Health Protection (Coronavirus) Regulations 2020

Lord Bethell Excerpts

Monday 9th March 2020 Grand Committee

Moved by

[Lord Bethell]

That the Grand Committee do consider the Health Protection (Coronavirus) Regulations 2020.

Relevant document: 5th Report from the Secondary Legislation Scrutiny Committee

[Lord Bethell (Con)]

My Lords, in the time available to me, I would like to remind your Lordships of the level of seriousness with which we should address the level of Covid-19 and the context for the Government’s response. I will then explain the workings of the regulations in detail and how they fit into our wider strategy for addressing the outbreak.

On 31 December 2019, Chinese authorities notified the World Health Organization of an outbreak of pneumonia in Wuhan City, which was then classified as a new disease, Covid-19. On 30 January 2020, the WHO declared the outbreak of Covid-19 a public health emergency of international concern.

Based on current evidence, the main symptoms of Covid-19 are a cough, high temperature and, in severe cases, shortness of breath. It is a new virus, so there is a lack of immunity in the population and, as yet, no effective vaccine. This means that Covid-19 has the potential to spread extensively in the population.

As expected, case numbers are increasing, but the UK remains well prepared for such outbreaks. As of 9 am on 9 March 2020, 24,960 people had been tested in the UK, of whom 24,641 were confirmed as negative and 311 were confirmed as positive.

Although our knowledge is growing by the day, much remains unknown. The four UK Chief Medical Officers have made it clear that the disease currently presents a moderate risk to the public, but that planning and preparation for the potential of a more widespread outbreak is sensible. As the Prime Minister has made clear, there could be a very significant increase in the number of cases of coronavirus in the UK.

Tackling Covid-19 requires a robust, integrated and proportionate response. On Tuesday 3 March, the Prime Minister introduced the UK’s coronavirus action plan, providing the public with information on what the Government have done and on their plans to tackle the coronavirus outbreak.

The Government’s approach to tackling Covid-19 can be summarised in four phases: contain, delay, research and mitigate. The Government have focused hard over the past weeks on the containment phase, taking precautionary measures to limit the spread of the virus as much as possible. A crucial aspect of that is ensuring that people who are contacts of known cases or are considered to be at high risk of infection are isolated from others for a period of time, ensuring that they cannot infect others but can readily access help if they fall ill.

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[Baroness Finlay of Llandaff (CB)]

My Lords, first, I apologise to the Committee that I came in late. The business proceeded slightly faster than I realised, but I am most grateful to noble Lords for allowing me to intervene briefly.

The comments made by the noble Lord, Lord Campbell-Savours, clearly illustrated the need for messaging out to the public. One of the difficulties is that the answers to many of his questions are just not known scientifically. It is a range of probabilities only; the way the virus behaves on different surfaces and with different substances is different. The infectivity may vary with the viral load to the individual as well as the individual’s own immune system. That makes it really complicated in terms of defining. You cannot give a false sense of security to people by saying, “Well, you are fit and well, and your immune system is okay”, because those people may become very ill, particularly if they have a large viral load. We saw that with the Chinese doctor who initially highlighted the problem. Tragically, he died.

I take this opportunity to ask a few questions. This order refers to Public Health England but we have devolved Administrations, and Public Health Wales and Public Health Scotland operate differently. Some aspects of this statutory instrument concern the police and justice, yet the Ministry of Justice and its overarching responsibilities are not devolved, so there is a difficult interface between the devolved and non-devolved competencies. Can the Minister provide some reassurance on the daily round-table consultations that are going on to make sure that decision-making is absolutely seamless and that the devolved Governments are taking forward—and, I hope, mirroring—such legislation so that we do not end up with different systems operating across what are effectively artificial borders? In areas such as Shropshire, there is a huge amount of cross-border flow between England and Wales. Linked to that, can the Minister clarify that equipment, and its distribution to where it is needed, is also part of the consideration of the protection of the public so that we do not have an outcry if one part of the country cannot access equipment as well as another?

