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Health and Social Care Bill

I would like briefly to speak to Amendments Nos. 173 and 174. Amendment No. 173 concerns the proportionality of detention under public health orders. The Bill proposes that JPs may only make such orders as are necessary in order to remove or reduce a risk of infection or contamination. This will involve the application of a proportionality test. Our Amendment No. 173 will prevent a JP making an order involving detention, isolation or quarantine unless he or she is satisfied that no other restrictions or requirements would be capable of reducing or removing the risk posed to public health. This makes it clear beyond doubt that in order to be proportionate, and therefore necessary, measures which involve detention, isolation or quarantine may be imposed only when all other measures are considered inadequate to meet the risk to public health. In the current provisions of the Public Health Act, the statutory language indicates that other steps must be considered before detention of an individual is considered appropriate. This reflects the approach of the European Court of Human Rights to detention for the purpose of preventing the spread of disease. The Joint Committee expressed its concern in its report that at present there is no similar direction in the Bill. The Government explained in their response to the JCHR that they had, "““sympathy with the principle behind this proposal””," but had some concern about the term ““last resort””, which was used in the committee’s report. The Minster explained that the Government were concerned that unnecessary delay might occur in certain cases if the possibility of detention, isolation and quarantine were limited to the last resort and that a necessity test was more appropriate. We welcome the Government’s acceptance of the principle behind the JCHR’s conclusion. Our proposed amendment does not refer to the last resort and we therefore hope that the Government will find it acceptable. Amendment No. 174 covers the need for objective medical evidence. The Bill provides for the relevant Minister—either the Secretary of State or the Welsh Assembly Minister in Wales—to make regulations in relation to the evidence which a JP must consider before making a public health order. The amendment requires that those regulations include a requirement for objective medical evidence. In its report, the JCHR noted that provision of medical evidence before a compulsory medical examination is required by the existing provisions of the Public Health (Control of Disease) Act 1984, and the case law of the European Court of Human Rights supports the conclusion that detention for the purposes of preventing the spread of infectious diseases or other risks to public safety must be based on objective medical evidence where the source of that risk is related to the health of the person being detained. Can the Minister confirm that objective medical evidence will be required before a JP will be able to make a public health order? If the Government do not consider that this evidence will be necessary or appropriate, can the Minister explain why? If the Government accept the need for it, I hope the amendment will be acceptable to the noble Baroness.