Policy responses and statements

Name of organisation:

The Scottish Government

Name of policy document:

Public Health etc (Scotland) Act - Designation of Competent Persons Regulations 2008 (Draft)

Deadline for response:

4 September 2008

Note: The Scottish Government invited comments on draft regulations which set out the qualifications and other requirements of Health Board and Local Authority competent persons to carry out the functions assigned to them in the Public Health etc. (Scotland) Bill.

Background: The Public Health etc (Scotland) Bill is currently under the scrutiny of the Scottish Parliament. The draft Bill can be viewed here, where its progress can also be followed. Although the Bill has yet to finish its Parliamentary stages, it was felt that it would be useful to let stakeholders have sight of the proposals at this time to help inform debate.

Under current arrangements, the standard of health professional competency to act under public health legislation derives primarily from a doctor filling a certain post in public health (usually a consultant in public health medicine) and/or meeting a competency standard as a Designated Medical Officer ( DMO). This title was created to carry out the functions requiring medical input in the Public Health (Scotland) Act 1897 and is used to refer to doctors, designated by the NHS Board and deemed suitably qualified to carry out legislative duties in health protection on behalf of the local authority. There is no equivalent "competency" standard for environmental health officers in local authorities.

The Public Health etc (Scotland) Bill assigns functions to health boards and local authorities on a corporate basis, and provides for a limited transfer of functions from local authorities to health boards. The Bill defines the actions for which professional input is required (such as when powers are used to restrict personal liberty or impose obligations on individuals in relation to their premises), and provides that these functions must be carried out by 'competent persons'. In circumstances where personal liberty and property, for example, are being affected, it is right to ensure that the person recommending action has the necessary professional skills and expertise to do so.

Sections 3 and 5 of the Bill 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 Bill, and that Scottish Ministers may prescribe the qualifications, experience and training of such competent persons in regulations. These draft regulations set out the proposed qualifications, experience and training required to carry out the functions set out in the Bill.

The content of the regulations was developed following deliberations of a working group of experts in public health including representation from Health Protection Scotland, British Medical Association, the Directors of Public Health Group, the Society of Chief Officers of Environmental Health, Consultants in Public Health Medicine, the Health Protection Nurse Specialist Network, the Scottish Affairs Committee of the Faculty for Public Health and the UK Public Health Register.

COMMENTS ON
THE SCOTTISH GOVERNMENT
PUBLIC HEALTH ETC (SCOTLAND) ACT: DESIGNATION OF COMPETENT PERSONS REGULATIONS 2008 (DRAFT)

The Royal College of Physicians of Edinburgh is pleased to respond to the Scottish Government on draft Regulations which set out the qualifications and other requirements of Health Board and Local Authority competent persons to carry out the functions assigned to them in the Public Health etc (Scotland) Act.

These are concise but important draft Regulations to put in place in order to assure public health, and the confidence of the public in arrangements made on their behalf.

Fellows of the College have concerns that assurance of competence is underpinned by arrangements not yet in place in the regulation of health professionals - that is, the new arrangements for re-licensure and re-certification by the General Medical Council, also the Nursing and Midwifery Council and the Public Health Register.

Questionnaire on Draft Regulations

Question 1 - Are you content that the qualification, training and experienced outlined in the draft regulations are sufficient for the competent persons to be able to carry out the functions set out in the Public Health etc (Scotland) Bill?

Comment:  The Regulations must be considered in the context of the responsibilities placed on the competent person by the Act.  Some of the powers conferred, particularly on the Health Board "competent persons", are extensive and could severely restrict personal liberty.  The person will have to be competent in order to revoke an Exclusion or Restriction Order that may introduce or re-introduce risk to the public.  This type of decision will require the necessary public health and, almost certainly, some clinical insights.  Competent persons should ideally have both clinical as well as public health skills and should be regulated accordingly.  These skills are currently exhibited in public health doctors and, to some extent, specialist health protection nurses.  Both these professional groups work within the wider accountability framework of the GMC and NMC.  To confer such wide-ranging power on non-clinical individuals raises concerns amongst the clinical community when competence of decisions may, in future, be tested in law.

Specifically in paragraph 3 of the draft SI:

3(a):     "Employee" should include those employed by Universities who have honorary contracts with a NHS Board.  In addition, in training grade doctor in a university who is on the GMC Specialist Register but not in a consultant post might still be competent, and the implications of that position of competence but not status would need to be considered.

3(e):     The category assigned to the Public Health Register is out of step with all others in terms of the level and duration of experience and qualifications.  The nature of experience and whether it was supervised lacks mention; indeed, whether that experience was recent. 

Paragraph 4:  Work experience needs to be supervised and recent.

4(b):  For completeness, Northern Ireland should be included in the mention within the SI.

In summary, then, we have reservations over regulations relating to the NHS Board competent person, and no reservations over the designation of local authority competent persons.

Question 2 - Are you content that the competent persons will be regulated by professional regulatory bodies as well as by health boards and local authorities?

Comment:  The Designation of Competent Persons Regulations in the Act focuses on the role of the competent person.  These regulations define competence on the basis of professional qualification and registration.  It may be that the regulations will be simple to amend in the future, should the workforce develop in ways unanticipated.  As the regulations stand, we are assuming that registration in a particular profession equates to having the necessary competence.  Operation of the Public Health Register has no track record in this regard.  It will be necessary to establish that such a Register has equivalent mechanisms to those that currently exist with GMC and NMC.

In summary, the College has reservations over the future effectiveness of regulation by professional regulatory bodies given the background of changing and developing arrangements.

Question 3 - Given that the regulations, as currently drafted, will allow individuals to be identified as competent persons in more than one health board or local authority, do you believe your health board or local authority will be able to designate an appropriate number of competent persons?

Comment:  Broadly, the College is content on this point.  It should be noted that the College is not a health board or local authority and relates to no individual body in this respect.  The regulations, nevertheless appear suitable.

Note, however, that any designated individual would require a formal contract of employment according to Sections 3a and 6a, as well as making a listing of such individuals.  The position of university or other employed/contracted employers should be taken into account in the wording of the SI.

Flexible interpretation of such a regulation may be required for small NHS Boards with no retained and directly employed specialist public health expertise.

Question 4 - Are there other professionals you consider would be appropriate to undertake the role of the competent person, and what qualifications do they have?

Comment:  There are no professionals or other professional groups we would have in mind to meet the appropriate competence.  However, see the College's earlier comments under Question 3 on the requirements on small NHS Boards.

Question 5 - The draft regulations provide that health boards and local authorities must maintain lists of competent persons.  We envisage that these will be signed off at Board or Chief Executive level, and that this would be contained in guidance.  Are you content that this process provides sufficient accountability at a local level for designation of competent persons?

Comment: The College believes that these arrangements provide sufficient accountability.

Do you have any other general comments?

Comment:  These are contained within the introductory passage in our response.  Overall, the intention of the Designation aims to strike a balance between forming and sustaining a sufficient number and resilience of competent individuals, whilst assuring the public of these individuals' adequate competence training background and continuing experience, with professional development.

One specific point is, in Annex C, paragraph 3, line 1.  The Faculty of Public Health relates to the Royal Colleges of Physicians - all 3 UK Colleges.

Copies of this response are available from:

Lesley Lockhart,
Royal College of Physicians of Edinburgh,
9 Queen Street,
Edinburgh,
EH2 1JQ.

Tel: 0131 225 7324 ext 608
Fax: 0131 220 3939

[4 September 2008]