Water Fluoridation (Consultation) (England) Regulations 2022

Another important element in deciding to proceed with a water fluoridation proposal is the cost-benefit analysis of such proposals. Any new proposal will have to demonstrate that the benefit to health will represent good value for the investment of public money proposed.

We want more of the country to benefit from water fluoridation, and many noble Lords may be aware that yesterday we announced, subject to the outcome of this debate and future consultations, that funding has been secured to begin expansion across the north-east into Northumberland, County Durham, Sunderland, South Tyneside and Teesside, including Redcar and Cleveland, Stockton-on-Tees, Darlington and Middlesbrough. I know that the local authorities in these areas are strong supporters of water fluoridation. In accordance with the regulations we are debating, we will hold a public consultation on this proposal next year. This expansion would enable an additional 1.6 million people to benefit from water fluoridation, which will help to reduce the level of tooth decay in the area and over time will reduce the number of children who need to be admitted to hospital for tooth extractions.

I turn now to the draft Health and Care Act 2022 (Further Consequential Amendments) Regulations 2022, starting with mandatory training on learning disability and autism. People with a learning disability and autistic people experience poorer health outcomes in comparison to the general population. There is a need to address the significant and persistent health disparities faced by this group of people. That is why the Government have introduced, from 1 July 2022, a requirement in the Health and Care Act for CQC-registered service providers to ensure that their employees receive specific training on learning disability and autism. Introducing mandatory training on learning disability and autism is intended to ensure that health and social care employees have the skills and knowledge to provide safe, compassionate and informed care. The Act also creates a duty for the Secretary of State to publish a code of practice which will outline how to meet the new requirement on mandatory training. The code of practice is being developed and we expect to publish a draft for consultation early next year.

The consequential amendment proposed today seeks to remove the requirement for the Care Quality Commission to issue statutory guidance about the mandatory training requirement, by amending Section 23(1) of the 2008 Act. This carve-out clause should have been applied during the passage of the Health and Care Bill. If the Act is left unchanged, registered service providers will have two sets of guidance: statutory guidance issued by the Care Quality Commission and, subsequently, the code of practice issued by the Secretary of State. Removing the requirement for the CQC to issue statutory guidance will mean that registered providers will have a single source of guidance once the code of practice is published. The Care Quality Commission has agreed to keep all its statutory guidance, which was published on 1 July 2022, available to registered service providers until the code of practice is published.

Lastly, I turn to virginity testing and hymenoplasty. Safeguarding vulnerable women and girls is a top priority for the Government, which is why we were one of the first countries in the world to ban virginity testing and hymenoplasty. Virginity testing and hymenoplasty have no scientific merit or clinical indication and are a violation of human rights. These degrading and intrusive acts have an adverse impact on women and girls’ physical, psychological and social well-being. They can lead to extreme psychological trauma in the victim, including anxiety, depression, post-traumatic stress disorder and suicide, and physical trauma including damage to the hymen and vaginal wall, bleeding, infection and sexual difficulties. As such, we are proud that the Health and Care Act 2022 made carrying out, offering, and aiding and abetting virginity testing and hymenoplasty illegal.

As these are new offences, certain changes to other legislation are necessary to protect vulnerable groups. The Scottish Government have requested a change to be made to the Foster Children (Scotland) Act 1984, which contains a list of matters which disqualify a person from fostering a child in Scotland. The consequential amendments proposed today would add to that list the conviction of an offence of virginity testing or hymenoplasty in relation to a child. The change would also flow through to assessments by adoption agencies in Scotland under The Adoption Agencies (Scotland) Regulations 2009 in relation to the suitability of prospective adopters.

The 2009 regulations require those suitability assessments to be carried out by reference to a range of information, including whether the prospective adopter or any member of their household has been disqualified or prohibited from keeping a foster child under the 1984 Act. This change would have the effect of disqualifying or enabling the disqualification of individuals convicted of virginity testing or hymenoplasty offences from fostering or adopting in Scotland.

Similar changes were made to English and Welsh law in negative regulations under the Health and Care Act 2022. Scottish provisions on this matter are set out in primary legislation requiring an affirmative procedure. It was unfortunate that we were not able to make this amendment in the Health and Care Bill, as the need for the change was not identified during the Bill’s passage, but the priority is to put in place these restrictions now. This change will help to protect girls and young women from so-called honour-based abuse.

