Skip to main content

Health Protection (Local Authority Powers) Regulations 2010

Volume 717: debated on Monday 1 March 2010

Considered in Grand Committee

Moved By

That the Grand Committee do report to the House that it has considered the Health Protection (Local Authority Powers) Regulations 2010.

Relevant document: 6th Report from the Joint Committee on Statutory Instruments.

My Lords, there are three statutory instruments before noble Lords today. The first set of regulations deals with various matters relating to Part 2A orders, which a justice of the peace may make to protect human health. The second set of regulations relates to local authorities’ powers, while the draft order makes a minor consequential amendment to the Water Industry Act 1991.

I will set out brief details about the regulations. The Health Protection (Part 2A Orders) Regulations require the local authority, if it makes an application to a justice of the peace for an order, to notify certain people. This includes, as might be expected, the person who is the subject of the application, unless the local authority takes a reasonable view that the person is likely to abscond or to act in a way that would undermine the purpose of the application.

Next, the regulations specify the evidence that a JP must have available before he or she can make an order about a person. These are quite detailed evidential requirements and will be of considerable help to the JP in determining whether the criteria for an order, which are set out in the primary legislation, are indeed met.

Furthermore, the regulations provide a number of safeguards for people who might be affected by an order. They ensure that all orders relating to people are restricted to a maximum of 28 days. They set out who is an “affected person” with the right to appeal against an order, including the deceased’s next of kin in the event that an order is made in connection with a dead body. They require the local authority to help people subject to an order to understand what the order does, why it has been made and their right to appeal against it; and to tell the person of any support services that are relevant to their circumstances.

If a person’s liberty is restricted by an order—if they are detained or subject to quarantine—the local authority must have regard to the impact of the order on the person’s welfare and that of any dependants they might have.

The regulations also provide a discretionary power for a local authority to make a charge for any measures it undertakes as a result of an order. This could happen if an order requires someone to take certain measures but the person cannot or will not do so, whereupon the local authority has to take action itself. Finally, the regulations require all applications for orders and all variations and revocations of orders to be reported to the Health Protection Agency.

I turn now to the draft Health Protection (Local Authority Powers) Regulations. These regulations set out what local authorities can do to respond to public health threats, without needing to apply to a JP for an order. The powers are not very different to the powers local authorities have now. However, they are considerably updated and brought into line with the principle of the new legislation that, with some limited exceptions, powers imposing restrictions or requirements on a person should be subject to judicial oversight.

The regulations continue existing arrangements under which a local authority may keep away from school a child who could put others at risk from infection or contamination, subject to strict criteria being met. In the event that other children have been exposed, the authority can require a list of pupils at the school for contact-tracing purposes. A local authority may also prevent access to or contact with a dead body which presents a risk to health.

The regulations allow a local authority to make a formal request to someone to take certain action, or to desist from action, as the case may be, for health protection purposes; and to disinfect or decontaminate any thing—Members of the Committee will remember the discussion that we had about “thing”—or any premises on request. The local authority may, but is not required to, offer compensation. These powers will usually be adequate to deal with a health protection issue quickly and with minimum fuss. But if not, the authority may consider applying to a JP for an order.

The draft Health and Social Care Act 2008 (Consequential Amendments) Order is also before the Committee today. This makes a straightforward consequential amendment which is needed as a result of the repeal of Section 11 of the Public Health (Control of Disease) Act 1984. I do not need to detain the Committee any longer on this matter. However, that amendment to the 1984 Act reminds us that the regulations are part of an important programme to modernise the legislative powers available to those who deal with risks to public health from contamination or infection.

The Committee will be aware that the Health and Social Care Act 2008 made substantial changes to the Public Health (Control of Disease) Act 1984. Those changes introduced powers to deal with significant threats to human health from dangerous infections or contamination from chemicals or radiation. Out-of-date concepts have been removed and new arrangements for health protection are in place to meet the needs of modern society. However, we cannot bring these new measures into force without first making regulations to complement the changes made to the Act. These regulations will complete the picture of domestic health protection powers and allow us to bring all the new measures into force from this April.

Some noble Lords may recall that I spoke in Grand Committee in May 2008 about these changes to health protection law, then being introduced in the Health and Social Care Bill. In the course of those debates, my noble friend Lord Darzi of Denham and I made a number of commitments to Members of that Committee as to matters to be included in regulations under the proposed new powers. I am happy to say that we have met all of those commitments in these regulations on the Part 2A orders. I have briefly set out the provisions of the regulations and I hope that the Committee will see how we have met, and indeed exceeded, those commitments.

