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CHAPTER 3: ORGANISATIONAL AUTHORITY

INTRODUCTION

3.1 Devolution saw legislative competence for public health in Scotland given to the Scottish Parliament, whilst the protection of public health now falls within the remit of a number of Scottish and UK-wide bodies
( Annex B). These increasingly complex arrangements have heightened the need to be clear about the roles and responsibilities of the different organisations involved and to ensure that there are strong mechanisms in place in order to ensure mutual collaboration.

NHS AND LOCAL AUTHORITIES

3.2 Organisational authority for protecting public health has long been divided between health and local authorities, with the NHS now responsible for medical services and local authorities responsible for environmental health issues. The National Health Service (Scotland) Act 1978 placed a duty on NHS Boards and local authorities to "co-operate with one another in order to secure and advance the health of the people of Scotland".

3.3 Whilst these structures and relationships have, on the whole, worked well, there have occasionally been problems when the two local public health organisations took different views on a required course of action. Guidance ( Managing Incidents Presenting Actual or Potential Risks to the Public Health, Scottish Executive 2001) has helped to clarify leadership issues, but experience suggests that further legislative underpinning may be required. The recent NHS Reform (Scotland) Act 2004 gives a duty to both Scottish Ministers and NHS Boards to promote health improvement and created a duty of co-operation between health bodies. The Local Government in Scotland Act 2003 laid down the legislative framework for, and some duties to, key public sector agencies to participate in community planning, a key aspect of which is engaging communities in decisions on the services that affect them. This includes the requirement for local authorities and NHS Boards to work together on the development of a Joint Health Improvement Plan.

HEALTH PROTECTION SCOTLAND

3.4 The Scottish Executive has worked towards a greater integration of NHS services delivered by Boards and has established Health Protection Scotland ( HPS), a new division of the Common Services Agency, which is a body constituted under the NHS (Scotland) Act 1978. HPS works in partnership with others to protect the Scottish public from being exposed to hazards which damage their health and limit any impact on health when such exposures occur. Health Protection Scotland aims to achieve this by:

• ensuring a consistent, efficient and effective approach in the delivery of health protection services by NHS related agencies;
• co-ordinating the efforts of public health agencies in Scotland in health protection, particularly when a rapid response is required to a major threat;
• helping to increase the public understanding of, and attitudes to, public health hazards and facilitating their level of involvement in the measures needed to protect them from these;
• being the source in Scotland of expert advice and support to government, NHS, other organisations and the public on health protection issues;
• helping to develop a competent health protection workforce;
• improving the knowledge base for health protection through research and development.

HEALTH PROTECTION AGENCY

3.5 The United Kingdom's Health Protection Agency Act 2004 constituted the Health Protection Agency ( HPA)
as a non-departmental public body with powers to operate in Scotland, as assigned. This is designed to improve the UK's ability to tackle the problems of infectious disease and other hazards, including responses to chemical, biological, radiological and nuclear ( CBRN) terrorism. The HPA has taken on responsibility for the functions previously carried out by the National Radiological Protection Board and the National Focus for Chemical Incidents and is responsible for commissioning poisons services for Scotland. The Agency works closely with Health Protection Scotland, especially on matters related to bio terrorism.

SCOTTISH ENVIRONMENT PROTECTION AGENCY

3.6 The Scottish Environment Protection Agency ( SEPA) was established under the Environment Act 1995. It aims to provide an efficient and integrated environmental protection system for Scotland which will both improve the environment and contribute to sustainable development. SEPA's main duties are the regulation of discharges to water bodies, air and land, the storage and disposal of controlled waste, as well as the keeping and disposal of radioactive materials.

FOOD STANDARDS AGENCY

3.7 The Food Standards Agency ( FSA) is an independent Government department set up by an Act of Parliament in 2000. It has been established to act primarily as an independent voice within Government to protect the public's health and consumer interest in relation to food. It provides advice and information on food safety, nutrition and diet. It also protects the public through effective enforcement and monitoring activities.

ISSUES FOR CONSIDERATION

The statutory health protection responsibilities and powers of NHS Boards and local authorities

3.8 A key objective for new legislation will be to assign the powers, functions and duties for health protection in a clear and unambiguous way. This will aid transparency and accountability, whilst facilitating joint working and maintaining the flexibility required to respond decisively to new developments and challenges.

