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Public Health etc. (Scotland) Act 2008

Current text a fecha 2008-07-16

Part 1 — Public health responsibilities

The Scottish Ministers

Duty of Scottish Ministers to protect public health

1

which constitute a danger to human health; and

such diseases, contamination or other hazards.

Health boards

Duty of health boards to protect public health

2

Designation of competent persons by health boards

3

as the Scottish Ministers consider appropriate in relation to those functions.

Local authorities

Duty of local authorities to protect public health

4

Each local authority is to continue to make provision, or secure that provision is made, for the purpose of protecting public health in its area.

Designation of competent persons by local authorities

5

as the Scottish Ministers consider appropriate in relation to those functions.

Co-operation and planning

Duty of health boards and local authorities to co-operate

6

must co-operate with any relevant person that appears to the board or, as the case may be, authority to have an interest in or a function relating to the protection of public health.

Joint public health protection plans

7

Power of Scottish Ministers to intervene

Power to direct health boards and local authorities

8

within such period and subject to such other conditions as they consider appropriate.

Power to direct that functions be exercised by other persons

9

Directions under section 9(1): supplementary

10

that person in exercising that function.

Power to direct allocation of resources

11

The Scottish Ministers may, if they are satisfied that it is necessary to do so, direct—

in connection with the performance by the recipient board or authority of its functions relating to the protection of public health.

Part 2 — Notifiable diseases, notifiable organisms and health risk states

Notifiable diseases and organisms

Lists of notifiable diseases and notifiable organisms

12

Duties to notify

Notifiable diseases: duties on registered medical practitioners

13

Health risk states: duties on registered medical practitioners

14

which is a significant risk to public health.

has been in physical contact with or contaminated by a health risk state.

Notifiable diseases and health risk states: duties on health boards

15

that board must send a return, in writing, to the common services agency containing, in relation to each patient, the information mentioned in subsection (3) in so far as it is known to the board.

the board must without delay transmit the information to the health board for the area in which the person usually resides.

Notifiable organisms: duties on directors of diagnostic laboratories

16

the board must without delay transmit that information to the health board for the area in which the person usually resides.

Offences

Notifiable organisms: offences

17

the body corporate also commits an offence.

Supplementary provision

Electronic notification

18

Notifiable diseases etc.: further provision

19

Part 3 — Public health investigations

Public health investigations

Public health incidents

20

Public health investigations

21

and, in this Part, that person is known as an “investigator”.

Investigators' powers

Powers relating to entry to premises

22

to be left undisturbed (whether generally or in particular respects) for so long as the investigator considers appropriate.

Other investigatory powers

23

as appear to the investigator to be appropriate for the purpose of ascertaining what dangers, if any, there may be in doing anything which the investigator proposes to do (or cause to be done) under the power.

which would, in legal proceedings, be protected from disclosure by virtue of any rule of law relating to confidentiality of communications.

Power to ask questions

24

Supplementary

25

as are necessary to enable the investigator to exercise any of the powers conferred by sections 22, 23 and 24.

Entry to dwellinghouses

26

Public health investigation warrants

27

to be left undisturbed (whether generally or in particular respects) for so long as the investigator considers appropriate;

Use of powers in emergencies

28

to be left undisturbed (whether generally or in particular respects) for so long as the investigator considers appropriate;

Offences

Public health investigation offences

29

where it is reasonably required by an investigator exercising powers under those sections;

Compensation

Public health investigations: compensation

30

unless the loss or damage is attributable to the fault of the person who sustained it.

is to be determined by a single arbiter appointed by agreement between the parties to the dispute or, if such agreement cannot be reached, by the sheriff.

Part 4 — Public health functions of health boards

Duty to give explanation

Duty of health boards to give explanation of need for action

31

to the person in relation to whom the action was taken.

Relevant actions

32

The actions referred to in section 31(1) are—

Medical examinations

Application to have person medically examined

33

Order for medical examination

34

whichever occurs first.

