http://www.scotland.gov.uk/resource/doc/924/0083031.doc (Accessed 16 September 2009.) PUBLIC HEALTH ETC (SCOTLAND) ACT 2008 IMPLEMENTATION OF PART 1: PUBLIC HEALTH RESPONSIBILITIES AND THE PUBLIC HEALTH ETC. (SCOTLAND) ACT DESIGNATION OF COMPETENT PERSONS REGULATIONS 2009 Purpose 1. This paper advises that Part 1 of The Public Health etc (Scotland) Act 2008 and the Designation of Competent Persons Regulations 2009 (made under sections 3(4) and (5) and 5(4) and (5) will come into effect on 1 October 2009 and provides guidance to health boards and local authorities on implementation. Health Boards and local authorities are expected to have lists of designated competent persons in place by 1 October 2009 when the key health protection provisions are scheduled to come into effect, and Joint Health Protection Plans developed by 1 April 2010. 2. This paper has been developed with assistance from an Expert Working Group, comprising key stakeholders, and has been cleared by a National Implementation Group overseeing implementation of the Act. Background 3. The Public Health etc. (Scotland) Bill was passed by the Scottish Parliament on 13 June 2008 and received Royal Assent in July 2008. The Act restates and amends the law on public health; makes provision about mortuaries and the disposal of bodies; enables the Scottish Ministers to implement their obligations under the International Health Regulations; makes provisions relating to the use, sale or hire of sunbeds; amends the law on statutory nuisances; and connected purposes. It can be accessed at http://www.opsi.gov.uk/legislation/scotland/acts2008/pdf/asp_20080005_en.pdf. Further detailed information on the Act, including Explanatory Notes, implementation timetable and implementation arrangements, can be accessed at the Scottish Government s Health and Community Care web-site at http://www.scotland.gov.uk/topics/health/nhs-scotland/publicact 4. Part 1 of the Act concerns the public health responsibilities of Scottish Ministers, health boards and local authorities. This includes a requirement on health boards and local authorities to designate a sufficient number of persons for the purposes of exercising the health protection functions assigned to them in the Act (the criteria and qualifications of such persons to be prescribed in regulations); and requires health boards, in consultation with local authorities, to develop Joint Health Protection Plans in accordance with guidance issued by Scottish Ministers. Guidance 5. The key issues for health boards and local authorities are set out in the following Annexes: Annex A: Public health responsibilities. 1
Annex B: The Public Health etc (Scotland) Act Designation of Competent Persons Regulations 2009 Annex C: Guidance on implementation of the Regulations Annex D: Joint Health Protection Plans 2
PART 1: PUBLIC HEALTH RESPONSIBILITIES: GENERAL ANNEX A Section 1 reiterates the duty of Scottish Ministers, health boards and local authorities to make provision, or secure that provision is made, for the purpose of protecting public health in Scotland. The duties are without prejudice to the general duties of these organisations set out in the National Health Service (Scotland) Act 1978. Protecting public health means the protection of the community (or any part of the community) from- (i) infectious diseases; (ii) contamination; or (iii) other such hazards, which constitute a danger to human health; and includes (i) 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. Each health board and local authority must designate a sufficient number of persons for the purpose of exercising, on behalf of the board or local authority, the functions assigned to them in the Act or any other enactment. This replaces the current arrangements whereby Designated Medical Officers (DMOs) carry out health protection functions on behalf of the local authority. Scottish Ministers may prescribe the persons, or classes of persons who may be designated, the qualifications, the training and other requirements that such persons may have, in Regulations. A near-finalised draft of The Public Health etc (Scotland) Act Designation of Competent Persons Regulations 2009 is contained in Annex B and, subject to parliamentary procedures, is scheduled to come into effect on 1 October 2009. Guidance on implementation of the Regulations is contained in Annex C. Health boards and local authorities are under a duty to co-operate with each other and with other relevant persons (i.e. a special health board, the common services agency and the Scottish Ministers) in exercising the functions conferred on them by the Act. Each health board must prepare such plans relating to the protection of public health in its area as it considers appropriate and, in doing so, must consult the relevant local authority. The plans must be prepared in accordance with guidance issued by Scottish Ministers. Detailed guidance on the development of Joint Health Protection Plans is contained in Annex D. Scottish Ministers have the power to intervene, by direction, if a health board or a local authority fails or is likely to fail to exercise a function conferred on it by the Act or to exercise the function in an unacceptable manner. The giving of a direction does not affect the responsibility of the health board or local authority for the exercise of the function. 3
Scottish Ministers have power to direct the allocation of resources for the protection of public health, including between boards and local authorities. 4
