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Water Fluoridation (Consultation) (England) Regulations 2022

Volume 824: debated on Tuesday 25 October 2022

Considered in Grand Committee

Moved by

That the Grand Committee do consider the Water Fluoridation (Consultation) (England) Regulations 2022.

My Lords, in moving that these regulations be approved, I shall also speak to the Health and Care Act 2022 regulations.

The water fluoridation provisions of the Health and Care Act will come into force on 1 November, and in doing so will transfer the power to initiate new schemes, or to vary or terminate existing schemes, from local authorities to the Secretary of State. Public consultation will continue to be an important aspect of proposals, and the focus of today’s debate is the draft consultation regulations, which set out the process that any future consultations must follow. We know that some have strong feelings on the subject of water fluoridation and consultations relating to it, and we were keen to gather public opinion before laying these draft regulations. We therefore launched a public consultation on 8 April, which ran until 3 June 2022, seeking views on whether future water fluoridation consultations should be restricted only to those affected locally and bodies with an interest, as has previously been the case, or whether they should now be open to all, given the shift of responsibility from local authorities to central government.

We received 1,228 responses; 94% came from individuals and 6% from organisations. The majority of respondents favoured a consultation which is open to all. The draft regulations do not therefore restrict those who can respond to any future consultation. However, we understand that it is those living, working and studying in the areas in question who are directly affected, which is why the regulations also provide for consideration to be given, as part of the decision-making process, to whether those who may be particularly affected by any future proposals should be given additional weight.

Although public opinion and the extent of support for a water fluoridation proposal will continue to be important, consultations are not referendums. It is right that regulations provide for a range of other factors to be taken into account when considering a water fluoridation proposal. This includes, but is not limited to, the strength of evidence underpinning any arguments made by respondents. It is right that due regard is given to those arguments that are properly supported by sound evidence.

We are committed to scientific evidence surrounding water fluoridation underpinning any proposal. The department continues to review scientific papers published both in this country and internationally as part of the continuous monitoring of the evidence—including those on the epidemiology and toxicology of water fluoridation —and every four years the department will continue to publish a summary report on our knowledge, in line with the Secretary of State’s responsibility for monitoring the effects of the water fluoridation arrangements on the health of the populations served by schemes. I provide assurance that, if the balance of evidence in favour of water fluoridation as a public health measure were to change, a review of the current water fluoridation policy would take place.

Another important element in deciding to proceed with a water fluoridation proposal is the cost-benefit analysis of such proposals. Any new proposal will have to demonstrate that the benefit to health will represent good value for the investment of public money proposed.

We want more of the country to benefit from water fluoridation, and many noble Lords may be aware that yesterday we announced, subject to the outcome of this debate and future consultations, that funding has been secured to begin expansion across the north-east into Northumberland, County Durham, Sunderland, South Tyneside and Teesside, including Redcar and Cleveland, Stockton-on-Tees, Darlington and Middlesbrough. I know that the local authorities in these areas are strong supporters of water fluoridation. In accordance with the regulations we are debating, we will hold a public consultation on this proposal next year. This expansion would enable an additional 1.6 million people to benefit from water fluoridation, which will help to reduce the level of tooth decay in the area and over time will reduce the number of children who need to be admitted to hospital for tooth extractions.

I turn now to the draft Health and Care Act 2022 (Further Consequential Amendments) Regulations 2022, starting with mandatory training on learning disability and autism. People with a learning disability and autistic people experience poorer health outcomes in comparison to the general population. There is a need to address the significant and persistent health disparities faced by this group of people. That is why the Government have introduced, from 1 July 2022, a requirement in the Health and Care Act for CQC-registered service providers to ensure that their employees receive specific training on learning disability and autism. Introducing mandatory training on learning disability and autism is intended to ensure that health and social care employees have the skills and knowledge to provide safe, compassionate and informed care. The Act also creates a duty for the Secretary of State to publish a code of practice which will outline how to meet the new requirement on mandatory training. The code of practice is being developed and we expect to publish a draft for consultation early next year.

The consequential amendment proposed today seeks to remove the requirement for the Care Quality Commission to issue statutory guidance about the mandatory training requirement, by amending Section 23(1) of the 2008 Act. This carve-out clause should have been applied during the passage of the Health and Care Bill. If the Act is left unchanged, registered service providers will have two sets of guidance: statutory guidance issued by the Care Quality Commission and, subsequently, the code of practice issued by the Secretary of State. Removing the requirement for the CQC to issue statutory guidance will mean that registered providers will have a single source of guidance once the code of practice is published. The Care Quality Commission has agreed to keep all its statutory guidance, which was published on 1 July 2022, available to registered service providers until the code of practice is published.