Medical examination: least invasive and least intrusive procedures

35

Medical examination of groups

36

the board may apply under section 33(2) for an order in relation to all of the persons in that group.

make an order under section 34(1) in relation to each member of the group; and

Exclusion orders and restriction orders

Exclusion orders

37

Restriction orders

38

Quarantine

Application to have person quarantined

39

Quarantine orders

40

Removal to and detention in hospital

Application to have person detained in hospital

41

Order for removal to and detention in hospital

42

Order for detention in hospital

43

Application where long term detention in hospital necessary

44

Exceptional detention order

45

Quarantine and detention: steps that may be taken

Authorised steps

46

is made, the steps which the order may authorise are the steps mentioned in subsection (2).

Authorised steps: least invasive and least intrusive procedures

47

must not, in taking that step, use invasive or intrusive procedures unless that professional considers such procedures are necessary to achieve the purpose for which the step is being taken.

Variation and extension of orders

Variation of exclusion and restriction orders

48

a condition.

Extension of quarantine and hospital detention orders

49

Application for variation of quarantine and hospital detention orders

50

Variation of quarantine and hospital detention orders

51

Review of orders

Duty to review exclusion and restriction orders

52

the competent person must revoke it.

Duty to keep exclusion and restriction orders under review

53

the competent person must revoke it.

Duty to keep quarantine orders under review

54

the competent person must revoke the order.

Duty to keep hospital detention orders under review

55

the competent person must revoke the order.

Compensation

Compensation for voluntary compliance with request

56

is to be determined by a single arbiter appointed by agreement between the board and the person claiming loss or, if such agreement cannot be reached, by the sheriff.

Compensation for persons subject to certain orders

57

is to be determined by a single arbiter appointed by agreement between the board and the person claiming loss or, if such agreement cannot be reached, by the sheriff.

Compensation for carers

58

is to be determined by a single arbiter appointed by agreement between the board and the carer or, if such agreement cannot be reached, by the sheriff.

Recall of orders granted in absence

Recall of orders granted in absence of person to whom application relates

59

is made in the absence of the person to whom the order applies.

Appeals

Appeal against orders for medical examination

60

Appeal against exclusion orders and restriction orders

61

Appeal against quarantine and hospital detention orders

62

Exclusion orders and restriction orders: further appeal to sheriff principal

63

Appeal to Court of Session

64

Effect of appeal under section 61, 62, 63 or 64

65

Despite the making of an appeal under section 61(2), 62(2), 63(1) or (3) or 64(1) or (3), the exclusion order, restriction order, quarantine order, short term detention order or, as the case may be, exceptional detention order to which the appeal relates has effect as if the appeal were not made.

Breach of orders and offences

Absconding from quarantine

66

that person is liable to be taken into custody by a person mentioned in subsection (2) and detained in accordance with subsections (3) and (4).

Absconding from hospital

67

is liable to be taken into custody by a person mentioned in subsection (3) and returned to hospital in accordance with subsection (4).

Obstruction

68

A person commits an offence if that person, without reasonable excuse, intentionally obstructs—

Offences arising from breach of orders under this Part

69

Failure to ensure child’s compliance with order

70

commits an offence.

Procedure

Applications and appeals

71

Part 5 — Public health functions of local authorities

Facilities for disinfection etc.

Provision of facilities for disinfection etc.

72

things and premises which are infected, infested or contaminated;

Disinfection etc. of premises and things

Notice on occupier or owner of infected etc. premises or things

73

infected, infested or contaminated; and

of the premises or of a thing in or on the premises;

requiring that person to take one or more of the steps mentioned in subsection (2).

the authority must serve a copy of the notice on the owner.

Inspection of premises in relation to which notice served

74

Failure to comply with notice

75

to be left undisturbed (whether generally or in particular respects) for so long as the officer considers appropriate;

Power of local authority to disinfect etc. premises or things

76

infected, infested or contaminated; and

requiring that person to give an authorised officer access to the premises or thing in order for any of the steps mentioned in section 73(2) to be taken.

the authority must serve a copy of the notice on the owner.

to be left undisturbed (whether generally or in particular respects) for so long as the officer considers appropriate;

Entry to dwellinghouses

77

to enter a dwellinghouse, the conditions set out in subsections (2) and (3) must be satisfied.

