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While I understand the reasoning behind these amendments—they were adequately explained by the noble Earl and the noble Baroness—we believe they would still be too restrictive and could, in certain circumstances, prevent valuable information being shared that may reveal a threat to patient safety. For example, a set of clinical indicators for a health professional

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who works across a number of locations could potentially suggest there is a problem, but the interpretation of these data are not clear cut or definite. In this case, the information that the healthcare organisation has shows only that there “may” potentially be a threat to patient safety. If I accepted these amendments, the information that “may” show a threat to patient safety could not be shared. But other healthcare organisations in which this professional is working may hold similar isolated incidents of concern. Put together, they form a pattern that definitively shows that he is a threat to patient safety. That pattern could be identified and action to protect patients taken only if healthcare organisations can share information that“may”—not “does”—show a threat. I do not deny that it is a sensitive and difficult issue.

I know that we need to ensure that healthcare organisations share information appropriately, but the best way to do that is by secondary legislation and guidance detailing the tests that need to be applied and the steps that should be taken before information is shared. An expert group charged with helping to implement the White Paper is looking at this issue and will help us to develop the necessary secondary legislation and guidance.

The effect of Amendment No. 151 would be to ensure that no information could be shared unless the healthcare worker involved had been informed. As a general rule it must be right that healthcare workers are made aware of concerns whether these are shared or not, and certainly before such concerns are shared with other organisations. However, there may be exceptional cases when this is inappropriate or even impossible, for example, when there are concerns that informing the worker might hamper an investigation, possibly by enabling that worker to influence witnesses. For example, the Kerr/Haslam inquiry took the view that a letter of retraction written by a patient who had allegedly been abused by William Kerr was probably written as a result of pressure from him, or one of his supporters, after he had been informed of the accusation.

There may also be cases where the worker has already left the employment of the healthcare organisation and has not left contact details. While it may then not be possible to inform the worker, the healthcare organisation may judge that it is necessary to share the information with other organisations where that individual might work. In such circumstances, the amendment would stand in the way of action needed to protect patients. We intend instead to provide healthcare organisations with detailed guidance setting out the limited circumstances in which it would be justified to share information without informing the healthcare worker, while making clear that the general rule should be that he or she should be told before any information about them is shared. I hope that the Committee will feel that I have explained why the Bill is drafted as it is and that the noble Earl will withdraw his amendment.

Earl Howe: That was a helpful reply, which I shall have to reflect on. The example that she gave illustrates why the Bill is so worded, but it is an example of factual information giving rise to concerns. That is a different sort of case from tittle-tattle or unsubstantiated rumour and unfounded allegation. It is difficult to

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think of how the wording could be altered to capture one type of case rather than the other, but maybe the combined ingenuity of the noble Baroness and others between now and Report will suggest a further amendment.

I understand what she said about the need in certain circumstances not to inform the practitioner against whom an allegation has been made. This is an appropriate matter for guidance rather than the Bill, and I welcome what she said. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 150A and 151 not moved.]

Clause 116 agreed to.

Clause 117 agreed to.

6.15 pm

Baroness Thornton moved Amendment No. 152:

“Hearing Aid Council(a) subsection (1), or(b) subsection (2), so far as relating to the profession mentioned in section 60(2)(ca) of the Health Act 1999 (c. 8),unless the following conditions are met.(a) that an Order in Council under section 60 of the Health Act 1999 (regulation of health care and associated professions) has made provision by virtue of subsection (2)(ca) of that section (regulation of dispensers of hearing aids), and(b) that the day appointed under section 162(2) is not earlier than the day on which the Order in Council, so far as making such provision, comes into force.

On Question, amendment agreed to.

Clause 118 agreed to.

Schedule 9 [Regulation of social care workers]:

Earl Howe moved Amendment No. 153:

The noble Earl said: This is a very simple drafting amendment. Paragraph 2 of Schedule 9 says:



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I think that there is a certain ambiguity there over whether the registers or the social workers are to be described, and I therefore suggest that the wording could be clarified helpfully. I beg to move.

Lord Tunnicliffe: I am advised by colleagues that this is a pretty unprecedented moment. Amendment No. 153 would make the wording of paragraph 2(b) more consistent with that in paragraph 8(3)(a), which refers to,

The amendment does not, in the Government’s view, affect the substance of paragraph 2(b) of Schedule 9, but we recognise that the suggested drafting will make it consistent with the drafting of paragraph 8(3)(a) and with Section 56(1)(b) of the Care Standards Act 2000.

