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" The public has to trust their government to safeguard the population and ensure that they are protected from preventable risks and hazards "

The legal framework for mutual action to tackle public health threats

In recent years two major pressures have become apparent on the legal framework that supports health protection and wider public health action. The first of these is the increasing globalisation of public health threats. Who will forget the sudden and rapid spread of H1N1 influenza (Swine Flu) we are facing or the spread of SARS1 previously? The second threat has been from the re-emergence of older diseases in ways that have started to challenge more modern approaches to balancing human rights and treatment: for example the management of tuberculosis (TB).

Even in a mutual society, when considering the law in relation to health and medical issues, it is common to focus on individuals and not populations2. Legal frameworks can provide legislation to enforce health protection, and lay out clear statements about acceptable actions and conduct within society.

The need for a new framework

Legislation is an essential part of public health action. It can be used to enforce health protection measures, and also lay out clear assertions about acceptable actions and conduct within society.

Public health law has evolved over the past 150 years. Legislation on areas such as hygiene, housing, and working conditions has improved the health of populations and helped tackle health inequalities.

Until recently, the various statutes relating to specialist public health action in Scotland were integrated in the Public Health (Scotland) Act 18973. Together with the Infectious Diseases Notification Act 18894, these constituted the statutes of Scottish public health administration. Most of the specific functions rested with Local Authorities, as the legislation predated the formation of the National Health Service (NHS). The strengths of the 19th century public health laws are their deep rooted establishment in Scottish legislation. Professionals with responsibilities are aware of their roles and work well together to serve public health. However, there are clear gaps in the 1897 Act which have arisen following changes in society during the many years since the original laws were passed.

The Public Health etc (Scotland) Act 20085 was passed by Scottish Parliament on June 12 2008 and received Royal Assent on July 16 2008. The Act repeals the 1897 Act, revising the law on public health and improving the ability of Scottish Government, Health Boards and Local Authorities to protect public health in Scotland. Whilst the new Act will not significantly change day to day public health practice, it provides stronger reinforcing legislation, should the need arise. It deals almost exclusively with the field of health protection encompassing actions allowing "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".

The Act addresses many of the deficiencies of earlier legislation and includes provisions regarding:

  • Clarifying the roles and responsibilities of NHS boards and Local Authorities;
  • A new system of statutory notification for diseases, organisms and health risk states;
  • Powers for public health investigators;
  • Orders for medical examination, quarantine, exclusion, restriction and hospital detention for public health reasons;
  • The implementation of International Health Regulations (2005);
  • Information on the health effects of sun beds;
  • Changes to the statutory nuisance regime; and
  • Offences and penalties for non-compliance with the Act.

Some of the most significant changes in the new Act are in respect of the powers of exclusion orders and quarantine orders. Previously, exclusion powers have been limited to individuals attending school or work. Under the 2008 Act, if a person is thought to pose a significant risk to public health through having or being exposed to infection or contamination, then a Health Board competent person may issue an exclusion order preventing the person from going to or remaining in any specified place (except for their home).

For example, in an outbreak of measles amongst younger children the only restriction that could be enforced was to prevent the children from attending formal education. The new laws allow this to be expanded to include specified informal childcare services, leisure facilities, and any other place where it is deemed that there is a significant risk of onward transmission of the disease to at risk individuals.

The advancement of quarantine orders has come about due to the risks posed by emerging diseases such as pandemic avian influenza and exemplified in 2003 by the worldwide response to SARS. Quarantine powers have been available in other countries for some time and were used to help control the global health risk posed by SARS. Under the 1897 Act, Scottish legislation only allowed quarantining of people on aircrafts and ships thought to have specific diseases.

The new Scottish legislation allows a more general and practical approach, whereby if a person is thought to pose a significant risk to public health then the area Health Board may apply to a Sheriff for a quarantine order. This is separate from hospital detention orders. As with all aspects of the law, these powers would only be used in exceptional circumstances when the individual does not comply voluntarily following a clear explanation of the purpose. Similarly the International Health Regulations (2005) 6 came into force in June 2007. This legally-binding agreement significantly contributes to international public health security by providing a new framework for coordinating the management of events that may constitute a public health emergency of international concern. This will improve the capacity of all countries to detect, assess, notify and respond to public health threats. The Public Health etc (Scotland) Act 2008 provides ministers with an overall power to make and amend any regulations that are necessary for the implementation of the International Health Regulations (2005) in addition to the exclusion and quarantine changes.

Trust and working with the public

The public has to trust their government to safeguard the population and ensure that they are protected from preventable risks and hazards. Any deficiencies in public health law can provide the wrong impression to the public, allowing a false belief about the seriousness of risks1.

The 2008 Act is being integrated into practice over the next two years. It clarifies the roles and responsibilities of key players and provides designated professionals with the authority to restrict the actions of the public.

Ultimately, it is a framework that helps define public health action, surveillance of communicable disease, population health protection and individual rights in our mutual society.

Key messages

  • Legal frameworks can be effective tools to facilitate public health practice.
  • Until recently, the various statutes relating to public health in Scotland were integrated in the Public Health (Scotland) Act, originally enacted in 1897.
  • The Public Health etc (Scotland) Act 2008 aids implementation of the International Health Regulations (2005) and the most significant changes are in respect of the powers of exclusion orders and quarantine.
  • Copies of the Act are available on the Scottish Government website or from the Office of Public Sector Information4.