Warrant to enter and take steps

78

to be left undisturbed (whether generally or in particular respects) for so long as the officer considers appropriate;

Use of powers in emergencies

79

infected, infested or contaminated;

to be left undisturbed (whether generally or in particular respects) for so long as the officer considers appropriate;

Offences

Obstruction

80

A person commits an offence if the person, without reasonable excuse, intentionally obstructs an authorised officer or any other person doing anything that officer or person is authorised to do by virtue of—

Recovery of expenses

Recovery of expenses

81

from the person on whom the notice under section 73(3) or, as the case may be, 76(2) was served.

Compensation

Compensation

82

is to be determined by a single arbiter appointed by agreement between the authority and the person claiming loss or damage, or, if such agreement cannot be reached, by the sheriff.

Appeals

Appeals against notices under this Part

83

is served may appeal to the sheriff.

Appeal to sheriff principal

84

Appeal to Court of Session

85

Existing functions

Application of this Part where other functions being exercised

86

has functions under any other enactment in relation to premises or things which are infected, infested or contaminated.

in relation to the infected, infested or contaminated premises or thing.

Part 6 — Mortuaries etc.

Provision of mortuaries

Provision of mortuaries by local authorities

87

as it considers appropriate.

Provision of mortuaries by health boards

88

as it considers appropriate.

Co-operation by local authorities and health boards

89

Local authorities and health boards must co-operate with one another in complying with their respective duties under section 87(1) or, as the case may be, 88(1).

Protection of public from risks arising from bodies

Restriction on release of infected etc. bodies from hospital

90

is in a hospital; and

and cognate expressions are to be construed accordingly.

Duty of health board where infected etc. person dies

91

Application for order in relation to bodies retained in premises

92

Power of sheriff to order removal to mortuary and disposal

93

Part 7 — International travel

International travel

94

so far as they have effect in or as regards Scotland;

Part 8 — Regulation of provision of sunbeds

Offences

Prohibition on allowing use of sunbeds by persons under 18

95

Prohibition on sale or hire of sunbeds to persons under 18

96

Remote sale or hire of sunbeds

97

the sale or hire is to be treated, for the purposes of section 96, as taking place on the premises from which the sunbed is despatched.

Prohibition on allowing unsupervised use of sunbeds

98

Medical use of sunbeds

99

Duty to provide information to sunbed users

100

Duty to display information notice

101

Enforcement

Power to enter premises

102

which would, in legal proceedings, be protected from disclosure by virtue of any rule of law relating to confidentiality of communications.

Power to enter premises: entry to dwellinghouses

103

Power to require identification of operator

104

Fixed penalties for offences under section 95, 98, 100 or 101

105

payment may be made;

is sufficient evidence of the facts stated.

Withdrawal of notices

106

Penalties for offences under Part 8

107

Any person who commits an offence under this Part is liable, on summary conviction, to a fine not exceeding level 4 on the standard scale.

Interpretation

Interpretation of Part 8

108

In this Part—

Part 9 — Statutory nuisances

Insect nuisance

109

(faa) any insects emanating from premises and being prejudicial to health or a nuisance;

.

(5AA) Subsection (1)(faa) above does not apply to insects that are wild animals included in Schedule 5 to the Wildlife and Countryside Act 1981 (c. 69). (5AB) For the purposes of subsection (1)(faa) above, “premises” does not include— (a) a site of special scientific interest (within the meaning of section 3(6) of the Nature Conservation (Scotland) Act 2004 (asp 6)); (b) such other place (or type of place) as may be prescribed in regulations made by the Scottish Ministers. (5AC) Before making regulations under subsection (5AB)(b) above, the Scottish Ministers must consult, in so far as it is reasonably practicable to do so, the persons mentioned in subsection (5AD) below. (5AD) Those persons are— (a) such associations of local authorities; and (b) such other persons, as the Scottish Ministers consider appropriate.

.

Artificial light nuisance

110

(fba) artificial light emitted from— (i) premises; (ii) any stationary object, so as to be prejudicial to health or a nuisance;

.

(5BA) Subsection (1)(fba) above does not apply to artificial light emitted from a lighthouse (within the meaning of Part 8 of the Merchant Shipping Act 1995 (c. 21)).

.

Statutory nuisance: land covered with water

111

(ea) any water covering land or land covered with water which is in such a state as to be prejudicial to health or a nuisance;

.