This is a sensible drafting amendment and it will help to ensure that the Bill is consistent in its terminology. I therefore accept it and the amendment will be included in the next reprint of the Bill. I thank the noble Earl, Lord Howe, and the noble Baroness, Lady Cumberlege, for identifying this helpful improvement to the Bill.

Although not strictly related to the amendment, I also take the opportunity to place on the record, for the benefit of the General Social Care Council, a reassurance about the extent of the powers in Clause 118 and Schedule 9. The General Social Care Council has been concerned about whether these powers would allow the removal of its core functions, such as the function of deciding whether to grant or refuse registration. I am happy to provide reassurance that the new powers will not allow us to remove any of the council’s core functions.

Baroness Cumberlege: I support my noble friend, and perhaps I may suggest that from now on he should join the Bill team.

Earl Howe: This is extremely good news. I can only express my heartfelt gratitude to the Minister for having accepted the amendment. I think that it is an example of symmetry of drafting, of which I definitely approve.

On Question, amendment agreed to.

[Amendment No. 154 not moved.]

Baroness Thornton moved Amendments Nos. 155 and 156:

On Question, amendments agreed to.

Schedule 9, as amended, agreed to.

Clause 119 agreed to.

Clause 120 [Education and training of approved mental health professionals]:

[Amendment No. 157 not moved.]

Clause 120 agreed to.



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Clause 121 agreed to.

Schedule 10 [Further amendments relating to Part 2]:

Baroness Thornton moved Amendments Nos. 158 and 159:

“National Assembly for Wales (Disqualification) Order 2006 (S.I. 2006/3335)(a) for “Council for the Regulation of Health Care Professionals” substitute “Council for Healthcare Regulatory Excellence”, and(b) at the appropriate place insert—

On Question, amendments agreed to.

Schedule 10, as amended, agreed to.

Clause 122 [Interpretation of Part 2]:

[Amendment No. 160 not moved.]

Clause 122 agreed to.

Clause 123 [Public health protection]:

Earl Howe moved Amendment No. 161:

The noble Earl said: In moving Amendment No. 161, I shall speak to Amendment No. 162 and, very briefly, to Amendment No. 166A.

Clause 123 brings us to Part 3 and to the very important provisions relating to public health. Let me say at the outset that I understand fully, and I support, the need for Parliament to bring our public health legislation up to date and at the same to time to bring it in line with international health regulations. Much of our public health law dates back to the 19th century. As such, it fails to address a number of matters which under most people's reckoning fall within the definition of public health hazards, the most obvious examples being nuclear radiation and chemical contamination. I accept that the law needs to cover these in a way that makes it possible for the relevant authorities to protect the public in an appropriate manner. I also accept the desirability of implementing the recommendations of the World Health Organisation, as reflected in the International Health Regulations of 2005. These now cover infectious diseases in general, rather than naming specific diseases as they used to, and they are also concerned with hazards relating to contamination.

What we have in Clause 123 is a series of new sections to be inserted into the Public Health (Control of Disease) Act 1984 which are designed to cover all relevant types of hazard falling under the heading of infection or contamination. While I recognise that this approach is clearly sensible if we are to cater for public health threats that are as yet unknown—and one thinks back to the threat posed by SARS a few years ago—the inevitable feature of it is that the measures in the Bill that are designed to address these disparate threats have to be couched in quite sweeping and vague terms. Under the old-fashioned variety of

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regulations, we were dealing with specific named infectious diseases such as plague and cholera. The severity of those threats is well understood and the measures needed to avoid their spread are well established. However, once we start dealing with threats that of their nature cannot be defined, because they are as yet unknown, we are into rather different territory. We can provide only in a general way for the measures that may possibly be needed to counter them, even though we cannot say anything substantive about them.

We are also in different territory with the threats posed by chemical and nuclear contamination because, whereas immediate quarantine is appropriate for someone suffering from plague, there is usually no necessity to quarantine a person who may have come into contact with a hazardous chemical. Rather what you do is to try to ring-fence the contamination and keep people away from it. Nuclear contamination falls somewhere between the two. If a place is contaminated, you will want to evacuate the affected area. If, on the other hand, like the unfortunate Mr Litvinenko, someone ingests a nuclear isotope, you will want to isolate that person as well as make sure that the source of the radioactivity does not pose a danger to others.

