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Grand Committee

Thursday, 22 May 2008.

The Committee met at midday.

[The Deputy Chairman of Committees (Baroness Gibson of Market Rasen) in the Chair.]

Health and Social Care Bill

(Eighth Day)

Clause 123 [Public health protection]:

Earl Howe moved Amendment No. 171:

The noble Earl said: I shall speak also to Amendment No. 172. These are two probing amendments concerning the restrictions or requirements that may be imposed by a magistrate. The first one is designed to ask the Minister what is meant by the phrase “other suitable establishment” in restriction (b). In what circumstances would it be appropriate to remove someone to a place other than a hospital, and what sort of place are we talking about?

Whatever the person is suffering from and whatever protective measures may be required to shield that person from others, it seems to me that the environment in which a person is held should at the very least be of a therapeutic nature. What is meant by “suitable”? Suitable for what and suitable in whose opinion? I hope that the Minister can assure me that we are not talking here about prison or a police cell.

The second amendment is designed to probe what is meant by “isolation”. The term “quarantine” has within it the suggestion of therapeutic care, or at least oversight, when someone is infected. Isolation, on the other hand, does not. When should a person be isolated as opposed to quarantined, and in what kind of environment?

Putting the two amendments together, I am left asking whether it would be open to a magistrate to remove someone to a prison and detain them in isolation there, not necessarily because this was the best way to treat the person’s infection or illness but for want of a ready alternative if no hospital bed were available. The use of a prison cell, even as a temporary expedient in order to protect the public, would not seem to be at all appropriate, but it might be deemed “suitable” merely to achieve that end.

I recognise that the Minister was able to give me some valuable assurances on my earlier amendment, but the most extreme scenario might be where the provisions enabled a magistrate to remove an HIV-positive individual to prison and keep them there. I think that we need a few more particulars from the Minister before being able to feel totally relaxed about the somewhat vague phraseology being used in this part of the clause. I beg to move.

Baroness Finlay of Llandaff: After our debate yesterday, I tried to work through some of these provisions looking at worst-case scenarios. One of the scenarios that came to mind was terrorism by releasing smallpox,

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the Ebola virus or some other contaminant in, for example, a building such as this—heaven forbid—and I wondered how we would cope with public health in that situation.

Isolation involves the clinical management of a person who is already infected, whereas quarantine is used before you know whether the person has the infection, although he is at risk of getting it, and he is therefore in the phase where he has been exposed but it is not known whether he will develop the condition.

It struck me that the term “other suitable establishment” might have to be flexible, depending on the place and the occasion. I completely understand the need for clarity in the definition, but I have a great deal of sympathy with the Government in their attempt to draft legislation to apply in the future to unknown circumstances with unknown quanta of risk, where something might have rapid effects.

In framing scenarios in my mind, I was drawing on my experience of the release of some smallpox virus some years ago, when I happened to be a junior doctor working in the vicinity and one of the people had been transported by ambulance on my watch, which meant that we all had to be vaccinated. It was interesting even then, without any awareness of terrorism and so on. I see that the situation could rapidly become very complex, with the need to hold people in an area and not let them freely circulate or be transported elsewhere. One would have to make the best of what was available.

With those caveats, I express a degree of sympathy towards the Government, although I think that it is important for the Minister to state clearly on the record the intentions behind this provision.

Baroness Thornton: Amendment No. 171 would remove the power for a justice of the peace to detain an individual in a suitable establishment that was not a hospital. However, the purpose of the provision as drafted is to give the justice of the peace the possibility of making the measure more responsive to an individual’s needs and, as the noble Baroness, Lady Finlay, said, to give flexibility. Most important, being able to choose an alternative location to a hospital could help to reduce the impact of the measure on an individual’s human rights. For example, if the justice deemed it “suitable”, an individual could be detained in their own home. Support systems would need to be put in place, but this could be infinitely preferable to their being in a hospital. More likely, detention could be in a nursing home or hospice. Detention does not always need to be high-tech. To remove this provision would remove such options.