(5ZA) For the purposes of subsection (1)(ea) above, “land”— (a) includes structures (other than buildings) in, on or over land; (b) does not include— (i) mains or other pipes used for carrying a water supply; (ii) any part of the public sewerage system; (iii) any other sewers, drains or other pipes used for carrying sewage; (iv) the foreshore, that is to say, the land between the high and low water marks of ordinary spring tides; (v) the seabed. (5ZB) In subsection (5ZA) above— - “drain”, “sewage” and “sewer” have the meanings given by section 59 of the Sewerage (Scotland) Act 1968 (c. 47); - “main” has the meaning given by section 109(1) of the Water (Scotland) Act 1980 (c. 45); - “pipe” includes a service pipe within the meaning of that section of that Act; - “public sewerage system” has the meaning given by section 29 of the Water Services etc. (Scotland) Act 2005 (asp 3).

.

Power to make further provision regarding statutory nuisances

112

(1ZA) The Scottish Ministers may by regulations— (a) amend this section so as to— (i) prescribe additional matters which constitute statutory nuisances for the purposes of this Part; (ii) vary the description of any matter which constitutes a statutory nuisance; (b) in relation to an amendment under paragraph (a), amend this Act and any other enactment to make such incidental, supplementary, consequential, transitory, transitional or saving provision as the Scottish Ministers consider appropriate. (1ZB) Before making regulations under subsection (1ZA) above, the Scottish Ministers must consult, in so far as it is reasonably practicable to do so, the persons mentioned in subsection (1ZC) below. (1ZC) Those persons are— (a) such associations of local authorities; and (b) such other persons, as the Scottish Ministers consider appropriate.

.

Enforcement of statutory nuisances: fixed penalty notice

113

(4A) Where a local authority have reason to believe that a person has committed an offence under subsection (4) above, the local authority may give that person a notice (a “fixed penalty notice”) in accordance with section 80ZA offering the person the opportunity of discharging any liability to conviction for that offence by payment of a fixed penalty.

.

(80ZA) (1) This section applies to a fixed penalty notice given under section 80(4A). (2) A fixed penalty notice must give reasonable particulars of the circumstances alleged to constitute the offence. (3) A fixed penalty notice must also state— (a) the amount of the fixed penalty; (b) the period within which it may be paid; (c) the— (i) person to whom; and (ii) address at which, payment may be made; (d) the method or methods by which payment may be made; (e) the consequences of not making a payment within the period for payment. (4) The amount of the fixed penalty under section 80(4A) is— (a) in the case of a nuisance relating to industrial, trade or business premises, £400; (b) in any other case, £150. (5) The period for payment of the fixed penalty is 14 days beginning with the day after the day on which the notice is given. (6) The local authority may extend the period for paying the fixed penalty in any particular case if they consider it appropriate to do so by sending notice to the person to whom the fixed penalty notice was given. (7) No proceedings for an offence under section 80(4) may be commenced before the end of the period for payment of the fixed penalty. (8) In proceedings for an offence under section 80(4), a certificate which— (a) purports to be signed by or on behalf of a person having responsibility for the financial affairs of the local authority; and (b) states that payment of the amount specified in the fixed penalty notice was or was not received by the expiry of the period within which that fixed penalty may be paid, is sufficient evidence of the facts stated. (9) Where proceedings for an offence in respect of which a fixed penalty notice has been given are commenced, the notice is to be treated as withdrawn. (10) Any sum received by a local authority under section 80(4A) accrues to that authority. (11) The Scottish Ministers may, by regulations— (a) provide that fixed penalty notices may not be given in such circumstances as may be prescribed; (b) provide for the form of a fixed penalty notice; (c) provide for the method or methods by which fixed penalties may be paid; (d) modify subsection (4)(a) or (b) above so as to substitute a different amount (not exceeding level 2 on the standard scale) for the amount for the time being specified there; (e) provide for the amount of the fixed penalty to be different in different cases or descriptions of case; (f) modify subsection (5) above so as to substitute a different period for the period for the time being specified there; (g) provide for the keeping of accounts, and the preparation and publication of statements of account relating to fixed penalties under section 80(4A). (12) Before making regulations under subsection (11) above, the Scottish Ministers must consult, in so far as it is reasonably practicable to do so, the persons mentioned in subsection (13) below. (13) Those persons are— (a) such associations of local authorities; and (b) such other persons, as the Scottish Ministers consider appropriate.

.

