2008 Chapter 5

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These Notes relate to the Public Health etc. (Scotland) Act 2008 (asp 5) which received Royal Assent on 16 July 2008.

PUBLIC HEALTH ETC. (SCOTLAND) ACT 2008

EXPLANATORY NOTES

INTRODUCTION

1.     These Explanatory Notes have been prepared by the Scottish Government in order to assist the reader of the Act. They do not form part of the Act and have not been endorsed by the Parliament.

2.     The Notes should be read in conjunction with the Act. They are not, and are not meant to be, a comprehensive description of the Act. So where a section or schedule, or a part of a section or schedule, does not seem to require any explanation or comment, none is given.

THE ACT - OVERVIEW

3.     The Act is in 10 Parts. The main provisions of the Act are as follows:

Part 1 - Public Health Responsibilities

• This Part sets out the duties of the Scottish Ministers, health boards and local authorities to continue to make provision to protect public health in Scotland. These are without prejudice to existing duties imposed on the Scottish Ministers and health boards in the National Health Service (Scotland) Act 1978. It defines "protecting public health" in terms of protecting the community, or any part of the community, from infectious diseases, contamination or other hazards that constitute a danger to human health. Health boards and local authorities are required to designate "competent persons" to undertake functions assigned to them under the Act and which require professional input at a particular level. The qualifications, training and other requirements for competent persons to be able to undertake these functions will be set out in regulations.

• A duty of co-operation is placed on health boards and local authorities in exercising the functions under the Act, and for them to plan, together, for public health protection.

• This Part also sets out the Scottish Ministers' powers of intervention if those bodies fail to exercise functions in an acceptable manner, including power to direct other persons (or organisations) to undertake the functions, and to direct the allocation of resources between them.

Part 2 - Notifiable Diseases, Notifiable Organisms and Health Risk States

• This Part replaces the current statutory arrangements for the notification of infectious diseases and the voluntary reporting of organisms by NHS-related laboratories with a statutory notification system. Suspected or diagnosed infectious diseases and health risk states are to be notified by registered medical practitioners and diagnostic laboratories in Scotland that are focused on human infections are to notify organisms. The notifiable diseases and organisms are set out in schedule 1.

• This Part allows the Scottish Ministers to vary the list of notifiable diseases and organisms and all other aspects of notification by regulations. It also sets out the penalties for non-reporting.

Part 3 - Public Health Investigations

• This Part defines a "public health investigation" and sets out the powers available to investigators who may be appointed by the Scottish Ministers, a health board competent person, Health Protection Scotland (a division of the Common Services Agency for the Scottish Health Service), a local authority competent person or two or more of these bodies or persons acting together. The powers will be available only in defined circumstances and where there are reasonable grounds to suspect that those circumstances are likely to give rise to a significant risk to public health.

• This Part also makes provision about offences under this Part and the compensation arrangements for any loss or damage caused by an investigator or person authorised by an investigator in the course of an investigation.

Part 4 - Public Health Functions of Health Boards

• This Part replaces many of the powers currently available to local authorities and which relate directly to infected people and assigns them to health boards. It also confers new powers on health boards.

• Existing powers that are being transferred from local authorities to health boards include: the exclusion of persons from work and school (now extended to cover a wider range of settings); application to a sheriff for an order for a person to be medically examined; and the removal and detention in hospital of a person suffering from a serious infectious disease (now extended to include persons who are contaminated).

• New powers for health boards include the power to restrict persons' activities in order to reduce the spread of contamination and infection; power to quarantine individuals; and power to require a person to be disinfected, disinfested or decontaminated, in defined circumstances, and where there is a significant risk to public health.

• With the exception of exclusion orders and restriction orders, all health board powers will be exercisable only where the health board has obtained an order from a sheriff. The procedures for applying for and granting orders contain safeguards with regard to personal freedom, include a right of appeal, restrictions on duration and regular reviews. It will be an offence to breach the terms of any order.

Part 5 - Public Health Functions of Local Authorities

• This Part contains powers which replace existing powers of local authorities to order 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.

Part 6 - Mortuaries etc.

• This Part places a duty on health boards to ensure mortuary provision, including post-mortem facilities, for hospital-related deaths; and on local authorities to ensure the provision of mortuary and post-mortem facilities for other deaths (including for Crown Office and Procurator Fiscal Service (COPFS)-instructed post-mortem examinations).

• It also replaces provisions in the Public Health (Scotland) Act 1897 with regard to the handling of dead bodies in order to reduce the risk to public health with new provision.

Part 7 - International Travel

• This Part provides the Scottish Ministers with a power to make regulations to protect public health from risks arising from vehicles arriving in or leaving Scotland, including regulations to comply with International Health Regulations 2005.

