Health Protection (Local Authority Powers) Regulations 2010

Before we started, when I was talking to the officials, I think I spotted pretty much the sort of areas with which the noble Earl and the noble Baroness would be concerned, with one exception. The noble Earl did not ask about the safeguards for children, but I have a response on that. I shall work my way through various questions. The noble Earl asked about testing and evidence, as did the noble Baroness. Regulation 4(2)(a) makes it clear that the details in the evidence must be, ""insofar as known and relevant"." "Relevant" is the important point there. The point about the clinical and laboratory tests is that tests may be carried out on things and premises, as well as on a person. I am trying to imagine what that may mean, but it is probably correct; you may be testing P’s environment as well. That is why that regulation does not mention P. Why does the legislation extend to those who may be infected or contaminated? The issue here is that some diseases—for example, tuberculosis and mumps—are infectious before symptoms appear. New diseases with these characteristics may arise in the future. The noble Earl indeed said that the unknown may be a greater threat because it is unknown. Where there is a good reason to suppose that a person may have been infected and may be infectious to others, it may be necessary to take appropriate measures straight away, either through a medical examination or quarantine. A community could be placed at serious risk if no action were possible until after the infection had been confirmed by conclusive diagnosis or the onset of symptoms. The noble Earl and the noble Baroness, Lady Barker, raised the issue of the reporting of orders. We discussed this during the course of the Bill and outside. I had several meetings on how one monitors this and why it is important to do so. Part 2A orders require local authorities to report all applications for an order, and all variations and revocations, to the Health Protection Agency. The Department of Health and the Health Protection Agency have agreed that that information will be published in a way that does not allow the identification of individuals, although the precise mechanisms have yet to be agreed—that covers the point about confidentiality. However, there will be a central record of the orders, and centrally collected information will be included in the HPA's annual report. Although the data will be anonymised, they could still contain sensitive information that would enable an individual’s identification, so we have undertaken that the information from the reports will be published in a way that does not identify individuals or details of cases that are not appropriate material for an annual report. Both noble Lords raised the issue of HIV. We are very keen that the safeguards in place will ensure that the powers are not misused. We hope that they will reassure people that they need not fear the new legislation. We have endeavoured to meet those concerns in guidance, and stakeholders are participating, as I said in my opening remarks. Those discussions are progressing very well. The HPA will be alert to any detrimental effect on sexual health services, and we have undertaken to publish the reports on orders, because we are concerned that that does not affect people coming forward for necessary tests. On the proper use of information and how we safeguard it, the regulations provide that a local authority can require children's contact details from the head teacher only where strict criteria are met—in short, if it is necessary to have them for the purpose of taking action to protect human health. We will be looking for reassurance that local authorities, which are used to handling and safeguarding confidential data, should do so. There is no reason to suppose that the position will be any different because the local authority will be requiring the information, but we will also make that clear in guidance. The noble Baroness asked about legal powers, the spectrum of measures available to protect public health and how we will ensure that the most vulnerable and confused people are protected, to help them as well to ensure that they are not a threat. She is right to say that often they are a threat to themselves rather than to the rest of the world. We have to strike a hard balance here, because we want to ensure that surveillance, immunisation, advice and treatment can be deployed to deal with public health threats. We have anecdotal evidence that very few orders made or considered in relation to people with drug-resistant infectious TB have helped to contain the risk of the infection. That is to say, we are mindful of the need to ensure that the procedure is used proportionately. Both noble Lords raised the issue of the reasonableness of requesting payments. We think that it is important that local authorities have the power to request payment. That is a general, flexible power to ask people or groups of people to take or refrain from action to protect human health. The accompanying power to pay compensation or costs for expenses incurred as a result of complying would remove a possible disincentive to co-operation. A JP order is the last-resort measure for exceptional circumstances where voluntary co-operation is not forthcoming. The request power will allow local authorities to make a formal request for compliance before resorting to a JP order. We think that the guidance will cover the issue of costs and the scale of the charges. These must be reasonable—that is a requirement of the regulations. Local authorities are very experienced at calculating full-cost recovery and how that needs to be charged. However, it is a discretionary power, so if it would be a pointless exercise, they should not go through with it. It would be absurd to try to retrieve costs when the person concerned has no resources at all, but it is very important that those powers exist. It would be disproportionate and unnecessary to provide a specific route of appeal for circumstances that would happen very rarely. The Act already provides in Section 45M that a person who has been ordered to take a particular action, or who is an affected person in relation to such an order, may apply to the JP for the order to be varied or revoked. Under regulations, a charge that the local authority makes must be reasonable under the circumstances and must not exceed the cost. It provides a safeguard for the person subject to the charge, who ultimately has recourse to judicial review. In answer to the noble Baroness, Lady Barker, the guidance that we are developing will set out the process that a local authority must go through, including a risk assessment, before deciding to exercise its power or apply for a JP order. The noble Baroness also raised the issue, which was discussed when the Act was going through, of a representative. Somebody appointed under the Mental Capacity Act is required to act on behalf of certain persons. That is something that we would need to take account of. I think that covers most of the questions that have been raised by noble Lords. It was another useful gallop around this issue. Motion agreed.