Joint Committee On Human Rights

1.2 This Bill has a number of provisions with significant human rights implications.[2] In our earlier Report, we focused on specific amendments which could be made to the Bill, designed to clarify the scope of the Human Rights Act in relation to private sector providers of health and social care and to implement some of the recommendations we made in our report on Older People in Healthcare. These were designed to enhance the protection of the rights of service users in the health and social care sectors, including through enhancing the obligations on the proposed Care Quality Commission ("CQC") to ensure it takes a human rights based approach to its work and by ensuring that those receiving publicly funded care from a private or voluntary sector care provider would be directly protected by the provisions of the Human Rights Act 1998 ("HRA"). During Report Stage in the House of Commons, the Minister reassured our Chair that the Government intended to consider further action to meet our concerns:

I am sympathetic to …the concerns expressed by evidence givers and by members of the Public Bill Committee and the JCHR. I undertake to consider the issue of publicly arranged health and adult social care and the Human Rights Act in the context of this Bill with a view to the Government reporting back on that important issue during its passage in the other place.[3]

1.3 The Minister has undertaken to examine the issue of publicly arranged health and social care provision and the Human Rights Act again in the context of this Bill. We look forward to the Minister’s amendment in good time for a full debate on this issue in the House of Lords.

1.4 On 6 December 2007, we wrote to the Minister raising a number of significant human rights issues. We received his response on 7 January 2008. We published this correspondence with our first Report.[4] In so far as the purpose of this Bill is to enhance the rights of patients and users of health and social care services, and to protect people from the threats posed by public health risks, it has the potential to be a significant human rights enhancing measure. We consider that this Bill provides an opportunity to ensure that dignity and respect for individual rights is at the heart of public health provision. A number of Members in the House of Commons shared our serious concern that the Bill does not adequately highlight the importance of a human rights based approach to the work of the CQC.[5] A clear framework for the protection of the rights and dignity of vulnerable users of health and social care could and should be provided in this Bill and we recommend that the Government bring forward amendments in the House of Lords to remedy this shortcoming.

1.5 In this Report, we focus on three further matters which we consider raise significant human rights issues: (a) the protection of public health and the use of compulsory powers (Part 3); (b) the powers of the Office of the Health Professions Adjudicator; and (c) the scope of the information sharing powers and duties proposed by the Bill.

(a) Protection of public health and compulsory powers (Part 3)

1.6 The Bill provides for a major overhaul of the existing mechanisms for dealing with public health risks in England and Wales. It amends the provisions of the Public Health (Control of Disease) 1984 Act ("the Public Health Act") and includes a number of provisions which will either grant or enable the broad use of compulsory powers, including powers of quarantine, detention and compulsory medical examination, either as a result of judicial, executive or administrative decisions.[6] The Impact Assessment which accompanies the Bill explains that the existing legislation is

[I]nsufficiently equipped to deal effectively with today's public health concerns.[7]

1.7 Specific deficiencies which the Government has identified in the Public Health Act 1984 include:

the Act applies only to disease and infection, and does not extend to contamination;
the Act applies to specific diseases and circumstances, which must be named ("notifiable diseases") and the Government consider that more flexible powers are required to deal with dangers to public health;
some existing provisions apply when a person is "suffering" from a disease, rather than when a person is thought to have been, or may have been, infected or contaminated;
existing provisions include powers to remove and detain persons who are suffering from disease: the Government considers that it will be a human rights enhancing measure to allow a more flexible approach to public health risks.[8]

1.8 The Government has explained that its proposals will allow the UK to give effect to the International Health Regulations (2005) ("IHR") issued by the World Health Organisation, and any subsequent international agreements or recommendations designed to protect public health. The IHR came into force in June 2007 and adopt an "all hazards" approach, that is, they take a precautionary approach and are concerned with measures to provide a public health response to the spread of "any illness or medical condition, irrespective of origin or source, that presents or could present significant harm to humans" (emphasis added).[9]

1.9 The proposed new powers for the protection of public health include:

Powers for local authorities to ask a justice of the peace ("JP") to order compulsory health measures in relation to persons, things, or premises ("Public Health Orders");[10]
Enabling powers for the Secretary of State to make regulations for the purpose of "preventing, protecting against, controlling or providing a public health response to the incidence or spread of infection or contamination" ("Health Protection Regulations").[11]

These regulation making powers are very broad and include powers enabling the imposition of restrictions on persons, things or premises ("Restrictions or Requirements"). These powers include restrictions on gatherings and events and in certain circumstances may include powers which could also be imposed by a Public Health Order (i.e. including provisions in relation to persons, premises and things) ("Special Restrictions or Requirements"). Health Protection Regulations which impose Special Restrictions or Requirements, or otherwise have "a significant effect on a person's rights" are made by affirmative resolution or a special emergency procedure. It will be for the Secretary of State to declare whether a measure contains the relevant restrictions or has a "significant effect on a person's rights". Under the emergency procedure, the Secretary of State, or the Welsh Ministers in Wales may make regulations without parliamentary approval if the regulations include a statement that "by reason of urgency, it is necessary to make the order". Such orders will lapse (a) if they are rejected by either House of Parliament, or in Wales, the Welsh Assembly or (b) at the end of 28 days, unless approved.

The Secretary of State will also have powers to make International Health Protection Regulations (New Section 45B). These powers are similarly broad and allow the Secretary of State, or the Welsh Ministers in Wales, to make provision in relation to the detention of vessels, aircraft, trains or other conveyances, to provide for the medical examination, detention, quarantine and isolation of persons and to give effect to any international agreement or arrangement relating to the spread of infection or contamination.

