CHAPTER 7: STATUTORY POWERS FOR HEALTH PROTECTION
The consultation stated:
Given the ever-evolving nature of infection and the increasing probability of new types of communicable disease reaching Scotland there is a strong argument for a power under public health legislation to require people to stay in quarantine in defined and exceptional circumstances. This would need to be introduced with appropriate assurances on the safeguards against inappropriate use of such powers but would ensure that an appropriate response could be developed in order to tackle diseases before they become widespread, or help delay their spread while treatment is organised or research is conducted.
The consultation asked:
4.1: WHETHER LEGISLATION SHOULD PROVIDE FOR THE INTRODUCTION OF QUARANTINE ORDERS FOR A PERIOD OF UP TO 21 DAYS, WITH PROVISION FOR RENEWAL OR EXTENSION
In total, 40 respondents (41%) addressed this question specifically. Of the 35 who indicated clearly whether or not they supported the proposal, all but 2 (94%) agreed with what was proposed.
One consultee remarked that this quarantine orders provided an " essential tool for prevention of spread of infectious disease" ( LA). Many others agreed that orders were needed in light of new and emerging diseases. Several supporters, however, stressed that use of such orders should be made only in exceptional cases ( NHS, NHS), with safeguards built in (Rep, LA), and accountability mechanisms in place ( LA).
Of the 2 consultees (Stat, Ind) who stated that they opposed the proposal, one argued that it appeared to differ little from house arrest and it was difficult to see when such action might be justified (Ind).
The other respondents recommended that more thought should be given to the proposal, in particular on practical details such as how people in quarantine would obtain life necessities (Rep), or be policed ( LA), with one consultee suggesting that public health staff may not be overly enthusiastic about assisting ( NHS). A call was made for greater consideration of the ethical and legal aspects of quarantine orders (Rep). One respondent stressed that as the measure was extreme, there needed to be complete transparency in stipulating when, where, how and on whom ( LA).
One consultee requested that consideration be given to the implications of internal radiation exposure from non-accidental sources in addition to those of infection (Prof).
The consultation stated:
The aim of quarantine is to stop the spread of infectious disease. In this consultation, it describes a measure which is applied to two types of people:
a) those who have been exposed to a serious infectious disease, but
- Who have not necessarily been infected; and
- Who, if they have been infected, are not yet showing symptoms of disease but who may be developing the infection and could therefore pass it on to others.
b) those who are suffering from a serious infection which poses a risk to others through person to person spread.
A quarantine scheme might be used in circumstances where a disease:
- Has a high mortality rate;
- Is spread from person to person through casual contact;
- Is highly infectious;
- Cannot reasonably be promptly controlled by means other than quarantine; such other means could be vaccination and treatment.
The consultation asked:
4.2 WHETHER QUARANTINE ORDERS SHOULD ONLY BE APPLIED WHERE THE CRITERIA ABOVE ARE MET?
In total, 36 respondents (37%) addressed this question. All of them agreed with the criteria to some extent, although one consultee argued for more work on the evidence base for quarantine ( NHS).
One specific comment regarding a) and b) above, was that arguably the process is more important that the criteria identified although the criteria listed appeared reasonable in themselves (Stat). A few critical comments were directed at the remaining criteria above. These were seen as " unhelpful" (Ind), and " confusing" (Ind). One view was that the criteria would not cover an emergent situation such as the outbreak of SARS in Toronto, with a recommendation that the word "has" is replaced with the term "likely to" (Ind). Another suggestion was to insert the word "suspected" so that the text read, "suspected high mortality" etc (Ind) in order to cover situations where it is not clear at the start what the outcome might be. One respondent (Ind) suggested alternative drafting for the entire criteria section.
The consultation stated:
Currently, exclusions on public health grounds focus on school and work settings. For children, the 1897 Act, section 57 sanctions penalties on those who send children to school who are suffering from an infectious disease, or have been residing within the last 3 months in an infected household without a certificate from a medical practitioners that the child can attend school without risk of infecting others. Regulation 6 of the Schools General (Scotland) Regulations 1975 states that the education authority shall implement the advice of the designated medical officer in closing state schools and excluding pupils in order to prevent the spread of disease or other danger to health. There is local guidance on exclusion of children from nurseries and schools with a variety of conditions, but no legislative backing.
