Official Report 281KB pdf
The changeover of witnesses was impressive. The clerk's training is paying off.
Thank you. I welcome the opportunity to discuss with the committee the provisions of the Public Health etc (Scotland) Bill and I am pleased that the Scottish Government has taken an early opportunity to prioritise an important piece of legislation that is vital for the future health protection of the people of Scotland. I acknowledge that the previous Administration did much work to develop and consult on the proposals that underpin the bill—I put that on the record.
Thank you. The committee would prefer sunbeds to be addressed more substantially when we reach part 8.
Are we going through the bill section by section?
We are proceeding part by part, so we are starting with part 1, which is on public health responsibilities.
My question is about section 3 in part 1. The minister mentioned professional competence issues, which I presume relate to the designation of competent persons by health boards, on which we have heard quite a bit of evidence. The British Medical Association has said that only a person with clinical experience should be a competent person. Other witnesses, such as the General Medical Council, have talked about the need for professional accountability. I listened carefully to what the minister said and I got the idea that the matter is still being discussed and will be dealt with in regulations. Will the minister update us on the designation of competent persons?
On what the BMA said about qualifications, it might help to make it clear that the Faculty of Public Health of the Royal Colleges of Physicians, which is the professional body that is responsible for setting standards in the public health profession, has recognised that public health specialists need not be doctors if they can show a similar level of knowledge and competency and can meet accreditation requirements that are equivalent to those that the GMC sets for doctors as specialists.
You mentioned local authorities. Would the competent person in a local authority be a trained environmental health officer?
Yes—with two years' experience.
We move to questions on part 2, on notifiable diseases and organisms, and health risk states.
I have some general concerns about the recording of sensitive information. Clearly, it is necessary to pass information to the appropriate authority for action to be taken in relation to an individual. I refer to section 13(6) and section 14(6) in part 2, on page 8 of the bill, where there is a list of various bits of information that are to be collected.
I wonder where you got that idea from. Minister, do you want to respond to that?
That is a very topical point. First of all, I reassure members that the patient's name would not be passed on. The information that would be passed on would be the patient's postcode, occupation, sex and date of birth. I will reflect further on the issue that Dr Simpson has raised about the place of work or school, but the fact that the data are anonymised is important. I am happy to examine his concerns about the CSA. I want to examine the Information Commissioner's Office's supplementary evidence concerning the privacy impact assessment, because that evidence has come in at a fairly late stage and I want to reflect on what it means, what we want to look at and how we take that forward. I am certainly happy to do that before stage 2.
The comments about the interaction with the Data Protection Act 1998 should also be taken on board.
Is it on the same issue?
It is on very much the same issue; it is on the "NHS identifier" that is mentioned in section 13(8). At the moment, three options are given in paragraphs (a), (b) and (c). The patient's national health service identification number seems to be the primary number, but I am slightly surprised at the ordering. I had thought that the community health index number was now the primary number to be used by all health services, so I thought that it would the one in paragraph (a), with the second and third numbers given as alternatives preceded by the word "or". That would give a focus.
Yes, paragraph (c) seems to cover that, but I will allow the minister to respond.
Section 13(8)(c) refers to
Yes, but the primary number is the one given in paragraph (a), which is the national health service identification number. Why is that number given first? If somebody reads subsection (8) and sees that the number can be the one in paragraph (a) or (b) or (c), they—
It can be any of the numbers. I do not think that the numbers have been ranked; it is just the way that they are listed in the subsection. It can be any number, depending on what is available.
I ask the minister and her team to reflect on which number should be the primary number. Any practitioner who reads the list will choose the first number if they can; they will not bother going to the second number unless they have to. The first number given should be the number that the health service and others are primarily using at this point in time.
Okay, we will take that point on board.
I want to ask about some small points that were raised with us in evidence. For example, the norovirus is a notifiable disease, but over the winter we heard doctors on television telling us to stay at home and not go to our doctor, so that we did not spread the disease. If people with the norovirus are told to stay at home, how can it be an offence for a doctor not to notify?
Right. Okay.
I should have warned you that Mary Scanlon asks multiple questions.
There were only four this time.
She operates on the principle of asking all her questions at once just in case she does not get back in later.
I did not suggest that that might happen.
Sexually transmitted infections are obviously notifiable through other means such as genito-urinary medicine clinics. When considering whether it was appropriate to include infections in the legislation, we had to consider how they are transmitted. We did not think that it was appropriate to include STIs. That is not to say that we do not take very seriously the rise in sexually transmitted infections, but we are dealing with the issue in another way.
I asked about the norovirus.
I ask Dr Davies to answer that point.
As Mary Scanlon says, the issue of norovirus has been raised before. Norovirus is the organism; we are asking for not the disease but the organism to be notified. As Dr Donaghy of Health Protection Scotland has said, we are interested in surveillance so that we can capture instances.
So if, for example, a general practitioner was aware of an individual who had the norovirus and was told to stay at home, that GP would not have a responsibility to notify the health board.
No, because the responsibility would be on the laboratory to report the organism to us, not on the GP to report the disease.
On fees, the majority of current payments relate to the notification of chicken pox and food poisoning, which will no longer be notifiable under the bill. Any current problems with levels of notification are more to do with the number of unnecessary diseases on the list and a lack of awareness about the system, which is outdated. Notification should be undertaken as part of the general duty of care on GPs or medical practitioners. They do not always claim fees at the moment anyway so, although the BMA raised the matter, generally speaking it has been a small issue, and we do not believe that the withdrawal of fees will have any impact on the bill's workability.
What was your last point, Mary?
Should there be a penalty on a laboratory or a GP for not reporting a notifiable disease or organism?
There is a penalty.
We have left the imposition of penalties for a general practitioner's failure to notify to professional regulation. The General Medical Council requires all doctors to exercise professional accountability. Therefore, if a doctor does not report a notifiable disease, the health board will probably come to know about it and it will be a professional accountability issue. It will stay in that setting.