1.10 The Government rightly accepts that these provisions engage a number of Convention rights.[12] The Government has given particular consideration to provisions "relating to quarantine, isolation, detention, medical examination, and powers of entry in respect of public health investigations."[13] The Government considers that the "purpose of these provisions is to protect the public from significant public health risks and the Convention itself envisages that certain rights can lawfully be interfered with on public health grounds. Safeguards, such as limits on the period in respect of detention, quarantine or isolation, are also built into the legislation to minimise impact on individuals".[14] There is more extensive analysis of the Government's views on Convention compatibility with Article 5 (the right to liberty), Article 8 (the right to respect for private and family life), Article 11 (the right to freedom of association) and Article 1, Protocol 1 ECHR (the right to the peaceful enjoyment of possessions), in both the Explanatory Notes and the accompanying impact assessment.[15]

1.11 These provisions present a significant shift from the existing Public Health Act, which makes specific provision for defined powers for the control of the risks posed by particular, named diseases, to a regime based on broad, flexible, enabling powers for the Secretary of State and broad powers for justices of the peace in response to risks posed by "infection" or "contamination". The Government clearly has a duty to respond to public health risks in a way which protects the health and safety of its citizens. In so far as the Government intends to use this Bill, and these provisions, to ensure that any public health controls are proportionate to the risk posed, this Bill has the potential to be a human rights enhancing measure. For example, we welcome the decision to increase the involvement of JPs in the decisions which local authorities take in relation to public health measures; to provide alternatives to removal to a hospital for treatment in Public Health Orders; and the decision not to propose powers to compel an individual to undergo medical treatment.[16]

1.12 However, compulsory powers which significantly engage human rights must be subject to meaningful parliamentary scrutiny and accompanied by appropriate safeguards to ensure the protection of individual rights. Many of the details of this Part, including safeguards for individual rights, are left to secondary legislation. It remains our view that it is inappropriate for legislation which has serious implications for individual rights to be based principally on enabling powers with detailed safeguards left to secondary legislation. We outline some examples and proposals for clarification, below.

DETENTION, QUARANTINE AND ISOLATION: THE RIGHT TO LIBERTY

1.13 The European Convention on Human Rights strongly protects the right to liberty. Article 5(1) provides that no-one shall be deprived of his or her liberty unless the deprivation is carried out in accordance with a procedure prescribed by law and is necessary in a democratic society on one of a limited number of grounds. One of those grounds, set out in Article 5(1) (e) is deprivation "for the prevention of the spreading of infectious diseases". The case law of the European Court of Human Rights specifies that any of the exceptions to the right to liberty in Article 5(1) must be construed narrowly and the Court has been exceedingly reluctant to accept any deviation from the plain meaning of the text of the existing exemptions.[17] The Minister accepts that, although the Bill should provide adequate powers to impose restrictions which do not impose a deprivation of liberty, the Bill does allow for measures which may engage Article 5(1)(e).[18]

1.14 The Bill clearly makes provision for the deprivation of liberty in respect of both "infection" and "contamination", through provision for detention at hospital or elsewhere and through the use of isolation and quarantine measures, without limitation on duration or the circumstances in which an individual may be held.[19]

1.15 We asked the Minister to explain the Government's view that detention for the purposes of preventing the spread of "contamination" would fall within the existing exemption. He told us:

Article 5(1)(e) enables a restriction of liberty to be imposed for the prevention of the spreading of infectious diseases. However, the Convention is a living instrument to be interpreted in the light of current circumstances. Article 3 of the IHR (principles) requires that implementation of the IHR now recognises diseases caused by contamination, the Government considers that Article 5(1)(e) may now be read as allowing the restriction of the right to liberty for the prevention of contamination.

1.16 The European Court of Human Rights exercises extreme caution in expanding the definitions in Article 5(1)(e). It considers that the existing list of exemptions is exhaustive and that any single exemption from Article 5(1) needs to be closely defined in order to protect individuals from arbitrary detention. In order to determine whether the exemption relating to "infectious diseases" covers "contamination", the Court will look at the ordinary meaning of those words and their object and purpose. The European Court of Human Rights considers that this purpose is two-fold and based upon the categories of persons listed in the exemptions from Article 5(1):

[T]he predominant reason why the Convention allows the persons mentioned in paragraph 1(e) of Article 5 to be deprived of their liberty is not only that they are dangerous for public safety but also that their own interests may necessitate their detention.[20]

1.17 Any detention permitted by Article 5(1)(e) must be accompanied by adequate safeguards to protect against arbitrary detention:

The detention of an individual is such a serious measure that it is only justified where other, less severe measures have been considered and found to be insufficient to safeguard the individual or public interest which might require that the person be detained. This means that it does not suffice that the deprivation of liberty is executed in conformity with national law but it must also be necessary in the circumstances.[21]

1.18 We accept that public health measures may need to be taken to meet a significant risk caused by contamination by biological, toxic, radioactive or other agents. The provisions for detention, isolation and quarantine in these circumstances must be clearly defined and accompanied by appropriate safeguards to avoid arbitrariness. If this is not done, the European Court of Human Rights would subject any application based on a breach of Article 5(1) to very close scrutiny. With proper safeguards, we think it likely that the European Court of Human Rights would accept the Government's argument that diseases caused by contamination fall within the listed exemptions to the Convention right to liberty. Without such safeguards, we consider that the Court will be less inclined to accept the Government's view that the Convention definition of "disease" should cover powers to deprive a person of their liberty as a result of contamination as well as infection.

ENABLING DETENTION THROUGH HEALTH PROTECTION REGULATIONS

1.19 The Government appears to be seeking a broad power to enable decision makers to impose restrictions and requirements on individuals, including medical examination, detention, quarantine or isolation, by administrative action. These "Special Restrictions or Requirements", which otherwise could only be ordered by JPs, involve significant interferences with individual rights, including the right to private life and the right to liberty. In our view, the power to detain, or to subject to isolation or quarantine, clearly would include the power to impose restrictions which could amount to a deprivation of liberty covered by Article 5 ECHR.

