THE PUBLIC HEALTH ETC. (SCOTLAND) ACT 2008
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The Public Health etc. (Scotland) Act 2008 was passed by the Scottish Parliament on 12 June 2008 and received Royal Assent on 16 July 2008.
This purpose of this paper is to give a brief overview of the provisions of the Act. It is not, however, intended to be a statement of the law. You should refer to the Act itself if you need more detailed information and seek legal advice if you have any queries on its interpretation. The Act can be accessed at http://www.opsi.gov.uk/legislation/scotland/acts2008/pdf/asp_20080005_en.pdf .
You can view the Bill's progress through the Scottish Parliament at http://www.scottish.parliament.uk/s3/bills/03-PublicHealth/index.htm .
Different parts of the Act are coming into effect at different times. To view the arrangements which are being made for implementation, please see the implementation timetable
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What does the Act do?
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The Act updates the law on public health, enabling Scottish Ministers, health boards and local authorities to better protect public health in Scotland. It will also assist Scottish Ministers to meet their obligations under the International Health Regulations.
The Act also makes provision relating to the use, sale or hire of sunbeds, clarifies statutory responsibility for the provision of mortuaries and post mortem facilities and amends the law on statutory nuisances.
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What does 'protecting public health mean?
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'Protecting public health' for the purposes of the Act means 'the protection of the community (or any part of the community) from infectious diseases, contamination or other such hazards which constitute a danger to human health; and includes the prevention of, the control of, and the provision of a public health response to such diseases, contamination or other hazards'.
'Contamination' means contamination with or by a biological, chemical or radioactive substance. 'Infectious disease' means an illness or medical condition caused by an infectious agent.
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Part 1: Public Health Responsibilities
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This part of the Act sets out the duties of Scottish Ministers, health boards and local authorities to continue to make provision to protect public health in Scotland. It places a duty on health boards and local authorities to designate 'competent' persons to undertake functions assigned to them under the Act. A duty of co-operation is placed on health boards and local authorities in exercising the functions under the Act. Each health board must prepare a Joint Health Protection Plan for its area, and must consult the relevant local authority or local authorities in doing so. The scope and content of the plans must be prepared in accordance with guidance issued by Scottish Ministers.
Part 1 also sets out the Scottish Ministers' powers of intervention if health boards or local authorities fail to exercise functions in an acceptable manner, including power to direct other persons or organisations to undertake the function, and to direct the allocation of resources.
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What is meant by health board or local authority 'competent persons'? Who are they?
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Powers and functions in the Act are assigned corporately to health boards and local authorities, but the legislation also sets out where input at a specific level of professional competency is required, for example, where a person's liberty is being restricted, or action taken in respect of a person's property, for the protection of public health. Health boards and local authorities are required to draw up lists of 'competent persons' for their areas. The qualifications, training and experience of such persons will be set out in Regulations, made by Scottish Ministers.
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Part 2: Notifiable Diseases, Notifiable Organisms and Health Risk States
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This part makes provision for the notification of specific diseases by registered medical practitioners and the notification of specific organisms by diagnostic laboratories in Scotland that are focused on human infections. The diseases and organisms to be notified are specified in schedule 1 to the Act. Notification is necessary to alert public health authorities to diseases and organisms which present a risk to public health and which may require an urgent public health response. Registered medical practitioners are also required to notify 'health risk states', as defined in the Act (and which will be further clarified in guidance). This is designed to ensure that public health authorities are alerted to new illnesses and conditions which cannot yet be identified, but which may require urgent action to protect the public health. The information to be notified, to whom it should be notified, and the timescales for notification are set out in Part 2.
Scottish Ministers may vary the list of notifiable diseases and organisms and all other aspects of notification by regulations. The non-notification of specified organisms by directors of a diagnostic laboratory is an offence.
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Part 3: Public Health Investigations
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The majority of public health incidents can be investigated without using statutory powers. However, where there are problems, e.g. because someone is being uncooperative, or premises are vacant, it may be necessary to use statutory powers so that the cause of the incident can be found quickly and effectively, to avoid the wider public health being put at risk. Part 3 defines a 'public health investigation' and sets out the powers available to investigators. The powers are available only in defined circumstances set out in the Act, and where there are reasonable grounds to suspect that those circumstances are likely to give rise to a significant risk to public health. The powers include power of entry, power to ask questions and power to take samples for analysis etc. If necessary, an investigator can apply for a warrant to enter premises from the local JP or sheriff, although this is not necessary in emergency situations.
Part 3 also makes provision about offences and the compensation arrangements for any loss or damage incurred in the course of an investigation.
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Part 4: Public Health Functions of Health Boards
What powers are available?
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This part replaces some of the public health powers currently available to local authorities, and assigns them to health boards. It also confers new powers on health boards. Before using the powers, health boards have a duty, if reasonably practicable to do so, to give an explanation on the action it proposes to take to the person who will be subject to the powers and any other relevant persons. The specific criteria for the use of the powers are set out in Part 4.
Health board competent persons may make exclusion orders (excluding a person from work or other community setting) and restriction orders (restricting a person from undertaking activities) if the action is necessary to reduce the spread of contamination or infection and in order to avoid or minimise a significant risk to public health. The orders must be kept under review and may be varied.
