Introduction

1.These Explanatory Notes have been prepared by the Scottish Government in order to assist the reader of the Act. They do not form part of the Act and have not been endorsed by the Parliament.

2.The Notes should be read in conjunction with the Act. They are not, and are not meant to be, a comprehensive description of the Act. So where a section or schedule, or a part of a section or schedule, does not seem to require any explanation or comment, none is given.

The Act – Overview

3.The Act is in 10 Parts. The main provisions of the Act are as follows:

Part 1 – Public Health Responsibilities

• This Part sets out the duties of the Scottish Ministers, health boards and local authorities to continue to make provision to protect public health in Scotland. These are without prejudice to existing duties imposed on the Scottish Ministers and health boards in the National Health Service (Scotland) Act 1978. It defines “protecting public health” in terms of protecting the community, or any part of the community, from infectious diseases, contamination or other hazards that constitute a danger to human health. Health boards and local authorities are required to designate “competent persons” to undertake functions assigned to them under the Act and which require professional input at a particular level. The qualifications, training and other requirements for competent persons to be able to undertake these functions will be set out in regulations.

• A duty of co-operation is placed on health boards and local authorities in exercising the functions under the Act, and for them to plan, together, for public health protection.

• This Part also sets out the Scottish Ministers’ powers of intervention if those bodies fail to exercise functions in an acceptable manner, including power to direct other persons (or organisations) to undertake the functions, and to direct the allocation of resources between them.

Part 1 . Public Health Responsibilities

The Scottish Ministers

Section 1 Duty of Scottish Ministers to protect public health

4.Subsection (1) requires(1) the Scottish Ministers to continue to make provision, or secure that provision is made, for the protection of public health in Scotland

5.This updates the requirements in a number of public health statutes which are being repealed by the Act, including the Public Health (Scotland) Act 1897 and the Public Health (Scotland) Act 1945.

6.Subsection (2) defines “protecting public health” as the protection of the community or any part of it from infectious diseases, contamination or other such hazards which constitute a danger to human health and includes the prevention and control of, and provision of a public health response to, such diseases, contamination or other hazards. “Contamination” is defined in subsection (5) as meaning contamination with or by a biological, chemical or radioactive substance; “infectious disease” is defined as an illness or medical condition caused by an infectious agent (including an organism listed in Part 2 of schedule 1 to the Act).

7.Subsection (3) provides that for the purpose of protecting public health, the Scottish Ministers may provide assistance, including financial assistance, to any person who exercises functions in relation to public health. Subsection (4) states that the duty placed on the Scottish Ministers in subsection (1) is without prejudice to the general duties of the Scottish Ministers to provide a health service and promote the improvement of the health of the people of Scotland as outlined in section 1 and 1A of the National Health Service (Scotland) Act 1978 (the “1978 Act”).

Health boards

Section 2 Duty of health boards to protect public health

8.(1)This section requires each health board to continue to make provision, or secure that provision is made, for protecting public health in its area, without prejudice to its general duty to promote the improvement of the health of the people of Scotland under section 2A of the 1978 Act. Functions under this Act are also to be construed as functions conferred on health boards by the Scottish Ministers under section 2(1) of the 1978 Act.

Section 3 Designation of competent persons by health boards

9.This section places a duty on health boards to designate a sufficient number of persons for the purpose of exercising certain functions relating to public health under the Act and other enactments in each health board area. Persons designated under this section are to be known as “health board competent persons”. Subsection (4) provides that the (1)(3)Scottish Ministers may, by regulations, prescribe the persons or classes of person who may be designated as health board competent persons; the qualifications, training and other requirements to demonstrate competency which they must meet; and any other matters relating to the terms and conditions of such a designation as the Scottish Ministers consider appropriate. The regulations may provide that certain functions of health board competent persons may be carried out only by those with particular qualifications, training or other prescribed competencies. The regulations will be made by negative procedure.

Local authorities

Section 4 Duty of local authorities to protect public health

10.This section places a duty on each local authority to continue to make provision, or secure that provision is made, for the purpose of protecting public health in its area.

Section 5 Designation of competent persons by local authorities

11.Similarly to section 3, section 5 places a duty on local authorities to designate a sufficient number of persons for the purpose of exercising certain functions relating to public health under the Act and other enactments, in each local authority area. Persons designated under this section are to be known as “local authority competent persons”.

12.The Scottish Ministers may, by regulations, prescribe the persons or classes of person who may be designated as local authority competent persons; the qualifications, training and other requirements to demonstrate competency which they must meet; and any other matters relating to the terms and conditions of such a designation as the Scottish Ministers consider appropriate. The regulations may provide that certain functions of local authority competent persons may be carried out only by those with particular qualifications, training or other prescribed competencies. The regulations will be made by negative procedure.