I will mention one issue which was raised last year in the course of our consultation on the regulations. Most respondents broadly supported them as they were then drafted, but a number raised concerns that the legislation could have an adverse impact on people with HIV or other sexually transmitted infections. We debated this very point in 2008 and I am sorry that it is still a concern for some stakeholders. We have tried to set minds at rest, because the legislation simply does not permit the use of compulsory powers other than in very narrowly defined circumstances, and certainly not just because a person has a particular type of infection. My honourable friend the Minister for Public Health recently met my noble friend Lady Gould of Potternewton about this matter.

My honourable friend endeavoured to reassure the noble Baroness, and I repeat the assurance, that there are strong, effective safeguards in place to protect people against the misuse of powers. I am pleased to say that, at the Minister’s invitation, stakeholders in the field have been contributing to the preparation of guidance on the new legislation. That work is nearing completion, and I hope that the guidance that will shortly emerge will reassure those who still have concerns. In addition, I assure the Committee that we undertake to publish information from the reports of applications for orders, as required by regulations. That will ensure that their use is monitored.

Noble Lords will be aware that we cannot be complacent about the threats to our health and society from unforeseen sources. Infectious disease is estimated to cause about a fifth of all deaths across the world. In a global society, with swift and frequent travel, international trade and movement of populations, there is potential for new strains of infection to emerge and spread. We also face increasing risks from contamination in various forms, whether accidental or deliberate.

Of course, most people suffering from infection or contamination would not dream of putting others at risk. Health protection legislation is needed for the very rare circumstances where someone refuses to take action to protect others and there is no other way to deal with the potential harm but through compulsory measures, proportionate to the risk presented. Any measure which includes powers to place restrictions on people, or requires them to do certain things, is rightly scrutinised rigorously for its implications for human rights. We believe that the amended Act and the regulations we are debating today achieve the right balance between the protection of human health and respect for individual rights. They provide an effective way to deal with threats, but at the same time contain safeguards. I commend the regulations and the order to the Committee.

My Lords, the Committee will be grateful to the Minister for introducing the regulations which, as she said, take us back to our debates on what is now the Health and Social Care Act 2008. Looking back on those debates, I think that we can be quite proud of the role that this House played in encouraging the Government to make sensible and desirable changes to the manner in which the provisions of the Act are brought into effect. Most of those changes are designed in one way or another to safeguard the rights of the individual in the face of the range of restrictions and requirements which the authorities can deploy for the purpose of public health protection. I remain grateful to the Government for being so receptive to the proposals that a number of us made in that regard.

I turn first to the Part 2A orders regulations, and to Regulation 4, which covers the evidence required for a justice of the peace to be sufficiently satisfied as to make an order under the provisions of the Act in relation to a person. First, under paragraph (2), he must receive a report giving details of the person concerned. The report need not be in writing and, as I understand it, has to include only one of the four elements listed in paragraph (2)(a). There is nothing wrong with that, it seems to me, as long as the combination of evidence presented is sufficient to purport to show that a particular person represents a significant risk to public health. In that context, my query relates to the third element,

“the outcome of clinical or laboratory tests”.

That is a rather non-specific phrase. I would have expected it to say “the outcome of clinical or laboratory tests in relation to P”. The point of the evidence listed in paragraph 2(a) is surely to show that a person, P, presents a significant risk. It is surely not sufficient to cite evidence of a general nature about the outcome of laboratory tests. I should be glad of the Minister's comments on that.

Paragraph (2)(b) of Regulation 4 relates to the nature and characteristics of the infection or contamination in question; for example, the mechanism by which it spreads and how easily it spreads between humans. The problem with that, it seems to me, arises with new infections such as swine flu, whose characteristics and mode of spreading may be completely unknown when it first manifests itself. Swine flu is a particularly good example, because not only were its characteristics unknown when it first appeared, but it was thought to have a greater degree of lethality than later proved to be the case. How is a local authority supposed to present evidence to a JP about an infection if the relevant facts about that infection are not yet available? Does this mean that in circumstances of this sort local authorities will simply have to rely on their power to request people’s co-operation, and that they will not be able to apply for a court order unless and until the relevant facts about the infection are established?

