Health Protection (Local Authority Powers) Regulations 2010

My Lords, I, too, thank the noble Baroness, Lady Thornton, for the thorough way in which she introduced the regulations. I have been looking forward to discussing them because, as the noble Earl, Lord Howe, said, they stem from a piece of primary legislation that was subject not just to detailed but to expert scrutiny in your Lordships’ House. I note in passing that my main disappointment is that the word "fomite" does not appear anywhere in the regulations. That was one of the many issues on which the noble Lord, Lord Walton, educated those of us who took part in the discussion. I will reiterate part of the discussion that your Lordships had on the primary legislation. It is correct that we should update public health legislation, some of which has been in existence since the 19th century. It is right that we should take into account the exceptional nature of some of the new public health dangers that have emerged in the past 10 years. However, it is incumbent on us to remember that they are exceptional dangers. It is worth reminding ourselves before we go any further that the existing public health law is used largely in cases where people with mental health problems are a danger primarily to themselves rather than to others. While in future some public health risks may be of a magnitude much greater than that, at the moment it is envisaged that the legislation will apply principally to the group of people to whom it applies now. That is why the general thrust of criticism in your Lordships’ House of the primary legislation was that there was insufficient protection for people who are vulnerable, and who may be ill. The Government have addressed some of these concerns in the regulations, but there are some areas of emphasis where they have got it wrong. Therefore I, too, wish to start by considering the Health Protection (Part 2A Orders) Regulations. Like the noble Earl, the thrust of my concern starts with regulation 4 in regard to clinical or laboratory tests. As far as I can see, there is nothing in the regulations which states that the tests have to have been conducted upon a person; that that person should know the outcome of the tests; and that that person should subsequently have behaved in a way which indicates that they are wilfully ignoring the outcome of those tests. That is a problem. Many thousands of people in this country have been tested for HIV but do not know the outcome of the test. They are not routinely told because the tests are conducted as part of a battery of tests for other things. Can the Minister clarify that that is the process which a person who is making an assessment of the level of danger posed by someone has to go through? In particular, the evidence that someone has wilfully ignored the level of threat that they may pose to other people is a crucial issue. Regulation 4(5) states that the evidence upon which the justice of the peace will base a decision, ""may be given orally or in writing"." Am I correct in assuming that evidence would be given orally only in a matter of extreme urgency and that it would routinely be the case that evidence was submitted in writing and then recorded? The Minister may feel that I am being slightly pedantic, but when you increase the likelihood of depriving someone of their liberty you have to increase the level of protection for that person. I, too, want to focus on the issue of charges. The marginal and direct costs of decontaminating premises will vary dramatically depending on what is involved. This can vary from sending in a squad to clean out a house that has been left uncleaned for many years—which is the circumstance under which many orders have been issued in the past—through to chemical decontamination. Is there a right of appeal for someone who has such charges levied on them? If not, why not? Some people lead unstable and chaotic lives that lead them into situations where they come under the auspices of this law, and they do not have much money. Another issue that I wish to raise concerns the next-of-kin lists. Quite rightly, donees give a lasting power of attorney, but do the next-of kin lists include people who have been given a power of attorney under the old system, which pre-dated the current system, and who might therefore not be registered on the new list? Many of the people we are talking about are likely to become old and frail and they may have a power of attorney under the old system which has not been registered under the new system. On the Health Protection (Local Authority Powers) Regulations, the noble Earl, Lord Howe, made a fair point about people to whom lists of schoolchildren could be given. I, too, want clarity on that. The question which underpins both orders is the training of local authority staff who have to make judgments in both cases. We have a set of regulations that are designed to meet all circumstances. That means that the people who have the power and responsibility to invoke these regulations need to know that they have available a variety of responses that are proportionate to different levels of risk. In her introduction, the noble Baroness talked about people who pose a threat to others. The majority of people who will fall under these regulations pose a threat not to others but to themselves. Therefore, the level of judgment which a local authority officer has to take in that case is somewhat different. I echo what the noble Earl, Lord Howe, said about monitoring and reporting on the imposition of these regulations nationally. I very much look forward to the Minister’s response to my questions.