Lastly, I turn to virginity testing and hymenoplasty. Safeguarding vulnerable women and girls is a top priority for the Government, which is why we were one of the first countries in the world to ban virginity testing and hymenoplasty. Virginity testing and hymenoplasty have no scientific merit or clinical indication and are a violation of human rights. These degrading and intrusive acts have an adverse impact on women and girls’ physical, psychological and social well-being. They can lead to extreme psychological trauma in the victim, including anxiety, depression, post-traumatic stress disorder and suicide, and physical trauma including damage to the hymen and vaginal wall, bleeding, infection and sexual difficulties. As such, we are proud that the Health and Care Act 2022 made carrying out, offering, and aiding and abetting virginity testing and hymenoplasty illegal.

As these are new offences, certain changes to other legislation are necessary to protect vulnerable groups. The Scottish Government have requested a change to be made to the Foster Children (Scotland) Act 1984, which contains a list of matters which disqualify a person from fostering a child in Scotland. The consequential amendments proposed today would add to that list the conviction of an offence of virginity testing or hymenoplasty in relation to a child. The change would also flow through to assessments by adoption agencies in Scotland under The Adoption Agencies (Scotland) Regulations 2009 in relation to the suitability of prospective adopters.

The 2009 regulations require those suitability assessments to be carried out by reference to a range of information, including whether the prospective adopter or any member of their household has been disqualified or prohibited from keeping a foster child under the 1984 Act. This change would have the effect of disqualifying or enabling the disqualification of individuals convicted of virginity testing or hymenoplasty offences from fostering or adopting in Scotland.

Similar changes were made to English and Welsh law in negative regulations under the Health and Care Act 2022. Scottish provisions on this matter are set out in primary legislation requiring an affirmative procedure. It was unfortunate that we were not able to make this amendment in the Health and Care Bill, as the need for the change was not identified during the Bill’s passage, but the priority is to put in place these restrictions now. This change will help to protect girls and young women from so-called honour-based abuse.

My Lords, I have spoken previously in the House in Committee and at Second Reading of the Health and Care Bill about how the Government’s water fluoridation policy is considered to be misguided by numerous eminent scientists in the UK and overseas, including government advisers. They warn that fluoridation causes a variety of health ailments, including damage to the foetal brain. I hope to offer my noble friend the Minister some constructive comments on how to improve the water fluoridation consultation process, which is unsatisfactory and inadequate in many respects.

First, the consultation should be more prescriptive as to the minimum level of publicity required from the Secretary of State to promote the policy. The current framework gives scope for minimal effective publicity, as the media requirement is merely defined as that which the Secretary of State considers appropriate. In comparison, in the case of public health initiatives concerning Covid, the NHS has texted those patients registered and sent letters to relevant individuals based on their ages. The same has applied to screening tests for various cancers. In addition to the NHS database, local authorities have council taxpayer databases and electoral register databases, which could be used for public information notifications. It is particularly straightforward to do that on a locality-by-locality basis, as would apply for fluoridation schemes. There could also be a specification for notices in local papers and in the national press.

Secondly, the consultation period is quite short, given that the public are expected to gather information and evidence, analyse data, review scientific evidence, carry out cost-benefit exercises and marshal arguments on a variety of aspects of a given scheme. Six months would be a more reasonable period.

Thirdly, no objective process is stipulated whereby the Secretary of State can realistically assess

“the extent of support for the proposal”

under Regulation 5(1)(a). What about the extent of opposition to the proposal? There should be a requirement for independent public opinion-polling and also canvassing of the views of parish, borough, city and county councillors. A local referendum should be considered. It stands to reason that, if a local proposal is to have any real democratic legitimacy, the view of a majority of the local populace should not be overridden.

Fourthly, it is difficult to see how the Secretary of State can gauge the cogency of arguments, ethical considerations or scientific evidence without being guided by a panel of relevant experts. These should be recruited independently from the Department of Health, by nominations from bodies such as the royal institutes or other professional bodies for engineers, statisticians, accountants, economists, scientific research bodies, toxicologists, ethicists and the like. They should be similar to commissions of inquiry or standing advisory bodies, chaired by legally qualified personnel.