Regulation 7 provides for discretionary powers to enable local authorities to make a charge in relation to Part 2A orders as they apply to things and premises. I believe I am right in saying that this issue never came up in our debates on the Bill, and I was therefore a little surprised to see it. The power to make a charge is, I gather, not contained in the 2008 Act but rather in other local government legislation. In principle, this is not an unreasonable provision. However, paragraph (3) says:

“The amount of the charge imposed … must not exceed the actual costs (including staff costs) incurred by the local authority in taking measures in relation to the thing or premises pursuant to the order”.

Any student of accountancy will know that there is no such thing as the actual costs. To take an example of a different kind, if I have lunch in a restaurant, the cost of my lunch could be reckoned as just the cost of the raw food; or the food plus the wages of the chef and the waitress who serves me; or those things plus a share of the restaurant’s light, heat and power bill; or those things plus a share of all the overheads of the business including the overheads of its head office. Any of these, taken as the basis of a calculation of costs, could be presented as being reasonable, but each gives a very different result. A person on the receiving end of an invoice from the local authority might regard a figure nearer to the marginal cost as being more reasonable than one based on full-cost accounting principles. What guidance will be given to local authorities in this regard, and on what basis will local authorities be encouraged not to levy a charge where the person would find difficulty paying?

The regulations set a time limit of 28 days on all orders made in respect of a person. However, they do not do this in relation to orders made in respect of things or premises. Why is this? What are the remedies open to someone whose property has been seized and quarantined indefinitely?

One aspect of these regulations which has caused considerable concern is their potential use in relation to those infected with HIV and other sexually transmitted infections—an issue which the Minister raised. She will remember very well that we debated this issue during the passage of the Act in 2008. The particular concern in this area stems from the very nature of sexual health services, the effectiveness of which depends on people having absolute trust that any information about them will be kept completely confidential. If individuals who may be infected with HIV are afraid that the law may require them to disclose details about themselves and their sexual partners, it is highly likely that this will deter them from presenting for testing and treatment in the first instance. That would be against their own interests, as well as those of others with whom they may be in contact.

Against that background, can the Minister give an assurance that the Government will monitor the use of these powers to ensure that they are not being deployed unjustifiably in relation to people with HIV and other STIs? The Government have always been clear that the powers would be used only in the most exceptional circumstances and I accept that that is their intention. Nevertheless, the all-hazards approach adopted in the regulations makes it possible that local authorities may pursue an overzealous agenda. Therefore, I hope that the Minister will be able to confirm that the Government will keep a watch on these issues. The annual reports from the Health Protection Agency will provide them with the means to verify that the powers are being used in accordance with the published guidance. In addition, I hope that the Government will be alert to any unforeseen or harmful effects of the powers on sexual health services and on the communities most affected.

I turn to the local authority powers regulations and first ask the Minister what I hope is not a difficult question relating to Regulation 8. This confers a power on the local authority to request that any person or group of persons should co-operate with it for health protection purposes. I am curious to know why we need this regulation, because surely the local authority can already make any requests that it likes of people in pursuance of its statutory functions.

Secondly, Regulation 3 contains a power for the local authority to require a head teacher to provide it with a list of names, addresses and contact telephone numbers for all the pupils of a school when certain conditions have been satisfied. I am concerned about this: not in principle, but because of the apparent absence of safeguards over who may get hold of this information—some of which, in the wrong hands, could lead to all manner of problems. The Minister will doubtless tell me that the provisions of the Data Protection Act will apply, but will she reassure me that safeguards will be in place to ensure that untoward leakage of information to unauthorised persons does not occur and that there will be guidance to that end?

Finally, I turn to the phraseology used in Regulations 4, 5, 6 and 7 in connection with the charges that local authorities are empowered to levy for disinfection or decontamination of things or premises. The regulations state that the local authority’s charge must not exceed the cost incurred by the local authority in carrying out the disinfection or decontamination. Again I ask the Minister, what the meaning is of the phrase, “the cost incurred”?

My Lords, I, too, thank the noble Baroness, Lady Thornton, for the thorough way in which she introduced the regulations. I have been looking forward to discussing them because, as the noble Earl, Lord Howe, said, they stem from a piece of primary legislation that was subject not just to detailed but to expert scrutiny in your Lordships’ House. I note in passing that my main disappointment is that the word “fomite” does not appear anywhere in the regulations. That was one of the many issues on which the noble Lord, Lord Walton, educated those of us who took part in the discussion.