(3) Where an abatement notice has not been complied with, the local authority may, whether or not— (a) proceedings have been taken for an offence under section 80(4); or (b) a fixed penalty notice has been given under section 80(4A) in respect of that offence (regardless of whether the fixed penalty notice is accepted), abate the nuisance and do whatever may be necessary in execution of the abatement notice.

.

Procedure for regulations

114

(2B) No statutory instrument containing regulations made under section 79(1ZA) or 80ZA(11) above may be made unless a draft of it has been laid before, and approved by resolution of, the Scottish Parliament.

.

Sewerage nuisance: local authority powers

115

nuisance— (a) which constitutes a sewerage nuisance; and (b) in respect of which a sewerage code applies.

.

(10A) Paragraphs 2, 3 and 5 of Schedule 3 to the Environmental Protection Act 1990 (c. 43) apply to the exercise of functions by a local authority under this section as they apply to the exercise of functions under Part III of that Act, with the following modifications— (a) in paragraph 2(1)(a), for “statutory nuisance” substitute “sewerage nuisance”; (b) in paragraph 2(1)(b) and (4)(b), for “Part III” substitute “section 26 of the Water Services etc. (Scotland) Act 2005 (asp 3)”; (c) in paragraph 3(1), for the words from “, on summary conviction” to the end substitute— (a) on summary conviction, to a fine not exceeding the statutory maximum; (b) on conviction on indictment, to a fine. (d) in paragraph 3(2), for the words from “, on summary conviction” to the end substitute— (a) on summary conviction, to a fine not exceeding the statutory maximum; (b) on conviction on indictment, to a fine. (e) in paragraph 5— (i) for the words “executing Part III” substitute “exercising functions under section 26 of the Water Services etc. (Scotland) Act 2005”; (ii) the words from “(other” to the end are to be disregarded.

.

Part 10 — General and miscellaneous

General and miscellaneous

Equal opportunities

116

Disclosure of information

117

must have regard to any guidance given by the Scottish Ministers.

Liability of persons exercising functions

118

Offences by bodies corporate etc.

119

that person as well as the body corporate, the limited liability partnership or the partnership (as the case may be) is guilty of the offence and is liable to be proceeded against and punished accordingly.

Penalties for offences under this Act

120

Form of applications etc.

121

The Scottish Ministers may, by regulations, prescribe the form of any application or order under this Act.

Regulations and orders

122

Meaning of “premises”

123

In this Act—

Interpretation

124

In this Act, unless the context otherwise requires—

Minor and consequential amendments

125

Schedule 2 (which contains minor amendments and amendments consequential on this Act) has effect.

Repeals, revocations and saving

126

Crown application

127

Short title and commencement

128

SCHEDULE 1

Part 1 — Notifiable diseases

Part 2 — Notifiable organisms

SCHEDULE 2

The Public Works Loans Act 1887 (c. 37)

1

In the Public Works Loans Act 1887, in section 4(2) (meaning of “rating authority”), for paragraph (a) substitute—

(a) any council constituted under section 2 of the Local Government etc. (Scotland) Act 1994 (c. 39);

.

The Children and Young Persons (Scotland) Act 1937 (c. 37)

2

In the Children and Young Persons (Scotland) Act 1937, in section 35(3) (evidence of byelaws)—

The Prevention of Damage by Pests Act 1949 (c. 55)

3

In the Prevention of Damage by Pests Act 1949, in section 1(2) (meaning of “local authorities”), for the words from “local authorities” where they second occur to the end substitute “councils constituted under section 2 of the Local Government etc. (Scotland) Act 1994 (c. 39).”.

The Pests Act 1954 (c. 68)

4

In the Pests Act 1954, in section 6 (charges for inspection of ships)—

The Offices, Shops and Railway Premises Act 1963 (c. 41)

5

In the Offices, Shops and Railway Premises Act 1963, in section 9(6) (application of enactments to sanitary conveniences)—

The Statutory Nuisance (Appeals) (Scotland) Regulations 1996 (S.I. 1996/1076)

6

; or (iv) is a nuisance falling within section 79(1)(ea), (faa) or (fba) of the 1990 Act,

.