Fifthly, Regulation 5(1)(b) should prescribe that particular weight should be given to representations made by individuals who would be affected by the proposal. Conversely, it is difficult to see why any weight should be given to anybody with an economic interest in favour of a proposal, because a public interest health policy should not promote private economic interests.

Sixthly, as far as “capital and operating costs” are concerned, in Regulation 5(1)(c), the relevant costs are the full range of costs, including establishment costs, insurance costs, admin costs, consultation costs, any extra security costs, extra wear and tear or corrosion costs, monitoring costs, safety training costs, additional computer software costs and many others. A narrow compass on these costs would generate some very misleading results.

On Regulation 5(1)(c), it is no good looking at the above costs in isolation: there has to be a comparative cost-benefit analysis, taking into account a range of alternative options such as no scheme, a lesser or more targeted scheme, alternative dental preventive health schemes such as providing fluoride via milk or tablets or topically, public education or in-school training, and so forth. This should include an analysis of the successful Childsmile programme in Scotland, which, through education and dentist visits to schools has been shown to reduce tooth decay in children.

Point eight: for Regulation 5(1)(d) there should be explicit reference to mental as well as physical health, given the large amount of anxiety and other untoward psychological effects these sorts of schemes might generate.

Point nine: there should be consideration of whether the proposal promotes human rights, is proportionate in a democratic society, takes account of those with protected characteristics within the meaning of the Equality Act—those with disabilities, different religious groups, et cetera—and promotes social cohesion and whether it enhances or diminishes trust in public institutions. There should also be consideration of localism, as different communities have different attitudes, and schemes imposed by central government can create local resentment if not attuned to local circumstances. The question of human rights is important considering that water fluoridation effectively represents the imposition of medicine without consent. Some European countries have rejected the policy because they believe that it conflicts with medical ethics and best practice.

Finally, references to “available scientific evidence” should be supplemented by attaching particular weight to the latest evidence and should specifically include international evidence. The Secretary of State should be required to list the evidence that has been taken into account and state what evidence has been discounted and for what reason. In the last few years, an increasing number of international peer-reviewed studies have highlighted the distinct correlation between water fluoridation and serious health ailments, particularly with regard to the developing foetus. We would be committing a disservice to the public if all the latest available research was not analysed effectively.

My Lords, it is a great pleasure to follow the noble Lord, although I do not agree with him; we debated this during the passage of the Health and Care Act through your Lordships’ House only a few months ago. I must declare that I am president of the British Fluoridation Society.

I have form, because I remember when I was secretary of the Edgware/Hendon Community Health Council in the mid-1970s, taking part in an extensive consultation exercise in the London Borough of Barnet when the then Government were encouraging the introduction of fluoridation. We had two very well attended meetings in the borough where there was a clear view in favour of fluoridating water. Unfortunately, virtually no progress has been made since then. That is why I am very glad that the Government have brought forward primary legislation, and I was very glad to hear what the Minister had to say about the intention to move ahead in the north-east. That is very encouraging and I hope that that will be the first of many such schemes.

It seems that the consultation progress that the Government have set out is entirely reasonable. We must remember that the principle is decided—it has been decided by primary legislation. The local consultations that will take place are not a reason for reopening arguments about the effectiveness of fluoridation; they are about the detailed proposals, making sure that the areas are covered correctly and that individuals can have a say about that. However, I have to say that I noted in paragraph 7.3 that in the consultation a higher weight is to be given to individuals affected by the proposals

“who reside or work in the area.”

I am sure that that is right, but I ask the Minister to agree that the highest weight has to be given to the statement by the Chief Medical Officers of all four UK countries last year that water fluoridation is both safe and effective as well as being the most cost-effective way to reduce inequalities in dental caries prevalence. That must be the principle that lies behind any consultation process. I wish these regulations all speed ahead and very much hope that the foundations for a second wave of fluoridation schemes can now be laid in the north-east.

My Lords, I welcome the Minister to consequential SIs from the passage of the Health and Care Act. Some of those present will remember the long debates we had during the passage of that legislation, some of which the noble Lord, Lord Reay, has returned us to today.