Part 8 - Regulation of Provision of Sunbeds

• This Part regulates the use, sale and hire of sunbeds. It provides for offences, penalties and enforcement.

Part 9 - Statutory Nuisances

• This Part amends the Environmental Protection Act 1990 ("the 1990 Act") for Scotland to constitute insect infestation, artificial light pollution, and nuisance associated with water on land as statutory nuisances for the purposes of Part III of the 1990 Act. 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 section 80(1) of the 1990 Act.

• This Part also amends the Water Services etc. (Scotland) Act 2005 to remedy an unforeseen dis-application of the enforcement provisions in schedule 3 to the 1990 Act as regards sewerage nuisance.

Part 10 - General and Miscellaneous

• 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 this Act.

PART 1

PUBLIC HEALTH RESPONSIBILITIES

The Scottish Ministers

Section 1     Duty of Scottish Ministers to protect public health

4.     Subsection (1) requires the Scottish Ministers to continue to make provision, or secure that provision is made, for the protection of public health in Scotland

5.     This updates the requirements in a number of public health statutes which are being repealed by the Act, including the Public Health (Scotland) Act 1897 and the Public Health (Scotland) Act 1945.

6.     Subsection (2) defines "protecting public health" as the protection of the community or any part of it from infectious diseases, contamination or other such hazards which constitute a danger to human health and includes the prevention and control of, and provision of a public health response to, such diseases, contamination or other hazards. "Contamination" is defined in subsection (5) as meaning contamination with or by a biological, chemical or radioactive substance; "infectious disease" is defined as an illness or medical condition caused by an infectious agent (including an organism listed in Part 2 of schedule 1 to the Act).

7.     Subsection (3) provides that for the purpose of protecting public health, the Scottish Ministers may provide assistance, including financial assistance, to any person who exercises functions in relation to public health. Subsection (4) states that the duty placed on the Scottish Ministers in subsection (1) is without prejudice to the general duties of the Scottish Ministers to provide a health service and promote the improvement of the health of the people of Scotland as outlined in section 1 and 1A of the National Health Service (Scotland) Act 1978 (the "1978 Act").

Health boards

Section 2     Duty of health boards to protect public health

8.     This section requires each health board to continue to make provision, or secure that provision is made, for protecting public health in its area, without prejudice to its general duty to promote the improvement of the health of the people of Scotland under section 2A of the 1978 Act. Functions under this Act are also to be construed as functions conferred on health boards by the Scottish Ministers under section 2(1) of the 1978 Act.

Section 3     Designation of competent persons by health boards

9.     This section places a duty on health boards to designate a sufficient number of persons for the purpose of exercising certain functions relating to public health under the Act and other enactments in each health board area. Persons designated under this section are to be known as "health board competent persons". Subsection (4) provides that the Scottish Ministers may, by regulations, prescribe the persons or classes of person who may be designated as health board competent persons; the qualifications, training and other requirements to demonstrate competency which they must meet; and any other matters relating to the terms and conditions of such a designation as the Scottish Ministers consider appropriate. The regulations may provide that certain functions of health board competent persons may be carried out only by those with particular qualifications, training or other prescribed competencies. The regulations will be made by negative procedure.

Local authorities

Section 4     Duty of local authorities to protect public health

10.     This section places a duty on each local authority to continue to make provision, or secure that provision is made, for the purpose of protecting public health in its area.

Section 5     Designation of competent persons by local authorities

11.     Similarly to section 3, section 5 places a duty on local authorities to designate a sufficient number of persons for the purpose of exercising certain functions relating to public health under the Act and other enactments, in each local authority area. Persons designated under this section are to be known as "local authority competent persons".

12.     The Scottish Ministers may, by regulations, prescribe the persons or classes of person who may be designated as local authority competent persons; the qualifications, training and other requirements to demonstrate competency which they must meet; and any other matters relating to the terms and conditions of such a designation as the Scottish Ministers consider appropriate. The regulations may provide that certain functions of local authority competent persons may be carried out only by those with particular qualifications, training or other prescribed competencies. The regulations will be made by negative procedure.

Co-operation and planning

Section 6     Duty of health boards and local authorities to co-operate

13.     This section places a requirement on health boards and local authorities, in carrying out their functions under this Act, to co-operate with any relevant person who appears to have an interest in or a function relating to the protection of public health.

14.     Subsection (2) defines a "relevant person" as a health board; a special health board; a local authority; the common services agency; and the Scottish Ministers. The section is without prejudice to existing duties of co-operation set out in section 13 of the 1978 Act.

