Water Fluoridation (Consultation) (England) Regulations 2022

Lord Reay Excerpts

Tuesday 25th October 2022 Grand Committee

[The Parliamentary Under-Secretary of State, Department of Health and Social Care (Lord Markham) (Con)]

My Lords, in moving that these regulations be approved, I shall also speak to the Health and Care Act 2022 regulations.

The water fluoridation provisions of the Health and Care Act will come into force on 1 November, and in doing so will transfer the power to initiate new schemes, or to vary or terminate existing schemes, from local authorities to the Secretary of State. Public consultation will continue to be an important aspect of proposals, and the focus of today’s debate is the draft consultation regulations, which set out the process that any future consultations must follow. We know that some have strong feelings on the subject of water fluoridation and consultations relating to it, and we were keen to gather public opinion before laying these draft regulations. We therefore launched a public consultation on 8 April, which ran until 3 June 2022, seeking views on whether future water fluoridation consultations should be restricted only to those affected locally and bodies with an interest, as has previously been the case, or whether they should now be open to all, given the shift of responsibility from local authorities to central government.

We received 1,228 responses; 94% came from individuals and 6% from organisations. The majority of respondents favoured a consultation which is open to all. The draft regulations do not therefore restrict those who can respond to any future consultation. However, we understand that it is those living, working and studying in the areas in question who are directly affected, which is why the regulations also provide for consideration to be given, as part of the decision-making process, to whether those who may be particularly affected by any future proposals should be given additional weight.

Although public opinion and the extent of support for a water fluoridation proposal will continue to be important, consultations are not referendums. It is right that regulations provide for a range of other factors to be taken into account when considering a water fluoridation proposal. This includes, but is not limited to, the strength of evidence underpinning any arguments made by respondents. It is right that due regard is given to those arguments that are properly supported by sound evidence.

We are committed to scientific evidence surrounding water fluoridation underpinning any proposal. The department continues to review scientific papers published both in this country and internationally as part of the continuous monitoring of the evidence—including those on the epidemiology and toxicology of water fluoridation —and every four years the department will continue to publish a summary report on our knowledge, in line with the Secretary of State’s responsibility for monitoring the effects of the water fluoridation arrangements on the health of the populations served by schemes. I provide assurance that, if the balance of evidence in favour of water fluoridation as a public health measure were to change, a review of the current water fluoridation policy would take place.

Another important element in deciding to proceed with a water fluoridation proposal is the cost-benefit analysis of such proposals. Any new proposal will have to demonstrate that the benefit to health will represent good value for the investment of public money proposed.

We want more of the country to benefit from water fluoridation, and many noble Lords may be aware that yesterday we announced, subject to the outcome of this debate and future consultations, that funding has been secured to begin expansion across the north-east into Northumberland, County Durham, Sunderland, South Tyneside and Teesside, including Redcar and Cleveland, Stockton-on-Tees, Darlington and Middlesbrough. I know that the local authorities in these areas are strong supporters of water fluoridation. In accordance with the regulations we are debating, we will hold a public consultation on this proposal next year. This expansion would enable an additional 1.6 million people to benefit from water fluoridation, which will help to reduce the level of tooth decay in the area and over time will reduce the number of children who need to be admitted to hospital for tooth extractions.

I turn now to the draft Health and Care Act 2022 (Further Consequential Amendments) Regulations 2022, starting with mandatory training on learning disability and autism. People with a learning disability and autistic people experience poorer health outcomes in comparison to the general population. There is a need to address the significant and persistent health disparities faced by this group of people. That is why the Government have introduced, from 1 July 2022, a requirement in the Health and Care Act for CQC-registered service providers to ensure that their employees receive specific training on learning disability and autism. Introducing mandatory training on learning disability and autism is intended to ensure that health and social care employees have the skills and knowledge to provide safe, compassionate and informed care. The Act also creates a duty for the Secretary of State to publish a code of practice which will outline how to meet the new requirement on mandatory training. The code of practice is being developed and we expect to publish a draft for consultation early next year.

The consequential amendment proposed today seeks to remove the requirement for the Care Quality Commission to issue statutory guidance about the mandatory training requirement, by amending Section 23(1) of the 2008 Act. This carve-out clause should have been applied during the passage of the Health and Care Bill. If the Act is left unchanged, registered service providers will have two sets of guidance: statutory guidance issued by the Care Quality Commission and, subsequently, the code of practice issued by the Secretary of State. Removing the requirement for the CQC to issue statutory guidance will mean that registered providers will have a single source of guidance once the code of practice is published. The Care Quality Commission has agreed to keep all its statutory guidance, which was published on 1 July 2022, available to registered service providers until the code of practice is published.