I will start on water fluoridation. My points were actually about consultation, and I will return to those, but the noble Lord has a point: there are now scientific records to show that excess levels of fluoride do cause damage. There is a very good academic article entitled “Assessment of fluoride levels during pregnancy and its association with early adverse pregnancy outcomes”. It concludes that this happens mainly in developing countries where the level of fluoride is not managed. I echo the point that the noble Lord, Lord Hunt, just made, that if the four Chief Medical Officers for the four countries of the United Kingdom believe that it is safe, that should be enough for us.

Of course all care must be taken and monitoring must continue, but the other point I want to make is from a dentist in Australia, who was very supportive of Australia’s move to fluoridation a while ago. He said that the region where he lives was one of the last to add fluoride. He talks about the experience of having to give very small children repeated anaesthetics and pain relief, and the effect on them. He says:

“Since fluoridation was introduced to Geelong in 2009, my colleagues are much happier, as severe dental abscesses requiring tricky anaesthetic techniques are much less common, and tend to mainly come from areas in the region which still aren’t fluoridated.”

He goes on to say:

“The other anecdote … was that one of my colleagues who had worked in Europe for a few years went away with 3 children under the age of 6, who were the same age and social demographic as our own children. When they returned … 2 of his 3 children had needed dental treatment”

under general anaesthetic. The key point is that they went to unfluoridated places. Although I hear the concerns of the noble Lord, Lord Reay, I hope we can be reassured that everything we debated during the passage of the Health and Care Bill shows that this is being done very carefully.

During the passage of that Bill, my noble friend Lady Pinnock made a very important series of points about how to decide where to consult about fluoridation of water, given that we have so many reservoirs where water goes in lots of different directions. Often, you cannot identify each of those areas. Although it was good to hear the Minister talk about the way that consultation will happen, and it is good news that there has been broad consultation in the north-east and that there are some resources there, might the Minister comment on how it is possible for civil servants to identify the relevant areas for consultation? This was one of the reasons why we said during the passage of the Bill that there needed to be very broad consultation.

Moving on to the other statutory instrument on training on learning disabilities and autism, and on virginity testing and hymenoplasty, I signed both of those amendments during the Bill’s passage. Each time it came back I spoke to both of them. It was wonderful that the Government listened and accepted the amendments on training for health staff working with people with learning disabilities and autism. I know that this is only a technical amendment to remove the CQC, but this is a moment to thank the Government for listening to the concern of those of us who work with and know many in the learning disabled and the autistic communities, who have often found that they have been treated by people who do not understand their conditions, which makes it that much harder to communicate with them.

I will now move on to virginity testing and hymenoplasty—I welcome the Minister to the language that we have all had to learn. We were very pleased that the Government decided to support measures on this. I have one question for the Minister. He mentioned that this was about the suitability of foster parents or of their household. It is not clear how wide that household is regarded; is it literally the people who live in that house, or, as in other safeguarding issues, would it also include a member of the foster parents’ family who might be visiting that house on a regular basis and who, in any other safeguarding terms, would have to be notified? If the Minister cannot answer that today, I would completely understand, but I look forward to the answer because I have a particular interest in safeguarding. Apart from that, I support all three elements in front of us today.

My Lords, I start by thanking the Minister for bringing these regulations forward today. They very much flow from the measures supported in the Health and Care Act, and we are very glad to support them.

I will first refer to the instrument dealing with fluoridation. My noble friend Lord Hunt and the noble Baroness, Lady Brinton, rightly made the point that this is not the time to reopen the whole matter as to whether fluoridation is a good thing. I feel that that has been exhausted in the debate. I am familiar with the concerns that the noble Lord, Lord Reay, has previously put before the House and which he referred to today. However, every independent review of fluoridation has confirmed its safety. As the noble Baroness, Lady Brinton, and my noble friend Lord Hunt said, the UK Chief Medical Officers back this measure, and I do not believe that they do so lightly. I hope that the noble Lord, Lord Reay, may come round to the way of thinking that explains why this measure is important in the Act and why we need the regulation today.

I have a few questions for the Minister. Regarding consultation, the necessity of taking responsibilities away from local authorities and to the Secretary of State reflects reality, because there are real difficulties when boundaries are different, yet fluoridation needs to be brought in. Also, it is important to take communities with us in this process, and the consultation measures in this regulation provide that opportunity.

Can the Minister comment on plans to extend fluoridation nationwide? What is the plan—the vision— bearing in mind that only 10% of people have fluoride in their water at present? What timeline might we be talking about? Do the Government have a target for the percentage of the UK that will benefit from fluoridation at the end of the process? I also wonder how the Government will spread awareness of the evidence of the benefits of fluoridation and gain buy-in for them, as that is extremely important.

