) Act 1984 than
is provided for in this Bill
50. Section 45F(3) enables the Secretary of State
to make regulations amending primary legislation to give effect
to international agreements or arrangements. The arrangements
the Government has in mind that might require such amendment are
non-binding WHO recommendations under Article 18 of the IHR. The
power could be used to make further amendments tote Public Health
(Control Of Disease) Act 1984 if the Government decided that it
was necessary or desirable to do so to give effect to a recommendation
However, the Government expects that the public health provisions
in the Bill would enable the implementation of any Article 18
recommendation without further amendment of the 1984 Act, with
the exception of a recommendation requiring medical treatment
51. If the Secretary of State were to provide in
regulations for amendment of the prohibition on provision in regulations
for medical treatment in section 45E, section 45Q would require
the regulations to be laid in draft before and approved by a resolution
of each House of Parliament. So Parliament would have the opportunity
to debate and reject the regulations.
(c) whether the Government consider that this
provision will enable the Secretary of State to amend the provisions
of the Human Rights Act 1998 or the Data Protection Act 1998;
and (d) whether there are any other enactments not covered by
the provision, including for example, the Parliament Acts.
52. The Government has no intention of using the
power at section 45B(1)(c) to amend the HRA, the Data Protection
Act 1998 or the Parliament Acts. The Government cannot envisage
a WHO recommendation or other international agreement in relation
to public health that would' require such a measure. As regards
the HRA and the Data Protection Act, Article 3 of the IHR (principles)
requires implementation of the Regulations to be with full respect
for human rights, and this is supported in particular by Articles
31, 32, 35, 40, 41-43 and 45 of the IHR.
53. Rebuttable presumptions apply as to what is intended
in conferring a power to amend an enactment, such as the presumption
against interfering with the HRA. They apply even when general
language is used. The courts also have suggested rules in relation
to provisions of particular constitutional importance, requiring
modification to be express. In addition, legislation conferring
powers must be interpreted compatibly with the Convention rights
(section 3 of the HRA). No express provision is proposed in relation
to the powers in section 45B(1)(c) or 45F(3) which would enable
regulations to amend the HRA or the Parliament Acts. Ultimately
it would be for Parliament to decide under the affirmative resolution
procedure in section 45C whether the HRA, Data Protection Act
or any other enactment could be amended under the powers in sections
45B(1)(c) and 45F(3).
(2) Weighing and Measuring Children (Article
8, ECHR)
14. I would be grateful
if you could provide a fuller explanation of the
Government's view that the benefits which these
proposals would present for the protection of public health are
proportionate to the interference with a child's right to respect
for his or her private life which these provisions would enable.
In particular, I would be grateful if you could explain whether
the Government has gathered any substantive evidence on the value
of a national scheme.
54. We consider that the benefits of weighing and
measuring children through this organised programme are proportionate
to the interference with a child's right to respect for his or
her private life. The landmark Foresight[48]
Report, published in October 2007, has outlined the scale of the
obesity problem. In 2004 approximately 10% of boys and girls aged
2-10 were obese, and these figures are likely to increase to 21%
(boys) and 14% (girls) by 2025, and 35% (boys) and 20% (girls)
by 2050.[49] Obesity
is responsible for 9,000 premature deaths a year in England, and
it reduces life expectancy by, on average, nine years.
55. The Government's initial focus is childhood obesity,
given the emerging evidence that children who are overweight are
more likely to develop diabetes or other diseases in later life
and are more likely to become obese adults. The National Child
Measurement Programme (NCMP) is a core component of the Government's
work programme on obesity. The NCMP provides essential public
health data which can be used to inform local planning and delivery
of services for children, as well as to analyse population-level
surveillance data to allow trends in growth patterns and obesity.