I will make three points on section 16, which is to do with notifiable organisms. The section places the responsibility for reporting a notifiable organism on the director of a laboratory. Health Protection Scotland raised some concerns about that in its evidence to the committee. The bill defines the director of a laboratory as a
We will reconsider the definition for stage 2 because we have taken on board some of the points that you made. I hope that you will be satisfied when we come back to the issue at stage 2.
That is fine.
Which section is that, Michael?
It is section 16(2).
At the moment, laboratories report organisms on a weekly basis and the period of 10 days is allowed in order to cover weekends. Again, that is in line with the duty on registered medical practitioners and lab staff to notify the relevant health board by telephone as soon as practicable, if there is an urgent need to do so. It is possible that the point at which the clock starts ticking might need to be tightened up. Dr Davies might have something to say on the matter.
You are right to say that there is a difference between an organism being identified and that identification being confirmed. We want to ensure that we strike a balance. The expert working group on laboratory directives said that 10 days was a workable period. For example, in the case of meningitis, one would see an organism under a microscope but one would need a further few days finally to confirm which organism it was. The time between when the organism is defined and when it is reported needs to be practicable.
Section 16(8) deals with laboratories that perform diagnostic tests for human infection. Health Protection Scotland has suggested that other types of laboratories that conduct certain types of tests, such as tests relating to food and water, should be included in that provision. Would you consider extending the definition in section 16(8)?
We are consulting the Food Standards Agency on those issues and we will give the matter further consideration.
You will be pleased to hear that I have only one question.
Ian McKee has identified an important issue.
Thank you.
I will let Richard Simpson in, as his question is on the same issue.
You have limited the provision to blood. Should it not include any other sterile solution, such as cerebrospinal fluid? That is unlikely to be involved, but it might just happen—and we want to cover the bases.
I ask Dr Davies to answer that.
The intention behind the provision was to limit it to sterile areas. We considered that it was just blood that we needed to look at initially because of the blood-brain barrier. We found it impossible to devise a legally sound alternative definition that was not too wide, so we have not at this time.
We will perhaps come back to that.
I do not know whether I understood that answer. We will come back to that.
I return to section 16—not the detail, but the point that I explored when the bill team gave evidence. I am grateful to the bill team leader, Molly Robertson, for her letter to the committee and, in particular, for the helpful summary of biosecurity arrangements for laboratories that she provided in annex B.
The most relevant part of annex B is paragraph 6, which says:
Do you have a sense of the timing for that inquiry?
We do not know, but we can get you information about the timing and when the report is due.
That will be a third report. There have already been two reports into the incident, which simply confirmed that there had been a breach of biosecurity—not perhaps the most profound conclusion. I take your point, minister—I am not disagreeing with you—but it seems to be quite an important matter in relation to laboratories.
Absolutely. We will let the committee know when that report is due.
As I recall, in the anthrax case, the tests were done outside Scotland. Sometimes, tests are done in the United States. What happens when the laboratory is not within Scottish jurisdiction?
That point has not come up until now—perhaps we could look into it and come back to the committee in writing.
I recall that there was nowhere in Scotland to test anthrax. It went down to England and then it went to the United States.
There was a problem at the time. I was deputy justice minister. We were getting a lot of packages that needed to be tested. The testing facility in England was overwhelmed by them. It was at the time of the anthrax scare in the United States, which was not just a scare but a reality. I had discussions with civil servants in the Justice Department about whether they should consider having a testing facility in Scotland because of the pressure that was on the United Kingdom laboratory. I do not know the outcome of those discussions.
I shall leave that there just now.
We will get you an answer to that.
I refer to section 16(8)(a) and (b). In its submission to the committee, the BMA expresses particular concern about managerial control within an establishment. We have touched on that this morning.
Section 16(8)(a) defines a director. The duty falls only on the director or any other person to whom the task of notification has been specifically delegated. It does not apply to any member of the lab staff. An individual would be prosecuted only if he or she failed, without reasonable excuse, to comply with the statutory notification arrangements. If the fault was the organisation's lack of processes and procedures to effect notification, the body corporate could be held responsible for the offence. That partly answers your question. Equally, in that situation, the individual director may be able to establish the reasonable excuse defence. There is enough there to cover all the circumstances. The bill clearly says that the duty applies only to the director or to any other person to whom the task of notification has been specifically delegated, and not to any member of staff. That is important.
I am sure that the BMA will be listening and that if it has any remaining concerns it will be back in touch.
Convener, may I have a couple of minutes to respond to that? This is a very important area and I want to give some reassurance.
Absolutely.
Committee members might be aware that the AIDS (Control) Act 1987 was introduced during a time when knowledge of HIV and AIDS was much more limited than it is today, and survival rates were very low. We no longer need the returns to manage the disease's spread or to ensure the best treatment for patients throughout Scotland.
Thank you.
Yes. That was a very interesting question. Ian McKee, is your question short? I want to move on.
Yes. My question is probably more for the minister's team.
I will ask Dr Davies to answer that.
I love having Ian McKee and Richard Simpson asking such questions. The rest of us just sit here amazed.
It is a very good question and it is why notification 10 days after identification was used as a compromise. In the example that Ian McKee has given, a level of clinical judgment should be allowed. If the first antibody titre that is identified is of a very serious condition, we would expect that to be notified within the first 10 days. If the condition is not so serious from a clinical perspective, we would expect it to be notified after the second rise in titre, because that is when it is identified.
I have a tiny supplementary question. We have talked about ensuring that duties are clearly identified. As there could be legal charges if a negligence case is pursued, what defence would someone have in that circumstance?
My understanding is that, in those circumstances, there has not been a breach of the legal process, because the identification is in two stages—the identification of the first titre and the identification of the second titre.
But you are saying that it is down to clinical judgment whether the notification takes place at the first or the second stage.