1.20 The Bill provides that Health Protection Regulations cannot directly impose any requirement for medical examination, removal to hospital or other places, detention or isolation and quarantine.[22] It appears however, that, provided there is a "serious and imminent threat to public health" or that it is contingent on there being such a threat, that Regulations may enable the Secretary of State, Local Authorities or other decision makers to impose any of the Special Restrictions or Requirements. As the Minister explained in correspondence:

Section 45D(3) prohibits such regulations from imposing requirements directly for medical examination, detention, quarantine or isolation. Section 45D(4) does allow these types of measures to be imposed by a decision maker in the event of a serious and imminent threat to public health.[23]

1.21 The Minister later confirmed that:

The power to make regulations enabling the imposition of medical examination, removal, detention, quarantine or isolation is aimed at a serious and imminent threat of infection or contamination which may cause significant harm to public health.[24]

1.22 The Minister provided the example of a SARS outbreak where a local authority might be enabled to "consider and decide whether it is proportionate and necessary to require a symptomatic patient to be isolated in hospital" or to require a person "to be quarantined away from their family".[25]

1.23 Compulsory powers enabling serious infringements of individual privacy (such as compulsory medical examination) or enabling the deprivation of liberty through detention, quarantine or isolation must be subject to detailed parliamentary scrutiny. They must not be granted by implication, or in ambiguous, obscure provisions which, as a result, may not be scrutinised effectively. In our view the "principle of legality" which is well established in our common law of human rights, requires powers to be read strictly and requires deprivations of liberty to be expressly authorised by Parliament in the regulation making power.[26] Despite the express reference to the inclusion of Special Restrictions or Requirements, it is far from clear from the text of the Bill that Health Protection Regulations contingent on a serious and imminent threat to public health are intended to enable the detention or quarantine of persons. Indeed, conflicting views have been expressed on the effect of these provisions.[27] Amendments should be brought forward to clarify the provisions in Clause 124 and New Section 43C during the Bill's passage through the House of Lords.

1.24 If the Bill is designed to empower the Secretary of State, or the Welsh Ministers in Wales, to impose administrative detention, quarantine or isolation, the Government must provide evidence of the need for such a broad, undefined power and there must be clear and effective safeguards on the face of the Bill to ensure that Health Protection Regulations operate in a way which ensures that people are protected from arbitrary detention in breach of the right to liberty. We discuss whether the proposed general power to make Health Protection Regulations is necessary, and accompanied by appropriate safeguards, below.

HEALTH PROTECTION REGULATIONS

1.25 In response to the Government's consultation on its proposals to reform the Public Health Act, Liberty were concerned about the breadth of the regulation making powers proposed for the Secretary of State:

The scope of the suggested power is enormous: "to make provision to prevent, protect against, control and provide a public health response to the spread of disease". This would allow the Secretary of State to make any regulation whatsoever in the public health field, effectively enabling him/her to rewrite the Act. It is not explained and is in any event unclear, why such a broad power is necessary. [28]

1.26 We asked the Minister to explain why the general powers to make broad Health Protection Orders were necessary in the light of the range of powers proposed for JPs. The Minister explained:

The regulation making powers in section 45C are meant for a different purpose to that for the powers of a justice of the peace…The regulation making powers …could enable action to be taken in a uniform manner. For example, in the unlikely event that there was a large outbreak of a highly infectious disease (such as Ebola or SARS), rather than allowing local authorities to overwhelm justices of the peace and lose valuable time by seeking orders for all those unwilling to comply voluntarily with measures to control the spread of disease, regulations…might enable a local authority or other relevant health protection authority to place a requirement on a person who was willing to comply.[29]

1.27 The Minister told us that Health Protection Regulations could cover situations which a Public Health Order could not. There are likely to be at least three types of domestic Health Protection Regulations:

Regulations relating to information to protect public heath (which, it is proposed, will mirror existing provisions requiring monitoring and notification of diseases; but will relate to listed diseases, forms of contamination or symptoms);
Regulations relating to local authority powers to protect public health ("Permanent preparedness regulations") and
Regulations concerning additional safeguards ("Temporary safeguards").[30]

1.28 The Minister explained to us that permanent preparedness regulations could include powers for a local authority to require children to stay away from school and the power to disinfect or decontaminate persons, things or premises if asked to do so. It is proposed that Regulations will give local authorities the power to compensate individuals for cooperating voluntarily with public health measures. These provisions would build upon existing powers in the Public Health Act.

1.29 The Minister told us that the powers could also be used to "create temporary additional safeguards in addition to the permanent preparedness regulations and the specific justice of the peace powers". It is the Government's intention to use these powers "if it becomes evident that there is a risk to public health for which additional measures are required". Although the Minister describes these as "temporary", in response to a serious and imminent threat to public health, he accepts that "provisions initially introduced as an additional safeguard might prove to be useful provisions for permanent preparedness". Hypothetical examples of how these provisions might be used include the power to cancel or postpone major events; to allow local authorities to consider and decide on the proportionality of isolation or quarantine; and to create offences relating to the use of property which may be responsible for the spread of disease (dental or other medical tools, for example).

1.30 Our concerns focus on the broad power to make Regulations imposing restrictions and requirements on individuals which could significantly interfere with their individual rights, including the right to liberty and the right to respect for private and family life.