We provide clear guidance to PCTs and schools which emphasises
that:
(a) the
privacy and dignity of the child is to be safeguarded at all times
and the measurement is to be done sensitively in a private setting;
(b)the height and weight information
is to be gathered with minimal physical contact by health professionals;
and
(c) PCTs will take steps to ensure that parents
receive a letter explaining the purpose of the programme, and
provide them with the opportunity to withdraw their child from
it.
56. There has not yet been a full evaluation of the
whole NCMP, although the Government is planning a comprehensive
evaluation in 2008, following the introduction
of routine feedback to parents. We have however commissioned research
on the NCMP, including research on parental and child attitudes
to it, which has been used to inform the development of the NCMP.
Some key findings include:
(a) that children regard
being weighed and measured as normal and an everyday part of growing
up, and that "being measured and weighed provided an opportunity
to learn about how to be healthy";
(b) that advance information about the programme,
a choice to opt-out and the provision of feedback were considered
important elements of a weighing and measuring exercise;
(c) that parents generally suggested that
receipt of height and weight data and additional information would
be informative, helpful and could be put into
practice by parents.
15. Could you explain the precise purposes
for which the Government intends to use the data gathered using
these powers, including an explanation of what the reference in
the Explanatory Notes to "surveillance" means?
57. Data collected under these powers will be used
for three key purposes:
(a) to inform local planning and delivery of
services for children. This specifically includes PCTs and local
partners using the analysed aggregated data to inform planning,
commissioning and delivery of services, such as weight management
services, where most needed in their
areas;
(b) aggregated data collected will also be
used for performance management purposes,
enabling the Department of Health and the Department of Community
and Local Government to manage the performance of local areas,
in terms of coverage (number of eligible children weighed and
measured), and prevalence of overweight and obesity at a local
level. Specifically, NMCP data will be included in the new Local
Government National Indicator Set which is currently out for consultation.
Population level aggregated data will be used at a national level
to analyse trends in growth patterns and obesity. The data and
the NCMP can also help to increase public and professional understanding
of weight issues in children and be a useful vehicle for engaging
with children and families about healthy lifestyles and weight
issues; and
(c) to increase public and professional understanding
of weight issues in children and for engaging with children and
families about healthy lifestyles and weight issues.
58. Surveillance, for the purposes of the NCMP, is
defined as "the systematic collection, collation and analysis
of data with dissemination of the results to those who need to
know so that appropriate control measures can be taken: In short,
surveillance information for action".[50]
This definition is also used by WHO and the Centre for Disease
Control (USA).
16. Why does the Government consider, particularly
in light of the justification provided in the Explanatory Notes,
that it is appropriate for key safeguards, such as the right to
withhold consent and the purpose for which information can be
used either with or without identifying material, to be left to
secondary legislation?
59. The proposed new paragraph 7A of Schedule 1 to
the National Health Service Act 2006, sets out the functions of
the Secretary of State and regulations will provide a detailed
framework for the exercise of these functions. This approach is
in keeping with the structure of the 2006 Act where broad functions
are conferred on the Secretary of State and other health service
bodies with detailed arrangements being set out in regulations
or directions. Control of patient information is currently dealt
with by regulations under section 251 of the 2006 Act and the
new provisions are drafted consistently with that provision. While
the Government does accept that safeguards will be necessary in
order to ensure compliance with the ECHR, there does not appear
to it to be any special reasons in relation to these provisions
why the safeguards need to be in primary legislation rather than
in regulations.
17. If draft regulations are proposed or have
been prepared to accompany these clauses, I would be grateful
if you could provide the Committee
with a copy.
60. We are drafting regulations, which we are content
to share with the Committee
early in the new year.
(3) Meaning of Public Authority: the application
of the Human Rights Act (section 6, HRA 1998)
18. I would be grateful if you could tell
us how, precisely, the Government intends to strengthen the regulatory
powers of the Care Quality
Commission to ensure that they can "enforce the requirements
in line with the relevant provisions of the Human Rights Act".