Yes—the stage at which the person would let the health board and others know is down to clinical judgment.
The notification is required when the organism is confirmed, which I presume would not be until the second stage.
That depends on the identification.
I want to make progress so that we can have a short break at 11 o'clock. We will move on to part 3.
Section 21, on "Public health investigations", deals with the appointment of persons to carry out an investigation. I seek clarification on the construct of the bill. Part 1 properly and helpfully gives duties to health boards and local government officers and requires the appointment of competent persons. The inference can be drawn that the co-ordination is in the first instance in the hands of health boards and local authorities and that the competent persons will drive the process. However, when we get to part 3, health boards can appoint different people. There appears to be no connection between that and the clear purpose that is set out in part 1—of having competent persons who on the face of it will drive the process. Why do we have investigators and other persons who do not appear to be quite so connected? It seems to create potential for diffusion of the clarity that is introduced in part 1.
National guidance on managing incidents that present actual or potential risk to public health will be produced. The guidance will ensure that clarity exists on who should take the lead in such investigations. I hope that that will bring greater clarity to the situation that Mr Finnie outlines. Molly Robertson may want to add something.
The aim in section 21 is to ensure local flexibility in relation to who appoints investigators. Normally, if an incident control team is set up to investigate a particular public health threat, the health board will take control of the incident and appoint an investigator, who may well be a local authority environmental health officer. Competent persons will be required to certify that certain action is required. So with orders that are made under part 4, the competent person will have to certify that the criteria have been met either to apply an exclusion or restriction order or to go to the sheriff for the more serious orders. Under part 5, a competent person will have to certify that the criteria for a place to be disinfected or decontaminated have been met. Thereafter, other people can do the work.
Obviously, maximum flexibility is needed in any incident, but it seems odd that, having given great clarity in part 1 on how a major public health incident will be handled—who in a local authority or public health body will do what—later in the bill, you allow for the same boards and bodies to appoint other persons without any reference to the clear provisions in part 1.
There is guidance on managing incidents, but we are saying that we will add to it so that it reflects not only existing provisions but the provisions in the bill. Is the point of confusion the idea of appointing other people to undertake investigations?
The inference to be drawn at the outset is that the person who will do the investigation is the competent person. Part 1 is clear about the two bodies involved and the competent person. If anyone wants to know who is in charge, they will find out. All of a sudden, in part 3, instead of the competent person deciding whether an investigation is needed, we are told that we have to go all the way back to
We will reflect on that. The point of the provision is that other people may be required to be involved. The competent person will remain the competent person, but they may require to call on other people to carry out—
With respect, minister, that is not what the bill says. Section 21 does not provide for the competent person to be in charge of whether to carry out an investigation. We go all the way back to the umbrella organisations.
There are times when public health investigations are not contained within one health board area. Sometimes the outbreak covers a number of health board areas. In the case of a large incident of that nature, Health Protection Scotland, which comes under the legal entity of the Common Services Agency, would take charge.
But part 1 requires bodies "to co-operate". The bill sets that out with great clarity. It is clear that you want to get rid of all the mumbo-jumbo of the present legislation, but you have introduced a degree of obfuscation in section 21.
We will reflect on the point. I see exactly where Ross Finnie is coming from, but the provision is in the bill to achieve flexibility. We will consider whether the revised guidance will be adequate to make it clear to everyone so that there is no confusion or whether a drafting change is required.
I will summarise for the sake of clarity. Ross Finnie sees a conflict between section 3, which provides for the competent person—the person at the top of the tree, so to speak—and section 21, which provides for others to investigate. We could call them quasi-competent person—
We are talking about sections 3 and 5 in part 1.
Yes, sections 3 and 5. Ross Finnie is right. A real issue is involved.
I am grateful to the minister for saying that she will reflect on the matter.
We will certainly have a look at it.
I turn to section 27, which is on public health investigation warrants. The officials have doubtless had time to reflect on the evidence from the Law Society of Scotland, which was not entirely generous in its comments on section 27. Its evidence raises a number of issues, including the proposed summary application procedure, which will apply when an investigator wants to gain entry to a premises.
As I indicated earlier, we have taken on board the requirement to amend the bill to ensure that the court procedures are suitable in relation to fulfilling the bill's policy intentions. A modified summary application procedure is required, rather than the full summary application procedure, with the detail to be set out in court rules, as is normal practice. That will ensure that the warrants and orders that are applied for under parts 3, 4 and 5 may be granted as a matter of urgency, if necessary, and that the applications and orders are user friendly, which is always a good thing.
In relation to section 27(2), we fully accept that summary application does not apply in the district court or to justices of the peace. We will be removing that reference. As the minister said, we will provide for a modified form of summary procedure.
Could you give me more of an idea of what that modified procedure will be? Will an application be made to a justice of the peace or to a sheriff for a warrant?
We intend to lodge amendments at stage 2 to provide that forms of application for warrants may be prescribed by the Scottish ministers. That could be used to ease the process. We will provide that orders and warrants may come into force immediately, and we will include an express provision in the bill that will refer to the Court of Session's power to make court rules, so that we can supplement the provisions in the bill with court rules.
To be honest, that does not seem to be as simplified as the Law Society felt that it should be. How can a bill come before the committee that proposes a legal procedure that does not exist in Scots law, namely the making of a summary application to a justice of the peace?
We accept that that will need to be changed, and we intend to lodge amendments at stage 2 to change it. I cannot really say any more about that.
It is unfortunate that that happened. I hope that lessons are learned, and that such matters are looked at in more detail in relation to such a basic point. That is my view of the matter. We are working closely with the Law Society on the detail that will need to be provided at stage 2, which I hope will be in accordance with what the Law Society recommends. I hope that that provides reassurance to members.
I will say this with my former lawyer's hat on—this is where I can enjoy myself a bit. You are talking about a change in sheriff court rules.