The Health Services and Public Health Act 1968, section 71, provides that a designated medical officer may, with a view to preventing spread of an infectious disease, request by notice in writing, that a person discontinue their work. The local authority is required to compensate a person who suffers any loss in complying with that request. Section 58 of the 1897 Act prohibits any person suffering from an infectious disease from either engaging in any occupation connected with food without proper precautions against spreading that disease or infection, or carrying on any trade or business in a manner likely to spread the disease.
The current legislation, however, has a number of weaknesses that it is now proposed to address including suitable appeals procedures. These are the potential exclusion of:
- Those with a serious infection from nurseries and playgroups or private schools, social or religious settings or entertainment sites, and some healthcare settings;
- People who may have been exposed to an infection but are not actually ill;
- People from activities other than work such as giving blood.
The consultation asked:
4.3 WHETHER EXCLUSION ORDERS SHOULD APPLY MORE WIDELY TO INCLUDE, E.G. WORK, SOCIAL AND RELIGIOUS EVENTS, NEIGHBOURS, TRAVELLING AND OTHER ACTIVITIES?
In total, 40 respondents (41%) addressed this question. Only one consultee stated clearly that they did not support the proposal as, in their view, the recommendations were disproportionate to the risk (Rep).
Most of the other respondents indicated that they fully supported the proposal with others providing support if certain conditions were met. Most common amongst these was that the orders should be commensurate with the risk and appropriate to the disease. One respondent recommended that such exclusion orders should be presented in terms of protecting the public's health (Ind), with another advocating that the views of people potentially affected by the exclusion orders should be taken into account ( NHS).
Two consultees highlighted what they saw as the importance of enacting such powers in order to prioritise public health ( NHS) and to be prepared for the possibility of highly virulent strains of 'flu reaching Scotland ( LA). Others argued that private schools should be included within the scope of the orders (Vol, LA).
Several respondents expressed their concern that such orders would most likely be difficult to enforce ( LA, LA, LA, NHS, Vol). One suggestion was for a suite of enforcement powers to support the proposed orders ( LA). Other comments were that decisions on such orders should take on board up-to-date clinical advice ( LA), and should be evidence-based relative to risk and the potential impact of the exclusion ( NHS).
The consultation asked:
4.4 WHETHER EXCLUSION ORDERS SHOULD:
i) APPLY TO SPECIFIED STATES AND/OR ORGANISMS AND/OR ACTIVITIES
ii) HAVE PENALTIES FOR NON-COMPLIANCE
In total, 32 respondents (33%) addressed one or both of these questions. Unfortunately, it was not clear from many responses whether the respondent was referring to both questions or just one of them. Fifteen responses fell into this category, with the respective respondents stating that they "agreed" or "supported" the proposal(s).
Fourteen further consultees stated clearly that they supported the application of exclusion orders to specified states and/or organisms and/or activities. Some argued that without such specification, the orders would be too open-ended (Rep, NHS). Others however, recommended that the orders should not be too prescriptive so that new diseases could still be taken account into account ( LA, NHS, Ind). One respondent recommended that the wording should include a "catch-all" phrase (Ind).
Nine respondents indicated clearly that they supported penalties for non-compliance, with a further one consultee ( NHS) having " mixed views". A common view was that without penalties the exclusion orders would have no power ( NHS, NHS, NHS, Vol, Ind, Ind) or would be simply advisory in nature and rely on voluntary compliance ( LA).
The consultation asked:
4.5 WHETHER THERE SHOULD BE PENALTIES FOR NON-COMPLIANCE
This question appeared to overlap with the previous topic and many respondents provided similar responses to both. In total, 34 respondents (35%) addressed this question. Of these, 30 stated that they agreed with penalties for non-compliance, one reported mixed views on this issue, and the others provided commentary only.
Again, it was thought that the requirements might be rendered worthless without a system of penalties to back them up ( LA, NHS, NHS, Vol, Ind). The fixed penalty system already used by local authorities in other fields was suggested as a suitable model for penalties ( LA). Concerns were raised over monitoring, enforcing and policing the penalties ( NHS, NHS, Ind, Rep, LA).
