The proposed Public Health Bill (the Bill) will update New Zealand’s fragmented and outdated legislation for public health, and become the primary public health statute. It will replace the Health Act 1956 and the Tuberculosis Act 1948.
The Bill will:
- continue the traditional public health focus on communicable disease control (such as tuberculosis and HIV/AIDs) and environmental health (such as sewerage and insanitary dwellings)
- expand health emergency provisions, which currently deal only with epidemics of communicable diseases, to all actual or potential public health emergencies irrespective of cause
- take account of changes in international travel patterns, and threats such as SARS and pandemic influenza, to enable the range of risks to public health, to be managed at our borders
- include new guideline provisions aimed at reducing risks of non-communicable disease (risk factors such as those that can lead to diabetes).
The Health Act is over 50 years old, and reflects society’s values at the time it was drafted. The Public Health Bill is based on the Health Act, but modernises and updates approaches and terminology to reflect life in the 21st century.
Part 1: Preliminary provisions, roles and responsibilities
As in the current Health Act, the Bill sets out roles and powers of the Minister of Health and the Director-General of Health, provides for the appointment of the Director of Public Health, and the designation, roles and powers of statutory officers (ie, Medical Officers of Health, Health Protection Officers and Environmental Health Officers).
The Bill operates at three levels:
- locally through statutory officers
- regionally through District Health Boards (DHBs) and Territorial Authorities
- nationally though the Minister of Health, Director-General of Health and Director of Public Health.
Part 2: Health information, notification, reporting and cervical screening
Reliable flows of accurate information are fundamental to all health policy and action. The Health Act has provisions to allow information about identified people to be exchanged between specified authorities. Information flows are necessary to support patient care and funding of services throughout the health and disability sector. Such authority is necessary as otherwise the disclosure and provision of health information would be inconsistent with the Privacy Act 2003.
The Bill’s health information provisions are based on the Health Act. There is one modification that will require all funders and providers of health and disability services to provide health information, if requested by the Minister of Health. The Health Act requires this of public providers only. This change will ensure provision of health information for compiling health statistics and advancing health knowledge, education and health research. For many service providers this proposal will formalise existing practice.
The Bill also updates existing audit provisions relating to verifying compliance with subsidy authorisations.
The Health Act requires medical practitioners and laboratories to report ‘notifiable’ conditions to specified authorities about people with health issues of public health concern. ‘Notifiable’ conditions are listed in a Schedule in the Bill. Most but not all of the notifiable conditions are ‘communicable’ (ie, it is a communicable condition that is transmissible to other people). The Bill expands on these provisions, with new provisions that:
- explicitly allow for notification for conditions that are not communicable (such as toxic shell fish poisoning)
- require medical practitioners to notify clusters or outbreaks of conditions. For example a medical practitioner may become aware of several cases of pneumonia in the same area and timeframe. Normally this condition would not be reported, but a cluster of the condition may indicate an unusual public health event that may be serious.
- require laboratories to report notifiable contaminants (like Legionella bacteria from cooling towers).
The Bill also carries over the provisions in the Health Act relating to National Cervical Screening Programme. These provisions are exactly the same provisions as those in the Health Act.
Part 3: Non-communicable diseases
Public health legislation has traditionally focused on communicable disease and environmental health. Although these remain very significant issues, they are no longer the main cause of death and ill-health in New Zealand. Rather those illnesses broadly categorised as non-communicable diseases (NCDs) are the main causes of ill-health and death today, and are the significant drivers of health expenditure. The Bill therefore recognises and enables steps to be taken to address risk factors associated with such diseases.
The Bill provides for the Director-General of Health to issue non-binding codes of practice or guidelines about NCD risk factors. Guidelines could, for example, be issued on the location of vending machines in venues frequented by children. The Bill provides for statements about goods, substances or services that comply with these codes or guidelines to be included in any promotional or communication material and the Bill permits regulations to be made that would reduce or assist in reducing risk factors associated with NCDs. The Bill provides for a ‘legislative review and report back’ to the House of Representatives three years after enactment, on possible further measures to address NCDs.