Co-operation and planning

Section 6 Duty of health boards and local authorities to co-operate

13.This section places a requirement on health boards and local authorities, (1)in carrying out their functions under this Act, to co-operate with any relevant person who appears to have an interest in or a function relating to the protection of public health.

14.Subsection (2) defines a “relevant person” as a health board; a special health board; a local authority; the common services agency; and the Scottish Ministers. The section is without prejudice to existing duties of co-operation set out in section 13 of the 1978 Act.

Section 7 Joint public health protection plans

15.The section imposes a duty on each health board to prepare plans relating to the protection of public health in its area as the board considers appropriate. Subsection (2) states that in preparing a plan, a health board must consult the relevant local authority.

16.The plan must be prepared in accordance with guidance from the Scottish Ministers, and can be incorporated within any other plan which the health board is required to prepare under any other enactment. There is a duty on the health board which prepares the plan to publish it, either as a stand alone document, or as part of any other plan in which it is incorporated. The health board is empowered to vary any plan prepared under this section and must then publish it, as varied. “Relevant local authority” is defined as the local authority for the area in relation to which the board is constituted or, where the area of that health board includes the areas of two or more local authorities, both or all of those authorities.

Power of Scottish Ministers to intervene

Section 8 Power to direct health boards and local authorities

17.This section gives the Scottish Ministers the power to direct a health board or a local authority to exercise its public health functions where it is necessary for the purpose of protecting public health. This power applies where the Scottish Ministers consider that a health board or a local authority has failed, is failing or is likely to fail to exercise the functions conferred on it by the Act or has failed, is failing or is likely to fail to exercise them in a manner which the Scottish Ministers consider acceptable.

18.Subsection (3) sets out what should be specified in any such direction, that is the function to which it applies, the period within which the function is to be carried out, or the manner in which it is to be carried out and any other conditions imposed by the Scottish Ministers. Subsection (4) allows the Scottish Ministers to vary or withdraw any direction made.

Section 9 Power to direct that functions be exercised by other persons

19.Under this (1)section the Scottish Ministers may direct that the functions of a health board or a local authority be performed by a person other than the health board or local authority whether or not they have made a previous direction under section 8. However, if a direction to a health board or a local authority has been given under section 8, the Scottish Ministers may not give a direction under this section unless the period specified in the first direction has expired or that direction has been withdrawn.

20.Subsection (3) sets out the persons that may be specified in a direction by the Scottish Ministers, namely: a health board, the common services agency, a local authority, an employee of any of these bodies, a member of staff of the Scottish Administration or any other person the Scottish Ministers consider appropriate.

21.Subsection (4) sets out the information that must be contained in a direction under this section, that is: the function to which it applies, the person receiving the direction, the period for which that person is to perform the function, the extent to which it will be performed, and any other conditions imposed by the Scottish Ministers as they consider appropriate. Subsection (5) allows the Scottish Ministers to vary or withdraw a direction.

Section 10 Directions under section 9(1): supplementary

22.Subsection (1) provides that anything done or omitted to be done by a person or body exercising a function as a result of a direction under section 9 remains the responsibility of the health board or local authority whose function it is. A person dealing in good faith and for value with a person exercising a function under a direction does not have to check whether the person exercising the function is doing so in accordance with the terms of the direction. Unless it is specified otherwise in the direction, the health board or local authority whose function is the subject of the direction must remunerate and pay the expenses of, and any other costs reasonably incurred by, the person exercising the function.

Section 11 Power to direct allocation of resources

23.This section allows the Scottish Ministers, if they are satisfied that it is necessary to do so, to direct resources between health boards, between local authorities and between health boards and local authorities, 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

Section 12 Lists of notifiable diseases and notifiable organisms

24.This section defines “notifiable disease” and “notifiable organism” as a disease listed in Part 1 or an organism listed in Part 2 of schedule 1 respectively. (2)It states that the Scottish Ministers may amend the lists in schedule 1 by regulations, including by adding or removing items from the list. A disease or organism may be added only if the Scottish Ministers are satisfied that it is likely to give rise to a significant risk to public health and having regard to whether the disease is serious (or in the case of an organism, whether the organism would cause a serious disease) and easily transmissible through casual contact.

Duties to notify

Section 13 Notifiable diseases: duties on registered medical practitioners

25.This section places a duty on a registered medical practitioner who has reasonable grounds to suspect that a patient has a notifiable disease, to notify the health board of that area in writing not later than 3 days after forming the suspicion. The notification must include the patient’(a)s name, address and postcode, the patient’s occupation, the name, address and postcode of the patient’s place of work or education (if considered relevant by the practitioner), the patient’s sex, the patient’s date of birth, the disease which the patient has and the patient’s NHS identifier. The NHS identifier means the community health index number or, where that is not known, the NHS identification number. Where both are unknown, any other number or indicator used from time to time to identify a patient individually will suffice.