In particular:
a. Will
you confirm that it remains the Government's view, expressed in
1998 during the passage of the HRA and again after the judgement
in YL v Birmingham
CC, that private providers
of health and social services exercise functions of a public nature
and should be covered by Section 6, HRA 1998 when exercising those
functions?
61. It is the view of the Government that private
providers of health care should be covered by section 6, HRA when
they are providing services as part of the health service as defined
in the National Health Service Act 2008 and that private providers
of social care should be so covered when they are providing services
pursuant to arrangements made by local authorities.
b. Can you explain why, despite early commitments
by Baroness Ashton, the then Minister for Human Rights, to ensure
that private care home providers would be subject to the application
of Section 6, HRA, a long term solution for this sector will now
need to await the conclusion of the proposed, lengthy, discussion
on a Bill of Rights for Britain?
62. I understand that, on 14th August, the Ministry
of Justice wrote to the Committee explaining that before, committing
the Government to a specific course of action, the Government
needed fully to analyse the implications of the YL judgment
and discuss these with key stakeholders, such as representatives
of the care sector. In the meantime, we will strengthen the regulatory
powers to ensure that the Care Quality Commission can enforce
regulatory requirements in line with the relevant provisions of
the HRA.
63. The Government remains committed to ensuring
that publicly funded residents of privately run care homes are
covered by the HRA, but the issue of the definition of public
authority' obviously goes much wider than care homes and affects
public policy as a whole. It is therefore essential that the Government
finds an effective and lasting solution and the consultation process
on a British Bill of Rights and Responsibilities is an appropriate
way to do just this.
c. The Minister for State for Human Rights has
told us that the discussion on a Bill of Rights for Britain is
not considered an opportunity for the Government to depart from
the HRA 1998 or the duties in that Act. Against this background,
why does the Government consider that the debate on a Bill of
Rights for Britain is an appropriate context for the resolution
of the protection gap created by our courts in the intended application
of that Act?
64. My colleague Michael Wills confirmed during the
meeting with the Committee on 26th November, that the Government
will address the wider issue of the definition of public authority"
in the context of the forthcoming consultation on the British
Bill of Rights and Responsibilities. During that process of consultation,
the Government will be able to draw on a wide range of expertise.
d. Why does the Government
consider that the Care Quality Commission will be able to impose
standards equivalent to the duties imposed by Section 6 HRA in
secondary legislation?
65. The Government has committed to using the Health
and Social Care Bill to strengthen the regulatory powers to ensure
that the Care Quality Commission can enforce regulatory requirements
in line with the rights protected under the HRA.
66. The intention is that the requirements imposed
by regulations made under clause 16 of the Bill will include requirements
which give practical effect to the rights covered by the HRA such
as freedom from inhuman or degrading treatment and respect for
private life. They might for example include requirements to assist
people to maintain a dignified appearance or to maintain their
private lives and family and social support networks. These requirements
will apply to all providers of health and social care required
to register with the Care Quality Commission under the Bill, They
will underline that the purpose of regulation is to establish
essential minimum requirements that protect people's dignity and
human rights and that regardless of the scope of the remedies
provided under the HRA, we expect all care homes to respect the
human rights of all of their residents.
67. The Government accepts that the requirements
to be developed under the Bill will not give individuals any rights
of action under the HRA. However, providers who fail to protect
the dignity and human rights of individuals in their care will
then be liable to appropriate enforcement action which can include
prosecution or cancellation of registration.
e. The Care Quality Commission will only regulate
services in England. How
does the Government hope to ensure that private providers of health
and social care services in Wales, Scotland and Northern Ireland
are subject to the same regulatory standards which the Government
propose as a short term solution to guarantee the rights of service
users?
68. Regulatory standards for health and adult social
care services are the responsibility of the devolved administrations
in Scotland, Wales and Northern Ireland, all of which are required
to act compatibly with the ECHR and share the Government's commitment
to working to ensure respect for human rights. Any changes to
their regulatory systems to mirror those under consideration in
England are therefore a matter for them.