I know that this amendment may be the result of concerns about the provision and I should like to address the valid concern expressed by the noble Earl about people being put in prison. I want to reassure noble Lords on the record that I do not think that it could be claimed that a prison would be a “suitable establishment” in which to place an infected or contaminated individual. Isolation requires a lot more than a set of bars; it may not even require a set of bars. I remind noble Lords that even prisoners are removed to hospital when they are seriously ill, because prisons and prison cells are not set up to provide intensive

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medical care. The purpose of the provision is to provide positive flexibility for people who may need to have a detention order made against them. I think that we would all welcome that flexibility.

Amendment No. 172 would remove the power in Section 45G(2)(d) for a justice of the peace to isolate an individual. This may sound extreme, but it is a crucial public health protection measure and one of the most effective ways of ensuring that a disease does not spread, as the noble Baroness, Lady Finlay, described much more eloquently that I can. I am sure that noble Lords will recognise that, if an individual has an infectious disease, it may be important to limit their exposure to other people who have not caught the disease. In the most serious cases, isolation requires a negative pressure room, barrier nursing and other special measures.

Allowing justices of the peace to order isolation, where this is necessary, builds on the powers that they already have under current legislation to detain an individual in hospital. The noble Baroness more than adequately described the difference between isolation and quarantine, so I will not even attempt to do so. Both isolation and quarantine were essential control measures used by Hong Kong and Canada to stem the spread of SARS in 2002-03. I hope that the noble Earl and others will agree that this is a sensible public health protection measure and that we cannot sweep away the power to order such interventions. I hope that, with that, I have satisfied those who expressed justifiable concerns.

Lord Walton of Detchant: I apologise for not being here yesterday; I was giving a lecture in Oswestry, which is a long way away.

Other possible explanations make this clause necessary and helpful. If a child in a closed community such as an army barracks or a boarding school develops a serious infectious illness, they may be isolated in a sick bay with full barrier nursing to prevent the infection from spreading. Children who may have been in contact with that child but who show no sign of infection are then put in quarantine in case they subsequently develop the infection; they would be prevented from going out into the community because of the danger that they might present. As the noble Baroness said, there is a significant difference between isolation and quarantine, which is why the clause is needed.

Baroness Thornton: I thank the noble Lord, Lord Walton of Detchant. He is, as ever, absolutely correct and exactly describes some of the circumstances.

Earl Howe: The combination of the noble Lord, Lord Walton, and the noble Baroness, Lady Finlay, has proved to be an excellent investment for us. A lot of light has been usefully thrown on this whole area.

I recognise that these provisions need to be flexible and all-embracing. As we said yesterday, it is difficult to legislate for hazards that are as yet unknown. However, the price to be paid is wording in the Bill that is open and rather vague. That leaves us as legislators feeling a trifle uneasy, for all that I know that Ministers

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and public authorities would have the best of intentions in the event of some catastrophe or outbreak of infection.

The Minister’s reassurance on prisons was extremely helpful and I am grateful to her for it. She gave us a valuable assurance yesterday about the Government’s intention to put in place a mechanism to monitor the way in which the orders are used. I therefore feel considerably more at ease about these provisions than would otherwise have been the case. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 172 to 175 not moved.]

12.15 pm

Baroness Tonge moved Amendment No. 175A:

The noble Baroness said: The amendment probes why the quite extraordinary new Section 45H is in the Bill. It goes under the heading, “Power to order health measures in relation to things”. I wondered first whether it had been included just to make sure that we read the Bill and did not rely on the briefings, thereby winning lots of points if we called attention to it. I then wondered whether some visionary civil servant thought that there may be an attack by aliens that are not human beings, animals or plants but “things” and that we therefore had to make sure that we were covered for the future.

Subsection (2) says,

Presumably, as one of my grandsons said—I read this out to them and they loved it—at that point Doctor Who gets back into his telephone box and goes into another dimension.