Our initial intention in the bill was always to follow normal practice, with summary procedure being used and the detail left to court rules. We do not put all the detail—
So, to implement this legislation, you are seeking a change in Court of Session and sheriff court rules.
Only in sheriff court rules. We will lodge a suitable amendment to ensure that the bill refers to the Court of Session's power to make rules for the sheriff court.
And you need a change in sheriff court rules before the provision can be implemented.
Yes. The idea is to consult the Sheriff Court Rules Council and give it a say on rules that might be put in place. I should say that that is quite standard procedure—it has certainly happened with other bills.
With respect, we will leave the matter there. The committee might well take more evidence at stage 2, if it thinks that that is required.
Can I get some clarity on the issue?
We are certainly not getting any at the moment.
In response to Michael Matheson's first question, the minister suggested that, notwithstanding the error that might have been made, she intended to adopt the procedure that has been recommended to us by the Law Society of Scotland. With all due respect to the lawyer who is present, she has suggested a different procedure and a change in the rules.
As far as I am concerned, our proposal is in accordance with the Law Society of Scotland's suggestion. Indeed, the Law Society is content with it.
We will have to come back to the issue.
Instead of waiting to see the stage 2 amendments, we could ask the minister and the bill team to write to us with clarification. That would allow us to take another look at the matter.
I am happy to do that.
I remind the committee that, although it is not normal practice, we can take evidence from witnesses at stage 2 if we are not content with substantive amendments that have been lodged.
You will have had enough of me by that time.
We do not want to influence you in any way, Helen, but you stand between us and a break.
Such a burden, to stand between a man and his food.
You are wondering who will take the lead in a joint investigation.
Yes.
As we have said, we will update guidance on incident management control. Section 21 relates to cases in which investigations must be carried out as a result of the various circumstances—for example, infection and contamination—that are set out in section 20. At the time of an outbreak, an incident control team, which would be staffed by the competent officers from health boards and local authorities, would jointly agree whether an investigation was needed. That is what the provisions refer to. The incident control team would need to appoint a lead investigator.
Essentially, things will go on as they do at the moment.
I think that the issue that the City of Edinburgh Council raised has been taken on board. I think that the council just wanted clarity on which body would have primacy in appointing a lead investigator.
We are giving consideration to that arbitration role. We will come back to the committee on that at stage 2.
Before the minister leaves her seat, and before we close down our consideration of part 3, I have a brief question on money. A local authority raised an issue about the potentially significant costs of analysing samples and taking remedial action. Will those costs be borne by the local authority, the health board or the individual who caused the incident? Who will bear those costs?
As happens at the moment, the costs would be borne by whoever took the samples.
The bill allows for the current process to continue with legal backing. We do not assume that there will be more investigations than currently take place or that there will be different types of investigations. Costs will be borne as under the current system. The bill provides the legal method for what is currently done.
In the anthrax incident, significant costs were involved because the samples had to be sent to the States. I think that the health board bore those costs. Will health boards continue to bear such costs, as happened in the anthrax incident?
The costs will be borne in the same way as happens at the moment. The bill simply provides a legislative underpinning to existing processes, and we do not envisage any increase in the number of incidents.
Where is that power of direction?
Section 11 provides that, if required, such assistance can be given.
I will allow Rhoda Grant a supplementary question before we break.
Will the individual who caused the incident bear any of the costs? The bill provides that people whose property has been damaged can claim compensation if they were not the cause of the incident. Does that also mean that the person who caused the incident would be liable for the costs?
As I understand the position, if an individual's actions were the cause of the incident, their loss could not be compensated for at that point. However, perhaps you were asking a different question.
I think that the question is about who would bear the costs of the investigation if the incident was caused maliciously.
I think that the question is whether, if someone was responsible for causing something, the costs could be recovered from the individual concerned. The answer is yes, under the powers in part 5 of the bill.
If a local authority had to disinfect or decontaminate premises and the incident was the fault of the person who either owned or occupied the premises, the local authority would be able to recover the costs—
Which section is that in?
That power is in part 5. However, it does not allow the recovery of the costs of taking samples and so on during a public health investigation, which would be borne by the investigating authority.
Section 76(1) states:
That covers disinfection and decontamination.
So, there is provision—
There is provision for recovery.
Yes.
There is also the issue of a person who might want to appeal against the recovery of expenses. The costs to any organisation or individual could be significant, so, in my opinion and that of the Law Society, there should be—
Can you direct me to the section that you are talking about?
Sorry—it is section 76.
We will come to that later—that is in another part of the bill. I do not want the discussion to stray.
Meeting suspended.
On resuming—
We will now consider part 4, which is on the public health functions of health boards.
Minister, I think that you will be aware that we have taken evidence that questions the consistency of approach in part 4. Sections 33 to 36 do not include any provision for appeals. Under sections 37 to 39, the health board or other body will be applied to for orders, whereas later sections refer to applications to sheriffs. In taking evidence, we found that there was unease about the lack of equity in view of the absence of an appeal and concern about the fact that boards will get fairly serious powers, although applications to sheriffs are required later in the bill. Have you had time to reflect on the evidence that we have taken and the inconsistent approach that is shown in the bill?
I think that the point that you are making relates to whether a sheriff's approval is required for exclusion orders and restriction orders, for example, and to such approval being required for quarantine and detention orders and medical examinations.
That is part of my question. However, there is also the fact that the right of appeal does not arise until section 37. Section 33 does not provide such a right. Those concerns were raised in evidence to the committee.
I will deal with medical examinations first. There will be no right of appeal, but a sheriff's approval must, of course, be given before a medical examination can take place without a person's consent. In determining what action is required, a health board will always have to adopt the least restrictive action to protect the health of the population. A decision to carry out a medical examination without consent would be taken only when it was crucial to obtain evidence on whether an individual, or group of individuals, had an infectious disease that would have an impact on public health, and such a decision would be taken only as a last resort after engagement with the individual or individuals to try to persuade them of the necessity of such an examination. As I have already said, a sheriff would have to be convinced that a significant risk to public health existed.