69. This is a further good reason why it is sensible
to make the changes we have committed to within the scope of the
British Bill of Rights and Responsibilities which would apply
to the whole of the United Kingdom.
(4) Powers of the OHPA: fair hearing by
an independent tribunal (Part 2 of the Bill)
19. I would be grateful if you could provide
a further explanation of the Government's view on the compatibility
of these provisions with Article 6 ECHR, with particular emphasis
on cases which (a) may involve accusations of activity which may
also amount to a criminal offence and (b) cases which may involve
an individual being prevented from continuing in his or her profession.
70. We consider the adoption of the civil standard
of proof in relation to fitness to practise proceedings to be
compatible with Article 6 ECHR for the following reasons.
71. The Medical Act 1983 makes provision for the
consideration of allegations that a person's fitness to practise
is impaired. The provisions provide for consideration by an Investigating
Committee and in appropriate cases, referral to a
Fitness to Practice Panel (see Part V of the
Medical Act 1983). Once the provisions of the Bill relating to
OHPA are commenced, the reference to referral to a Fitness to
Practice Panel are amended to refer to the Adjudicator. A person's
fitness to practise may be impaired by:
(i) misconduct,
(ii) deficient professional performance,
(iii) a conviction or caution for a criminal offence,
(iv) adverse physical or mental health,
(v) certain determinations by other regulatory bodies.
72. The standard of proof concerns the way in which
the investigating Committee or the GMC Fitness to Practice Panel
(once the OHPA provisions are commenced, the OHPA Fitness to Fitness
Panel) establishes the relevant facts i.e. the facts said to amount
to misconduct or deficient performance. The establishment of facts
is the first stage in the disciplinary process and this may or
may not involve allegations of a criminal nature or a case where
a person has a conviction. The process involved is not a criminal
process but a disciplinary process.
73. Article. 6 does not prescribe the standard of
proof to be applied in civil proceedings and therefore the enactment
of primary or secondary legislation providing for the use of the
civil standard of proof in respect of fitness to practise cases
would not in itself contravene Article 6.
74. Article 6 provides that in the determination
of a person's civil rights and obligations, everyone is entitled
to a fair and public hearing within a reasonable time by an independent
and impartial tribunal. The procedures relating to determinations
are provided for in secondary legislation. A decision to remove
a general practitioners registration under the Medical Act 1983,
thereby preventing that person from continuing with his or her
profession falls within a determination of a civil right.
75. In determining the facts, the civil standard
is to be imposed. The courts have recognised that the "The
civil standard is a flexible standard to be applied with greater
or lesser strictness according to the serious of what has to be
proved and the implications of providing those matters" (see
B v Avon and Somerset Constabulary (2001) WLR 340 at para 30).
76. Once the facts have been proven, the Investigating
Committee or the GMC Fitness to Practice Panel (once the OHPA
provisions are commenced, the OHPA Fitness to Fitness Panel) must
decide (the second stage) whether the proven facts are sufficiently
serious to justify a finding that fitness to practise is impaired
on account of any of the matters listed in paragraph 71 (i) to
(v) above. If the answer is "yes", then the imposition
of a sanction (e.g. removal from the register, a warning) is made
(the third stage).
20. I would be grateful if you could explain why
the Government considers that it is appropriate in circumstances
which may involve allegations amounting to a criminal offence
to leave the use of a higher civil standard open to the discretion
of the relevant panel of OHPA.
77. The Government does not consider the use of the
higher civil standard to be "open to the discretion of the
relevant panel of OPHA". The Courts recognise that the civil
standard is flexible and that the more serious the allegation,
the less likely that ft occurred and, hence the need for stronger
evidence before the decision-maker can conclude that the allegation
is true; therefore, the greater the unlikelihood of what is alleged
the more cogent the evidence is required to be to prove that it
did happen. The relevant panel of OPHA will be bound by case law
and will have access to legal assessors (this is provided for
in clause 96 of the Bill). Legal assessors will be appointed for
the purpose of giving advice to the OHPA's fitness to practice
panels on questions of law. The legal assessors will be able to
provide advice regarding such matters as to the application of
the standard of proof required. Thus, in cases of alleged serious
misconduct which could also amount to criminal offences, the relevant
panel of OPHA would,; as case law provides, adopt the heightened
civil standard and would need to have strong and cogent evidence
justifying a finding that the factual allegations are proven.