3.9 It is proposed that local authorities should retain the lead role for the health protection domains of premises and property; and that lead responsibility for the people domain should be transferred to NHS Boards.
This would align public health with mental health legislation and mean that any powers deriving from this transfer would have to be exercised jointly with the local authority.

3.10 This realignment would mean that the NHS would assume responsibility for taking forward any necessary legal proceedings and consequent action in relation to:

• excluding people from work, school, nursery or other communal setting, where an individual may put others' health at risk;
• detaining a person in isolation in hospital (or other suitable place) for prescribed periods, if suffering from an infectious disease, which presents a serious risk to the public, and for which the individual knowingly refuses to take action to reduce the risk;
• medically examining someone suspected of suffering from, or carrying, an organism capable of causing a serious infectious disease, if that person refuses such an examination;
• ensuring that people, who have been, or may have been exposed to a hazard and as a result put others at risk of a serious disease, are isolated at home with their activities restricted (quarantine).

3.11 The separation of legal responsibility between NHS Boards and local authorities could be accomplished by assigning specific responsibilities to each organisation according to their primary bearing on people, premises or property. Annex C identifies statutory provisions where the lead could be given to NHS Boards (Table 1) and local authorities (Table 2). Annex D lists a range of existing provisions, which appear to be of varying degrees of utility, and views are sought on whether it would be helpful to carry any or all of them into future legislation, updated as appropriate, and assigned to either NHS Boards or local authorities.

3.12 Separating statutory responsibilities according to function would, in practice, mean that the Central Legal Office ( CLO) of NHSScotland would handle legal proceedings on behalf of NHS Boards. The CLO acts on behalf of all NHS Boards in relation to legal proceedings against them. A consistent approach across Scotland would thereby be ensured and the CLO staff would gain expertise in these rare cases. The CLO is structured so that individuals are linked to specific NHS Boards and so have local knowledge and contacts.

Which local organisation takes charge in situations where there is an acute risk to the public health

3.13 When a public health incident occurs, a specific multi-agency team is formed to manage it. This works within the guidance Managing Incidents Presenting Actual or Potential Risks to the Public Health issued by the Scottish Executive in 2001.

3.14 Should the public health incident be categorised by the NHS Board or its emergency planning partners as
an actual or potential major incident, such as the deliberate release of a chemical hazard, the police have responsibility for the overall co-ordination of the activities of all responders. In other types of public health incident, the NHS Board co-ordinates the activities of other agencies involved in investigating, controlling and communicating about the risks to health. Each agency discharges its own statutory responsibilities in a way which contributes most effectively to the overall management of the incident. Should an incident affect the whole of Scotland or a number of NHS Board areas, Health Protection Scotland will co-ordinate the public health response. If the incident is actually or potentially due to the deliberate release of a hazard, the Scottish public health response will be co-ordinated by the UK government.

3.15 In addition, the Civil Contingencies Act 2004 and accompanying Regulations place a statutory duty on all Category 1 responders, which includes local authorities, NHS Boards and the Emergency Services, to undertake a number of civil protection duties. This ensures that Category 1 responders from time to time asess the risk of an emergency occurring, the putting in place of emergency plans and business continuity management arrangements; the availability and sharing of information to enhance co-ordination arrangements; and co-operation between local responders. Scottish Ministers may also make Regulations as to the extent and the manner in which those duties are to be performed to deal with emergency situations. Some discretion is allowed as to how the requirements under the Act are achieved to take into account differing local circumstances.

How best to secure the ongoing collaboration of NHS Boards and local authorities to deliver an appropriate level of local health protection

3.16 To ensure the sharing of knowledge and ongoing collaboration on health protection issues, it is suggested that NHS Boards and local authorities should produce either a joint local Health Protection Plan or a joint health protection "Statement", which could be a sub-section of either the Community Plan or the Joint Health Improvement Plan/Local Delivery Plan. Both local authorities and NHS Boards would be co-signatories of their local joint Health Protection Plans or Statements, with shared responsibility for development and implementation. These Plans or Statements could be refreshed annually or at longer intervals.