NEAR FINALISED DRAFT NOT FOR FURTHER CONSULTATION ANNEX B SCOTTISH STATUTORY INSTRUMENTS 2009 No. PUBLIC HEALTH The Public Health etc. (Scotland) Act Designation of Competent Persons Regulations 2009 Made - - - - 2009 Laid before the Scottish Parliament 2009 Coming into force - - 2009 The Scottish Ministers make the following Regulations in exercise of the powers conferred by section 3(4) and (5), and section 5(4) and (5) of the Public Health etc. (Scotland) Act 2008, and all other powers enabling them to do so. In accordance with section 122(3) of that Act they have consulted such persons as they consider appropriate. Citation, commencement and interpretation 1. (1) These Regulations may be cited as the Public Health etc. (Scotland) Act Designation of Competent Persons Regulations 2009 and shall come in to force on. (2) In these Regulations the Act means the Public Health etc. (Scotland) Act 2008; common services agency has the meaning given in section 10 of the National Health Service (Scotland) Act 1978; health board competent person is given the meaning in section 3 of the Act; local authority competent person is given the meaning in section 5 of the Act; health board and special health board are as defined in the National Health Service (Scotland) Act 1978; local authority means a council constituted under section 2 of the Local Government etc. (Scotland) Act 1994; UK Public Health Register means the register of public health specialists established in 2003 by the Faculty of Public Health, the Royal Institute of Public Health and the Multidisciplinary Public Health Forum. 5
List of Health Board Competent Persons 2. (1) Each health board in Scotland must maintain a current list of health board competent persons for that health board area to carry out the functions conferred by the Public Health etc. (Scotland) Act 2008 and any other enactment. (2) A person who meets the criteria and is in receipt of the relevant qualifications set out in Regulation 3 may be listed as a health board competent person if a health board designates that person as a competent person for that health board s area. (3) A person shall be listed as a health board competent person for as long as the health board considers the listing appropriate. (4) Each health board must review its list of health board competent persons at least once every two years to consider the continued appropriateness of the listings. Criteria and Qualifications for Health Board Competent Persons 3. For a person to be eligible for designation as a health board competent person, that person must (a) be employed by or have a contract for services with a health board in Scotland; and (b) be a registered medical practitioner on the General Medical Council s Specialist Register in the speciality of public health medicine with a minimum of 6 months work experience in health protection; or (c) be a registered medical practitioner who has held a substantive consultant post in the UK NHS in public health medicine prior to 1st January 2008 with a minimum of 6 months work experience in health protection; or (d) be a nurse, registered with the Nursing and Midwifery Council, with a minimum of 2 years work experience in health protection; or (e) be registered as a public health specialist on the UK Public Health Register, having gained access to the Register by the training route, with a minimum of 6 months work experience in health protection; or (f) be registered as a public health specialist on the UK Public Health Register, having gained access to the Register by the portfolio route, with a minimum of 2 years work experience in health protection. Definition of work experience in health protection 4. For the purposes of these regulations work experience in health protection means (a) work experience in a health protection team in a health board or the common services agency, or equivalent; or (b) work experience in health protection in a special health board or special health authority in England and Wales, or equivalent. List of Local Authority Competent Persons 5. (1) Each local authority in Scotland must maintain a current list of local authority competent persons for that local authority to carry out the functions conferred by the Public Health etc. (Scotland) Act 2008 and any other enactment. (2) A person who meets the criteria and is in receipt of the relevant qualifications set out in Regulation 6 may be listed as a local authority competent person if a local authority designates that person as a competent person for that local authority area. (3) A person shall be listed as a local authority competent person for as long as the local authority considers the listing appropriate. 6
(4) Each local authority must review its list of local authority competent persons at least once every two years in order to consider the continued appropriateness of the listings. Criteria and Qualifications for Local Authority Competent Persons 6. For a person to be eligible for designation as a local authority competent person that person must (a) be employed by a local authority in Scotland; and (b) be an environmental health officer, meaning a person holding the Diploma in Environmental Health awarded by the Royal Environmental Health Institute of Scotland (or equivalent), with a minimum of 2 years experience working as an environmental health officer within a local authority or equivalent. St Andrew s House, Edinburgh 2009 Authorised to sign by the Scottish Ministers 7
EXPLANATORY NOTE (This note is not part of the Regulations) The Public Health (Scotland) Act 2008 ( the Act ) provides that each health board (section 3) and each local authority (section 5) must designate a sufficient number of persons to be known as health board and local authority competent persons for the purpose of exercising specified public health functions under the Act. In each case the Scottish Ministers have the power to prescribe the qualifications and training of such persons in regulations. Regulation 2 provides that a person who meets the criteria and has the qualifications set out in Regulation 3 is eligible to be listed as a health board competent person. It also makes provision about arrangements for the review of lists by health boards. Regulation 3 provides the criteria which a health board competent person must meet and the qualifications which such a person must hold. Regulation 4 provides a definition of work experience in health protection for the purposes of these regulations. Regulation 5 provides that a person who meets the criteria and has the qualifications set out in Regulation 6 is eligible to be listed as a local authority competent person. It also makes provision about arrangements for the review of lists by the local authority. Regulation 6 provides the criteria which a local authority competent person must meet and the qualifications which such a person must hold. 8