78. The majority of health regulatory bodies already
adopt the civil standard of proof. There is no evidence that the
relevant panel of regulatory bodies have difficulties is applying
the civil standard of proof nor is there any evidence of unfair
or poor decision making by relevant fitness to practise panels.
(5) Duties and Disclosure (Article 8, ECHR)
(clauses 64, 70-71)
21. I would be grateful if you could explain the
Governments view that these provisions contain adequate safeguards
to protect the right to respect for personal information, in so
far as that right is guaranteed by Article 8 ECHR.
79. Clause 54 provides for the Care Quality Commission
(the Commission) to make certain information public. However,
this power, and any other disclosure of information by the Commission,
is subject to the safeguards contained in clauses 70 and 73(2).
Clauses 70-74 take forward existing provisions that apply to the
Commission for Healthcare Audit and Inspection (the Healthcare
Commission), as set out in sections 136-138 and section 140 of
the Health and Social Care (Community Health and Standards) Act
2003 (the 2003 Act). The Healthcare Commission has found that
these provisions work well in terms of protecting confidential
information and clarifying under which circumstances staff can
and cannot disclose such information.
80. In practical terms, in relation to social care
related information, we understand that these information provisions
simply codify in law what the Commission for Social Care Inspection
(CSCI) currently does in practice whilst covered by the common
law duty of confidentiality and the Data Protection Act 1998.
The extension of these provisions to the Commission will mean
that its staff should be familiar with them and their application
in practice.
81. People working for the Commission will need to
be aware of the sensitive nature of the information they deal
with in carrying out their duties. Due to the greater integration
of health and social care, and given the integrated role of the
Commission, it is important to have a single set of provisions
that apply to all of the Commission's work so that everyone concerned
can be clear as to how such information will be handled.
82. These provisions, including the permitted disclosures
under clause 73 (mirroring the existing provisions under the 2003
Act), place appropriate restrictions on the Commission's ability
to disclose personal information. The Commission will only be
able to disclose such information in specific circumstances. One
such circumstance is where disclosure is necessary for the protection
of the welfare of the individual. This will ensure that the Commission
is able to act in the best interests of the patient or service
user and share information where this is necessary.
83. Both the Healthcare Commission and CSCI issue
codes of practice on the practices they follow in relation to
handling confidential personal information, as required by sections
140 and 141 of the 2003 Act, which are published and available
on their respective websites.
http://www.healthcarecommission.org.uk/ db/ documents/0401
2832.pdf http://www.csci.org.uk/pdf/code practice. pdf
84. The Commission will also be required by clause
74 to prepare and publish
a code on the practice it proposes to follow in relation to personal
confidential information. It will be required to consult on a
draft of such code before it is published.
General Duty of Co-operation (clause 112)
22. I would be grateful if you could explain
the Government's view that these
provisions are sufficiently certain and contain appropriate safeguards
to ensure compatibility with Article 8(2). Specifically, I would
be grateful if you could explain why the Government considers
that these proposals are necessary and proportionate to meet their
stated, legitimate, aim of protecting the health and rights of
patients and the general public."