I will reiterate part of the discussion that your Lordships had on the primary legislation. It is correct that we should update public health legislation, some of which has been in existence since the 19th century. It is right that we should take into account the exceptional nature of some of the new public health dangers that have emerged in the past 10 years. However, it is incumbent on us to remember that they are exceptional dangers. It is worth reminding ourselves before we go any further that the existing public health law is used largely in cases where people with mental health problems are a danger primarily to themselves rather than to others. While in future some public health risks may be of a magnitude much greater than that, at the moment it is envisaged that the legislation will apply principally to the group of people to whom it applies now. That is why the general thrust of criticism in your Lordships’ House of the primary legislation was that there was insufficient protection for people who are vulnerable, and who may be ill. The Government have addressed some of these concerns in the regulations, but there are some areas of emphasis where they have got it wrong. Therefore I, too, wish to start by considering the Health Protection (Part 2A Orders) Regulations.

Like the noble Earl, the thrust of my concern starts with regulation 4 in regard to clinical or laboratory tests. As far as I can see, there is nothing in the regulations which states that the tests have to have been conducted upon a person; that that person should know the outcome of the tests; and that that person should subsequently have behaved in a way which indicates that they are wilfully ignoring the outcome of those tests. That is a problem. Many thousands of people in this country have been tested for HIV but do not know the outcome of the test. They are not routinely told because the tests are conducted as part of a battery of tests for other things. Can the Minister clarify that that is the process which a person who is making an assessment of the level of danger posed by someone has to go through? In particular, the evidence that someone has wilfully ignored the level of threat that they may pose to other people is a crucial issue.

Regulation 4(5) states that the evidence upon which the justice of the peace will base a decision,

“may be given orally or in writing”.

Am I correct in assuming that evidence would be given orally only in a matter of extreme urgency and that it would routinely be the case that evidence was submitted in writing and then recorded? The Minister may feel that I am being slightly pedantic, but when you increase the likelihood of depriving someone of their liberty you have to increase the level of protection for that person.

I, too, want to focus on the issue of charges. The marginal and direct costs of decontaminating premises will vary dramatically depending on what is involved. This can vary from sending in a squad to clean out a house that has been left uncleaned for many years—which is the circumstance under which many orders have been issued in the past—through to chemical decontamination. Is there a right of appeal for someone who has such charges levied on them? If not, why not? Some people lead unstable and chaotic lives that lead them into situations where they come under the auspices of this law, and they do not have much money.

Another issue that I wish to raise concerns the next-of-kin lists. Quite rightly, donees give a lasting power of attorney, but do the next-of-kin lists include people who have been given a power of attorney under the old system, which pre-dated the current system, and who might therefore not be registered on the new list? Many of the people we are talking about are likely to become old and frail and they may have a power of attorney under the old system which has not been registered under the new system.

On the Health Protection (Local Authority Powers) Regulations, the noble Earl, Lord Howe, made a fair point about people to whom lists of schoolchildren could be given. I, too, want clarity on that. The question which underpins both orders is the training of local authority staff who have to make judgments in both cases. We have a set of regulations that are designed to meet all circumstances. That means that the people who have the power and responsibility to invoke these regulations need to know that they have available a variety of responses that are proportionate to different levels of risk. In her introduction, the noble Baroness talked about people who pose a threat to others. The majority of people who will fall under these regulations pose a threat not to others but to themselves. Therefore, the level of judgment which a local authority officer has to take in that case is somewhat different.

I echo what the noble Earl, Lord Howe, said about monitoring and reporting on the imposition of these regulations nationally. I very much look forward to the Minister’s response to my questions.

Before we started, when I was talking to the officials, I think I spotted pretty much the sort of areas with which the noble Earl and the noble Baroness would be concerned, with one exception. The noble Earl did not ask about the safeguards for children, but I have a response on that. I shall work my way through various questions.

The noble Earl asked about testing and evidence, as did the noble Baroness. Regulation 4(2)(a) makes it clear that the details in the evidence must be,

“insofar as known and relevant”.

“Relevant” is the important point there. The point about the clinical and laboratory tests is that tests may be carried out on things and premises, as well as on a person. I am trying to imagine what that may mean, but it is probably correct; you may be testing P’s environment as well. That is why that regulation does not mention P.