SCHEDULE 3

Part 1 — Repeals

Part 2 — Revocations

Duty of Scottish Ministers to protect public health

Lists of notifiable diseases and notifiable organisms

Public health incidents

Duty of health boards to give explanation of need for action

Provision of facilities for disinfection etc.

Provision of mortuaries by local authorities

International travel

Prohibition on allowing use of sunbeds by persons under 18

Insect nuisance

Artificial light nuisance

Statutory nuisance: land covered with water

Enforcement of statutory nuisances: fixed penalty notice

Sewerage nuisance: local authority powers

Equal opportunities

The Public Works Loans Act 1887 (c. 37)

The Children and Young Persons (Scotland) Act 1937 (c. 37)

The Prevention of Damage by Pests Act 1949 (c. 55)

The Pests Act 1954 (c. 68)

The Offices, Shops and Railway Premises Act 1963 (c. 41)

The Statutory Nuisance (Appeals) (Scotland) Regulations 1996 (S.I. 1996/1076)

Editorial notes

[^key-ac3d8afc7379a7f0fe1621144acce661]: S. 109 in force at 26.1.2009 by S.S.I. 2009/9, art. 2(a), Sch. 1

[^key-a4fa82d538bcd407c5e87597bf0b0c03]: S. 110 in force at 26.1.2009 by S.S.I. 2009/9, art. 2(a), Sch. 1

[^key-37ec54dc5b0307dfa82a73146b4575c8]: S. 111 in force at 26.1.2009 by S.S.I. 2009/9, art. 2(a), Sch. 1

[^key-387b1e4d8f7df22b62b8a8a3465a631d]: S. 112 in force at 26.1.2009 by S.S.I. 2009/9, art. 2(a), Sch. 1

[^key-897cb53e479c7e75f17be00d858d0052]: S. 113 in force at 26.1.2009 by S.S.I. 2009/9, art. 2(a), Sch. 1

[^key-4b73ffdbf6ef37570faa5a0a5acf7d3d]: S. 114 in force at 26.1.2009 by S.S.I. 2009/9, art. 2(a), Sch. 1

[^key-e028478528083d7e5aed81eebff08668]: S. 115 in force at 26.1.2009 by S.S.I. 2009/9, art. 2(a), Sch. 1

[^key-f8b8e9226c8839d83d98514fa39b6950]: S. 125 in force at 26.1.2009 by S.S.I. 2009/9, art. 2(a), Sch. 1

[^key-ac55cc9534f1d52490b714b452a0e791]: Sch. 2 para. 1 in force at 26.1.2009 by S.S.I. 2009/9, art. 2(a), Sch. 1

[^key-03c19bacce3835336a565a7a28b5a416]: Sch. 2 para. 2 in force at 26.1.2009 by S.S.I. 2009/9, art. 2(a), Sch. 1

[^key-60b3e5e1b294999dec2f5da4a461ae40]: Sch. 2 para. 3 in force at 26.1.2009 by S.S.I. 2009/9, art. 2(a), Sch. 1

[^key-45317f9331cbb87a4790cb6018e5a613]: Sch. 2 para. 4 in force at 26.1.2009 by S.S.I. 2009/9, art. 2(a), Sch. 1

[^key-100dadf77159a386dd9f0cdaefd46b73]: Sch. 2 para. 5 in force at 26.1.2009 by S.S.I. 2009/9, art. 2(a), Sch. 1

[^key-11feeb3a1239c046f58fa16464cd66fa]: Sch. 2 para. 6 in force at 26.1.2009 by S.S.I. 2009/9, art. 2(a), Sch. 1

[^M_I_c09c71c0-764d-4091-94ae-ef6e7f699fe2]: Sch. 1 Pt. 1 in force at 1.1.2010 by S.S.I. 2009/404, art. 2(3), sch. 3

[^M_I_808727dc-1a4c-47f1-a4e5-93f13fb61715]: Sch. 1 Pt. 2 in force at 1.1.2010 by S.S.I. 2009/404, art. 2(3), sch. 3

Duty of Scottish Ministers to protect public health

Part 5A — Public health protection measures

Public health protection regulations

86A
86B
86C
86D
86E
86F
86G

Further provision on content of regulations

86H
86I

Public health monitoring measures

86J

The Scottish Ministers may by regulations make provision conferring on local authorities, health boards or other persons functions in relation to the monitoring of public health risks.