Section 7     Joint public health protection plans

15.     The section imposes a duty on each health board to prepare plans relating to the protection of public health in its area as the board considers appropriate. Subsection (2) states that in preparing a plan, a health board must consult the relevant local authority.

16.     The plan must be prepared in accordance with guidance from the Scottish Ministers, and can be incorporated within any other plan which the health board is required to prepare under any other enactment. There is a duty on the health board which prepares the plan to publish it, either as a stand alone document, or as part of any other plan in which it is incorporated. The health board is empowered to vary any plan prepared under this section and must then publish it, as varied. "Relevant local authority" is defined as the local authority for the area in relation to which the board is constituted or, where the area of that health board includes the areas of two or more local authorities, both or all of those authorities.

Power of Scottish Ministers to intervene

Section 8     Power to direct health boards and local authorities

17.     This section gives the Scottish Ministers the power to direct a health board or a local authority to exercise its public health functions where it is necessary for the purpose of protecting public health. This power applies where the Scottish Ministers consider that a health board or a local authority has failed, is failing or is likely to fail to exercise the functions conferred on it by the Act or has failed, is failing or is likely to fail to exercise them in a manner which the Scottish Ministers consider acceptable.

18.     Subsection (3) sets out what should be specified in any such direction, that is the function to which it applies, the period within which the function is to be carried out, or the manner in which it is to be carried out and any other conditions imposed by the Scottish Ministers. Subsection (4) allows the Scottish Ministers to vary or withdraw any direction made.

Section 9     Power to direct that functions be exercised by other persons

19.     Under this section the Scottish Ministers may direct that the functions of a health board or a local authority be performed by a person other than the health board or local authority whether or not they have made a previous direction under section 8. However, if a direction to a health board or a local authority has been given under section 8, the Scottish Ministers may not give a direction under this section unless the period specified in the first direction has expired or that direction has been withdrawn.

20.     Subsection (3) sets out the persons that may be specified in a direction by the Scottish Ministers, namely: a health board, the common services agency, a local authority, an employee of any of these bodies, a member of staff of the Scottish Administration or any other person the Scottish Ministers consider appropriate.

21.     Subsection (4) sets out the information that must be contained in a direction under this section, that is: the function to which it applies, the person receiving the direction, the period for which that person is to perform the function, the extent to which it will be performed, and any other conditions imposed by the Scottish Ministers as they consider appropriate. Subsection (5) allows the Scottish Ministers to vary or withdraw a direction.

Section 10     Directions under section 9(1): supplementary

22.     Subsection (1) provides that anything done or omitted to be done by a person or body exercising a function as a result of a direction under section 9 remains the responsibility of the health board or local authority whose function it is. A person dealing in good faith and for value with a person exercising a function under a direction does not have to check whether the person exercising the function is doing so in accordance with the terms of the direction. Unless it is specified otherwise in the direction, the health board or local authority whose function is the subject of the direction must remunerate and pay the expenses of, and any other costs reasonably incurred by, the person exercising the function.

Section 11     Power to direct allocation of resources

23.     This section allows the Scottish Ministers, if they are satisfied that it is necessary to do so, to direct resources between health boards, between local authorities and between health boards and local authorities, in connection with the performance by the recipient board or authority of its functions relating to the protection of public health.

PART 2

NOTIFIABLE DISEASES, NOTIFIABLE ORGANISMS AND HEALTH RISK STATES

Notifiable diseases and organisms

Section 12     Lists of notifiable diseases and notifiable organisms

24.     This section defines "notifiable disease" and "notifiable organism" as a disease listed in Part 1 or an organism listed in Part 2 of schedule 1 respectively. It states that the Scottish Ministers may amend the lists in schedule 1 by regulations, including by adding or removing items from the list. A disease or organism may be added only if the Scottish Ministers are satisfied that it is likely to give rise to a significant risk to public health and having regard to whether the disease is serious (or in the case of an organism, whether the organism would cause a serious disease) and easily transmissible through casual contact.

Duties to notify

Section 13     Notifiable diseases: duties on registered medical practitioners

25.     This section places a duty on a registered medical practitioner who has reasonable grounds to suspect that a patient has a notifiable disease, to notify the health board of that area in writing not later than 3 days after forming the suspicion. The notification must include the patient's name, address and postcode, the patient's occupation, the name, address and postcode of the patient's place of work or education (if considered relevant by the practitioner), the patient's sex, the patient's date of birth, the disease which the patient has and the patient's NHS identifier. The NHS identifier means the community health index number or, where that is not known, the NHS identification number. Where both are unknown, any other number or indicator used from time to time to identify a patient individually will suffice.