I seek clarification. In relation to exclusion orders, you said that an appeal would not prevent an order from being made, but there would be a right of appeal afterwards. Why does that not apply to the medical examination? We all know that, with the best will in the world, sheriffs do not always make the same decisions. Appeals can be useful if they set bars and standards across sheriffdoms. I am a wee bit surprised, because I do not know whether what you have outlined is ECHR compliant. The person having the enforced medical examination does not necessarily have the right to be heard, but article 6 of the ECHR is on the right to a fair hearing. Providing an appeal procedure would be a belt-and-braces approach. Where the sheriff indicated that there had to be a medical examination, the individual could then appeal that decision. Even if such an appeal was unsuccessful, the individual would have had a hearing on the issue, which they would not have had otherwise.
We are talking about situations in which someone could have a fatal, contagious disease, meaning that an urgent medical examination was required, but refuses to comply voluntarily. Of course there will be on-going dialogue with the person to try to persuade them to comply voluntarily, but we are talking about unusual situations in which the person refuses to comply for whatever reason, although they may be harbouring a serious contagious disease. In such situations, if there was an appeal against the decision to carry out a medical examination, but we needed to identify the condition—
I accept that. It might be that, in extremis, the medical examination had to proceed prior to any appeal. However, what I do not understand is why, even after the examination, the individual would have no right to appeal the decision. We are talking about grey areas of the law.
You are referring to situations in which, even though the medical examination had happened, there could be an appeal against the decision to allow the examination to go ahead.
Yes. An appeal could consider whether, on the facts and circumstances of the case, the sheriff came to the correct conclusion. In that way, a national standard or test would begin to be set. I cannot see how that would imperil public health. It would comply with the right to a fair hearing under the ECHR. I just wonder why you provide the right of appeal in one circumstance but not in another.
All the provisions are ECHR compliant, but I take on board your point that, after the medical examination had been done, someone who might feel aggrieved—they might feel that the examination was not required or was not done in the right way—would have no recourse. I want to reflect on that.
An appeal right normally applies before a medical examination has taken place. If the examination had been done, the appeal right would not be substantive, because the person would already have been medically examined.
You ask what the point would be.
Well—
There is a point: to establish whether the sheriff's decision was appropriate given the facts and circumstances. An appeal procedure and decision would set a test for other sheriffs.
The test would be whether the law had been applied appropriately.
Absolutely.
We will reflect further on that, because I see the point that you make.
I return to my original question.
Sorry.
No—I did not want to interrupt.
The process for exclusion and restriction orders is followed at the moment, and we want to put in place the legal underpinning for it. If an outbreak of E coli occurred at a nursery, the health board would use restriction or exclusion orders to prevent children from entering the nursery. However, there are questions about whether legislation underpins such action, which is why we want the bill to cover that—we have perhaps been fortunate that everyone has voluntarily complied with a restriction or exclusion requirement. We want the bill to put such orders on a firm footing.
I will not labour the issue and I will not go into the public health aspect, but I have great difficulty in understanding the different effect on a person's liberty. Section 37(2)(a) will prohibit a
The restriction on liberty is different in the two cases. In one, someone would be excluded from their workplace or from whatever place was deemed necessary. With quarantine and detention, their liberty to go anywhere would be restricted. Those are different restrictions, which is why there are different requirements for approval from a sheriff.
I confirm what the minister says. The current practice is for health boards to use exclusion orders not quite routinely but relatively regularly. They have never been abused; people are not excluded from a degree of involvement in normal society. There would not be anything like the liberty restriction that quarantine would involve, so there has been no example of exclusion being used to the degree that would warrant a sheriff's oversight.
We will have to return to the procedural issues and consistency. We are concerned about health boards having some powers and sheriffs having others, as well as there being a right of appeal in some circumstances but not in others. Will the bill team consider that? We could dig at it the whole time. Our concerns about the processes have been well aired previously.
I return to section 31, and subsections (3) and (5). Subsection (5), which is written from the point of view of the health board needing to act very quickly, suggests that a board does not need to explain its actions or to provide information to the individual concerned. That is a step too far, particularly as the situation is already covered by the phrase
It is hard to envisage a situation in which that information would not be given. However, I can think of one or two. For example, in a fast-moving and difficult situation in which the person's language was not English, the time that might be taken to get a translator to explain what was going on might not comply with the timescale for getting an order. In such circumstances, to restrict the health board such that it had to arrange translation and impart the information before an order could be granted might not give the flexibility that we need.
I accept that, but such a situation would be covered by
Would it cure the problem if section 31(5) read "the board need not comply with subsection (3) or (4) where it considers that the risk to public health is such that the relevant action must be taken as a matter of urgency, but must comply thereafter as soon as is practicable"?
That is certainly an alternative way of addressing the same problem.
We appreciate that there might be circumstances in which language or learning difficulties could be a barrier but, once the deed is done—
We will consider that.
Under section 33(1), the health board may apply to have a person medically examined if it "knows or suspects" that the person
I understand that the provision will be amended.
We intend to lodge an amendment that will provide that a health board can address the problem by applying to any sheriff court in the board's area.
That is fine.
There are similar provisions throughout the bill. Will they also be amended?
Yes.
On the appeals process, given the potential for contamination if a person is quarantined, how will you ensure that people have proper access to justice, in accordance with their human rights, but are not able to cause a public health problem?
Access to a solicitor for someone who has an infectious disease or who might be contaminated could be facilitated by practical measures such as electronic or telephone communication. The Law Society of Scotland has confirmed that.
I think that such means of communication are allowed for vulnerable witnesses in court cases. Could such opportunities be extended to people who appeal against an order made under the bill, so that they can appear in court by videolink, for example?