Baroness Finlay of Llandaff: Back to Wales.

Baroness Tonge: Yes. I just find it extraordinary. There is a serious point here. It is a rather clumsy and all-embracing word—or maybe we want it to be all-embracing, but it is so unspecific. It makes the Bill look a bit silly; there is going to be a lot of fun with “things” in a lot of town halls and offices up and down the country. Maybe that is a good reason, too, because it will make sure that they use the Bill and carry out its provisions.

The Local Government Association briefings and documents always relate to articles, premises or persons. They actually specify. When I was a medical student—and I know that the noble Lord, Lord Walton, learnt this word, too—infected articles and premises were called “fomites”. It was a joke word when I was a medical student. We used to go around talking about fomites in a dark way, because it was a strange word that we had not come across. However, in Wikipedia, which is a modern form of dictionary, a fomite is,



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it could also be contaminated by radiation and so on—

Walls, floors, tables—all those things as well as articles of clothing are fomites. It is a well recognised word. It comes from the Latin for touchwood or tinder, which is quite appropriate: if you touch it, you are set on fire and get the infection.

“Fomite” is a useful word to look at and, even if we do not use it in the Bill, we should think carefully about the word “thing”. On page 79 of the Bill, we are told that “thing” includes,

I appreciate that fomites are not included in that, but if you do not like fomite you could use “article” and “premises”. But I do not really want my dead body, even if I die of SARS, to be referred to as a thing. I want it to be referred to as a dead body, or a corpse. I am not going to be a thing. There is an element of insult, as well.

We need to look at this new section and the word “thing” and, perhaps, elaborate a little. It is a simplistic solution just to call it a thing; why not say what we mean? Why not say fomites and infected and contaminated human, animal, plant tissue or bodies? Why not spell out to people what we actually mean? I suspect that the Minister is going to give me a real pasting on this and tell me why “thing” must still be used, but this is a serious attempt to find a better way in which to describe something that is a very serious issue indeed. I do not want it to be ridiculed. I beg to move.

Earl Howe: Amendments Nos. 177 and 180, which are grouped here, focus on the powers that the Bill confers on magistrates in relation to things and premises. These powers are new; they are not in the 1984 Act. Clearly any powers to impose restrictions on people are the most sensitive from the point of view of personal rights and liberties, but people’s property and belongings also give rise to considerable rights-related concerns. It is appropriate for us to think about those matters.

Under new Sections 45H and 45I, a magistrate may make an order to seize, isolate, quarantine, disinfect or decontaminate a thing and may close, detain, disinfect or decontaminate premises. I do not have a particular issue with those provisions. However, a magistrate may also order that a thing, building, conveyance or structure should be destroyed, as the noble Baroness said. These are extraordinarily far-reaching powers. We need to remind ourselves that a thing may include a dead body and that a building may include somebody’s house or business premises. We need to ask ourselves whether these are appropriate powers to be vested in a magistrate, as opposed to a judge in a higher court.

We could pick all sorts of examples as regards property and things, but let us take the case of a dead body that is considered to pose a risk to public health—not a significant or severe risk, let us remember, but simply a risk. To reduce the risk, perhaps not necessarily by much, a JP makes an order stating that the body must be incinerated as toxic waste. The insensitivity of that does not need spelling out. What ability is there for the

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next of kin of the deceased person to step in and say, “We think the action you have ordered is disproportionate and amounts to a gross affront to the feelings of the dead person’s family”? The answer, at least in some circumstances is, “None at all”. New Section 45M(3) states:

So it would be possible for an order to be given for a dead body to be unceremoniously disposed of without the person’s family even knowing about it until after the event. I do not know what the rules of court will specify in this context. For all I know, they may contain no mention of a duty to notify the next of kin. It would be helpful if the Minister could throw some light on that.

