Memorandum by Department of Health
The Health and Social Care Act 2008 provides
for a regime for dealing with a public health crisis.
Question 1: Can you outline the rationale
for the wide-ranging order-making powers contained in part 3 of
the Act?
1. Part 3 of the Health and Social
Care Act 2008 updates the existing powers in the Public Health
(Control of Disease) Act 1984, by introducing a new Part 2A into
the 1984 Act. The updates, when brought into force, will
mean that a justice of the peace (JP) may make an order in relation
to a person, premises or thing, which is, or may be, infected
or contaminated, and orders in relation to tracing contacts with
these persons, premises or things. Under the existing law a JP
may only order the medical examination, removal to a hospital,
or detention in hospital of a person with a "notifiable disease"
(a listed disease that could present a human health risk). The
new provisions focus on risk from infection or contamination (chemical
or radiological) rather than on specific diseases, and are therefore
more appropriate to deal with the threats of today's world.
2. The Committee refers to the new arrangements
as "wide-ranging"—in fact they simply add less
intrusive, more appropriate, alternative responses to the existing
JP order-making powers. For example, it may be sufficient to order
a person to stay at home, with monitoring from the community nursing
service, rather than to order them to be detained in hospital.
The new provisions enable the JP to make such an order.
3. The order-making powers enable action
to be taken to deal with cases of infection or contamination presenting
significant harm to human health, if and when they arise. Part
3 of the Act also allows regulations to be made imposing
restrictions or requirements on a contingency basis, in the event
of a serious and imminent threat to public health.
Question 2: What safeguards exist to prevent
misuse of these powers?
4. As well as the updated powers allowing
JPs to order more proportional and appropriate action to protect
human health, the new provisions also introduce extensive safeguards
to ensure that the rights of the individuals, and any "affected
persons" are protected. The JP must be satisfied that four
criteria are fulfilled before they can make an order in relation
to a person. These are that:
— the individual is or may be infected
or contaminated,
— the infection or contamination is one
which presents or could present significant harm to human health,
— there is a risk that the individual might
infect or contaminate others, and
— it is necessary to make the order to
remove or reduce that risk.
5. As required by the new provisions (section
45G(7)), the Department of Health is currently preparing regulations
specifying what evidence is to be required to fulfil these criteria.
A public consultation on a draft version of these regulations
will be held later this year prior to their being laid before
the House in accordance with the affirmative procedure which is
required by section 45M.
6. The new Part 2A provides that "affected
persons" may apply for variation or revocation of an order,
and sets out who those persons are for each type of order. In
the case of an order about a person, the person concerned, anyone
with parental responsibility or a spouse or partner, or anyone
living with the person as such, is an affected person.
7. Any JP order specifying that a person
be detained in hospital or kept in isolation or quarantine is
subject to a strict time limit of 28 days and may only be
extended by a further order, under section 45L(3).
8. We believe that the Act's powers for
JP orders are in accordance with the European Convention on Human
Rights (ECHR). JP orders may engage article 8 (right to private
life) and article 1, protocol 1 (protection of property)
but interference with these rights can be justified under the
terms of the ECHR where it is in accordance with the law and necessary
for the protection of health (private life) or in the public interest
(property). The necessity test which must be met before a JP makes
an order assists in securing human rights compliance.
Question 3: The JCHR recommended that these
powers should be amended to reflect the safeguards and limitations
of the Civil Contingencies Act 2004. Why was this recommendation
not pursued?
9. Part 2A provides powers for regulations
to be made in an emergency situation, to address a serious and
imminent threat to public health. Regulations imposing restrictions
or requirements can only be made under these powers if the appropriate
Minister considers those restrictions or requirements to be proportionate
to the intended effects. For all individuals who are subject to
a special restriction or requirement under the regulations, there
must be a right of appeal to a magistrates' court. (Some examples
of a "special" restriction or requirement are those
requiring the person to be detained in hospital, to be kept in
quarantine, to submit to medical examination, or to be disinfected
or decontaminated.)
10. Section 45R provides for an emergency
parliamentary procedure in respect of regulations of this kind.
The emergency procedure may only be used if the regulations contain
a declaration that it is necessary to make them without the usual
procedures applying, by reason of urgency.
11. The JCHR proposed amendments to the
original Bill that were intended to align the procedures for such
emergency legislation with those of the Civil Contingencies Act
(CCA). Amendments to this effect were debated in the House of
Lords, but were withdrawn. The reasons for the Government's case
are given below.
12. In essence, the CCA provides that the
Government may make certain emergency provisions by regulations,
where there is an "emergency" as defined by the CCA.
Regulations made under the CCA will lapse after seven days if
not approved by Parliament. Parliament may make amendments to
such regulations prior to approval. The provisions of the CCA
provide that if regulations are made under it when Parliament
is prorogued or adjourned for more than five days then Parliament
must be recalled within that five day period to debate the regulations.
13. In contrast, any regulations made under
section 45R would lapse after 28 days if not approved by
Parliament (although they may be rejected earlier). There is no
provision for amendment, only approval or rejection. The 28-day
period does not apply when Parliament is prorogued, dissolved
or adjourned, and section 45R does not require Parliament to be
recalled to approve regulations made under it.
14. These differences are justified by the
different objectives of the two pieces of legislation. A possible
scenario would be where a SARS (severe acute respiratory syndrome)—type
episode occurs in another country and the Government is advised
by scientific and medical experts to put immediate measures in
place to allow for quarantine, should the disease spread to England.
Putting these measures in place does not mean they will need to
be used instantly. They might be needed the very next day or they
may not be used at all (as with the Canadian quarantine laws brought
in to deal with SARS). Furthermore, a measure that is urgent will
not necessarily be highly intrusive. For example, the measure
might be a requirement that a person visiting another with a particular
disease in hospital wear a mask.
15. Recalling Parliament to agree such measures
would send the wrong signals to the public. In addition, the Speaker
and Lord Speaker may not agree that an urgent recall to debate
such regulations is necessary if there is a chance that the regulations
may never be used. Nevertheless, it would be important that the
provisions in the regulations were available.
16. The Government believes that 28 days
will allow enough time to arrange a debate in each House even
when the requirement specified by emergency regulations is urgent,
yet minor in scope and effect. In such cases, debating whether
the measure stays in force may not take priority over more pressing
Parliamentary business.
17. There is no provision for amendment
of regulations made under section 45R. If the Secretary of State
were to decide that regulations were needed under this urgent
procedure, the decision would be taken following discussion with
experts in the relevant fields. Advice might be sought from experts
at the Health Protection Agency, senior doctors and scientists,
and the World Health Organisation. The regulations laid would
seek to implement the measures recommended by these experts as
necessary to deal with the public threat at hand. In such circumstances,
Parliament should be asked to accept the measures in full or to
reject them, rather than to amend expert advice.
Department of Health
March 2009
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