The consultation stated:
Compensation can be defined as a financial recompense for loss sustained as a result of a period of restricted employment due to public health advice. There is provision in the Health Services and Public Health Act 1968, section 71, which states:
(1) "With a view to preventing the spread of (a) any infectious disease, or (b) any food poisoning to which Section 22(1) of the Food and Drugs (Scotland) Act 1956 applies, a person who is at work may be requested by the designated medical officer for the place where the person is at work, by notice in writing, to discontinue his work.
(2) The local authority for the place in question shall compensate a person who has suffered any loss in complying with a request under this section".
There is no central registry of information on how often or how much compensation local authorities pay, although it is understood to be a rare event. Individuals who are excluded from work on public health advice are reported by most local authorities to get their usual salaries or Statutory Sick Pay ( SSP). SSP provision has been revised to allow payment to be made to those absent from work for public health reasons. If compensation is paid, it is generally the individual's wages or the difference if the employer agreed to pay a proportion. In order to fund this actual cost, local authorities carry insurance.
If quarantine powers are introduced and detention powers retained or extended there may be a case for widening compensation provisions to cover those affected. This could include both those excluded and those who have to take time off work to care for those who have been excluded, e.g. parents of children or carers. Moreover, on the principle that powers in relation to people should rest with the NHS, it would be logical to transfer responsibility for compensation to NHS Boards. As in the case of local authorities, NHS Boards could insure against any such cases, which are likely to be relatively rare.
The consultation asked:
4.6 WHETHER COMPENSATION PAYMENTS SHOULD EXTEND TO ALL GROUPS LIABLE TO BE EXCLUDED UNDER EXCLUSION ORDERS OR AFFECTED BY OTHER ORDERS
In total, 41 respondents (42%) addressed this question. Of these, 37 indicated clearly whether they supported a system of extended compensation payments. The vast majority view (95%) was in favour of extending payments to all groups liable to excluded under exclusion orders or affected by other orders. Two respondents did not favour extension at this time.
Although supporting the proposal, several respondents considered that it may not be practical and affordable in some circumstances ( NHS, NHS, NHS, NHS, Ind, Ind), and should be means tested and limited ( NHS, Ind). Some recommended modelling the impact of the proposal ( NHS, Ind) and basing any system on evidence ( NHS). A call was made for nationally set criteria to apply ( LA), and especially allocated budgets to cope with claims ( NHS).
Two respondents recommended payments only where a financial loss is identifiable (Ind, LA). Others urged that it should be clear that compensation would relate to loss of wages (Stat) and would not be paid to public bodies, private enterprises and limited companies ( NHS, NHS, Ind).
Two respondents envisaged potential problems if a large-scale pandemic emerged (Vol, Rep). One recommended a Regulatory Impact Assessment in order for health boards to consider limiting their liability in such an event (Rep).
One consultee queried the competence of the Scottish Executive in relation to S58 of the 1897 Act (regarding prohibitions on infected people carrying out a business which would be likely to spread the disease), as possibly a reserved matter (Stat).
Of the 2 respondents who opposed the proposal, one based their opposition on practical reasons and argued that at present the NHS budget did not have an allocation for this purpose ( NHS). The other stated that in their view it was not relevant to compensate people who, for example, could not give blood, or could not visit a relative in a nursing home (Ind).
The consultation asked:
4.7 WHETHER THE PAYMENT OF COMPENSATION SHOULD BECOME THE DUTY OF THE NHS, RATHER THAN THE LA AS CURRENTLY, GIVEN THE PROPOSED TRANSFER OF POWERS IN RELATION TO PEOPLE TO THE FORMER; IF RECOMMENDED, THIS CHANGE WOULD REQUIRE NHS BOARDS TO BE INSURED AGAINST COMPENSATION CLAIMS
In total, 45 respondents (46%) addressed this question. Of these, 41 indicated clearly whether or not they supported the proposal, with the remaining consultees providing relevant commentary only.
The majority view (83%) was in favour of compensation payment becoming the duty of the NHS should there be a transfer of powers in relation to people to the NHS. However, many of the supporters of the proposal recommended that the NHS make compensation payments only after consulting with local authorities ( LA, LA, LA, LA, LA, Env). Others argued that an NHS system of compensation payment should be managed in a controlled and resourced manner ( NHS, NHS, NHS, Ind, Ind), perhaps with funds transferred from local authorities to NHS Boards accordingly (Rep). It was suggested that instead of each NHS Board insuring itself, there could be a pooled insurance arrangement across Scotland ( NHS, Rep).
