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CHAPTER 6: STATUTORY POWERS FOR HEALTH PROTECTION
INTRODUCTION
6.1 Whilst measures to reduce the risk of exposure to hazards are almost always introduced in a spirit of collaboration, there are occasions when action needs to be taken to protect public health against the expressed wishes of an individual or organisation. The basis for overruling an individual's and organisation's rights in such circumstances should ideally be founded in statute, particularly since clarity about the powers available can facilitate swift action in a field where early intervention can be crucial. At the same time, an acceptable balance must be struck between the rights of an individual or organisation and the need to protect the community from the threat of contagious disease and environmental hazards.
CURRENT POWERS
6.2 The 1897 Act spanned a spectrum of environmental and infectious disease issues ( Annex G). Powers include:
- the removal of an infected person without proper lodging to a hospital (Sections 54 & 55);
- penalties for sending children to school with an infectious disease (Section 57);
- prohibitions on infected people carrying out a business which would be likely to spread the disease (Section 58);
- penalties for letting houses in which infected people have been lodging (Section 51);
- penalty on persons letting houses making false statements about infectious disease (Section 52);
- removal of sick people to hospitals (section 96).
6.3 It is suggested that, in redeveloping legislation in this area, the following principles should apply:
- the least restrictive action that will protect the health of the population should be adopted;
- the action should be proportionate to the threat;
- a balance should be struck between the rights of the community to public health protection and the individual's rights, consistent with the European Convention on Human Rights;
- clinical care should always be available to the individual, and individual clinical care will be supported by the health protection system; but, as at present, treatment for physical illness without consent, unless in an emergency, will not be permissible.
ISSUES FOR CONSIDERATION
The compulsory isolation of those suffering from a severe infection which poses a risk to others through person to person spread
6.4 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.
6.5 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.
6.6 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 automony of a person so detained to refuse or consent to medical treatment. However, as discussed in para 3.10 a power for compulsory examination of a person suffering from, or suspected to be suffering from, an infectious disease is proposed.
6.7 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.
6.8 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.
Detaining people in their own home or other setting (Quarantine)
6.9 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.
6.10 At present, there is a general power to Scottish Ministers under the Public Health (Scotland) Act 1945 to make regulations with a view to the treatment of persons affected by any epidemic, endemic or infectious disease and for preventing the spread of such disease; and for presenting danger to public health from vessels or aircraft arriving at, or leaving any place. To date powers which have been taken to quarantine someone have been taken within regulations specifically in relation to vessels and aircraft only. The Public Health (Aircraft) (Scotland) Regulations 1971 and Public Health (Ships)(Scotland) Regulations 1971 permit the medical officer to obtain and examine and take certain reasonable measures to prevent the spread of infection relating to diseases currently subject to the existing International Health Regulations ( i.e. smallpox, plague, cholera, yellow fever). Part 2 of the Civil Contingencies Act 2004 includes a power to quarantine people who are thought to have been exposed to an infectious disease, in emergency situations.
6.11 However, 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 an 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.
6.12 A quarantine scheme might thus 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.
6.13 Some diseases make an infected person infectious to others before they feel ill, while with others they will be infectious only after they begin to feel ill. There could be a particularly strong case for applying quarantine in the former case, where the infectious person will not necessarily know that he is putting others at risk. Examples of such diseases might be smallpox, SARS or a new highly virulent strain of flu.
6.14 A decision to order quarantine cannot therefore be taken lightly. It must reflect human rights and there will often be problems in demonstrating that the use of the power is proportionate to the threat given the difficulty of establishing with certainty the contribution that quarantine will make or has made to preventing the spread of disease. It is therefore proposed that if an individual declines to accept constraints voluntarily, the NHS Board should make application to the Sheriff to issue an Order requiring the person to remain in quarantine. The quarantine Order will specify the restraints on liberty and these will vary depending on the disease, but are likely to include no contact with individuals outside the household and require regular contact with health professionals. It is proposed that this Order should remain in force for a maximum of
3 weeks, following which, renewal would need to be sought by further recourse to the Sheriff. It would be an offence not to comply with a quarantine order. Provision would be made for appeal to the Sheriff Principal, if the person concerned so wished.
The exclusion of people from certain activities or settings
6.15 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 practitioner 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.
6.16 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.
6.17 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.
Compensation of people who have been excluded from certain activities or settings
6.18 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."
6.19 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.
6.20 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 case, which are likely to be relatively rare.
Question 4
Statutory Powers for Health Protection
Views are invited on:
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
4.2 whether quarantine orders should only be applied where the criteria in paras 6.9 and 6.12 are met
4.3 whether exclusion orders should apply more widely to include, e.g. work, social and religious events, neighbours, travelling and other activities
4.4 whether exclusion orders should:
i) apply to specified states and/or organisms and or activities
ii) have penalties for non-compliance
4.5 whether there should be penalties for non-compliance
4.6 whether compensation payments should extend to all groups liable to be excluded under exclusion orders or affected by other orders
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
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
4.9 the proposal not to seek powers to require a person to have medical treatment
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