Undermining public law is no way to protect public health

The long dark shadow cast by Coronavirus has provided cover for the demise of public accountability and the rule of law across the health service in England, with the crisis being used as a reason to suspend or ignore safeguards designed to protect the public interest.

Media attention has focused on the suspension of the rules governing how contracts to provide public services are procured. During the crisis an estimated £1 billion worth of public sector contracts have been handed to companies without competition, with concerns being raised about the relationship between those who have won contracts and members of the government.

But this is just one example of a trend towards ‘ultra vires’ decision making in the government’s pandemic response.

From a public safety perspective, the most worrying of these was the lack of compliance with The Health Protection (Notification) Regulations 2010 legislation which dates back to the 19th Century and has provided the legal framework for communicable disease control in the UK ever since.

This is the law which requires any laboratory or GP who suspects that a patient may have a ‘notifiable’ disease to inform Public Health England and through them local authority public health teams. It is a criminal offence not to provide specific, patient identifiable data relating to positive test results to the relevant authorities.

Yet at the height of the COVID pandemic hit the UK the test results from drive-through and home testing samples analysed by private laboratories were not reaching local authorities. Directors of Public Health raised concerns as recently as last month that they were not receiving details of individuals who are infectious, the BMJ reported, and concerns remain that inadequate data is being supplied to local authorities.

The COVID crisis has also seen a less rigorous approach to enforcement of the UK’s Freedom of Information (FOI) laws. At the start of the crisis the Information Commissioner (ICO) issued a guidance note setting out how the FOI regime would operate during the pandemic, stating that it will take an “empathetic and pragmatic approach” to enforcing the law recognising the pressure faced by public bodies.

NHS trusts and NHS England appear to have interpreted this guidance as giving them permission to ignore their statutory duties and have sometimes failed to even respond to requests for information, even after the peak of the pandemic has passed.

The ICO has also suggested dropping existing complaints against public bodies which may have breached information laws. In one case, the ICO wrote to the Centre for Health and the Public Interest to ask if they “may wish to reconsider their complaint” against the Royal Marsden NHS Trust for non-compliance with the Freedom of Information Act 2000 and “decide not to pursue it further”, in the context of reducing “the burden on public authorities” during the pandemic. But the ICO had been sitting on the complaint – which was in regard to a request for information about the level of private patient income the trust receives – since last year.

Lessening the accountability burden on the state is arguably the wrong thing to do at this critical juncture when civil liberties are being curtailed, large amounts of sensitive personal data are being collected and the surveillance of the private lives of individuals – via the track and trace system – has significantly increased.

Moreover, Parliament hasn’t sanctioned a different approach to freedom of information rights or data protection laws, even though it has explicitly set out how other public bodies should behave differently during an emergency.

Thus the Civil Contingencies Act 2004 – sets out what powers “may (and may not) be included in emergency regulations, including specific safeguards designed to prevent misuse”. – and the more recent Coronavirus Act 2020 provides public bodies with a range of new powers and in some case removes a range of rights granted to citizens under the Care Act 2014.

But there is nothing in either the 2004 or 2020 emergency powers legislation. nor in the Freedom of Information Act 2000 that explicitly allows the ICO to adopt a different approach to enforcing information laws.

Nor are there legislative provisions which explicitly permit the Care Quality Commission (CQC) to suspend its inspections of care facilities during a public health emergency – but they have done so nonetheless. Nor is there any legislative basis for the CQC to reduce the checks on doctors practising in private hospitals just months after an official inquiry had highlighted the inadequacy of existing checks.

At a time when hundreds of thousands of people were locked away in institutions, cut off from their family members and at significant risk of death, having the CQC to monitor the quality of care being provided was vital. The CQC’s actions have prompted threats of legal action from families of older and disabled people.

The leadership of NHS itself has also taken advantage of the pandemic to continue its quasi-legal restructuring of the NHS. It is using the informal, non-statutory but powerful bodies which it has created – Sustainability and Transformation Partnerships and Integrated Care Systems – to push forward a radical transformation of London hospitals, a reconfiguration which it acknowledges will occur without any significant public consultation.

To act outside of the law during a pandemic – even for very good reasons – risks undermining the public law infrastructure on which the health service depends and further weakens the accountability of a health care system which was in a parlous state even before the current crisis hit.

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