Should the Minister say to me that there is a right of appeal in such circumstances, my response would be, “A right on the part of whom?”. New Section 45M allows for an order to be varied or revoked on the application of an affected person. At this stage we do not know whether the definition of “affected person” includes a close relative of a deceased individual. We will have to wait for regulations before that is spelt out. But even if a close relative were to be able to make an application for a variation or revocation of the order, it could well be too late by the time that he or she found out what had happened.

For infected or contaminated premises, the action of the court could be equally draconian. Let us imagine that someone has been contaminated by a toxic substance, or by a nuclear or biological agent, and has died from his exposure to that substance. His body is discovered at the home that he owned and lived in, which is also contaminated. Let us imagine that he lived there alone. A JP, if he considered it necessary, could make an order for that building to be destroyed without giving notice to anyone. Even if he gave notice before making the order, the family of the dead person might not be able to apply for a revocation of the order once it was made. In new Section 45M(7) we see that only the owner or occupier of the premises is counted as an affected person.

To order the destruction of a building is a serious matter, yet it appears that a magistrate, acting alone, could do so on the basis that it posed a risk—and no more than a risk—that it might infect or contaminate humans and that it was necessary to make the order in order to remove or simply to reduce that risk. What appears to be missing is a requirement for proportionality of decision-making. I simply do not see it in the Bill.

I note that in new Section 45K(7) provision is made for compensation to be payable in connection with the taking of measures pursuant to a Part 2 order, but there is no guarantee that compensation would be mandatory in a given set of circumstances. We also need to remind ourselves that certain sorts of special restrictions or requirements may be made by regulations as opposed to by an order of the court. On the plus side, there will be a stipulation in regulations for any restriction or requirement to be proportionate to what is sought to be achieved, a stipulation that seems to be missing from magistrates’ powers.



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However, with the regulations there appears to be no counterbalancing duty to give notice to affected persons. We could therefore have a situation in which regulations were made providing for local authorities to impose national restrictions or requirements that were contingent on a serious and imminent threat to public health. Can the Minister say whether I am correct that in those circumstances a local authority could order the destruction of a dead body, a group of dead bodies or a building without giving notice to anyone? I note that there is to be a right of appeal against a decision taken under the regulations that leads to the imposition of a special restriction or requirement but, once again, an application to appeal may be too late if the thing or building has already been destroyed. The Minister will appreciate that I am considerably exercised by these provisions. I question whether the balance between public protection and private rights is in all cases as it should be.

Lord Walton of Detchant: I, too, felt extremely uncomfortable reading the first draft of the Bill and, indeed, the present version when looking at the word “thing”. It struck me as an extraordinary inclusion in legislation. I referred to this in some detail in my Second Reading speech and subsequently received a lengthy letter from the noble Lord, Lord Darzi, in which he justified the use of this term and explained that all the alternatives that I had suggested would not do. I am still uncomfortable. I thought that the idea put forward by the noble Baroness, Lady Tonge, of using “fomite” was clever and useful.

New Section 45T(5) states that “thing” includes human tissue and other items, but that is not an exclusive definition. I considered carefully the possibility that human excreta, such as faeces or urine, could be very infective, but I believe that, under the Human Tissue Act, they would be considered to be human tissue, although that definition is somewhat dubious. Nevertheless, I would like clarification from the Minister about whether that is the case. What is not included in the list of,

are human belongings and clothing, which can be capable of carrying serious infective agents. The question is whether the term “thing” would be taken to include human belongings—clothing and other items—that could pass on an infection. Having thought about it carefully, I would prefer “item” to “thing”, although I expect that the Minister will come up with some serious objections to that as well and will say that it would not cover all eventualities. I still feel that the Bill lacks clarity in the use of that rather unfortunate term. I shall be most interested to hear the Minister’s views.

Baroness Masham of Ilton: The noble Earl raised the question of a person’s next of kin. Could the Bill not state that the next of kin must be notified when possible? Sometimes it might not be possible because people live alone or because of time and so on.


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