3.17 Regulations could specify the issues to be covered in the Plans/Statements and identify specific roles as necessary. The local Plans/Statements could include:

• the statutory and non-statutory responsibilities at corporate level on LAs/ NHS for health protection and the specific roles of each, including the post holders in each organisation who would lead in exercising statutory powers;
• an indication of how local and physical environmental influences on public health are considered and acted upon;
• clarity about leadership for co-ordinating the implementation of the Plan, with flexibility to switch lead responsibility, if circumstances so indicate;
• the resources available in each organisation for health protection responsibilities, including management, technical and professional support;
• the thresholds and mechanism(s) for informing other bodies about incidents and other matters at a national/international level as necessary;
• procedures for information and data collection and sharing;
• arrangements for the provision of baseline and surge workforce capacity across each system including a 24-hour, 7-day-a-week service;
• arrangements for the involvement of specialist resources, which are not locally available and for invoking detailed plans for the various specific conditions and diseases covered by health protection;
• arrangements for periodic reports on health protection in the area and its relationship to the Director of Public Health's report on the health of the population;
• arrangements for the governance locally of health protection, including independent scrutiny and audit.

3.18 As NHS Boards and local authorities are not geographically aligned, the Plan/Statement would focus on NHS Boards and make specific references to each local authority within the Board area.

3.19 There may also be an opportunity to review the need for existing local statutory requirements such as the annual report required under the Aids (Control) Act 1987, describing the action an NHS Board has taken to respond to HIV/ AIDS issues. These require joint local authority and NHS collaboration and may be better presented as part of an overarching local Health Protection Plan rather than stand alone.

Whether, and to what extent, the exercise of health protection powers should depend on statute making obligatory the input of a medical or other professional

3.20 The delivery of health protection services in NHS boards and local authorities involves a range of professions as shown in Annex E.

3.21 Under current arrangements, the standard of competency to act under the legislation derives primarily from the doctor filling a certain post in public health (usually Consultant in Public Health Medicine) and/or meeting a competency standard as a Designated Medical Officer ( DMO). This title was created to carry out the functions requiring medical input in the 1897 Act and is used to refer to doctors, designated by the NHS Board and deemed suitably qualified to carry out legislative duties in health protection

3.22 Increasingly in legislation, responsibilities are defined as institutional and corporate. Professions continue to change in their competencies and responsibilities. In public health, the responsible standard setting professional body, the Faculty of Public Health of the Royal Colleges of Physicians has recognised that public health specialists need not be doctors, if they can demonstrate a similar level of knowledge and competency, and meet accreditation requirements, which are equivalent to those set for doctors as specialists by the General Medical Council. It is for consideration whether, and to what extent, new legislation in the public health field should specify the need for an obligatory input of a professional and whether, given the changing definition of professional roles, this should always be a medical practitioner.

3.23 With the proposals for separating responsibility for people from premises and property and with the changing definitions of professional competencies, there is an opportunity to review both the need for a power to be vested in an individual, and to explore the circumstances where a particular professional competency ( e.g. a medical public health specialist) may be required.

3.24 It is proposed therefore that any new legislation should define the actions for which professional input is required and place a duty on NHS Boards and local authorities to ensure a person with appropriate professional competence (for example, as defined and externally accredited by the appropriate professional standard setting body) carries these out. A number of actions under the legislation could be exercised by the organisation without specification of a particular professional meeting the standards of a competent person. However, when the legal powers to be used require the restriction of personal liberty ( e.g. quarantine and detention), there is a case for ensuring that the legislation should specify the need for one or more competent persons. The competent person, their title and necessary qualifications and accreditation, in turn, could be defined in regulations or guidance notes. The proposed local Health Protection Plans could indicate the number of posts filled by those defined as competent persons.

3.25 The proposal that powers relating to people should pass from local authorities to the NHS would remove many of the specific needs for a DMO, whose raison d'être was in the context of a legislative framework which required a health input to local authority-led functions. Removing the provision in statute for the appointment of a DMO would not in itself erode the importance of ongoing, close collaboration between NHS Boards and local authorities, the requirement for which would be underscored in the joint Health Protection Plans/Statements. At the same time, it is recognised that a statutory post of this sort can help consolidate close liaison between stakeholders. Its retention in new legislation would depend on whether a specific continuing statutory role could be identified for a post of this sort; and the responses to this consultation will inform decisions on this point.