1.31 Given the scope of these powers - which includes a power to create offences - there is a surprising lack of detail on the face of the Bill. Little information has been provided about the proposed purpose of these regulation making powers and so far the Government's explanation of why a general power to impose restrictions on individuals is necessary has been limited. We accept that fast, effective and coordinated action may be required to protect the public from serious public health risks. In the absence of further evidence, we are not persuaded that the need for uniform action in response to national threats justifies the type of "blank cheque" powers which the Government proposes, particularly in respect of Special Restrictions or Requirements which could otherwise be made on application to a JP. The Government expects that JPs will be expected to consider applications on a 24 hour 'emergency' basis.[31] Applications may be considered without notifying affected persons, at the discretion of the JP. During Committee Stage in the House of Commons, the Minister confirmed that a JP may make Public Health Orders which apply to large groups of persons or numbers of things and premises, without the need for separate applications.[32] Local authorities are required by the Bill to cooperate with each other in deciding which authority should make an application for an Order. The Secretary of State must explain why the Bill should not be amended to limit the powers proposed for the Secretary of State (and the Welsh Ministers in Wales) to specific situations and to include appropriate, tailored safeguards for individual rights. For example, the Minister has outlined in correspondence specific purposes for which these powers may be used:

Information sharing and monitoring;[33]
Enabling local authorities to make provision in relation to keeping children away from school;[34]
Enabling local authorities to make provision in respect of decontamination or disinfection;[35]
Enabling local authorities to make provision in respect of compensation for voluntary cooperation in respect of risks to public health;[36]
Enabling local authorities to levy or set aside charges to meet their costs incurred in respect of public health risks;[37]
Enabling the Secretary of State to take steps to control events and gatherings of groups of people in respect of risks to public health.[38]

1.32 We welcome the decision to outline some of these provisions on the face of the Bill. The Minister told us that the purpose of Health Protection Regulations is to allow both for permanent preparedness regulations and a temporary response to specific public health risks where a consistent response across a wide area is required. The Minister should explain why the general power proposed for these purposes should not be further constrained. For example, the Bill should be amended to provide further details of the type of permanent preparedness regulations or temporary additional safeguards the Government envisages. As the Minister has explained, however, the Government does not immediately intend to bring forward any additional regulations beyond those listed above. This general power is intended as a catch-all provision designed to anticipate any future, potential threat to public health. A general power to enable the imposition of restrictions and requirements on people, and in particular, the power to impose Special Restrictions and Requirements, may have a significant impact on individual rights. We recommend that the Minister explain to Parliament why the general power to impose restrictions and requirements should not be more comprehensively defined in the Bill. In particular, he should explain why the power to enable the imposition of Special Restrictions and Requirements should not be expressly limited to defined circumstances where a uniform, national response may be necessary to meet a serious and imminent threat to public health.

1.33 The Minister told us that there were a number of significant limitations to the power to make Health Protection Regulations, which should afford adequate protection for individual rights:

Health Protection Regulations may only impose a restriction or requirement on an individual where the appropriate Minister "considers" that it is "proportionate to what is sought to be achieved by imposing it";
Health Protection Regulations which enable another person to impose a restriction or requirement must require that person to "consider" that the restriction is "proportionate to what is sought to be achieved by imposing it";
Special restrictions or requirements may only ever be imposed when there is a serious and imminent threat to public health at the time the requirements are imposed or at the time the regulations are made;
Regulations which impose Special Restrictions or Requirements must provide for a right of appeal to a magistrates court and for a "right of periodic review" in respect of the continued application of those Special Restrictions or Requirements;[39]
Regulations which impose Special Restrictions or Requirements will be subject to Parliamentary scrutiny under the affirmative resolution procedure.[40]

1.34 The Government considers that the ultimate safeguard for the protection of individual rights is provided by Section 6 HRA as it will ensure that "Convention rights will be respected in the exercise of powers given by Parliament". We have consistently stressed our view that Section 6 HRA should not be used as a "safety-net" to ensure that broadly drafted powers are exercised in a way which affords respect for individual rights. In order to foster legal certainty and to reduce the risk that individuals rights are unnecessarily endangered, appropriate safeguards should be included on the face of the Bill.

1.35 In our recent report, The Use of Restraint in Secure Training Centres, we recommended that all secondary legislation which raises significant human rights implications should always be accompanied by a statement as to compatibility with the ECHR setting out the reasons why the Government considers the instrument to be compatible.[41] Despite our concerns about their breadth, Health Protection Regulations made under these proposals would benefit from a clear statement from the Government about compatibility with Convention rights, accompanied by sufficient analysis to aid parliamentary scrutiny.

1.36 We have the following concerns in relation to the proposed safeguards.

PROPORTIONALITY AND INDIVIDUAL RESTRICTIONS

1.37 Where a restriction or requirement is imposed which interferes with an individual's rights, such as the right to private life, that restriction must be necessary and proportionate to the risk posed to public health. If the restriction relates to detention, isolation or quarantine which amounts to a deprivation of liberty, it will be permitted only if it is lawful and not arbitrary. This includes an assessment of whether or not detention is imposed as the "last resort" and that other less restrictive measures are incapable of meeting the risk to public health. The Minister has told us that the proportionality provisions on the face of the Bill are not intended to replace the assessment under Section 6 HRA of whether or not a proposed restriction will be compatible with human rights. Instead, this assessment supplements that analysis. The Minister considers that any restriction may be taken as a "step" in a series of actions that "together address a threat to public health". A restriction must be proportionate to "what it is intended to achieve" and "necessary to meet the threat to public health which the regulations addresses." We are concerned that despite this subtle distinction, the language on the face of the Bill suggests that the analysis is limited to whether the decision maker subjectively considers that what he is doing is proportionate to what he seeks to achieve. We recommend that the provisions are amended to remove the subjective element from the analysis of proportionality and to require that any restriction or requirement imposed is proportionate to its aims, including both to its immediate goal and the threat posed to public health.

RESTRICTIONS CONTINGENT ON A "SERIOUS AND IMMINENT THREAT TO PUBLIC HEALTH"

1.38 The Minister has explained that the analysis of a threat level will be entirely a matter for the Secretary of State or the decision maker who is empowered to impose additional restrictions. This is a subjective test of a threat to the public and one which the courts will be reluctant to question on judicial review. Although the Government envisages that these measures will be "temporary" and that "it will normally be appropriate to remove the measures" once the serious and imminent risk has passed, the Minister has explained that some regulations may turn out to be "useful" and if they remain proportionate, they should remain in place. The "serious and imminent threat" test only applies to Special Restrictions or Requirements imposed on persons, or to powers which enable the imposition of those restrictions. These same powers, when exercised by a JP, may only remain in force for a specified maximum time period before they lapse and must be removed or renewed.[42]

1.39 The assessment of the proportionality of any measure which interferes with the individual rights the Government accepts are engaged includes an assessment of whether the measure remains necessary. Similarly, any restriction including the deprivation of liberty will become arbitrary and unlawful when it ceases to become necessary.