The result of legislating for this very broad range of threats is a set of all-singing, all-dancing statutory provisions which, if passed into law, will be totally reliant on clear guidance being issued if the relevant public authorities are to implement the law in a way that is both discriminating and proportionate. In new Section 45C we find exactly where this all leads to. New subsection (1) gives the appropriate Minister a power to make regulations,

In new subsection (2)(b) we see that the power may be exercised,

In other words, it is a very sweeping power indeed.

I say that because we are dealing here with measures which are not defined in the Bill but which Ministers can bring into force more or less at the stroke of a pen without the prior approval of a magistrate. These include, in new subsection (3)(c), a provision,

In other words, Ministers, by regulation, are being given considerable power to limit and constrain the daily lives and freedoms of citizens.

Baroness Tonge: Has it occurred to the noble Earl that these powers already exist in the Civil Contingencies Act, which was updated in 2004? If he is going to address the issue, I apologise, but I feel we need to look at the two together.

Earl Howe: The noble Baroness makes an extremely important point. I was going to ask the Minister whether she could explain how these

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provisions tie in with those of the Civil Contingencies Act and what circumstances might be thought likely to warrant action to be taken under that Act rather than under this part of the Bill. I am grateful to the noble Baroness for making that point.

It is quite a job to navigate through these provisions because they are qualified by what is contained in new Section 45D, which is itself qualified by new Section 45G. They also need to be read in conjunction with new Sections 45E and 45F. It would be helpful if the Minister could confirm my understanding that when it comes to those measures which involve the greatest intrusion into personal freedoms—namely, making someone submit to a medical examination, ordering their removal to hospital or another establishment, or ordering their detention, isolation or quarantine—it will not be possible for regulations to bypass a court order made by a magistrate. That is my reading of new Section 45D(3).

If that is correct, I should appreciate it if the Minister could give us an illustration of the kinds of provision which regulations are likely to contain in the event of, say, a SARS outbreak, a nuclear leak or a leak of a dangerous and toxic chemical. We need to have a feel for the kinds of situations which may be covered by regulations as opposed to the kinds of situations which are thought appropriate for a magistrate to deal with. Some are covered in new Section 45C(4), but this list is expressly not exhaustive.

We are told in new Section 45F—this is the subject of Amendment No. 166A, to which my name is attached—that regulations may confer functions on local authorities and other persons. I can understand the likely role to be played by local authorities, but I am not sure I know who else is likely to be asked to play a role in public health protection. I would appreciate it if the Minister could throw some light on this. If people other than authorised local government officials are to be vested with authority to infringe people’s personal freedoms, we need to know who they are and what functions they are likely to have.

Equally, I would be glad if the Minister could explain why the provision in new Section 45C(3)(c) creates what is apparently a very low threshold for restrictions or requirements to be placed on persons, things or premises. The condition that is specified is that this must be in response to a threat to public health. That, frankly, could mean anything. The degree of threat is not specified. The only limitation on the use of the provision comes in new Section 45D, which states that the restrictional requirement imposed must be proportionate to what is sought to be achieved, but it does not say how great or how small the actual threat needs to be before measures are taken.

I have to say that I am rather uneasy about that. To interfere with personal liberties when there is only a remote threat to public health might be seen by many as an overreaction, even though a Minister could still justify the restriction by arguing that it was proportionate to the mischief in question, were it to happen. Perhaps the Minister could take us through the thinking here.



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If we look ahead slightly to Amendment No. 165 in the name of the noble Baroness, Lady Stern, it seems to me that she has addressed rather neatly the point that I am making in my amendment. I beg to move.

6.30 pm

Baroness Stern: I shall speak to Amendments Nos. 166 and 167 in the group. As the rest of the amendments in my name and in that of the noble Earl, Lord Onslow, relate to Part 3 and the issue of public health and compulsory powers, I crave the indulgence of the Committee to say a few words about the general issues. I am particularly grateful to the noble Earl, Lord Howe, for the way in which he has covered this matter. I feel better knowing that it was not just me who found it incredibly difficult to understand.

In Clause 123, the Government propose to modernise the law on public health. The Joint Committee on Human Rights welcomed this aim but it was concerned that, in introducing a broad degree of flexibility in the proposed health protection regulations and public health orders, the Government were asking Parliament to authorise the use of potentially broad restrictions on individuals without close scrutiny of the circumstances in which the powers would be used and how they might affect individual rights, such as the right to liberty and respect for the family, private life and freedom of association.

Most of our amendments propose a number of additional safeguards for these rights, and we ask the Minister to explain why she thinks the existing safeguards are adequate. Our amendments are principally focused on those regulation or order-making powers which impose restrictions or requirements on persons and which most affect individual rights.

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