Preparing for Emergencies Guidance

Section 3 - Legislation

This section highlights the designation of Health Boards as Category 1 and Category 2 responders under the Civil Contingencies Act 2004. It also highlights key issues in relation to ensuring compliance with the Equality Act 2010 and the Human Rights Act 1998.

The Civil Contingencies Act 2004

3.1 The Civil Contingencies Act 2004 and the Civil Contingencies Act 2004 (Contingency Planning) (Scotland) Regulations 2005 provide the primary legislative framework for resilience and civil contingencies matters in Scotland.

3.2 Specific duties of the CCA are laid out in section 4.4 of this guidance.

3.3 The CCA divides responder organisations into two categories, depending on the extent of their involvement in civil protection work, and places a proportionate set of responsibilities on each. In relation to Health Boards in Scotland^[1]:

Category 1 responders are those organisations at the core of emergency response, and they are subject to the full set of civil protection duties. In a health context, this includes: all Territorial Health Boards, the Scottish Ambulance Service, and Integration Joint Boards (IJBs).

Category 2 responder organisations are cooperating bodies that are placed under lesser obligations by the CCA than Category 1 responders. Primarily their duties are to cooperate with and share relevant information with Category 1 and other Category 2 responders. They should be engaged in discussions where they can add value and they must respond to all reasonable requests. NHS National Services Scotland and Public Health Scotland are designated Category 2 responders.

3.4 It is good practice for Health Boards that are not Category 1 or Category 2 responders to comply with the full CCA duties, identify how they can support categorised responders and use this guidance to ensure they have the necessary business continuity and emergency plans in place to deal with potential service disruptions or major incidents.

3.5 Relevant legislation is identified in this document that must also be considered by Health Boards when preparing for emergencies.

Equality and Diversity

3.6 The Equality Act 2010 requires Health Boards and other public bodies to consider the needs of all individuals, including staff, when developing policy, designing, and delivering services.

3.7 This section summarises public sector duties under Equalities and Human Rights legislation. It highlights specific issues for those concerned with resilience-planning to consider in the process of preparing for emergencies.

3.8 It is important that Health Boards understand how different people will be affected by their activities when responding to major incidents so that services are appropriate to meet the needs of different people.

Public Sector Equality Duty

3.9 The public sector equality duty (known as the ‘General Duty’) covers protected characteristics: age, disability, gender, gender reassignment, pregnancy and maternity, race, religion or belief, sexual orientation and marriage and civil partnerships.

It requires public authorities, in the exercise of their functions, to have due regard to the need to:

• eliminate unlawful discrimination, harassment and victimisation and other prohibited conduct
• advance equality of opportunity between people who share a relevant protected characteristic and those who do not
• foster good relations between people who share a protected characteristic and those who do not

Human Rights and Resilience Planning

3.10 The Human Rights Act 1998 applies in its entirety, but some rights can be derogated in exceptional circumstances including in cases of public emergency. This is defined as:

‘An exceptional situation of crisis or emergency which afflicts the whole population and constitutes a threat to the organised life of the community of which the community is composed.’

3.11 A public emergency must be actual or imminent, potentially affect the whole nation and threaten the continuance of the organised life of the community.

3.12 In most situations to which this guidance applies it is unlikely that the UK would formally derogate from Convention rights. The normal rules of respect for absolute rights and legality, necessity, and proportionality of interference with qualified rights would therefore apply.

3.13 Human Rights under the European Convention on Rights (‘ECHR’) fall broadly into three categories:

Absolute rights: cannot be infringed under any circumstances and include Article 3 (the prohibition of torture, inhuman and degrading treatment, or punishment), Article 2 (the right to life), Article 4 (prohibition of slavery and forced labour) and Article 7 (no punishment without law).

Limited rights: can be limited in certain circumstances as set out in the ECHR and include Article 5 (the right to liberty and security); and

Qualified rights: that the state can lawfully interfere with in certain circumstances and include Article 8 (the right to a private and family life, home, and correspondence) and Article 10 (freedom of expression).

3.14 An interference with a qualified right must have a legal basis, pursue a legitimate aim (such as public health or the protection of the rights of others), and be the least restrictive measure capable of achieving that aim (the tests of legality, necessity, and proportionality).

Application of Human Rights issues

3.15 There may be a range of situations where human rights issues are engaged in times of an emergency, be it a 9/11 type attack or a pandemic outbreak. It is important that all measures taken by Government to enable services to cope with significant staff shortages and other impacts of emergencies respect human rights, including the avoidance of arbitrary limitation of rights, and discriminatory treatment, and it is vital that individuals are protected from ill- treatment and/or detention.

Triage

3.16 Following a natural disaster or terrorist attack, emergency services and staff will be stretched to the limit. Medical services and health providers may be required to triage patients and in doing so will need to guard against risks to life (Article 2) and to leaving patients in circumstances which would amount to cruel, inhuman or degrading treatment, within the meaning of Article 3.

3.17 Positive obligations under each right require health and other public authorities to take all reasonable steps to avoid real and immediate risks to life or of degrading treatment. This has implications for due diligence in the design and delivery of systems of prioritisation.

Impact Assessments

3.18 There are several types of impact assessments to be considered when planning for emergencies and it is the responsibility of each Health Board to consider what, if any, assessments require to be undertaken/updated.

The links below lead to information and support available via the Scottish Government website. Note: Not all of which may be applicable to Health Boards, but Chief Executives should be aware of, and support, these as part of multi-agency collaboration.

• Equality Impact Assessments (EQIAs)
• Child Rights and Wellbeing impact assessments (CRWIA)
• Human Rights in Policy making assessments
• Island Community Impact assessments
• Data Protection assessments
• Fairer Scotland Duty Assessment
• Strategic Environmental Assessments (SEA)
• Business and Regulatory Impact Assessment

There is additional guidance on EQIAs in the NHS Education for Scotland (NES) Turas Equality & Diversity Zone which includes an e-learning module: Introduction to Equality Impact Assessment (EQIA) and a series of videos to guide people through the assessment.