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CHAPTER 2: PUBLIC HEALTH LEGISLATION
INTRODUCTION
2.1 The purpose of public health legislation is to secure and sustain public health by defining the rights and responsibilities of the state, organisations and individuals and the remedial measures that should be taken in situations where these are not being exercised.
LEGISLATIVE FRAMEWORK
2.2 The health protection powers and responsibilities of individuals, public health professionals and organisations such as NHS Boards and local authorities, are predicated largely on the Public Health (Scotland) Act 1897,
as amended. Based on the principle of "protection from nuisances", the Act was framed to provide designated health professionals with a wide range of functions to protect and improve health. It established a national Board of Health, the forerunner of the Scottish Executive Health Department and gave powers to local authorities to enforce the law.
2.3 The legislative framework over the past century relating broadly to public health is set out in Figure 1. Most of the nuisance provisions in the Act have been replaced by other pieces of legislation, whilst the powers of national and local institutions have been re-defined, especially with the establishment of the National Health Service in 1948. The rights and responsibilities of individuals and the State have also been laid out in the European Convention of Human Rights, which is now incorporated into Scots law.
2.4 The Act has served the population of Scotland well, but there is increasing evidence that it is not wholly consistent with current practice or modern life. Our way of living has changed substantially, as have our expectations of both organisations and individuals. Advances in science have enabled us to identify and measure agents that can harm us and better understand how they do so.
Figure 1: Legislative Framework - range of current/repealed legislation
RECENT DEVELOPMENTS
2.5 In recent years a number of events have occurred which have highlighted areas where the current legislative framework needs to be strengthened:
- The Fatal Accident Inquiry ( FAI) into Central Scotland E. coli O157 outbreak in 1997 which identified the need for clarity about which agency and persons have overall responsibility in managing public health emergencies.
- The FAI into the outbreak of C. novyi infection in injecting drug users in 2001, which underlined the importance of ensuring preparedness to deal with major outbreaks and bio terrorist attacks in Scotland.
- The 2003 epidemic of Severe Acute Respiratory Syndrome ( SARS), which highlighted gaps and uncertainities in the adequacy of statutory powers, that might be required to underpin the control of SARS in Scotland.
- The foot and mouth and BSE crises which identified the need for enhanced co-operation among agencies in combating major emergencies.
- Questions about the value and clarity of the current legal notification of diseases system, such as the statutory obligation on medical practitioners in the United Kingdom to notify food poisoning.
- The threat of pandemic influenza which alerts us to the possibility of an infectious disease disrupting society as a whole and the consequent need, particularly in the early stages, to rapidly and effectively contain or delay its spread.
KEY ISSUES
2.6 These issues underline the need to review and modernise existing public health legislation, with particular regard to:
- Rights and values underpinning legislation, especially the balance between individual and collective responsibility for protecting health and the grounds for action when these are not being observed. Legislation should reflect values such as personal autonomy, privacy and care for others.
- Domains in which such responsibilities and powers are defined, bearing on:
- people - reducing the risk to health from persons who have been or may have been exposed to a hazard, voluntarily or negligently, knowingly or unknowingly putting others' health at risk;
- premises - ensuring organisations are suitably managed and maintained so as not to put health at risk;
- property - ensuring intellectual and physical assets are managed and maintained so as not to put the public health at risk.
- Clarity about which organisations are accountable for protecting the public health in these domains, particularly at a local level between NHS and local authorities. There is a subsequent need for partnership arrangements between agencies which define accountabilities and responsibilities for health protection.
- Powers of the state and its institutions in respect of people, premises and property and the criteria for enacting such powers.
- Penalties associated with failure to comply with legislation, their proportionality, and how these should be framed.
- Future proofing new legislation which needs to last for many years during which new hazards and technologies will appear and societal values may change.
INTERNATIONAL HEALTH REGULATIONS 2005
2.7 The International Health Regulations aim to prevent the international spread of disease without unnecessary interference with international traffic and trade. In order to enhance the global public health response to new diseases and naturally occurring, accidental release or deliberate use of chemical and biological agents or radionuclear material that affect health, the World Health Assembly ( WHA) of the World Health Organization ( WHO) adopted new International Health Regulations in May 2005 ( IHR 2005). The IHR enter into force on 15 June 2007, although member states have a further 12 months from the entry into force to adjust their domestic legislation.
2.8 A number of the measures which require to be taken at a UK level to comply with our international obligations within the agreed timescale will impact on some of the proposals within this consultation paper. The detail of such specific measures, as they apply to Scotland will, of course, be the subject of further limited consultation with key stakeholders in due course.
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