Public Health (Wales) Bill – Key changes at stage 2

3 March 2016

Article by Philippa Watkins and Amy Clifton

The Assembly’s stage 3 consideration of the Public Health (Wales) Bill is scheduled to take place in plenary on 8 March 2016.

Stage 2 was carried out in the Health and Social Care Committee on 28 January and 3 February 2016. A number of amendments were agreed at stage 2. In addition, the Minister for Health and Social Services, Mark Drakeford, indicated that the Welsh Government would bring forward, or consider, further amendments in a number of areas at stage 3.

Part 2 Tobacco and nicotine products – Chapter 1 Smoking and the use of nicotine inhaling devices

Treating tobacco and nicotine inhaling devices differently

In the Bill as introduced, the use of nicotine inhaling devices (NIDs) was placed under the same restriction in public places/workplaces as smoking tobacco cigarettes. The most significant change to this part of the Bill at stage 2 resulted from amendments which set out different approaches for tobacco and for NIDs in terms of restricting their use.

At stage 1, the Committee was unable to reach a consensus view on whether any restriction on the use of NIDs would contribute to the aim of improving and protecting public health. However, in response to concerns that treating tobacco and NIDs in the same way could send out a message that they are equally harmful, some Committee Members supported an alternative approach which would specify – on the face of the Bill – areas where the use of NIDs would be prohibited, rather than including NIDs under the same broad restriction as tobacco.

The Minister subsequently stated that, in line with such an approach, he would bring forward amendments at stages 2 and 3 to define the places where NID use would be restricted. Accordingly, Government amendments relating to public and school transport vehicles, childcare premises, schools and further education institutions, food establishments, public transport facilities, and hospitals were brought forward at stage 2 and were agreed. Hospitals are included as NID-free premises, but managers will be able to designate areas where NID use is permitted.

Extending the restriction to other, non-enclosed areas

Opposition amendments to place a ban on smoking tobacco in non-enclosed children’s play areas, school grounds, and hospital grounds onto the face of the Bill were not agreed at stage 2. During stage 1 the Minister shared with the Committee draft regulations which would extend the restriction on tobacco and NID use to these areas. At stage 2, the Minister indicated that he would be willing to consider bringing forward Government amendments at stage 3, but emphasised that this would be in relation to tobacco and NIDs:

I have to be clear with Members that those Government amendments would make these areas both smoking free and nicotine inhaling device free, because, if the argument that we are advancing today is that the protection of children from the impact of renormalisation is key to all of this, then you certainly would not want to see them being freely used in children’s play areas and on school grounds.

Reviewing the evidence

Other opposition amendments tabled at stage 2 would have provided for an independent review of how the provisions to restrict the use of NIDs had affected public health in Wales, and also included provision for the Assembly to repeal the restrictions. These amendments were not agreed at stage 2. The Minister was however supportive of the principle that the evidence should be kept under review, and indicated that he would consider a stage 3 amendment to that effect.

Part 3 Special procedures

The current list of special procedures (acupuncture, body piercing, electrolysis, tattooing) on the face of the Bill remains unchanged. Opposition amendments to add branding, scarification, sub-dermal implantation and tongue splitting to the list were not agreed at Stage 2. The Minister stated that a greater exploration of the associated risks of harm was needed before considering adding them to the legislation.

The Minister did note an intention to consult early on the principle of adding more procedures to the list shortly after the Bill’s enactment, stating that the consultation will include the above procedures, and also others that were identified during the passage of the Bill so far, such as dermal rolling, colonic irrigation, and wet cupping.

Licensing criteria and conditions

Amendments were passed to add key licensing criteria on the face of the Bill. Applicants will be required to demonstrate knowledge of infection control and first aid in the context of the relevant special procedure. Applicants must also demonstrate knowledge of the duties imposed on them as a person authorised to perform a special procedure.

The mandatory licensing conditions (which control the conduct of practitioners who have received a license) were also amended to include conditions covering proof of age of an individual on whom a special procedure is to be performed, infection control, and first aid. The mandatory licensing conditions, specified in regulations, must also relate to intoxication, to prevent a licence holder from performing a special procedure on an individual who is, or who appears to be, intoxicated by virtue of drink, drugs or any other means.

Level of fine imposed

Amendments were passed to remove the limit on the fine associated with offences in relation to special procedures, amending it from a level 3 to an unlimited fine.

Part 4 Intimate piercing

Tongue piercing

The tongue was added to the list of intimate body parts listed on the face of the Bill in relation to intimate piercing restrictions, due to the associated risk of harm. This means it will be an offence to perform, or make arrangements to perform, a tongue piercing on a person who is under the age of 16 years.

Level of fine imposed

Amendments were passed to remove the limit on the fine associated with the offence of performing, or making arrangements to perform, an intimate piercing on a child from a level 4 to an unlimited fine.

Part 5 Pharmaceutical services

No amendments were agreed to this part of the Bill at stage 2.

Part 6 Provision of toilets

This part of the Bill was amended at stage 2 to require that Welsh Ministers must (rather than ‘may’) issue guidance to support local authorities when developing their local toilets strategies, and to set out in more detail what the guidance must include.

Additionally, the Bill was amended to require local authorities to prepare and publish interim progress statements (as recommended by the Health and Social Care Committee at stage 1). This is a new requirement, and is in addition to the duty on local authorities (in the Bill as introduced) to fully review their strategies no later than one year after the end of an electoral term.

Part 7 Miscellaneous – food hygiene rating offences

The Bill was amended at stage 2 to make a minor technical amendment to the Food Hygiene Rating (Wales) Act 2013 so that the receipts from fixed penalty notices for non-compliance with the food hygiene rating scheme must be used by food authorities (primarily local authorities) to enforce the scheme. This will bring the Food Hygiene Rating (Wales) Act into line with the provisions of the Public Health (Wales) Bill, under which receipts from fixed penalty notices issued under Chapters 1 and 2 of Part 1 must be used by enforcement authorities to support the new duties imposed on them in these chapters of the Bill.

Health impact assessment

During stage 2, the Welsh Government committed to bring forward a stage 3 amendment to include health impact assessment on the face of the Bill. This reflects the Health and Social Care Committee’s recommendation at stage 1 to introduce a requirement to undertake mandatory health impact assessments when developing certain policies, plans or programmes. Opposition amendments in this area had been tabled at stage 2, but were not moved in light of the commitment given by the Minister.

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