Testing is difficult: it is a complex and finite resource, and it takes some hours to run the test. A lot of the public do not understand that it is not like a pregnancy test; it is not a quick dip and a quick answer. With such a finite resource, will the Minister clarify where the governance sits for the management of negative results? One of my anxieties is that people may have a false sense of security from a negative result, because they may get the infection the day after it and subsequently become positive. Although it is helpful to confirm positive cases, a negative result does not mean that you are not going to get the coronavirus infection further down the road.

Linked to the cross-border issues, can the Minister also confirm that the use of beds and the availability of things such as ITU beds and ECMO are being considered across the whole country? I worry that difficult decisions are going to have to be made and it will be very important to have clear standards against which to make them. If it looks as if we are becoming like Italy, that will certainly more than stretch services to the limit; it will take them beyond it.

Will we need additional statutory instruments for the reregistration of people with healthcare professional qualifications of any sort? If so, when will we see them? I was rather hoping that it might be today. This relates to my earlier question about registration on specialist registers. Is the GMC working to find alternative ways of putting those who have completed training on the specialist register without bringing them all together in an exam hall, which seems to be an unwise move when their competencies have already been assessed through training?

That concludes my questions, but I thank the Minister for his clarity, for explaining things really well, for answering questions on the Floor of the House and for answering unanswerable questions with such honesty. It is terribly important that he and those advising him try to be very clear and open about the things that we do not know.

[Lord Bethell]

My Lords, I will start by talking about two matters that are not central to the regulations but which are important pieces of context. I thank the noble Lord, Lord Campbell-Savours, for his incredibly candid and heartfelt comments, which none of us here could help but be moved by. I would also like to express sympathy for his personal situation. We all know friends, relatives and people who are in a vulnerable position. While the CMO’s advice is that for a lot of us the virus does not present a huge risk, for some people it does. That cannot but be on their mind and we think about them a lot, so I am grateful to the noble Lord for bringing that message of seriousness and his personal testimony.

I will also address directly the noble Lord’s questions. I am afraid that I cannot answer the important technical questions he asked; I am grateful for his appreciation of that fact. However, I reassure the Committee that our approach is to seek to be as transparent as we possibly can be. In answer to the noble Lord’s question, there is a daily update on the PHE website, where all the figures that we know and can prove are published—they go up at 1.45 pm every afternoon. That is a serious matter, and we are looking at ways of making that a more easily accessible dashboard with a deeper set of numbers that you can look at locally; we could then publish as reasonable and proportionate an amount of figures as possible while keeping secure the anonymity of those involved.

The other part of our approach comes very much from the spirit of the CMO himself, whom many of your Lordships will have met. He is an enlightened character who is extremely committed to evidence-based policy recommendations. We all plague him with questions much along the same lines as those the noble Lord, Lord Campbell-Savours, asked, seeking from him reassurances about particular technical questions. He is able to speculate and to say, “Maybe this or maybe that, but I can’t give you any clear reassurance on that because there is no data on it”.

One of the things about trying to preserve the pact with the public that our decision-making is supported by evidence is to avoid going into the kind of tempting speculation that the situation draws you into. There is temptation there, but, as a cardinal rule, we have to apply a self-restraining ordinance on trying to give people the answers and the speculation that, emotionally, they naturally want. The questions of the noble Lord, Lord Campbell-Savours, are exactly right, and I reassure him that battalions of scientists are trying to get to the bottom of those answers. Lots of evidence is being worked up, and I believe that answers to many of those questions will be forthcoming. However, until they have the sign-off from the scientists, it is not right for us to indulge in speculation. That is the foundation of our approach, which I mentioned earlier. Although it is incredibly frustrating, from a public policy point of view it is the right approach. However, I will try to address just a couple of the questions that the noble Lord asked, without falling into my self-defined bear trap.

The noble Lord, Lord Campbell-Savours, asked about masks. Broadly speaking, except for the most comprehensive hazmat suits that cover you from head to toe, masks are mainly used to limit the number of germs that you emit rather than that you consume. I think we are all interested in the work going on in Taiwan, where all schoolchildren wear masks, not to protect them from the germs but to try to stop them infecting the people next to them. That is an interesting insight, but it is not the approach that the CMO has recommended.