Amongst the minority (17%) of consultees who opposed the proposal, two main arguments emerged. Firstly, respondents remarked that the NHS has no experience of such payments and no systems in place ( NHS, NHS, NHS, Ind, Vol). These consultees recommended that compensation payments should become the responsibility of external agencies more suited to the task, such as the DSS. Secondly, several respondents were concerned that conflicts of interest may arise if the NHS was responsible for both excluding individuals and paying them compensation relating to their exclusion ( LA, Ind, Ind, NHS). A few respondents stated that they opposed the proposal because they were against the transfer of the people domain to the NHS (Env, NHS).
Finally, one respondent argued that in their view the issue of compensation in this context is confused (Stat). They expanded by suggesting that if an individual is entitled to be recompensed for loss of earnings this should be a statutory entitlement not an insurance matter, with funding made available from the Exchequer.
The consultation stated:
Compulsory isolation involves detaining a person in a hospital in order to prevent the spread of a serious infection and protect the health of the public. Current powers from the 1897 Act relate to a person with any infectious disease who poses a risk to others through person to person spread of a dangerous pathogen and who willingly and knowingly after having the risks explained and after having refused all other voluntary measures, continues to put others at risk. The law permits, on the issuing of a certificate by the designated medical officer, and on the order of a Sheriff, the removal and detention in hospital of anyone infectious and without proper accommodation and care, or who is putting at risk others in the same dwelling place. Alternatively, other persons in the house may be ordered by the Sheriff to move to suitable accommodation provided by the local authority.
The main difficulty with the current legislation is the practical difficulties given that the only health facilities that regularly detain people are psychiatric hospitals which are not used to manage physical illnesses in isolation facilities.
It is clearly important that there should continue to be powers to enable a person with an infectious disease to be removed to hospital, if that person declines voluntary admission and their domestic circumstances do not permit adequate care in isolated conditions. As at present, no powers are proposed to change the common law position regarding the autonomy of a person so detained to refuse or consent to medical treatment. However, a power for compulsory examination of a person suffering from, or suspected to be suffering from, an infectious disease is proposed.
The procedure envisaged would require the NHS Board, through the competent person, to make application to the Sheriff, who, if he/she agreed that hospital admission was appropriate, would issue an order, specifying the hospital in which the patient would be detained. This would be for a period of up to 3 weeks, following which an application for renewal would need to be made by the NHS Board. Failure to comply with an order would be an offence. An appeal to the Sheriff Principal would be available to the person concerned.
These powers should also be available in cases where a person with an infection refused to comply with public health advice in the community, e.g. by associating with others and putting them at risk of infection.
The consultation asked:
4.8 WHETHER LEGISLATION SHOULD PROVIDE FOR THE INTRODUCTION OF DETENTION ORDERS, COVERING:
a) THE REMOVAL TO A SUITABLE PLACE OF THOSE WHO RISK SPREADING DISEASE BY VIRTUE OF BEING A CONTACT OR THOSE WITH AN INFECTIOUS DISEASE WHO REFUSE TO COMPLY WITH A QUARANTINE ORDER OR MEDICAL ADVICE
b) AN APPEAL SYSTEM
In total, 39 respondents (40%) addressed these questions. Unfortunately, many respondents did not make clear which part of the question they were referring to when offering broad support and it is therefore difficult to establish precise levels of support for each issue.
Against this background, it appeared that there was much support for the proposal to remove to a suitable place those at risk of spreading disease. A common view was that such powers should operate only within strict and transparent boundaries and accountable mechanisms. A further recurring theme was that the powers should be enacted only in the case of a serious threat to the population, and where they could be enforced. Some respondents expressed concern that it would be a challenge to find a suitable place for detention (Rep, LA, LA, NHS, NHS, Ind), with the question raised of who will fund detention in such a place (Ind). Two consultees provided their view that the existing legislation already provides for these powers (S.54 of the 1897 Public Health Act), but need to be brought up-to-date (Ind, NHS).