I am sure that we can consider such issues.
Such practical matters are not for the bill.
They are implementation issues, although it is important to flag them up so that we can consider them in the context of guidance.
A sheriff can determine such matters.
I mentioned court rules. We hope that there will be flexibility, for example about where an appeal hearing might take place. In the exceptional circumstance of a person's being unable to leave quarantine and wanting to appeal, it might be possible for the sheriff to go to the person while wearing appropriate protective clothing, for example.
I think that a sheriff can currently go out to a bedridden witness, for example.
We intend that there will be such options.
The Information Commissioner's Office, in its submission to the committee's consultation on the bill, said that in relation to applications to the court
Under section 66—which we are considering, as I said—an application can be heard by the sheriff in chambers. That is not the same as excluding the public, but it is an option.
The ICO was concerned that there should, in order to protect an individual's privacy, be "clear and extensive guidance" about the type of personal information that could be disclosed and the use to which it could be put,.
That will be covered in guidance.
Will you revisit the ICO's point about the need for more clarity on privacy in relation to court hearings in chambers, for example?
Yes. Perhaps it would also be helpful to add that a provision such as the information sharing provision is subject to the Data Protection Act 1998.
Do you think that the point that the commissioner is making in his submission is that he wants reassurance? We do, as committee members.
We will certainly provide that.
Just as a matter of interest with regard to protecting the identity of an individual, when an application is made, will it appear on the court rolls? They are public, so people could see who was up on application.
That is an interesting question.
I am sorry—I am full of them at the moment.
Can we come back to you about that? That issue had not been considered.
Okay. We will now move on to part 5, on public health functions of local authorities.
I would like clarification regarding small local authority areas. I am assuming that the bill does not expect such authorities to hold equipment and expertise for disinfection and decontamination, and that it will allow them to take on contractors to fulfil that role as long as they can preside over it.
Section 67 is about ensuring the provision of facilities. It will, in the main, be the responsibility of local authorities, but they need not have facilities available all the time or provide the facilities themselves—they need to ensure access to facilities when they are required.
So authorities could buy that in—for instance, on a small island an outside contractor could bring in such facilities, rather than there being a need to have them available at all times?
Exactly.
Professor Tony Wells of Tayside NHS Board makes an important point related to that in his response, regarding the issue of resourcing. Among many other related points, he says that training and identification of competent persons will require significant new resources. Are you thinking about the resource implications in the context of that element of the bill?
We do not believe that there are significant resource implications—the bill gives legislative underpinning to what is happening at the moment, but provides more clarity concerning roles and responsibilities. Given that that is essentially the nature of the bill, there should not be any additional significant cost to health boards or local authorities. Training, for example, has to happen anyway, in relation to the requirements for preparation concerning public health matters and competent persons. I do not see why it would entail any additional costs.
I think that Tony Wells is really thinking about the need to have another look at the existing legal framework and existing practices. He is saying that there are very new public health challenges, particularly to do with microbiological and chemical techniques and treatment options, and that a range of training will be required in such areas, which no one can predict. We all see people having to plan and prepare for unexpected and unpredicted incidents in all kinds of emergency situations across Scotland. That can involve really quite serious issues, and the whole finance dimension needs to be taken on board. I ask you to take seriously the points that he has made in his submission.
Of course we do, but there are a couple of things to say about that. One is that public health professionals will always be expected to keep up to speed and continue training to a level that takes into account new and emerging issues, advances in technology and so on. We expect them to do that, as other professionals do.
We will move on to part 6, which deals with mortuaries.
One of the submissions—I think it is from Dundee City Council—expressed concern about the requirement to build new mortuaries and asked for assurance that there will be a commitment from the Scottish Government to provide funding for the required new mortuaries. Can that assurance be given or will local authorities have to find that money in their existing budgets?
There is no requirement for new mortuaries in the bill and we do not anticipate any change to the current financial arrangements. In effect, the bill underpins what currently happens; it simply clarifies who does what and when, in relation to mortuaries. Those fears are without foundation.
It was, indeed, the submission from Dundee City Council, so you will have to stand by those words, minister.
The Scottish Government is concerned about the rise in skin cancer in Scotland. Over the 20 years between 1994 and 2004, the reported incidence of non-melanoma skin cancers has trebled and the incidence of melanoma skin cancers has more than doubled. Just one session a month on a sunbed will double the average individual's annual dose of ultraviolet radiation. Medical evidence on the use of sunbeds is increasing, with links to premature skin cancer, premature ageing, eye damage, photodermatosis and photosensitivity. We are therefore keen to work with Ken Macintosh, who lodged a member's bill on the subject last year, to develop suitable proposals to highlight to the public the dangers of sunbed use. As the committee is aware, a marker provision was placed in the bill for operators of sunbed premises to provide information to users on the effects on health of sunbed use.
I believe that one trade organisation has a code of practice for its operators, but that organisation covers only about 20 per cent of sunbed operators. Would you consider a statutory code that covered all sorts of factors, such as the type of equipment and maintenance of equipment? The code could cover all sunbed operators rather than just 20 per cent of them.
To legislate on regulation of equipment that is used in sunbed salons is outwith the competence of the Parliament. The issue is covered by health and safety at work legislation, as well as by consumer protection legislation.
We have heard evidence of wide variations in safety and use of equipment. Would the minister consider making representations to the United Kingdom Government? It may be a reserved matter, but we are talking about people in Scotland who are suffering and the health risk has been made clear to us in evidence. Even if the issue is reserved, we should make every effort to do something about it because of the health risk.
As Molly Robertson said, safety is broadly a reserved matter. However, local authorities have a duty to ensure compliance with health and safety and product safety legislation; they are funded to carry out that duty under their general settlement.
I think that the committee would support that.