In the course of evidence sessions in relation to the Health and Care Act we heard from experts that many families do not habitually drink water, and that many people who suffer tooth decay are now too far down the line to stave off tooth loss. It would be helpful to hear whether the department has any plans for a wraparound strategy on dental health generally.

I note from the Explanatory Memorandum that a separate impact assessment, beyond that of the Health and Care Act, has not been done for this regulation. Can the Minister comment on that? It is important to have an analysis of how the movement of powers in respect of consultation beyond local authority boundaries will play out.

Turning now to the Health and Care Act regulations, which concern minor enabling amendments and are therefore uncontroversial, I particularly reference those regarding the implementation of the ban on virginity testing and hymenoplasty, and those regarding autism training. I endorse the comments of the noble Baroness, Lady Brinton: these are excellent examples of your Lordships’ House working together to make positive change. I also associate myself with her thanks to the Government and the Minister’s predecessor for seeing that this was absolutely the right thing to do. At the time of the debate in the Chamber, I was very glad to support those amendments.

Statutory guidance on training for learning disabilities and autism has to be of the highest standard, wherever the guidance comes from. The regulation before us reminds us of the enormity of the task that sits with government, but it will ensure that those with autism will be able to access the support and services they need at the right standard.

Virginity testing and hymenoplasty are serious matters of abuse. They are not medical practices, they do not have medical benefits and they are both violations of the human rights of women and girls. Those who carry out these abusive practices in any part of our country should be, and now will be, regarded as criminals. I completely endorse the provision that there should be no right to foster a child. It is important, as the noble Baroness, Lady Brinton, said, to draw a clear definition here of who would be referred to by the regulation, because we want to ensure that those who are criminal in this regard cannot foster a child, because there is no fitness to foster a child.

With those comments, I welcome the regulations and thank the Minister.

I thank your Lordships for your contributions today. First, as the noble Lord, Lord Hunt, said, the principle has been decided in previous debates, and the debate today has been about the consultation and the implementation. As for the comments made by the noble Baronesses, Lady Brinton and Lady Merron, there is strong evidence in favour, as illustrated by the Australian dentist cited by the noble Baroness, Lady Brinton. As the noble Lord, Lord Hunt, said, we must at all times be driven foremost by the medical evidence, so I agree that the highest stakeholder in this process should be the science.

At the same time, the noble Lord, Lord Reay, makes good points about ensuring that the consultation is properly done, so I completely hear his comments about making sure it is well publicised so everyone has the opportunity to contribute to the debate, ensuring that sufficient time is given so that everyone has a chance to submit their piece, and having proper experts assess the consultations. I think we could also all agree as a principle that private, commercial interests should not be a factor that people can use. I hope those are items on which we could all agree.

On the point about health research and different cases emerging all the time, as noble Lords will be aware, under these provisions we have committed to publish the latest evidence every four years so that if things change, we are able to change with them. I hope that will give the safeguards and make sure that we are always led by the science and the medical evidence, as the noble Lord, Lord Hunt, said.

On the points about learning disability, virginity and hymenoplasty, I welcome the thanks; it was before my time, but I know that it was very much a team effort. My understanding is that it was very much the Lords working at its best, with cross-partisanship.

A very good point was raised on the foster parent household definition. I have just phoned a friend, but I am not sure my friend has given me the answer. I understand the point that you can often have an elder—a household member who might not actually live there but who can be hugely influential—so I will come back in writing on that. It was a well-made point.

I hope I have covered all the points raised in this debate. Again, I thank noble Lords for their contributions and trust that we have been able to answer them, apart from the household point, which I will come back on in writing.

I am glad to see that we mostly agree on the benefits of water fluoridation. The regulations reflect the consultation responses from the public and will not restrict those who want to respond to future public consultations on water fluoridation schemes.

I trust that my answers have provided reassurance that removing the requirement for the CQC to issue statutory guidance on mandatory learning disability and autism training will not leave service providers without clear guidance. I trust that they have also provided reassurance that amending the Foster Children (Scotland) Act 1984 will help protect children being fostered and adopted in Scotland from virginity testing and hymenoplasty.

Finally, on a personal note, reflecting on the 10 debates and speeches I have done today, it is with pleasure that I feel I am playing a small part in doing something very good here. I thank all noble Lords for their contributions.

Motion agreed.