THE PUBLIC HEALTH ETC (SCOTLAND) ACT DESIGNATION OF COMPETENT PERSONS REGULATIONS 2009 Purpose 1. This Annex provides guidance on implementation of the above regulations. Annex B contains the near-finalised Designation of Competent Persons Regulations 2009, which are scheduled to come into effect on 1 October 2009. These set out the requirement on health boards and local authorities to maintain a current list of competent persons to carry out the functions conferred on them under the Public Health Act; and set out the minimum criteria and qualifications of health board and local authority competent persons. Local authorities and health boards are required to have lists of competent persons in place when the key health protection provisions come into effect on 1 October 2009. These should be signed off at Health Board or Local Authority Chief Executive level. Until that time, Designated Medical Officers, appointed under the NHS (Scotland) Act 1978 will require to continue to carry out public health functions required by local authorities. Background 3. Sections 3 and 5 of the Public Health etc (Scotland) Act 2008 provide that health boards and local authorities must designate a sufficient number of competent persons for the purpose of exercising the public health functions assigned to them in the Act, and that Scottish Ministers may prescribe the qualifications, experience and training of such competent persons in regulations. Consultation on the regulations 4. Draft regulations, setting out the proposed qualifications and other requirements of those eligible to be designated as health board and local authority competent persons, were the subject of consultation between 4 June and 4 September 2008. The Report of the Consultation Findings can be accessed at http://www.scotland.gov.uk/publications/2008/10/31092252/1 and individual responses (where the respondent has agreed to the response being publically available) can be accessed at http://www.scotland.gov.uk/publications/2008/10/09120304/0. 5. The broad range of views on the required content of the regulations were fully considered by the Scottish Government. In the absence of a clear consensus on the qualifications for both health board and local authority competent persons, Scottish Ministers are satisfied that the draft regulations, as amended, provide the best available framework within which health boards and local authorities can work. The consultation confirmed that: ANNEX C 9
the relevant professionals have been identified to carry out the functions of competent persons; health boards and local authorities should be able to designate sufficient competent persons to undertake the functions set out in the Act; appropriate professional regulation of those eligible for designation is assured; and there is sufficient accountability for the lists of competent persons through sign-off at health board or local authority chief executive level. The Regulations 6. In considering the implementation of the regulations, health boards and local authorities will wish to take the following key issues into account: Persons will require to be designated only for the functions assigned to them under the Public Health etc (Scotland) Act and any forthcoming enactments. There are no implications for local authorities for the enforcement of other legislation e.g. the Food Safety Act 1990 etc; nor implications for health boards in respect of exercising functions contained in current NHS legislation. When assessing eligibility, health boards should regard participation in Outbreak Control Teams, and also in health protection on-call rotas, as evidence of work experience in a health board health protection team. The Regulations set out the minimum qualifications for designation as a health board or local authority competent person. Individuals with these qualifications are not automatically designated. It is for the health board and local authority to select appropriate individuals from those who are eligible. This will include assessment of the breadth and relevance of work experience, including knowledge of the public health legislation and whether work experience was supervised and recent. Health boards and local authorities, will, of course, wish to ensure that those designated as competent persons continue to undertake relevant and documented professional development (CPD). A person shall be designated for as long as the health board or local authority considers the listing appropriate (Regulation 2(3) and 5(3). Whilst not explicit within the Regulations, we would expect designation to be an issue of mutual agreement between the health board/local authority and the individual concerned. There is a requirement for the lists of competent persons to be reviewed by a health board or local authority at no less than two-yearly intervals; this will ensure that they are kept up to date and relevant (Regulation 2 (4) and 5 (4)). Health Boards and local authorities may wish to consider tying in this process with the two-yearly development of Joint Health Protection Plans (see Annex D). This requirement, however, does not preclude boards or local authorities from adding or removing individuals from the lists, as required. Eligibility for designation is dependent on persons being employed by a health board or local authority in Scotland (Regulation 3(a) and 6(a)). Boards and local authorities will therefore be able to designate competent persons who work in other health board or local authority areas. Individuals will be able to be designated in more than one health board or 10
local authority area. This will facilitate shared services and cross boundary working. Those holding honorary contracts with health boards (e.g. clinical academics who work out of universities, but are still attached to the NHS) are intended to fall within the scope of Regulation 3(a) and are thus eligible for designation as competent persons providing, of course, they meet the other relevant qualifications and criteria set out in the Regulations; 11