The governance arrangements for health protection systems

3.26 Governance can best be defined as the systems and processes concerned with the overall direction, effectiveness, supervision and accountability of an organisation or service. Primary responsibility for the local governance of local health protection lies with NHS Boards and local authorities.

3.27 NHS Boards are part of the management structure of NHSScotland, with a non-executive Chair and members appointed following an independent appointments process. The executive members are NHS employees of the Board. Responsibility for the standard and quality of health protection provision, as with other health service provision, lies ultimately with the Chief Executive, delegated by him/her to individual executives and professional staff.

3.28 Local authorities are elected by, and accountable to, their communities. Local councillors are involved in public health either directly through contact with their constituents or through participating in the relevant Committees dealing with public health-related issues. The executive responsibility for local authority health protection arrangements, its quality and standard, lies with professional officers of the Council who are accountable to the Chief Executive, who in turn is responsible to the Council. The proposed transfer of legal responsibility for the health protection responsibilities relating to people will remove this area from an elected to an appointed body. The provision of health services to individuals is already the responsibility of Health Boards and the two bodies share responsibility for health improvement.

3.29 The need for partnership in health protection between these local bodies is paramount, if the protection of the health of a defined community is to be ensured. The principles behind joint working have been set out in recent legislation, notably the Community Care and Health (Scotland) Act 2002 and the Local Government in Scotland Act 2003. Under the 2002 Act, NHS Boards and local authorities can delegate functions to each other with pooled funding and Scottish Ministers can define delegated functions. The 2003 Act gave the task of advancement of well-being and community planning to local authorities, with NHS Boards having a statutory duty to participate in this planning.

Powers of intervention in health protection matters

3.30 Section 17 of the 2002 Act enables Ministers to intervene in local authorities or NHS Boards where performance of their health, social care or housing functions applicable to community care could be improved, by directing them to apply a range of joint working arrangements (including delegation and pooling) set out in the Act and Regulations. Ministers made clear during the passage of the Bill that these powers will be used only as a last resort and therefore the emphasis is on support rather than intervention. If these approaches fail, or look likely to fail, Ministers have a means of intervening. The NHS Reform (Scotland) Act 2004 amended the National Health Service (Scotland) Act 1978 to enable the Scottish Ministers to intervene where a health board, Special Health Board or the Common Services Agency fails to provide an adequate service. Powers of intervention, where an NHS Board or local authority fails adequately to discharge its responsibilities are arguably no less important in the public health field, and it is proposed that the principles already established in legislation should be carried into any new Public Health Act. Powers should be sufficiently comprehensive to enable Scottish Ministers to direct resources to a particular area, if necessary to tackle, for example, a major incident.

QUESTION 1

Organisational Authority

Views are invited on:

1.1 the proposal to assign legislative powers in relation to people to NHS Boards and for property and premises to local authorities, as set out in Tables 1 and 2 in Annex C
1.2 whether the provisions in Tables 1 and 2 in Annex D could usefully be updated and retained in new legislation
1.3 whether there should be a requirement for the production of local Health Protection Plans and Statements, to be incorporated within Community Plans or Health Improvement Plans/Local Delivery Plans
1.4 whether the issues to be covered in Plans/Statements should include the matters covered in paragraph 3.17
1.5 whether the AIDS (Control) 1987 Act should be considered for repeal in Scotland
1.6 (a) whether the provision and statutory role for a DMO should be retained in new legislation
1.6 (b) if the role is retained should this role be a joint appointment between LA and NHS
1.6 (c) if the role is retained, should we define qualifications/professions eligible to fulfil this role
1.7 whether legislation should require that certain outcomes, including those which restrict liberty, need input from a competent person and, in particular, a professional with defined qualifications
1.8 if so, whether these qualifications should be defined in regulations or guidance
1.9 whether powers for Scottish Ministers to intervene in public health matters should follow the principles already established in legislation

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