1.40 We consider that the restriction of certain Health Protection Regulations to circumstances where there is a "serious and imminent threat" is an important one. However, this safeguard is undermined by the failure to include on the face of the Bill provisions which (a) impose a renewable maximum time limit on the time a person may be subject to Special Restrictions or Requirements imposed by Health Protection Regulations; (b) make clear that Special Restrictions or Requirements must be lifted when they are no longer either necessary or proportionate to meet the serious and imminent threat they are designed to meet, and (c) provide a clearly defined mechanism of review in order to ensure that the restrictions continue to be necessary and proportionate to the risk or threat posed to public health.

APPEALS AND REVIEW

1.41 The requirement that Health Protection Regulations which impose a Special Restriction or Requirement must provide for an appeal to a magistrates court and for a "right of periodic review" is an important and valuable safeguard. However, we are concerned that substantive details of these rights are to be left to secondary legislation and need not be consistently applied in relation to each set of Health Protection Regulations. Will an individual be able to request a variation or removal of a restriction and appeal against that decision? Similarly, no detail is provided as to how a "right of periodic review" will work in practise, including by whom the review will be conducted and whether the review may lead to the lifting of the relevant restrictions. All of these provisions are relevant to the value of any proposed appeal or periodic review and we consider that they should be specified on the face of the Bill. The Government must provide a satisfactory justification for their views that some of the basic details of these important safeguards should be left to secondary legislation or otherwise such safeguards should be on the face of the Bill.

PARLIAMENTARY SCRUTINY

1.42 Although there is an opportunity for parliamentary scrutiny of regulations made under the affirmative resolution procedure, such scrutiny of wide-ranging Health Protection Regulations will be of limited value because little time for debate is allowed and amendments are not permitted. In any event, the affirmative resolution procedure will not apply where the relevant Minister makes a declaration that the Regulations contain no Special Restrictions or Requirements and has no other "significant effect on a person's rights". This is a subjective test, which appears to be unique to this Bill. We do not think that it is appropriate for a Minister subjectively to determine the process for parliamentary consideration of measures which may engage individual rights on a case by case basis. Where individual rights may be engaged, the relevant provisions should be contained in primary legislation and subject to full parliamentary scrutiny. Failing that, the affirmative resolution procedure should always apply to any categories of regulations which may engage individual rights.

1.43 We are concerned that there will be no effective parliamentary oversight of the use of these powers when the emergency procedure proposed is used.[43] We recognise that the purpose of this procedure to ensure that there is a rapid response to the implications of a public health crisis. The emergency procedure for Health Protection Regulations appears to provide even less opportunity for parliamentary scrutiny than the provisions of the Civil Contingencies Act 2004. That Act provides that the Government may make certain emergency provision by Regulation, where there is an "emergency" as defined by the Act. The Health and Social Care Bill provides that the Secretary of State may make Health Protection Regulations using the emergency procedure if he makes a declaration of his "opinion, that by reason of urgency, it is necessary" to use that procedure. Regulations under the Civil Contingencies Act will lapse after 7 days if not approved (including with amendments); the Bill provides for Health Protection Regulations to remain in force for 28 days and makes no provision for amendment, only approval or rejection. The 28 day period will not include any time during which Parliament is prorogued, dissolved or in recess for more than four days. The Bill does not require Parliament to be recalled during a recess to approve Health Protection Regulations, in contrast to the provisions of the Civil Contingencies Act 2004, which provides for the recall of Parliament from recess within five days of an emergency being declared. This could mean that an emergency Health Protection Order, enabling medical examination, detention, quarantine and isolation could be made in late July, at the start of Parliament's long summer recess, and remain in place, without parliamentary authority, until November. This is clearly unacceptable. We consider that, in the light of the types of emergency which the Government considers these regulations may be necessary to meet (for example a nationwide outbreak of Ebola, SARS or another life-threatening illness) the emergency procedure in this Bill should be amended to reflect the provisions of the Civil Contingencies Act 2004.

PUBLIC HEALTH ORDERS

1.44 We welcome the decision to increase judicial involvement in public health protection and to introduce provisions which will allow a judge to take a more flexible approach to Public Health Orders. We consider that this approach is more likely to provide an effective balance between the need for a speedy response to a threat to public health and individual rights.

1.45 Given the new breadth of powers available to JPs under the Bill, we asked the Minister if the Government was satisfied that the proposed powers contained adequate safeguards to ensure protection for individual rights, including the right to liberty and the right to respect for private life and physical integrity. The Government consider that the powers of JPs are accompanied by appropriate safeguards, including:

A Public Health Order may only be made where necessary to reduce or remove the risk to public health;

An Order "could provide for the least intrusive measures…which will achieve the permitted public health aim";

Rights to apply for variation or revocation of a Public Health Order are provided and appeal will be available under the Public Health Act to the Crown Court.[44]

1.46 We consider that these are all important safeguards. However we have some remaining concerns which we address below.