Why does the legislation extend to those who may be infected or contaminated? The issue here is that some diseases—for example, tuberculosis and mumps—are infectious before symptoms appear. New diseases with these characteristics may arise in the future. The noble Earl indeed said that the unknown may be a greater threat because it is unknown. Where there is a good reason to suppose that a person may have been infected and may be infectious to others, it may be necessary to take appropriate measures straight away, either through a medical examination or quarantine. A community could be placed at serious risk if no action were possible until after the infection had been confirmed by conclusive diagnosis or the onset of symptoms.

The noble Earl and the noble Baroness, Lady Barker, raised the issue of the reporting of orders. We discussed this during the course of the Bill and outside. I had several meetings on how one monitors this and why it is important to do so. Part 2A orders require local authorities to report all applications for an order, and all variations and revocations, to the Health Protection Agency.

The Department of Health and the Health Protection Agency have agreed that that information will be published in a way that does not allow the identification of individuals, although the precise mechanisms have yet to be agreed—that covers the point about confidentiality. However, there will be a central record of the orders, and centrally collected information will be included in the HPA's annual report. Although the data will be anonymised, they could still contain sensitive information that would enable an individual’s identification, so we have undertaken that the information from the reports will be published in a way that does not identify individuals or details of cases that are not appropriate material for an annual report.

Both noble Lords raised the issue of HIV. We are very keen that the safeguards in place will ensure that the powers are not misused. We hope that they will reassure people that they need not fear the new legislation. We have endeavoured to meet those concerns in guidance, and stakeholders are participating, as I said in my opening remarks. Those discussions are progressing very well. The HPA will be alert to any detrimental effect on sexual health services, and we have undertaken to publish the reports on orders, because we are concerned that that does not affect people coming forward for necessary tests.

On the proper use of information and how we safeguard it, the regulations provide that a local authority can require children's contact details from the head teacher only where strict criteria are met—in short, if it is necessary to have them for the purpose of taking action to protect human health. We will be looking for reassurance that local authorities, which are used to handling and safeguarding confidential data, should do so. There is no reason to suppose that the position will be any different because the local authority will be requiring the information, but we will also make that clear in guidance.

The noble Baroness asked about legal powers, the spectrum of measures available to protect public health and how we will ensure that the most vulnerable and confused people are protected, to help them as well as to ensure that they are not a threat. She is right to say that often they are a threat to themselves rather than to the rest of the world. We have to strike a hard balance here, because we want to ensure that surveillance, immunisation, advice and treatment can be deployed to deal with public health threats. We have anecdotal evidence that very few orders made or considered in relation to people with drug-resistant infectious TB have helped to contain the risk of the infection. That is to say, we are mindful of the need to ensure that the procedure is used proportionately.

Both noble Lords raised the issue of the reasonableness of requesting payments. We think that it is important that local authorities have the power to request payment. That is a general, flexible power to ask people or groups of people to take or refrain from action to protect human health. The accompanying power to pay compensation or costs for expenses incurred as a result of complying would remove a possible disincentive to co-operation. A JP order is the last-resort measure for exceptional circumstances where voluntary co-operation is not forthcoming. The request power will allow local authorities to make a formal request for compliance before resorting to a JP order.

We think that the guidance will cover the issue of costs and the scale of the charges. These must be reasonable—that is a requirement of the regulations. Local authorities are very experienced at calculating full-cost recovery and how that needs to be charged. However, it is a discretionary power, so if it would be a pointless exercise, they should not go through with it. It would be absurd to try to retrieve costs when the person concerned has no resources at all, but it is very important that those powers exist.

It would be disproportionate and unnecessary to provide a specific route of appeal for circumstances that would happen very rarely. The Act already provides in Section 45M that a person who has been ordered to take a particular action, or who is an affected person in relation to such an order, may apply to the JP for the order to be varied or revoked. Under regulations, a charge that the local authority makes must be reasonable under the circumstances and must not exceed the cost. It provides a safeguard for the person subject to the charge, who ultimately has recourse to judicial review.

In answer to the noble Baroness, Lady Barker, the guidance that we are developing will set out the process that a local authority must go through, including a risk assessment, before deciding to exercise its power or apply for a JP order. The noble Baroness also raised the issue, which was discussed when the Act was going through, of a representative. Somebody appointed under the Mental Capacity Act is required to act on behalf of certain persons. That is something that we would need to take account of.

I think that covers most of the questions that have been raised by noble Lords. It was another useful gallop around this issue.

Motion agreed.