On the delicate issue of mortality rates, I completely sympathise with the noble Lord’s point that there is wild speculation on these numbers, and it would be fantastic to have a more reliable set of figures. I will say only that it is extremely difficult to know mortality rates, because you simply do not know how many people have the virus in the first place. Large numbers of people are infected and infectious but completely asymptomatic and never go near a test kit, so we cannot know what the mortality rate is at any age. I recommend that the noble Lord treats all mortality rates data with great suspicion. It is not the way we are guiding ourselves.

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[Baroness Brinton]

In the past they have been on that register, and the big concern is the move from one department to another. If I am being told that that is not the case, that is not the feedback I am getting from directors of public health. As the Minister knows, I have other concerns about the relationship between Public Health England and directors of public health, which is why I asked for clarification.

[Lord Bethell]

I completely understand the point of clarification. If there is information available on what proportion of directors of public health are also public health consultants, we will share it with the noble Baroness. However, the way that the regulations are drafted at the moment means that the powers in the regulations are held not by directors of public health but by public health consultants.

[Baroness Brinton]

I am sorry to interrupt the Minister again but the point is not about the register kept by Public Health England. My point concerns the definition of public health consultant—I am afraid that Hansard now has the relevant document, otherwise I would quote from it—and most directors of public health have to do that qualification because the job description, which is in the statutory guidance, says that they must be registered. That is my problem, and I know that it is clearly a problem for some of them as well. There is a bigger issue here. Should this become a pandemic and we see a large spike in numbers, we will need everyone qualified in public health to be able to do this, and there seems to be a problem in excluding the people at the heart of managing coronavirus within their wider communities.

[Lord Bethell]

The noble Baroness makes a very reasonable point. My understanding is that this decision was made not on a personnel basis but on an administrative basis. We are seeking to restrict the number of people who are able to execute these potentially quite serious powers. Having a list of available people is a legally clear and responsible way of doing things, but creating a new administrative definition goes beyond the powers of these regulations. However, I have already taken on board the noble Baroness’s points about the role of directors of public health in this epidemic. Those points have been listened to and are being followed up, and I will continue the dialogue that we already have in place on that.

The noble Baroness, Lady Thornton, asked why the 2008 powers are not sufficient. The answer is that it is mainly for practical reasons. The 2008 Section 2A powers give local councils powers but mobilising local councils to do things, sometimes at the weekend, sometimes at ports where they are not necessarily administratively present and sometimes overnight, is administratively a challenge. We found that in practice during the containment at Arrowe Park, it was really Public Health England officials on the ground who dealt with the situation and who needed these powers both in their back pocket and in their administration of the situation. That is why we have sought to do this. It is fair to say that a lessons-learned review is expected in the years to come and this will be the kind of issue that we will look at again.

The noble Baroness, Lady Thornton, asked what the difference is between detention and isolation. Although I do not have the legal definitions in front of me, my understanding is that isolation can be in someone’s house—literally holding them away from the rest of society—whereas detention involves confining someone to a place that they cannot leave, such as a police cell or a jail. Both are covered in these regulations. It is worth saying that you could, for instance, seek to isolate someone in a hotel room near the Arrowe Park facility and that would be covered.

The noble Baroness also asked about magistrates’ courts. I reassure her that MoJ colleagues were fully consulted on this and they did not see a problem. The objective was to try to create a low bar for an appeal to make the appeal process as easy and accessible as possible, recognising that these are very serious powers and we want to make them as sensitive as possible. In terms of police involvement and whether the police would wear suitable suits, they absolutely would. Police officials are highly protective of their workforce. Public Health England is working closely with the police to ensure that they have both the guidelines and the kit necessary to protect the workforce.

On the term of the regulations, I agree with the noble Baroness that two years is longer than we hope or pray this virus will continue. However, the advice from the CMO was that we cannot necessarily plan for that. Viruses sometimes last longer than expected; they can create multiple strains, and it may take time to have the lessons-learned review and to bring in new powers. That said, it is also possible that a coronavirus Bill that overtakes these regulations will be brought to the House later this month and the sunset clauses would necessarily be included in that.

