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Health and Social Care Bill

I shall speak to Amendment No. 175, which should have had my name attached to it but, for some reason or other, the Bill team failed to add it. I do so because the amendment reflects the concerns I raised at the Second Reading. I am grateful to the noble Earl for his introduction to this group of amendments because he has expressed many of the points I wished to raise. The noble Earl’s Amendment No. 192 is slightly different from Amendment No. 175 but, nevertheless, has the same principles behind it. Therefore it is very important. My concern is particularly related to HIV. I have now come to accept that we are not going to get HIV taken out of the restrictions under the Bill. I hope that we might still be able to argue the case but, nevertheless, I am beginning to believe that that may not happen. At Second Reading, I highlighted my concern about the absence of any reporting and monitoring mechanisms of the use of these orders, which may have significant implications for civil liberties, particularly given our obligations under the Human Rights Act. We have heard a great deal about that in previous amendments and, although I have not intervened, I support most of the amendments under this section. My noble friend the Minister indicated earlier that the Bill will extend the powers available to a JP in relation to a risk of infection or disease. Previously a JP could make an order for a medical examination, to move someone with a notifiable disease to hospital or for detention in hospital. Under the new Bill, that list is much more extensive. I heard the Minister say that it had been devised to ultimately make the powers more flexible. I would like a little more explanation as to how that would work. I shall not list all the duties that now fall to a JP, but I shall refer to two. For instance, a requirement to answer questions, restrict movement or quarantine may on occasions be necessary as a last resort to control a dangerous and contagious disease. However, there is also a potential for misuse against a stigmatised condition or a group of people who may be particularly vulnerable, such as people with HIV. I am also concerned that people who have HIV, once they are aware of the restrictions under the Bill, may refuse to go for testing because they are scared of the consequences. Very often they will fear something which they should not fear, which is particularly important. It is also terribly important that there is continuing misunderstanding about how HIV is transmitted. In the UK, it mainly affects already socially marginalised groups. Given the extension of these powers, it is vital to ensure that the use of the powers is monitored. The actual process of monitoring should be extremely simple. I, too, look to the HPA, which has existing procedures in place that could be adapted for this purpose. Will they be extended to cover this Bill? Given the potential implication of these orders for people’s civil liberties, it is absolutely essential that that is the case. I stress the point about having some form of statutory provision because with a purely administrative process there is a danger that even with the best instructions and good will the process will be forgotten, particularly over time and as staff move on. The fact that the orders are used very infrequently makes it even more likely that administration processes will fall by the wayside. That could be avoided by a statutory monitoring process, as the system would be enshrined in law or be guaranteed in regulation. However, my concerns go further than that. They also relate to the needs of the individual who is subject to a public health order. Who will provide the information and advocacy for such individuals? Clearly the use of the orders is extremely rare, as most people living with a contagious disease are willing to comply with suggested treatments and public health measures without need of an order. I made a point earlier about the problem of people with HIV. Prosecutions for transmission of HIV have prevented people going for testing. The CPS has now reviewed those regulations to assist that position. One problem that worries me very much is that an individual, a vulnerable person—for example, an asylum seeker who does not speak English and is, perhaps, co-infected with TB and HIV and living in the UK without any family—could be subjected to an order and may not have access to the support that he requires to help him appeal the order. I appreciate the amendment tabled by the noble Baroness, Lady Murphy, which relates to a similar concern. Will the Government consider the amendment carefully and look again at the need to include within the Bill measures or to give guarantees of a provision in regulation to ensure that vulnerable individuals who are subject to an order are aware of their rights, particularly their right to appeal, and have access to support to help them through that process? There is a need for the Government to consider again the importance of safeguarding the rights of vulnerable people who find themselves subject to a Part 2A order, both through measures to protect the individual and through a national statutory monitoring system to ensure that there is a reliable and sustainable mechanism to monitor the use of these extended powers.