The new Public Health (Wales) Bill

07 November 2016

Article by Philippa Watkins, National Assembly for Wales Research Service

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The Public Health (Wales) Bill was introduced on 7 November 2016. This is the second time the Welsh Government has brought forward such a Bill – the previous Government introduced its Public Health (Wales) Bill in June 2015. That Bill was rejected at Stage 4 in March 2016.

Our 20 October blog post The Public Health (Wales) Bill as introduced in the Fourth Assembly summarises the progress made by the previous Bill. The proposals to restrict the use of e-cigarettes in public places are not included in the Bill introduced this week and are not discussed here. The Bill is otherwise practically identical to the previous Public Health Bill as amended at stage 3.

This article provides some additional background information on elements of the Bill which were the subject of greater debate in the Fourth Assembly, or which were added to the Bill during the amending stages. This includes special procedures, additional smoke-free premises (school grounds, hospital grounds, public playgrounds), and health impact assessments.

Most elements of the Bill proved non-contentious. The chapters dealing with pharmaceutical services and provision of toilets for public use had broad support among stakeholders and Members of the previous Health and Social Care Committee. The proposals to create a national register of retailers of tobacco and nicotine products, and to prohibit the handing over of tobacco etc. to under 18s, were also largely welcomed. More detailed scrutiny focused on the chapters dealing with special procedures and intimate piercing, the main issue here being whether additional procedures should be captured by the Bill. The provisions about the additional smoke-free premises and health impact assessments were added at stage 3.

Special procedures

The previous Health and Social Care Committee took evidence from a wide range of stakeholders on the proposal to create a mandatory licensing scheme for practitioners and businesses carrying out certain special procedures. It agreed that there was sufficient risk of public health harm to support the need for a licensing scheme covering tattooing, piercing, acupuncture and electrolysis, as set out in the Bill. The Welsh Government’s rationale for specifying these four procedures on the face of the Bill is that these are all commonly performed, and there is sufficient evidence of the potential risk of infection to warrant their inclusion.

The Committee was concerned to hear about some more extreme body modification procedures (such as tongue splitting, branding, scarification and sub-dermal implants). It’s not known how commonly these types of procedures are carried out, but there was concern about the potential for harm. Particularly if, as some witnesses reported, such invasive procedures are undertaken by people with limited knowledge of anatomy or infection control, or ability to manage complications. The Committee was similarly concerned about the risk of harm from non-surgical cosmetic procedures if poorly administered (this includes procedures such as botox, dermal fillers, chemical peels etc.). The Committee believed there may be a case for body modification procedures and non-surgical cosmetic procedures to be added to the Bill.

Non-surgical cosmetic procedures were the subject of a UK review of the regulation of cosmetic interventions in 2013. The previous Committee, and the Minister, noted their disappointment at the lack of progress in implementing the review’s recommendations. Responding to the Committee’s stage 1 report, the Minister stated that if he did not receive sufficient assurance about UK Government proposals to regulate these procedures, he would consider alternative courses of action. This could include using the Bill’s regulation-making power to amend the list of special procedures.

Opposition amendments to add certain body modification procedures to the Bill were not agreed at stage 2. The then Minister stated that a greater exploration of the associated risks of harm was needed before considering adding them to the legislation. He put on record his intention to consult early on the principle of adding more procedures to the list shortly after the Bill’s enactment. There is provision in the new Bill to add to the list of special procedures (or to remove procedures) to take account of new practices and changing trends, and any emerging evidence of public health risk.

The proposal to prohibit intimate piercing being carried out on under 16s received widespread support. The Committee heard significant concern about the risks of tongue piercing, and the tongue was subsequently added to the list of intimate body parts included on the face of the Bill.

Smoke-free premises

Additional smoke-free premises – school grounds, hospital grounds, and public playgrounds – were added to the Fourth Assembly Public Health Bill at stage 3. The Bill also included provision to add additional smoke-free premises via regulations ‘if the Welsh Ministers are satisfied that doing so is likely to contribute towards the promotion of the health of the people of Wales’. This is replicated in the new Bill.

The Explanatory Memorandum (EM) states that restricting smoking in non-enclosed spaces such as hospital grounds, school grounds and children’s playgrounds would contribute to the de-normalisation of smoking, by providing fewer opportunities for the activity of smoking to be seen. Voluntary bans are in place in many areas, though difficulties in enforcing these have been reported, and the legislation is intended to aid enforcement.

In addition, the provisions relating to hospital grounds are intended to promote behaviour change and support smoking cessation among smokers who use hospital services.

Obesity and physical inactivity/Health impact assessment

During the Fourth Assembly, there was concern among stakeholders about the lack of actions to tackle obesity and physical inactivity in the Bill as introduced. The Welsh Government emphasised that the Public Health Bill shouldn’t be seen in isolation, but viewed alongside other legislation such as the Active Travel (Wales) Act 2013 and Well-being of Future Generations (Wales) Act 2015. The Government stated that it continued to consider a range of actions to tackle obesity in Wales, ‘the majority of which do not require primary legislation or could be considered using existing legislative powers’.

Stakeholders pushed for mandatory health impact assessments (HIA) to be included in the Bill. The British Medical Association, supported by 22 other organisations including professional bodies and voluntary sector organisations, called for HIA to be placed on a statutory footing. It suggested that a requirement for the use of HIA should be included on the face of the Bill, with the circumstances in which a mandatory HIA is needed to be set out in regulations.

In the first instance we would suggest that these regulations could require that HIA is made mandatory in relation to Strategic and Local Development Plans, certain larger scale planning applications, the development of new transport infrastructure, Welsh Government legislation, certain statutory plans such as Local Well-being Plans, new NHS developments (e.g. new hospitals) and health service reconfiguration proposals.

At stage 2 the Welsh Government committed to bring forward a stage 3 amendment to include HIA on the face of the Bill. This reflected the Health and Social Care Committee’s recommendation at stage 1 to introduce a requirement to undertake mandatory HIA 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).

The new Public Health (Wales) Bill as introduced places a duty on the Welsh Ministers to make regulations which require public bodies to carry out HIA in specified circumstances.

In the EM, HIA are described as offering ‘a systematic means of taking health into account as part of decision making and planning processes. They are a tool which can be used in any area of public, private or voluntary sector activity, and at both national and local levels’.

The EM highlights that HIA already takes place across Wales, supported by a dedicated Welsh Health Impact Support Unit (WHIASU) within Public Health Wales. The Bill seeks to strengthen the current position by making the use of HIA mandatory in specified circumstances.

The Bill aims to take a proportionate approach – assessments would be limited to policies, plans and programmes which have outcomes of national or major significance, or which have a significant effect at the local level on public health. The EM states that the regulations setting out the circumstances and manner in which public bodies must carry out HIA will be developed through consultation and will be subject to approval by the Assembly under the affirmative procedure.

To ensure alignment with the Well-being of Future Generations Act, it’s proposed that all of the public bodies covered by that Act will also be covered by the requirements to carry out HIA.