Lastly, I turn to virginity testing and hymenoplasty. Safeguarding vulnerable women and girls is a top priority for the Government, which is why we were one of the first countries in the world to ban virginity testing and hymenoplasty. Virginity testing and hymenoplasty have no scientific merit or clinical indication and are a violation of human rights. These degrading and intrusive acts have an adverse impact on women and girls’ physical, psychological and social well-being. They can lead to extreme psychological trauma in the victim, including anxiety, depression, post-traumatic stress disorder and suicide, and physical trauma including damage to the hymen and vaginal wall, bleeding, infection and sexual difficulties. As such, we are proud that the Health and Care Act 2022 made carrying out, offering, and aiding and abetting virginity testing and hymenoplasty illegal.

As these are new offences, certain changes to other legislation are necessary to protect vulnerable groups. The Scottish Government have requested a change to be made to the Foster Children (Scotland) Act 1984, which contains a list of matters which disqualify a person from fostering a child in Scotland. The consequential amendments proposed today would add to that list the conviction of an offence of virginity testing or hymenoplasty in relation to a child. The change would also flow through to assessments by adoption agencies in Scotland under The Adoption Agencies (Scotland) Regulations 2009 in relation to the suitability of prospective adopters.

The 2009 regulations require those suitability assessments to be carried out by reference to a range of information, including whether the prospective adopter or any member of their household has been disqualified or prohibited from keeping a foster child under the 1984 Act. This change would have the effect of disqualifying or enabling the disqualification of individuals convicted of virginity testing or hymenoplasty offences from fostering or adopting in Scotland.

Similar changes were made to English and Welsh law in negative regulations under the Health and Care Act 2022. Scottish provisions on this matter are set out in primary legislation requiring an affirmative procedure. It was unfortunate that we were not able to make this amendment in the Health and Care Bill, as the need for the change was not identified during the Bill’s passage, but the priority is to put in place these restrictions now. This change will help to protect girls and young women from so-called honour-based abuse.

[Lord Reay (Con)]

My Lords, I have spoken previously in the House in Committee and at Second Reading of the Health and Care Bill about how the Government’s water fluoridation policy is considered to be misguided by numerous eminent scientists in the UK and overseas, including government advisers. They warn that fluoridation causes a variety of health ailments, including damage to the foetal brain. I hope to offer my noble friend the Minister some constructive comments on how to improve the water fluoridation consultation process, which is unsatisfactory and inadequate in many respects.

First, the consultation should be more prescriptive as to the minimum level of publicity required from the Secretary of State to promote the policy. The current framework gives scope for minimal effective publicity, as the media requirement is merely defined as that which the Secretary of State considers appropriate. In comparison, in the case of public health initiatives concerning Covid, the NHS has texted those patients registered and sent letters to relevant individuals based on their ages. The same has applied to screening tests for various cancers. In addition to the NHS database, local authorities have council taxpayer databases and electoral register databases, which could be used for public information notifications. It is particularly straightforward to do that on a locality-by-locality basis, as would apply for fluoridation schemes. There could also be a specification for notices in local papers and in the national press.

Secondly, the consultation period is quite short, given that the public are expected to gather information and evidence, analyse data, review scientific evidence, carry out cost-benefit exercises and marshal arguments on a variety of aspects of a given scheme. Six months would be a more reasonable period.

Thirdly, no objective process is stipulated whereby the Secretary of State can realistically assess

“the extent of support for the proposal”

under Regulation 5(1)(a). What about the extent of opposition to the proposal? There should be a requirement for independent public opinion-polling and also canvassing of the views of parish, borough, city and county councillors. A local referendum should be considered. It stands to reason that, if a local proposal is to have any real democratic legitimacy, the view of a majority of the local populace should not be overridden.

Fourthly, it is difficult to see how the Secretary of State can gauge the cogency of arguments, ethical considerations or scientific evidence without being guided by a panel of relevant experts. These should be recruited independently from the Department of Health, by nominations from bodies such as the royal institutes or other professional bodies for engineers, statisticians, accountants, economists, scientific research bodies, toxicologists, ethicists and the like. They should be similar to commissions of inquiry or standing advisory bodies, chaired by legally qualified personnel.

Fifthly, Regulation 5(1)(b) should prescribe that particular weight should be given to representations made by individuals who would be affected by the proposal. Conversely, it is difficult to see why any weight should be given to anybody with an economic interest in favour of a proposal, because a public interest health policy should not promote private economic interests.

Sixthly, as far as “capital and operating costs” are concerned, in Regulation 5(1)(c), the relevant costs are the full range of costs, including establishment costs, insurance costs, admin costs, consultation costs, any extra security costs, extra wear and tear or corrosion costs, monitoring costs, safety training costs, additional computer software costs and many others. A narrow compass on these costs would generate some very misleading results.

On Regulation 5(1)(c), it is no good looking at the above costs in isolation: there has to be a comparative cost-benefit analysis, taking into account a range of alternative options such as no scheme, a lesser or more targeted scheme, alternative dental preventive health schemes such as providing fluoride via milk or tablets or topically, public education or in-school training, and so forth. This should include an analysis of the successful Childsmile programme in Scotland, which, through education and dentist visits to schools has been shown to reduce tooth decay in children.