I read diligently the letters that we receive from the bill team leader. Among our papers today is one letter in which she has helpfully set out in annex C the various regulations that relate to this issue. There is a glaring problem. Although the measures that you have introduced are interesting, if the equipment gives out uncontrolled UV rays, even for a limited time, the whole thing falls apart. The issue centres on what the sunbed actually produces.
I suppose that the issue would involve environmental health officers.
As I understand it, environmental health officers—wearing a reserved-issues hat—are currently responsible under health and safety regulations for enforcement in relation to products and in various other reserved matters.
I think that, in some cases, they inspect as part of their work.
Yes—but the matter is all reserved.
I am sorry—my point is not about what is reserved. If EHOs have statutory powers, that is fine. However, the point in paragraph 11 is worrying: the UK Government has chosen to issue regulations—the current one is INDG209, entitled "Controlling health risks from the use of UV tanning equipment"—but they are not legally binding, which completely diminishes their effect. Even if we have the ability to suggest to EHOs that they implement reserved regulations, it is unhelpful if the reserved regulations do not have the force of law.
That is an important point. The thrust of the bill is to persuade people not to use sunbeds, to ensure that they are fully informed about the risks if they do, and to restrict their use by certain groups of people. Product safety is an important aspect of that. I am more than happy to raise the committee's concerns and perhaps even to use the exchange that we have had today as a way into the discussion. It may be that the UK Government needs to consider the status of the approved code of practice and whether to tighten it up.
The letter to the committee outlines the regulations that are in place under the Health and Safety at Work etc Act 1974 and which are legally binding. They require employers to carry out health and safety risk assessments, which are policed by the Health and Safety Executive through its various enforcement agencies, such as local authorities.
With all due respect, the employee or employer is not the issue. We are concerned about the person who uses the equipment. That is the committee's exclusive concern, apart from the new European framework and harmonised standard. The only regulation that matters in respect of the import of what the minister is trying to do is the regulation that covers use of UV tanning equipment. That is the one that does not have the force of law.
I am certainly happy to relay the committee's concerns to the UK Government. We will inform you of the response that we receive.
Let us move on from that point.
I very much support the points that Ross Finnie made in describing his concerns. My concern is that there will effectively be postcode-based controls rather than universal controls. At the moment, although there is
It goes back to product safety issues, which lie outwith the scope of the bill. As I have said, I will raise the issues in discussions with UK ministers. The bill gives a permissive power to EHOs to enter and monitor premises to ensure that operators are complying with the legislation. I hope and expect that, in practice, the EHOs in each local authority area will know the premises that they need to visit and keep an eye on. EHOs know their patches—they know what is happening on the ground. I am confident that operators that require it will be monitored by EHOs. We will seek to ensure that the postcode lottery that you describe does not come about. I know that EHOs are keen to carry out their work, and I am sure that they will do so in a targeted way, which is exactly what we want—we want officers to focus on those cases that need to be given attention. The permissive power will allow them to do that.
Do not get me wrong, minister; I warmly welcome the fact that you have taken on board the work that Ken Macintosh has done. However, as Ross Finnie rightly said, the issue is not the equipment but vulnerable people. As we know, there is an epidemic of skin cancer in Scotland. I am still not satisfied on the matter. Let us examine the local authorities where licensing is successfully under way, see how they manage it and then ask what the barriers are to following their best practice.
I take that point. I also take it that licensing was not included in the bill with the agreement of Ken Macintosh.
I wanted to get that on the record.
Before getting further clarification on what Ross Finnie and Helen Eadie have been discussing, I refer to your earlier statement that the incidence of melanoma in Scotland trebled between 1984 and 2004. How can you attribute that to sunbed use, minister, when more and more people are going on sunny holidays?
The evidence comes mainly from epidemiological studies in various countries where there has been an increasing trend in the use of artificial tanning devices by people with pale skin. That has been the consistent factor in the countries concerned. For example, a study on the use of sunbeds and sunlamps and the incidence of malignant melanoma in southern Sweden found a generally increased risk of malignant melanoma for people who had used sunbeds. Compared with matched controls, melanoma patients under 30 were seven times more likely to have used a sunbed more than 10 times a year. I have a list of numerous other international studies that all back up that evidence.
So research has been done, and those who are affected by melanoma have been regular users of sunbeds.
Yes. That link has been established.
I return to a point that Helen Eadie made. We received some supplementary information from the Convention of Scottish Local Authorities, which still seems to be in favour of a licensing scheme. However, I would not wish to enforce that—we are not looking for more licensing schemes.
I wonder why you are glancing in my direction when you say that. I am working on you, Mary.
My party always prefers a lighter approach to be taken.
If the local authorities want to continue their schemes, nothing in the bill will stop them doing so. They are all doing different things, but the thrust is around data collection. Certainly, the systems are more formal than those under the permissive power in the bill, which will allow EHOs to target premises that are perceived to be a problem. In effect, the licensing schemes will enable EHOs to monitor all premises where sunbeds are used in their area.
Does current data collection include information on issues that the committee has raised today, including whether UV rays are dangerous to people? Earlier, you talked about knowing when there is a problem, but how will EHOs know that there is one? Who will report problems? We discussed that when we took evidence from Kenneth Macintosh. Also, you spoke about EHOs being able to pop into salons when they are in the area. What will they look at when they do that? Will visits be announced or unannounced? I seek clarification on those points.
Those are matters for the professional judgment of individual EHOs. If they have concerns about premises, I assume that they will make unannounced visits. As is often the case in such circumstances, we will rely on the public. People monitor what is going on—
I am sorry to interrupt, minister, but how will members of the public get to know about problems? If a 12-year-old or a 14-year-old—someone who looks very young—is involved, the public will get to know, but how will people know to say, "You let in someone with blue eyes and blonde hair, but that is against the law"?
But the provisions are not about that; clearly, they are about under-18s, coin-operated, self-operated machines and information provision. Operators will have to comply with the provisions, and if they do not they will commit a criminal offence. There will be serious consequences for operators who beach the legislation. We will rely on the professionalism of EHOs in picking up concerns that they hear about. Indeed, EHOs do that all the time. They also rely on members of the public to alert them to concerns.