PUBLIC HEALTH ORDERS AND DETENTION

1.47 The Public Health Act currently provides that before a JP makes an order to remove a person to hospital, he must consider whether:

the circumstances are such that proper precautions to prevent the spread of infection cannot be taken, or that such precautions are not being taken[45]

1.48 If the JP is currently considering an order for detention in hospital, he must consider whether appropriate accommodation is available outside of detention, where proper precautions for the spread of disease could be taken.[46]

1.49 Although the Bill provides that the JP must consider whether an order is necessary in order to "reduce" or "remove" risk to public health, there is no priority given to the list of orders which he may impose. The European Court of Human Rights has expressly stated that detention for the purpose of preventing the spread of disease must only occur as a matter of "last resort".[47] The Government have expressly stated that the purpose of providing a broad list of potential Orders is to allow for a proportionate response short of deprivation of liberty. Public Health Orders may be considered in a short time frame and without representations by the person who will be detained. Against this background, we consider that the protection of the individual right to liberty would be enhanced by the express acknowledgement on the face of the Bill that detention, isolation and quarantine are measures of last resort which should only be imposed if no other measures are capable of effectively reducing or removing the risk to public health.

1.50 We welcome the proposal that all Public Health Orders should be subject to a limited time frame. The Bill provides that Public Health Orders which provide for detention, isolation or quarantine may last for no more than 28 days before they must be renewed. It is not clear why the Government has specified a period of 28 days and no explanation is given in the Explanatory Notes accompanying the Bill. We consider the time frame proposed for compulsory detention without further judicial scrutiny should be short and justified by reference to the necessity for Orders to remain in place for up to four weeks without further automatic review. In the absence of further evidence, including scientific or medical evidence, 28 days may seem arbitrary. An individual should not be subject to detention, isolation or quarantine for the purposes of the protection of public health without regular reviews and the approval of such action by a judicial authority. There is currently no maximum period after which an Order may not be renewed or extended on the face of the Bill. As presently drafted, people, including families with children, could potentially be subject to detention, isolation or quarantine for years on the basis of extended or renewed 28-day Public Health Orders. The Secretary of State is empowered to make regulations which may specify a maximum period of extension, but he is not required to do so. We recognise that there may be difficulties in setting an arbitrary period after which a period of detention, isolation or quarantine must lapse. However, we consider that a mechanism for ensuring that detention may not continue indefinitely should be on the face of the Bill. We consider that a shorter time frame for detention before automatic review and a provision for review at close intervals would decrease the risk that an individual would be unlawfully deprived of their liberty in breach of Article 5 ECHR. We consider that this will be particularly important where those detained, isolated or in quarantine are children. We recommend that the Bill be amended to provide greater protection for persons against the continued arbitrary application of a series of Orders without review, particularly where those Orders relate to detention, isolation or quarantine. One way of ensuring closer judicial oversight, without the need for an individual to lodge an appeal, would be to reduce the proposed limit on Public Health Orders and to introduce subsequent automatic reviews of any renewed or extended Public Health Order. Although these proposals would increase the administrative burdens on local authorities, Public Health Orders requiring detention, isolation and quarantine are expected to be very rare and these types of orders will have a particularly significant effect on individual rights and may amount to a deprivation of liberty. We will publish amendments to reduce the maximum duration of Public Health Orders imposing detention, quarantine or isolation to 14 days, with the requirement for automatic review by a JP at 7 day intervals thereafter. We will propose these amendments to enable this issue to be debated in Parliament and to hear the Government's justification for its current position, particularly in the light of any scientific advice.

1.51 It will be for the Secretary of State to set the maximum time limit for Public Health Orders which do not include provisions for detention, isolation and quarantine. The other Orders which can be made include requiring a person to abstain from work and restrictions on whom they may have contact. These provisions clearly may have a broad effect on an individual's right to respect for private and family life and their rights of association. We consider that there is a strong case for also including a maximum time frame for the imposition of these Orders on the face of the Bill. We propose that the power of the Secretary of State to set a maximum period of extension for any Public Health Order should be subject to the affirmative resolution procedure.

EVIDENCE TO SUPPORT PUBLIC HEALTH ORDERS

1.52 The Bill proposes that the Secretary of State, or the Welsh Ministers in Wales should have the power to make Regulations which deal with the evidence that must be before a JP before he can be satisfied that a Public Health Order is necessary.[48] We asked the Minister what evidence the Government envisaged these Regulations would cover, and why it was appropriate for this power to be in the Bill rather than to specify specific types of evidence on the face of the Bill. The Minister explained that it was the Government's view that the level of evidence required for a Public Health Order should be such that it:

does not hinder local authorities in their duty to protect the public from health threats, but is high enough to ensure that action is not taken inappropriately.[49]

1.53 We agree that the level, and type, of evidence necessary to support a Public Health Order should be linked to the level of the threat posed to public health. It must also be closely linked to the degree which an Order will interfere with an individual's rights, including the right to physical integrity and the right to liberty. Under the current Public Health Act, a JP must have medical evidence before issuing an order for medical examination. He may only order removal or detention to hospital where a person is "suffering" from a disease. This will clearly require medical evidence. In light of the expansion of the powers of the JP proposed by this Bill, we are concerned that the type of evidence required to show that a person may is or may be contaminated; that they may pose significant harm to public health; or as to the risk that they may infect or contaminate others must include medical evidence. The European Court of Human Rights requires objective evidence of this type for lawful detention pursuant to Article 5(1)(e) when mental health or other health issues are concerned.[50] We consider that both the imposition and continuation of Public Health Orders must be based on objective medical evidence. We are concerned that there is no provision on the face of the Bill for Public Health Orders to be based on objective medical evidence. The Bill should be amended to require Regulations made under New Section 45G(7) to include a requirement that no Public Health Order may be made, or remain in force, without objective medical evidence.

1.54 The Minister explained that these provisions are not on the face of the Bill, but that the first set of Regulations dealing with this matter will be subject to the affirmative resolution procedure.[51] He explained that in future, the nature of the evidence that should be required may need to be altered to take account of new diseases and new methods of disease detection. We expect that any draft Regulations proposed under this Part of the Bill should be made available well in advance of their being laid before Parliament to allow for full debate. We look forward to receiving a copy of these draft Regulations when they are available.