Part 4: Management of conditions posing health risks
Directions that can be given to individuals with conditions
Communicable conditions, such as HIV, hepatitis, and tuberculosis, pose risks of infection to others unless appropriate steps are taken to prevent or minimise such risks. The Health Act provides for the detention of people with ‘notifiable’ conditions, by decision of the Medical Officer of Health, with no time periods or appeal provisions specified other than the person may be held until no longer infectious.
The Bill aims to build on the existing provisions in the Health Act and Tuberculosis Act, within a human rights framework that includes explicit time periods and appeal provisions. Further, the Bill aims to provide a range of options, rather than only the ‘detention’ option in the Health Act, for preventing the spread of communicable conditions that pose a risk to public health.
The Bill sets out an incremental range of restrictive powers. Powers at the lesser end, which can be exercised by a Medical Officer of Health, include requiring a person to refrain from certain activities, such as employment and travel. The more restrictive powers, such as detention or compulsory medical examination, are only to be exercised by a Court by means of a ‘health risk order’.
Contact tracing involves identifying and seeking people who have been in contact with a person with a ‘notifiable’ condition, in order to prevent further spread and to offer treatment and testing to people at risk. The present legislation has very few provisions to support contact tracing (these are mostly in secondary legislation), and these tend to be limited to contacts who have already been identified, rather than tracing further contacts. Thus, most of the provisions in the Bill regarding contact tracing are new, and reflect current clinical practice.
In most cases, contact tracing happens voluntarily. The Bill authorises contact tracing by a medical practitioner where the person concerned does not voluntarily inform others and any infringement on the person’s privacy is considered to be justified on public health grounds.
For the purposes of identifying the individual’s contacts, the medical practitioner may approach the employer of the individual, or any other institutions/businesses to request names and addresses of contacts of the individual. When the medical practitioner approaches contacts, as far as possible, the practitioner is required to maintain the confidentiality of the individual who may have communicated the condition to the contact or exposed them to the risk of contracting the condition.
Thus, a person on a rugby team may be found to have a communicable condition such as meningitis, which poses a serious risk to the team members, such as through the sharing of water bottles. If the person refuses to inform their team members they have been exposed, the medical practitioner may contact the sports club and request the contact details of the rugby team.
Disclosure of communicable condition to partners and household members
The Bill provides that medical practitioners may disclose to sexual partners, and family/household members, information on risks posed to them by a person who has a communicable condition. The Bill outlines criteria for exercising this power, including that there is a high risk of close associates contracting the condition, and the person who has the condition has not informed their family or partner of the condition.
Persons in need of care
The Health Act has provisions in relation to people who are ‘aged, infirm, incurable or destitute’ and found to be living in ‘insanitary conditions or without proper care or attention’. Medical Officers of Health may apply to a District Court seeking an order for persons who are unable to care for themselves to be placed in a hospital or other institution. The provisions are intended to provide a last resort option only when a person’s inability to care for himself or herself is affecting their health. The Bill updates the relatively archaic language of the Health Act.
Part 5: Public health role of territorial authorities
Territorial authorities (ie, local government) have an extensive public health role under the Health Act, principally in relation to environmental health (ie, public health matters related to the physical environment, such as sewerage). The Bill intends that the same powers and duties that territorial authorities have under the Health Act be continued in the Bill, with minor modifications to update and modernise language.
The Bill provides that a territorial authority must:
- improve, promote and protect public health within its district
- employ Environmental Health Officers, whose duties include enforcing nuisance provisions, regulations and bylaws and assisting DHBs to investigate and control risks to public health
- identify and abate nuisances
and may have a role in assessing and monitoring activities that are regulated.
Local authorities have traditionally been responsible for environmental health issues that become nuisances. The term ‘nuisance’ is based on two concepts, ‘injurious to health’ and ‘offensive’. The term ‘nuisance’ is being continued from the Health Act as it is a long-established and well-understood concept. An example of a ‘nuisance’ could be when a location has become a breeding ground for rats due to a pile up of rubbish and animal carcasses.
Part 6: Regulated activities
The Bill updates the existing regulation-making powers in the Health Act to enable various controls to be set on a specified ‘activity’ in order to prevent, reduce or eliminate the risks to public health associated with that activity. These provisions have the potential to have wide application and cover activities relating to goods and services with potential to pose public health risk.
