Why is NHS Test and Trace called NHS Test and Trace ?
Zarah Sultana has asked Baroness Harding in Select Committee why the Test & Trace service is called ‘NHS Test & Trace’, give the extent to which it is outsourced.
Harding’s answer — that it’s because that is its name — might simply be seen as flippant, or dismissive of a young MP — but there is another explanation for her seemingly want to move on quickly.
This is that the use of NHS in the title gives important legal cover to the downgrading of service standards, whereby clinical staff equipped to deal with the issues arising have been replaced by inadequately trained, poorly paid call-centre workers.
Let me explain.
The current requirement for self-isolation is law under The Health Protection (Coronavirus, Restrictions) (Self-Isolation) (England) Regulations 2020, which came into force on September 28th 2020, is a Statutory Instrument made under section 45R of the Public Health (Control of Disease) Act 1984.
Part 1, para 2 (1)of the regulations state:
This regulation applies where an adult is notified, other than by means of the NHS Covid 19 smartphone app developed and operated by the Secretary of State, by a person specified in paragraph (4) that —
(a)they have —
(i) tested positive for severe acute respiratory syndrome coronavirus 2 (SARS-CoV-2) (“coronavirus”) pursuant to a test after 28th September 2020, or
(ii) had close contact after 28th September 2020 with someone who has tested positive for coronavirus;
(b) a child in respect of whom they are a responsible adult has —
(i) tested positive for coronavirus pursuant to a test after 28th September 2020, or
(ii) come into close contact after 28th September 2020 with someone who has tested positive for coronavirus.
The “persons[s] specified” at para. 4 are:
(a) the Secretary of State;
(b) a person employed or engaged for the purposes of the health service (within the meaning of section 275 of the National Health Service Act 2006 or section 108 of the National Health Service (Scotland) Act 1978(8));
(c ) a person employed or engaged by a local authority.
Within this para. 4,sub-para (b) is the important one, because it can be construed to include someone working for Serco, or any private contractor; “engaged for the purposes of the health services” can mean just about anybody.
Now, the wording may or may not be coincidental, but it is interesting to note that Serco et al. apparently started their moves to using less skilled staff at around this secondary legislation came into force. In these circumstances, an insistence on using ‘NHS’ within the title of the outsourced service may be important to Serco and its partners, though it is not clear whether Harding would be conscious of this.
Collusion, I suggest cannot be ruled out, especially given how widely the power to order self-isolation is now afforded by the Secretary of State (by virtue of his laying the instrument before parliament).
That’s the main story, and could be followed up by an investigative journalist digging to see what meetings Serco had prior to the legislation being drafted in this way.
But it is not quite the end of the story.
While this secondary legislation is pursuant to the Public Health (Control of Disease) Act 1984, there is also recent primary legislation, in the form of the Coronavirus Act 2020, which concerns itself with who can and cannot instruct self-isolation, and under what conditions.
Schedule 21 of that Act, pursuant to section 51, is titled ‘Powers relating to potentially infectious persons. Within the schedule, part II para. 14 sets out the powers of a “public health officer” to impose requirements on restrictions on any person confirmed to have coronavirus. These requirements include the requirement to isolate from others at a “specified place”(sub-para. 3 (e)).
Importantly, sub-para. 6 says:
In deciding whether to impose a requirement referred to in sub-paragraph (3)(d) or (e) the public health officer must have regard to a person’s wellbeing and personal circumstances.
Within Schedule 21, a “public health officer” is defined (at part I, para 3, sub-para 2) as:
(i) an officer of the Secretary of State designated by the Secretary of State for any or all of the purposes of this Schedule, or
(ii) a registered public health consultant so designated.
This is obviously much tighter in its designation than the secondary legislation referred to above, and for good public health reason, but it can be alos argued that that secondary legislation actually constitutes the designation required at sub para 2 (i).
This being the case, then it is arguable that anyone working in a call centre for Serco and calling people about self-isolation is in fact a “public health officer” designated by the Secretary of State, and has a legal duty to “have regard to a person’s wellbeing and personal circumstances” each time s/he makes contact.
The question then is whether those actually doing the Serco job are fulfilling this duty, given that such fulfilment is clearly the will of parliament in primary, not secondary. legislation.
If it cannot be shown that they are doing so, either because of lack of time or because of lack of time, then the whole process is arguably unlawful (meaning, in consequence that not abiding by self-isolation conditions could not be legally enforced).