Fewer respondents appeared to address the issue of an appeal system. However, almost all who did supported the proposal, with two consultees emphasising their view that such a system would be essential (Rep, Vol). Many stressed that they thought the appeal should be made to a Sheriff ( LA, LA, LA, LA, Env). A few respondents however, were concerned about the fit of the appeal system with Human Rights legislation. Some urged that the appeal system should be HRA compliant ( NHS, NHS). Others considered that the HRA may still apply beyond the level of the appeal system ( NHS, Vol).
The consultation invited views on:
4.9 THE PROPOSAL NOT TO SEEK POWERS TO REQUIRE A PERSON TO HAVE MEDICAL TREATMENT
In total, 36 respondents (37%) addressed this topic. Of these 33 provided a clear indication whether or not they supported the proposal, with the remaining consultees providing relevant commentary only.
The vast majority (88%) of those who provided a view were in favour of the proposal. A few remarked that once in detention, people tended to comply with taking medication in order to secure their liberty ( NHS, NHS). Others commented that the situation of a person refusing medical treatment could be accommodated by removing them to a suitable place of detention (Ind, LA). Some argued that legislation should set out just how far medical examination can go ( NHS, Ind), with another consultee urging that legislation is put in place to prevent potential public health consequences of this proposal ( NHS). It was considered that legislation which used powers to required a person to have medical treatment would most likely breach a person's individual civil rights ( LA).
A few respondents suggested that in the cases of parents/guardians who unreasonably put their children at serious risk by refusing to give consent for medical treatment, there may be other legal remedies to utilise ( NHS, NHS, Stat). A related comment was that Mental Health Act legislation could be enacted to ensure treatment is provided for those who lack the capacity to decide on issues of treatment themselves ( LA). Another consultee recommended that the public health legislation should mirror the Mental Health Act system in relation to timescales and need for judicial review (Ind).
One consultee reported mixed views on the proposal. On the one hand it was seen as a Human Rights issue but on the other there was a need to weigh up the risks to the wider population ( LA).
Three respondents stated clearly that they opposed the proposal (Stat, Env, LA). One view was that in certain extreme circumstances it may be in the public interest to require a person to have medial treatment ( LA).
GENERAL COMMENTS
Rather than address individual questions within the section on Statutory Powers for Health Protection, a few respondents cast general comments which touched on several topics. One remarked that close working between local authorities and NHS was fundamental to quality public health provision ( LA). Another commented that several of the proposals such as detention, penalties etc had implications for the police ( NHS). A common theme was that issues of quarantine and exclusions should be taken on the basis of up-to-date clinical advice and both should be enshrined in legislation ( LA, LA, LA, Env). One consultee argued that any system which accommodated control mechanisms had to be flexible in this context as it was not possible to be sure of which measures might be most appropriate for unpredictable circumstances nor the criteria which might be best (Stat). This respondent suggested that measures should be reasonable, transparent and proportionate with an emphasis on speed of action.
A few other consultees made detailed drafting points relating to paragraphs 6.3 - 6.11.
SUMMARY OF KEY POINTS
- All but two of the respondents who commented agreed the legislation should provide for the introduction of quarantine orders for a period of up to 21 days with provision for renewal or extension.
- All of the consultees who addressed the topic agreed to some extent with the criteria set out in the consultation document for the application of quarantine orders.
- Most of those who provided a view fully supported the proposal that exclusion orders should apply more widely to include for example, work, social and religious events and so on.
- Thirty of the thirty-four respondents who provided a view stated that they agreed with penalties for non-compliance.
- The vast majority (95%) view was in favour of extending compensation payments to all groups liable to be excluded under exclusion orders or affected by other orders.
- The majority view (83%) was in favour of compensation payments becoming the duty of the NHS should there be a transfer of powers in relation to people to the NHS.
- There appeared to be much support for the proposal to remove to a suitable place those who risk spreading a disease by virtue of being a contact or those with an infectious disease who refuse to comply with a quarantine order or medical advice.
- Almost all who expressed a view supported the proposal that legislation should provide for an appeal system. Many thought that the appeal should be made to a Sheriff.
- The vast majority (88%) of those who provided a view were in favour of the proposal not to seek powers to require a person to have medical treatment.