(b) Powers of the Office of the Health Professions Adjudicator

1.55 Part 2 of the Bill creates a new body, the Office of the Health Professions Adjudicator (OHPA), and provides that OHPA will take over the operation of Fitness to Practise Panels from the GMC (in relation to doctors) and the General Optical Council (in relation to opticians).[52] The Bill also provides for the standard of proof applied during these hearings to be changed from the criminal standard (beyond reasonable doubt) to the civil standard (on a balance of probabilities).[53]

1.56 Article 6 ECHR provides that everyone should have the right to a fair hearing when a decision determines their civil obligations or involves a criminal accusation. The Court does not require that any particular standard of proof is applied, provided the overall proceedings are fair and, where the proceedings involve determination of a criminal charge, the additional safeguards for due process in Article 6(2) (the presumption of innocence) and Article 6(3) (additional due process rights, such as the right to examine and cross examine witnesses) apply.[54] In criminal cases, however, the Court has emphasised that "any doubt should benefit the accused".[55] In Albert le Compte,[56] the European Court of Human Rights refused to determine whether disciplinary proceedings involved the determination of a criminal charge. Instead, the Court gave directions that in some circumstances, the potential outcome of the proceedings might be so serious as to require the same guarantees as if the proceedings involved the determination of a criminal charge. It is the Government's view that, when considering more serious cases, panels will generally apply the "enhanced" civil standard of proof. The Minister explains that it is the Government's view that our courts consider that this standard is unlikely to lead to a different result than the application of the criminal standard.

1.57 The BMA have raised concerns about the fairness of these changes.[57] We wrote to the Minister to ask for a further explanation of the Government's view that the introduction of a civil standard would lead to a fair trial in cases which (a) involved accusations of conduct which could also amount to a criminal offence and (b) could lead to an individual being prevented from continuing in his or her profession. In response the Minister explained that there are three stages involved in a hearing by a Fitness to Practise Panel (the role that will be played by OHPA). At the first stage, the Panel will establish the relevant facts, after hearing evidence. It is at this stage that it is proposed that the standard of proof should shift from the criminal to the civil standard. After the facts have been established, the Panel will determine whether the facts are sufficiently serious to justify a finding that fitness to practise has been impaired (Stage 2). Lastly, the Panel will decide what sanction is justified in the circumstances (including whether removal from the register is appropriate) (Stage 3).[58]

1.58 The Minister explained that in determining whether to apply a heightened standard of proof at the fact-finding stage, any Fitness to Practise panel would need to work within the law. The Bill provides for the appointment of Legal Assessors who the Government consider will help ensure that, in practise, the appropriate, higher standard is applied where necessary:

The Courts recognise that the civil standard is flexible and that the more serious the allegation, the less likely that it occurred and, hence the need for stronger evidence before the decision-maker can conclude that the allegation is true; therefore, the greater the unlikelihood of what is alleged the more cogent the evidence is required to be to prove that it did happen. The relevant panel of OHPA will be bound by case law and will have access to legal assessors […]. Legal assessors will be appointed for the purpose of giving advice to the OHPA's fitness to practise panels on questions of law. The legal assessors will be able to provide advice regarding such matters as to the application of the standard of proof required. Thus, in cases of alleged serious misconduct which could also amount to criminal offences, the relevant panel of OPHA would, as the case law provides, adopt the heightened civil standard and would need to have strong and cogent evidence justifying a finding that the factual allegations are proven.[59]

1.59 The BMA accepts that the proposed change is lawful. They remain concerned however that a change in the standard of proof could result in "unjustified adverse findings against doctors". They are concerned that this change is "not only be unfair to doctors but will compromise their clinical independence".[60]

1.60 We agree with the Government's analysis that, provided the heightened civil standard is applied in the most serious cases, it is unlikely that a serious risk of incompatibility with the right to a fair hearing will arise. Provided that a hearing is otherwise fair, and the heightened standard is applied, we consider that it is unlikely that the right to a fair hearing will be undermined through the application of the civil standard alone. We welcome the proposal that Fitness to Practise Panels should be advised by Legal Assessors who will advise on legal standards, including the appropriate standards of proof and the requirements of the right to a fair hearing. Given the importance of the role to be played by Legal Assessors, it is important that they are provided with appropriate guidance and training on the requirements of Article 6 ECHR and the need to identify the most serious cases where a heightened standard of proof may be required. In any case where the allegations involved may lead to a serious sanction (such as removal from the register), including on appeal, or which may also amount to a criminal offence, a Fitness to Practise Panel must apply the higher standard.

(c) Information sharing: duties and disclosure

1.61 Clause 54 allows CQC to make information publicly available in relation to the provision of NHS Care or adult social services or the carrying on of regulated activities. This power is subject to Clause 72 which makes it an offence to disclose confidential information which identifies an individual. Clauses 62 - 68 and Schedule 4 make provision for CQC to interact with other bodies, including co-operation and providing assistance. Clause 72 makes it an offence knowingly or recklessly to disclose confidential information in so far as it relates to, and identifies, an individual. Clause 73 includes a number of broad defences to this offence which include that the disclosure was made to any person or body in circumstances where the accused reasonably believed that disclosure "was necessary or expedient for the person or body to have information for the purpose of exercising functions of that person or body under any enactment". It will also be a defence if the disclosure was made for the purpose of "facilitating the exercise of any of the Commission's functions". Clause 74 relates to the disclosure of information by CQC in the course of exercising its functions. Disclosure of personal information will only be expressly permitted if it does not identify the individual concerned or if it is disclosed with consent. In other cases, the information may be disclosed, despite any common law rules of confidence, including "to any person or body in circumstances where it is necessary or expedient for the person or body to have the information for the purpose of exercising the functions of that person or body under the enactment" or where the "disclosure is made for the purpose of facilitating the exercise of any of the Commission's functions". The Bill also requires the CQC to prepare a Code of Practice on confidential personal information (Clause 76).