They probably rely more on members of the public.
Under the bill, EHOs will seek evidence of anyone who is underage using sunbeds; they will check whether salons are using unsupervised, coin-operated machines; and they will find out whether salons are giving out information packs containing advice about the use of sunbeds and outlining the concerns about them.
We will have the opportunity to explore that further when the amendments are lodged. I want to move on. These issues can all be raised—
Can I make one final point?
I was thinking of you in trying to move the discussion along.
EHOs could also have their reserved-issues hat on, in terms of product safety, when they carry out their inspections. It would make sense for them to do that.
Right. So we will have two-hatted EHOs. As you can see, none of us who are sitting, weary and pale faced, round the table use sunbeds.
I do not want him to feel that we do not value his presence.
I am bound to hand over to Duncan McNab.
I am so glad. He is on the starting block—we are the sport committee as well. You may spring into action, Mr McNab.
The fixed-penalty notice regime is a voluntary alternative to prosecution—we are looking to be flexible—and deals with non-compliance with an abatement notice, which gives a warning to an offender and offers him an opportunity. If he breaches the abatement notice and does not abate the nuisance, he will be given a fixed-penalty notice. Detailed guidance will accompany the regime, including information on how fixed-penalty notices can be issued.
Sorry, but I have not read all the information on the provision. How many fixed-penalty notices will someone get before further action is taken? Will issuing a fixed-penalty notice be a way of telling someone that their card is marked—like penalty points for speeding, et cetera? Is it the same system?
Further notices could be issued and the offence could, ultimately, lead to prosecution.
We are looking to tighten up the provisions on the basis of the responses and written evidence that we have received from quite a few parties. We will produce an amendment at stage 2 to do that. There are various options at the moment. If a person does not abate the nuisance, the local authority can abate the nuisance under current legislation and charge the offender accordingly.
For the sake of clarification, can you confirm that the issuing of a fixed-penalty notice will not close off other legal avenues and cause the episode to be concluded legally? Could it be reopened?
Certainly.
If it continued, but if somebody paid up and did not offend again, that would be it.
That would be it.
Minister, can you clarify that, under section 96, the phrase "sewerage nuisance", which is to be substituted for "nuisance" in the Water Services etc (Scotland) Act 2005, covers odour from sewage?
Good question.
That is why I am here.
Would you like to handle that one as well, Mr McNab?
Certainly. Yes, the intention is to include odour nuisance. The provision is a technical amendment and is being introduced to address an anomaly in the 2005 act, which it was felt disapplied certain provisions in the Environmental Protection Act 1990.
You say that that is the intention. Will it succeed?
We think so.
So the sewage code includes the issue of odour.
Yes. The current statutory code includes odour.
That is good. Thank you.
We have got rid of bad smells now.
I want to go back to the fixed-penalty issue. Under section 95(2), proposed new section 80(4A) of the Environmental Protection Act 1990 will refer to
That would be dealt with on the basis that an abatement notice can refer to a nuisance that occurs or recurs. If someone discharged their liability by abating the nuisance, but it recurred, a further fixed-penalty notice could be issued.
However, what if that someone is given a fixed penalty that must be paid in 14 days and they say that they will pay it and get the problem sorted, but that it will be three weeks before someone can sort it, and then they do not get somebody to sort it out. Could the matter be taken further?
Certainly. They would be in breach of the abatement notice, so they could be referred for prosecution, if that were deemed necessary. Furthermore, we will allow flexibility, whereby a local authority will be able to amend the period of the abatement notice. That is normally the circumstance now, whereby local authority EHOs negotiate with offenders how long it will take to abate a nuisance.
Yes, I was going say that we are back with the situation of the sewage odours. It might be quite difficult to—
Perhaps the wording of section 95(2) needs to be re-examined, because it reads as if paying the fixed penalty will discharge a person of all future liability.
We will look at that.
I want to move on to part 10, on which we have two questions.
I have two quick questions. First, section 98(5) states that information can be disclosed
My officials tell me that our intention is to amend section 98(5) to take account of the point that you have made.
Thank you. My other point is a general one that arises from section 102, on regulations and orders. The bill indicates in a number of places—I can list them later, convener, rather than go through them now—occasions on which the minister will have powers to amend or create regulations, which is appropriate. However, the word "consult" is singularly lacking in the bill—it hardly appears. Sections 19(1), 56(6), 89(1), 95(11) and 98(8) are examples of where I think there needs to be something about consulting appropriate stakeholders before regulations are drawn up. It might be better to cover that with a general requirement under section 102 for the minister to consult, if that can be constructed.
Is that usually included in primary legislation?
Not that I am aware of. In practice, there would be consultation with appropriate stakeholders, but I am not aware of that practice being provided for in bills.
It is. It was in some health bills that we introduced, for example the mental health bills and the Adults with Incapacity (Scotland) Bill.
My officials tell me that the provision is in some bills but not in others. We will give that point further consideration.
You have now raised it, Dr Simpson.
My point is on section 97, on equal opportunities. The submission from the Scottish Council of Jewish Communities refers to Jewish law—halachah—which regards the human body as sacrosanct. The submission states:
I will summarise: how does the bill take into account religious and cultural requirements?
The presumption is that there will be as little interference with bodies as possible. The mortuary issue is about standards of provision. We can examine existing guidance on that, but we would always expect the concerns that Helen Eadie expressed to be dealt with under standards of provision.
I think that members' earlier questions dealt with schedule 1. As we have dealt with all parts of the bill—I am not going back over them—do committee members have any further, quick questions?
Just on the finance issue.
We touched on that earlier when we raised with the minister concerns about costs, expenses and so on. Perhaps we can deal with that again at stage 2.
Meeting continued in private until 12:35.
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