26.     A registered medical practitioner who has reasonable grounds to suspect a notifiable disease and who considers that the case is urgent must orally notify the health board as soon as possible. The registered medical practitioner must have regard to the following factors when considering whether a case is urgent or not: the nature of the disease, the ease of transmission of that disease, the patient's circumstances (such as the patient's age, sex and state of health), and any guidance issued by the Scottish Ministers.

27.     A registered medical practitioner does not need to notify if there are reasonable grounds to believe that another registered medical practitioner has complied with the notification requirement under this section or section 14 in respect of the patient.

Section 14     Health risk states: duties on registered medical practitioners

28.     This section places a duty on a registered medical practitioner who has reasonable grounds to suspect that a patient has been exposed to a health risk state to notify the health board of that area in writing no later than 3 days after forming the suspicion. The notification must include the patient's name, address and postcode, the patient's occupation, the name, address and postcode of the patient's place of work or education (if considered relevant by the practitioner), the patient's sex, the patient's date of birth, the health risk state to which the patient has been exposed and the patient's NHS identifier.

29.     A registered medical practitioner who has reasonable grounds to suspect that a patient has been exposed to a health risk state and considers that the case is urgent must orally notify the health board as soon as possible. In determining whether the case is urgent, the practitioner must have regard to the nature of the health risk state, the nature of the exposure to that state, the patient's circumstances (such as the patient's age, sex and state of health) and any guidance issued by the Scottish Ministers. A registered medical practitioner does not need to notify if there are reasonable grounds to believe that another registered medical practitioner has complied with this section or section 13 in respect of the patient.

30.     A "health risk state" is defined as meaning a highly pathogenic infection (i.e. an infection highly likely to cause a serious disease), or exposure to any contamination, poison or other hazard that is a significant risk to public health. A patient's exposure to a health risk state means either physical contact with or contamination by a health risk state or physical contact with or contamination by a person who, or an object which, has been in physical contact with, or been contaminated by, a health risk state.

Section 15     Notifiable diseases and health risk states: duties on health boards

31.     This section places a duty on a health board which receives notification of a disease or health risk state (under section 13 or 14) from a registered medical practitioner either orally or in writing, relating to a patient who usually resides within that health board's area, to send a return in writing to the Common Services Agency. The return must contain the following information for each patient, in so far as it is known to the board: postcode, occupation, sex, date of birth, the suspected disease or health risk state to which the patient has been exposed, and the patient's NHS identifier. The health board's return will not include the patient's name or address. The return is to be sent no later than the end of the week in which the information is received; or, if this is not practicable, as soon as practicable thereafter.

32.     Subsection (4) states that where the notification received by a health board relates to a person who does not usually reside in that health board's area, the health board must transmit the patient's information to the health board for the area in which the person usually resides. Subsection (5) sets out that when that other health board receives the information, it must send a return in writing to the Common Services Agency no later than the end of the week following receipt of the information, or, if that is not practicable, as soon as practicable thereafter.

Section 16     Notifiable organisms: duties on directors of diagnostic laboratories

33.     This section places a duty on the director of a diagnostic laboratory, where the laboratory identifies a notifiable organism, to provide written confirmation of the organism to the relevant health board and the Common Services Agency, no later than 10 days after identification. If the director of the diagnostic laboratory considers that the case is urgent, the director must orally notify the relevant health board as soon as possible. In determining whether a case is urgent, the director must have regard to the nature of the organism, the nature of the disease which that organism causes, the ease of transmission of that disease or organism, the patient's circumstances (such as the patient's age, sex and state of health, where known), and any guidance issued by the Scottish Ministers.

34.     For the purposes of subsection (1), a diagnostic laboratory identifies a notifiable organism where the laboratory identifies the organism itself or the organism is identified by another laboratory under an arrangement with that diagnostic laboratory. This will include identification of organisms by laboratories outwith Scotland under an arrangement with a diagnostic laboratory in Scotland. In these cases, the day of identification for the purposes of notification will be the day on which the first diagnostic laboratory becomes aware of the identification by the other laboratory with which it has the arrangement.

35.     The "relevant health board" in this section means the health board in whose area the diagnostic laboratory is situated. Where a health board receives notification from the director of a diagnostic laboratory and the information relates to a person who does not usually reside in that board's area, the information must be transmitted to the health board for the area in which the person usually resides.

36.     This section defines the director of a diagnostic laboratory as a clinical microbiologist, consultant pathologist or other registered medical practitioner or other person in charge of a diagnostic laboratory or to whom the function of making a notification has been delegated, thus providing that the role of director of a diagnostic laboratory can be fulfilled by a person with a non-medical background.