The Bill sets out a framework for managing risks by ensuring a range of approaches can be used depending on the nature of the activity and extent of the risk. When regulations are made about an activity, a determination will be made whether it requires a consent from a consent authority and/or whether the activity requires an approved public health risk management plan and/or whether the activity needs to be periodically assessed by an assessor. The Bill allows for a ‘mix and match’ approach so that a high risk activity may require the full range of interventions but lower risk activities may require only a consent.
The following activities are regulated by the Health Act, and will continue to be regulated under their current regulations in the Bill:
- burials/funeral directors
- needle and syringe exchange programme
- manufacture, import and assembly of microwave ovens
- business use of plastic wrapping.
After the Bill is enacted, these regulations will be reviewed under the new framework provided for in the Bill. No additional activities are included in the Bill, but any that might be in the future, for example tattooing, will be included only after a consultation process.
Part 7: Emergencies – subpart 1
The Bill builds on the emergency provisions in the Health Act, which were amended by the Epidemic Preparedness Act 2006. The amendments continue a full range of emergency powers for Medical Officers of Health that only become available if an emergency is declared. The 2006 amendments also allow the emergency powers to be used when an ‘epidemic notice’ is in force. The powers include:
- the ability to limit movement, isolate or quarantine, treat and examine
- powers to redirect aircraft
- powers to close premises
- powers to requisition things.
The powers in the Health Act only relate to infectious disease. The Bill implements an all-risks approach to emergencies by providing special powers that can be used to manage all actual or potential public health emergencies irrespective of cause (infectious disease as well as emergencies arising from physical, chemical or radiological factors). These emergencies may be at a local, national or even international level.
The provisions of the Bill are drafted to ensure New Zealand’s compliance with the World Health Organisation’s International Health Regulations (IHR) 2005 which came into force in June 2007. These require New Zealand to be able to implement a full range of health measures both at the border and within the country to ensure that threats to public health can be managed.
Part 7: Border Health Protection – subpart 2
The intent of the Bill’s border health protection provisions is to prevent, reduce or eliminate the spread of risks to public health at the border. It relates in particular to people and craft coming into, or leaving, New Zealand as possible sources of infection, as well as human environments and sanitary conditions associated with craft and around ports and airports.
The drafting of the border health protection provisions in the Bill also reflects the need to update the Health Act provisions to reflect current practice and threats for example there have been changes in international travel since 1956, and there are new and emerging public health threats such as SARS. There have also been changes in international law.
The border health subpart is based on the Health Act, which provides that all persons entering New Zealand may be required to provide information (for example travel history) and comply with directions such as a request to undergo a non-invasive medical examination (such as taking temperatures). In addition, any person suspected of having a ‘quarantinable condition’ may be required to undergo a health assessment, or comply with surveillance orders (for example reporting to a medical practitioner in their home town), or as a last resort, isolation or quarantine in a facility.
The Health Act also provides that ships and aircraft can be detained for inspection, or redirected to another port or airport if someone on board is suspected of having a quarantinable condition. Further, ships and aircraft can be required to be disinfected or fumigated to deal with any infected baggage or cargo.
The new provisions in the Bill include:
- a wider scope for quarantinable conditions to include other existing diseases or emerging risks as well as harm caused by chemical and radio-nuclear sources
- controls on people departing as well as arriving (to prevent ‘export’ of sources of public health risk)
- extended information sharing provisions about craft, freight or passengers.
Part 8: Miscellaneous
The Miscellaneous part of the Bill is a mix of:
- new policy, for example, health impact assessments, which introduces into legislation for the first time the use of health impact assessments. The policy purpose is to encourage the use of health impact assessment in the development of new policy proposals or in decision-making processes. There is no requirement in the Bill that health impact assessments must be carried out.
- provisions carried over from the Health Act. One of these includes provisions that enable children to be excluded from school in case of an outbreak of a communicable condition. The Bill also provides for an authorised person to enter a pre-school or school in order to examine, test or screen children where the parent consents. Where the authorised person considers that a child has a significant health or disability condition but the parent does not consent to the child being examined or screened, the authorised person may advise the school and parents accordingly and refer the child to an appropriately qualified health practitioner for further investigation and follow-up.
- general powers and rules that apply to provisions across the Bill
- consequential amendments, revocations etc.