There are also a number of health board powers which are subject to sheriff orders. Applications to the sheriff must be accompanied by certification from the health board competent person stating that the criteria for the orders have been met and that the action is necessary to avoid or minimise a significant risk to public health. There are powers to quarantine someone in their home or other setting; to detain in hospital; to remove and detain in hospital; and to medically examine a person, or group of persons (e.g. to confirm or eliminate a suspected diagnosis), by the least intrusive or least invasive means. The power to disinfect, disinfest (remove infestation) or decontaminate may be included in quarantine or detention orders. All orders are subject to time limits and may be varied and extended. The maximum period of quarantine is 3 months and the maximum period of detention in hospital is 15 months. There are a number of offences created, including obstruction and breach of orders.
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What safeguards are available to the public in light of the strong powers available in Part 4?
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The need to satisfy a sheriff that there is a significant risk to public health before a number of the orders can be granted provides a legal safeguard. As does the right of appeal to the courts against all Part 4 orders. The legislation is, of course, compliant with the European Convention on Human Rights, which recognises that certain rights can lawfully be interfered with on public health grounds.
Compensation is available to those who can prove financial loss as a result of complying with a health board request, either voluntarily or by order, not to go to work etc., to be quarantined or restricted from certain activities. Compensation may also be payable to those who are required to care for those subject to exclusion etc.
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Part 5: Public Health Functions of Local Authorities
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This part sets out the powers available to local authorities to order or undertake a range of public health measures in relation to premises and things, including disinfection, disinfestation and decontamination, in order to prevent, or prevent the spread of, infectious disease or contamination. If necessary, a local authority can apply for a warrant to enter premises from a local sheriff or JP, although this is not necessary in emergency situations.
Local authorities also have a statutory duty to provide, or ensure the provision of, the facilities or equipment necessary to disinfect, disinfest or decontaminate premises or things, the destruction of such things and the means of transport for transporting things to facilities and equipment. Part 5 also provides for the recovery of expenses by local authorities in certain circumstances, offences, appeal mechanisms and the availability of compensation in defined circumstances.
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Part 6: Provision of mortuaries etc
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This part places a duty on health boards to ensure mortuary provision, including post-mortem facilities, for persons who die in a hospital in the board's area, or who die elsewhere and whose bodies are brought to the hospital; and on local authorities to ensure the provision of mortuary and post-mortem facilities for other deaths, including for Crown Office Procurator Fiscal Service instructed post-mortem examinations. Local authorities and health boards must co-operate with one another in complying with these duties.
It also updates current statutory provision restricting the release of infected bodies etc from hospital and the disposal of bodies retained in premises in order to avoid or minimise a significant risk to public health. If necessary, a sheriff's warrant may be applied for. Part 6 also places a duty on health boards to notify those responsible for the preparation and disposal of bodies, where there are particular risks to public health from infection or contamination, of any precautions which should be taken.
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Part 7: International Travel
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Part 7 recognises the particular risks to public health which can arise at points of entry (seaports and airports) into Scotland. It provides a power to Scottish Ministers to make regulations to protect public health from risks arising from vehicles arriving in or leaving Scotland; and to give effect to the International Health Regulations or any other international agreement relating to public health. They will result in new regulations to replace the Public Health (Scotland) (Ships) Regulations 1971 (as amended in 1974, 1978 and 2007) and the Public Health (Scotland) (Aircraft) Regulations 1971 (as amended in 1974 and 1978).
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Part 8: Regulation of Provision of Sunbeds
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This part regulates the use, sale and hire of sunbeds. It prohibits operators from allowing use of sunbeds on their premises by persons under 18; from allowing unsupervised use of sunbeds on their premises; prohibits the sale or hire of sunbeds to persons under 18. It also places a duty on operators of sunbed premises to provide information to sunbed users and to display information notices on their premises on the adverse health effects of sunbed use. The information to be provided and displayed will be set out in Regulations made by Scottish Ministers.
The part also provides for offences, penalties and enforcement, including the ability of operators to discharge any liability to conviction for an offence through payment of a fixed penalty fine in certain circumstances.
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Part 9: Statutory nuisances
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This part amends the Environmental Protection Act 1990 for Scotland to include insect infestation, artificial light pollution, and nuisance associated with water on land, as statutory nuisances. It introduces a regulation-making power to amend the statutory nuisance regime in the future and enables local authorities to offer a fixed penalty to persons who fail to comply with the requirements of an abatement notice served under the Act.
This part also amends the Water Services etc. (Scotland) Act 2005 to remedy an unforeseen dis-application of the enforcement provisions in the 1990 Act as regards sewerage nuisance.
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Part 10: General and Miscellaneous
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This part contains general and miscellaneous provisions, including provision about information disclosure and penalties for offences under the Act. It sets out the procedures that will apply to the making of subordinate legislation. It also deals with the repeal of legislation which is superseded by the Act.
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More information about the Act
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To keep up to date with progress on implementation of the Public Health etc. (Scotland) Act 2008, you can sign up to receiving alerts on significant developments, which can be accessed on the website. Please contact:
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