85. The policy context of clause 112 is described
in Safeguarding patients, the
government response to the Shipman Inquiry's fifth report and
to the reports of the Ayling, Neale and Kerr/Haslam inquiries
(paragraphs 8.1-8.7); and in the professional regulation white
paper Trust Assurance and Safety
(paragraphs 6.13-6.15). These recent high
profile inquiries into doctors that have harmed their patients
raised many issues. A common conclusion was that healthcare organisations
failed, both singly and collectively, to "join up" the
information that was available to them. They also failed to realise
that such information could be used to protect patients at risk
from the behaviour of healthcare professionals. The purpose of
the proposed new powers to make regulations, making provision
in connection with the sharing of information, etc., is to strengthen
the responsibilities and powers of healthcare organisations to
collaborate in handling information of this kind, while maintaining
safeguards for the human rights of health professionals and high
standards of data protection. The intended aim of any disclosure
is to place the recipient organisation in a better position to
take necessary and appropriate action to protect individual patients
or the general public.
86. The Court of Appeal has equated the question
of whether an interference with a person's Article 8 ECHR rights,
in the context of disclosure of information, is proportionate
with the test under the common law of whether there is a "pressing
need for disclosure.[51]
Consideration of whether there is a pressing need for disclosure
requires a balance to be struck between the interests of the person
who is the subject of information, or allegations, and the interests
of the party to whom disclosure is proposed to be made (or those
for whom that party is responsible). In carrying out this balancing
exercise, the nature and strength of any allegations and the vulnerability
of the persons to be protected will be central issues. The more
serious the interference will be with an individual's interests,
the more substantial the justification will need to be for the
interference to be permitted. However, we consider that where
there is an actual or potential risk to patient safety the need
for public safety will outweigh rights to respect for privacy.
In such circumstances there will also be a public interest in
disclosure.[52] Disclosure
will enable the recipient organisation to take appropriate steps,
for example by making enquiries in relation to the health care
worker.
87. Provision for disclosure to another organisation
is also considered proportionate as it will take place within
a statutory framework covering disclosure and handling of information
received. As well as provisions to be included in the proposed
regulation& subsection (5) further provides that the regulations
may require designated bodies to have regard to any guidance given
by the appropriate Minister or any other prescribed person. We
intend to use the regulations and accompanying guidance to set
out:
(a) the types of information that can be shared,
for example information from appraisals, records of complaints;
(b) the circumstances when information must not
be shared, for example information not related to conduct and
performance;
(c) the steps that must be taken (for example,
carrying out the balancing exercise referred to in paragraph 86
above, discussing issues with the individual concerned, informing
their professional body, reporting to the organisation, agreeing
an action plan, ensuring necessary and appropriate action is taken)
and the issues that have to be considered (for example. relevance,
timeframe, appropriate level of investigation) when considering
whether to disclose; and
(d) any other appropriate safeguards which should
be in place.
88. It is expected that the guidance issued will
also include guidance about the provision of information and include
reference to existing codes of practice on confidentiality and
disclosure of information and the need to anonymise information,
which identifies third parties (such as patients), where possible.
The guidance will assist organisations in relation to the exercise
of the disclosure function, and seek to ensure that appropriate
safeguards are in place and that the provisions are exercised
in a way which complies with Article 8 ECHR.
89. The Government is working closely with all interested
groups, including the public and patients, to draw up protocols
and systems for managing information effectively. This consultation
is taking place as part of the Tackling Concerns Locally Working
Group which was set up to help implement the white paper. Representatives
on this group include the GMC, the British Medical Association,
the Patients Association, and medical defence organisations.
48 "Tackling Obesities: Future Choices"
Government Office for Science, Department of Innovation, Universities
and Skills, October 2007. URN 07/1184 Back
49
These figures are based on the international standard and therefore
give a lower prevalence of obesity than that currently recorded
by the UK standards, which estimates that just under 17% of children
aged 2-10 were obese in 2005. Back
50 EssentialPublicHealth,DonaldsonU,DonaldsonRJ.PetrocPress,2000
Back
51
See R (Dr D) v Secretary of State for Health [2006] Lloyds
Rep Med 457. Back
52
See for example, the judgement of Sumner J in London Borough
of Brent v (1) SK (2) HK (Aka HL) (a minor) [2007] EWHC 1250
(Fam). Back
| 