“the extent of support for the proposal”

under Regulation 5(1)(a). What about the extent of opposition to the proposal? There should be a requirement for independent public opinion-polling and also canvassing of the views of parish, borough, city and county councillors. A local referendum should be considered. It stands to reason that, if a local proposal is to have any real democratic legitimacy, the view of a majority of the local populace should not be overridden.

Fourthly, it is difficult to see how the Secretary of State can gauge the cogency of arguments, ethical considerations or scientific evidence without being guided by a panel of relevant experts. These should be recruited independently from the Department of Health, by nominations from bodies such as the royal institutes or other professional bodies for engineers, statisticians, accountants, economists, scientific research bodies, toxicologists, ethicists and the like. They should be similar to commissions of inquiry or standing advisory bodies, chaired by legally qualified personnel.

Fifthly, Regulation 5(1)(b) should prescribe that particular weight should be given to representations made by individuals who would be affected by the proposal. Conversely, it is difficult to see why any weight should be given to anybody with an economic interest in favour of a proposal, because a public interest health policy should not promote private economic interests.

Sixthly, as far as “capital and operating costs” are concerned, in Regulation 5(1)(c), the relevant costs are the full range of costs, including establishment costs, insurance costs, admin costs, consultation costs, any extra security costs, extra wear and tear or corrosion costs, monitoring costs, safety training costs, additional computer software costs and many others. A narrow compass on these costs would generate some very misleading results.

On Regulation 5(1)(c), it is no good looking at the above costs in isolation: there has to be a comparative cost-benefit analysis, taking into account a range of alternative options such as no scheme, a lesser or more targeted scheme, alternative dental preventive health schemes such as providing fluoride via milk or tablets or topically, public education or in-school training, and so forth. This should include an analysis of the successful Childsmile programme in Scotland, which, through education and dentist visits to schools has been shown to reduce tooth decay in children.

under general anaesthetic. The key point is that they went to unfluoridated places. Although I hear the concerns of the noble Lord, Lord Reay, I hope we can be reassured that everything we debated during the passage of the Health and Care Bill shows that this is being done very carefully.

During the passage of that Bill, my noble friend Lady Pinnock made a very important series of points about how to decide where to consult about fluoridation of water, given that we have so many reservoirs where water goes in lots of different directions. Often, you cannot identify each of those areas. Although it was good to hear the Minister talk about the way that consultation will happen, and it is good news that there has been broad consultation in the north-east and that there are some resources there, might the Minister comment on how it is possible for civil servants to identify the relevant areas for consultation? This was one of the reasons why we said during the passage of the Bill that there needed to be very broad consultation.

Moving on to the other statutory instrument on training on learning disabilities and autism, and on virginity testing and hymenoplasty, I signed both of those amendments during the Bill’s passage. Each time it came back I spoke to both of them. It was wonderful that the Government listened and accepted the amendments on training for health staff working with people with learning disabilities and autism. I know that this is only a technical amendment to remove the CQC, but this is a moment to thank the Government for listening to the concern of those of us who work with and know many in the learning disabled and the autistic communities, who have often found that they have been treated by people who do not understand their conditions, which makes it that much harder to communicate with them.

I will now move on to virginity testing and hymenoplasty—I welcome the Minister to the language that we have all had to learn. We were very pleased that the Government decided to support measures on this. I have one question for the Minister. He mentioned that this was about the suitability of foster parents or of their household. It is not clear how wide that household is regarded; is it literally the people who live in that house, or, as in other safeguarding issues, would it also include a member of the foster parents’ family who might be visiting that house on a regular basis and who, in any other safeguarding terms, would have to be notified? If the Minister cannot answer that today, I would completely understand, but I look forward to the answer because I have a particular interest in safeguarding. Apart from that, I support all three elements in front of us today.

In the course of evidence sessions in relation to the Health and Care Act we heard from experts that many families do not habitually drink water, and that many people who suffer tooth decay are now too far down the line to stave off tooth loss. It would be helpful to hear whether the department has any plans for a wraparound strategy on dental health generally.

I note from the Explanatory Memorandum that a separate impact assessment, beyond that of the Health and Care Act, has not been done for this regulation. Can the Minister comment on that? It is important to have an analysis of how the movement of powers in respect of consultation beyond local authority boundaries will play out.