[Lord Campbell-Savours]

Will the Minister reconsider something that he said to me? He said that he could not answer many of the questions that I asked. Almost all of them were to do with contamination, and virologists can answer them—I am told by a virologist that they can all be answered; we went very carefully through them. Can the Minister take each of the questions that I asked and answer them individually on the basis that virologists will be able to give him the information that he requires?

[Lord Bethell]

The noble Lord, Lord Campbell-Savours, is entirely right to press me on this. I should be honest: obviously, I am not a doctor. However, we have arranged for another briefing from the Chief Medical Officer in Room G at 4 pm tomorrow. He is the epidemiologist who can convey to the noble Lord both the extent and limits of current understanding of the virus. I have sat with him sufficiently long to have the impression that a lot of speculation, guidelines and history are associated with such viruses that we might reasonably apply to this one. However, its behaviours are not fully understood. Although the genome is broken, we do not fully understand its genetic makeup. The advice from the CMO generally is to hold back on pretending to understand things that are not yet fully explored.

[Baroness Thornton]

I say to my noble friend that I would not use the internet as my source of information on any of these issues. I would use the BBC, which has been running extra programmes—in fact, I have just received an email from the head of the World Service listing all the extra programmes that the BBC is producing which will give us lots of advice. Its website is useful. I want to put it on the record to my noble friend that I would steer clear of those sorts of discussions on the internet and look at the BBC’s websites.

[Lord Campbell-Savours]

The great majority of the British population will not go into some of the technical areas that my noble friend would go into. That is why I am trying to find a single source of information for people to be able to go to which is authoritative and gives answers, with the latest information and knowledge available, on each of the questions I have asked. I persist in believing that the Government should arrange for this information to be made part of the public debate, because it would be helpful to everyone concerned.

[Lord Bethell]

I understand the point and will take it back to the department.

The noble Baroness, Lady Finlay, asked about testing. She is entirely right to focus on that, because we are at the stage of the cycle when questions about testing are very much on our minds. She asked where we were focusing our testing. The most important area for testing is those people who are most vulnerable but who might have the virus. She is entirely right that someone who tests negative today may well test positive tomorrow. Where that is most dangerous is within hospitals. Hospitals are centres of infection. It is one reason why, if you phone 111, they recommend that you do not go to your hospital or your GP. Therefore, testing within hospitals is where we are focusing our resources.

I reassure the noble Baroness, Lady Finlay, that we are moving incredibly quickly to increase capacity of ECMO beds. There will be a huge amount of pressure —we cannot hide that—but those most in need are being prioritised. Training is going on to support those with the technical knowledge of how to run the equipment and purchasing is going on to create new kit.

On reregistration of clinical professionals, all the concerns raised in Committee and in the Chamber about the provenance of people seeking to reregister are fully understood. Provision is being made to make sure that criminal record checks and competence checks are in place. However, these remain incredibly valuable and skilled people who can support us, so we are determined to mobilise them if possible.

[Baroness Finlay of Llandaff]

I referred to difficult decisions possibly being made. Can the Minister reassure the Committee that the Government are working with the heads of all the royal colleges—particularly their ethics committees—to make sure that unified guidance is going out to commissions across all the disciplines? Unfortunately, the different colleges have at times a tendency to work in their own silo, but this will be across all of them. It will have to go across the professions, rather than across the individual trusts and internal organisations. Therefore, a round table or regular consultation with them to make sure they all give the same messages is important, and it would reassure the public.

[Lord Bethell]

The noble Baroness, Lady Finlay, makes an important point. The CMO currently has a weekly call with all the presidents or relevant members of the royal colleges, and there is an incredibly energetic interface between officials at PHE and the colleges. New guidance is being drafted at the moment. As our understanding of the epidemic increases so the CMO’s certainty and confidence about the advice he is giving will be clearer. We are therefore seeking to publish really good guidance for employers, voluntary organisations and all the groups who need it. The CMO also works closely with the CMOs of the other three nations, and I understand that is an incredibly healthy and productive relationship. It has served very well to ensure that the devolved authorities are fully involved in decision-making and that there is transparency on key issues such as ethics, which the noble Baroness was right to mention.

Motion agreed.