1.62 Clause 116 enables the Secretary of State and the Welsh ministers to make provision requiring "designated bodies" to co-operate with each other in connection with the sharing of information which relates to the conduct and performance of health care workers. The Regulations may include certain prescribed conditions for disclosure.

1.63 Although the Explanatory Notes deal with the specific disclosure of information in relation to individual health care workers and their conduct, they make no reference to other information sharing by CQC in the general pursuit of its functions. We asked the Minister for a further explanation of the Government's view that these provisions would operate in a way which adequately protects the right to respect for personal information (as protected by Article 8 ECHR). The Minister explained that these provisions extend the application of the existing powers exercised by the Healthcare Commission to CQC and ensure that existing practice by CSCI continues. He explained:

People working for the Commission will need to be aware of the sensitive nature of the information they deal with in carrying out their duties. […] These provisions, including the permitted disclosures under Clause 73…place appropriate restrictions on the Commission's ability to disclose personal information.

1.64 The Minister stressed that CQC would be required to consult on its draft Code of Practice on the disclosure of personal information. We recognise that these provisions are largely modelled on existing provisions and that the need for a statutory Code of Practice may provide some valuable additional protection to personal information. We have a few remaining concerns, in light of the broad powers to be exercised by CQC; the sensitivity of the information it will handle and recent failings on the part of Government to ensure the security of personal information.

1.65 The first of these concerns relates to the breadth of the proposed defence to the offence of disclosure of confidential information. We are concerned that the operation of the defence may entirely undermine the deterrent effect of the proposed disclosure offence. The Bill provides for CQC to cooperate in a wide range of circumstances with third parties, including unnamed and unspecified public bodies. At its widest, it will be a defence for any member of CQC staff who discloses personal information without consent, to show that they reasonably believed that the disclosure was made to that person or body in circumstances where it was necessary or expedient for the purposes of exercising their statutory functions. The Bill proposes that if the defence is raised which is "sufficient to raise an issue", then it will be for the prosecution to show beyond reasonable doubt that it is not applicable to the case. This new standard of proof is not modelled on existing provisions which apply to the Healthcare Commission. We are concerned that the Minister relies on the proposed offences which will apply to disclosure of information to illustrate how strongly the CQC and its staff will be concerned by the need to protect personal information. The Minister should be asked to explain why it is necessary to have a broad defence based on reasonable belief in the expediency of providing material to a person or body in pursuit of their statutory functions.

1.66 We also asked the Minister of the compatibility with the Convention of the proposed new general duty of disclosure in relation to the conduct of health care workers (Clause 116). The Minister explained that this new duty was being introduced to meet recommendations of recent high profile cases where organisations or agencies had failed to work together effectively to "join-up" information in order to protect patients from harm. The Minister explained:

The purpose of the proposed new powers to make regulations, making provision in connection with the sharing of information, etc, is to strengthen the responsibilities and powers of healthcare organisations to collaborate in handling information of this kind, while maintaining safeguards for the human rights of health professionals.[61]

1.67 We welcome the Government's decision to pursue the aim of these proposals: improved and more effective patient protection against abuse or neglect. However, as the Explanatory Notes rightly identify, there is an element of balance involved in whether a disclosure will be proportionate to the risk which it seeks to meet. This balance is one which will need to be carefully applied in practice to ensure compatibility with Convention rights. With this in mind, we are concerned that the Minister told us that it was the Government's view that any "actual or potential risk" to patient safety would outweigh the right to respect for privacy in any circumstances. The Government propose that there will be a number of safeguards in Regulations and in Guidance to ensure that disclosure will not breach the Convention. These include:

Information on the type of information that can and cannot be shared;
Circumstances when information should not be shared, for example where the information does not relate to "conduct or performance";
Steps which must be taken (including considering individual rights) before disclosure is considered; and
Other safeguards.

1.68 Additional details in the form of guidance or on the face of the Regulations will add important safeguards to ensure that this very broad general duty is pursued in a way which balances the need to protect patient safety with the right of healthcare workers to enjoy respect for their Convention rights, and in particular, their right to privacy. We are disappointed that draft copies of these Regulations have not been made available in time to inform parliamentary debate.

1.69 The limitation of the proposed Regulation making power to circumstances in which the worker is likely to constitute a threat to the health and safety of patients is an additional safeguard. Regulations may also cover the disclosure of other information about conduct or performance, however where that information is requested by "any other designated body", without the need to show any threat to patient safety. The Minister should be asked to explain why the ability to disclose information in response to a request should not also be limited by reference to a threat to patient safety.

Amendments to the Bill

1.70 We will publish amendments to the Health and Social Care Bill in a future legislative scrutiny Report to enable some of the issues we have raised to be debated in the House of Lords.

1 Eighth Report of Session 2007-08, Legislative Scrutiny: Health and Social Care Bill, HL Paper 46/HC 303 ("First Report") Back

2 First Report, paragraph 1.2 Back

3 HC Deb, 18 February 2008, Col 59. See also HC Deb, 18 February 2008, Col 61, Col 113 Back

4 First Report, Appendices 1 - 3 Back

5 HC Deb, 18 February 2008, Cols 45 - 63. Back

6 Clause 116 and Schedule 11. These provisions follow a consultation by the Government earlier this year. Review of Parts II, V, VI of the Public Health (Control of Disease) Act 1984, A consultation, Department of Health, 28 March 2007. Back

7 Department of Health, Impact Assessments for the Health and Social Care Bill, November 2007, "Impact Assessment of Public Health Protection Clauses of the Health and Social Care Bill". See also Law Commission, Ninth Law Reform Programme, 2005, paras 4.2 - 4.11 Back

8 Department of Health, Impact Assessments for the Health and Social Care Bill, November 2007, "Impact Assessment of Public Health Protection Clauses of the Health and Social Care Bill". Back

9 Article 2. Back

10 Clause 123, New Sections 45G, 45H and 45I, Public Health (Control of Disease) Act 1984)) ("Public Health Orders"). Back