26.A registered medical practitioner who has reasonable grounds to suspect a notifiable disease and who considers that the case is urgent must orally notify the health board as soon as possible. The registered medical practitioner must have regard to the following factors when considering whether a case is urgent or not: the nature of the disease, the ease of transmission of that disease, the patient’s circumstances (such as the patient’s age, sex and state of health), and any guidance issued by the Scottish Ministers.

27.A registered medical practitioner does not need to notify if there are reasonable grounds to believe that another registered medical practitioner has complied with the notification requirement under this section or section 14 in respect of the patient.

Section 14 Health risk states: duties on registered medical practitioners

28.This section places a duty on a registered medical practitioner who has reasonable grounds to suspect that a patient has been exposed to a health risk state to notify the health board of that area in writing no later than 3 days after forming the suspicion. The notification must include the patient’(a)s name, address and postcode, the patient’s occupation, the name, address and postcode of the patient’s place of work or education (if considered relevant by the practitioner), the patient’s sex, the patient’s date of birth, the health risk state to which the patient has been exposed and the patient’s NHS identifier.

29.A registered medical practitioner who has reasonable grounds to suspect that a patient has been exposed to a health risk state and considers that the case is urgent must orally notify the health board as soon as possible. In determining whether the case is urgent, the practitioner must have regard to the nature of the health risk state, the nature of the exposure to that state, the patient’s circumstances (such as the patient’s age, sex and state of health) and any guidance issued by the Scottish Ministers. A registered medical practitioner does not need to notify if there are reasonable grounds to believe that another registered medical practitioner has complied with this section or section 13 in respect of the patient.

30.A “health risk state” is defined as meaning a highly pathogenic infection (i.e. an infection highly likely to cause a serious disease), or exposure to any contamination, poison or other hazard that is a significant risk to public health. A patient’s exposure to a health risk state means either physical contact with or contamination by a health risk state or physical contact with or contamination by a person who, or an object which, has been in physical contact with, or been contaminated by, a health risk state.

Section 15 Notifiable diseases and health risk states: duties on health boards

31.This section places a duty on (1)(a)a health board which receives notification of a disease or health risk state (under section 13 or 14) from a registered medical practitioner either orally or in writing, relating to a patient who usually resides within that health board’s area, to send a return in writing to the Common Services Agency. The return must contain the following information for each patient, in so far as it is known to the board: postcode, occupation, sex, date of birth, the suspected disease or health risk state to which the patient has been exposed, and the patient’s NHS identifier. The health board’s return will not include the patient’s name or address. (2)The return is to be sent no later than the end of the week in which the information is received; or, if this is not practicable, as soon as practicable thereafter.

32.Subsection (4) states that (4)where the notification received by a health board relates to a person who does not usually reside in that health board’s area, the health board must transmit the patient’s information to the health board for the area in which the person usually resides. Subsection (5) sets out that when that other health board receives the information, it must send a return in writing to the Common Services Agency no later than the end of the week following receipt of the information, or, if that is not practicable, as soon as practicable thereafter.

Section 16 Notifiable organisms: duties on directors of diagnostic laboratories

33.This section places a duty on the director of a diagnostic laboratory, (1)where the laboratory identifies a notifiable organism, to(b) provide written confirmation of the organism to the relevant health board and the Common Services Agency, no later than 10 days after identification. If the director of the diagnostic laboratory considers that the case is urgent, the director must orally notify the relevant health board as soon as possible. In determining whether a case is urgent, the director must have regard to the nature of the organism, the nature of the disease which that organism causes, the ease of transmission of that disease or organism, the patient’s circumstances (such as the patient’s age, sex and state of health, where known), and any guidance issued by the Scottish Ministers.

34.For the purposes of subsection (1), a diagnostic laboratory identifies a notifiable organism where the laboratory identifies the organism itself or the organism is identified by another laboratory under an arrangement with that diagnostic laboratory. This will include identification of organisms by laboratories outwith Scotland under an arrangement with a diagnostic laboratory in Scotland. In these cases, the day of identification for the purposes of notification will be the day on which the first diagnostic laboratory becomes aware of the identification by the other laboratory with which it has the arrangement.

35.The “relevant health board” in this section means the health board in whose area the diagnostic laboratory is situated. Where a health board receives notification from the director of a diagnostic laboratory and the information relates to a person who does not usually reside in that board’s area, the information must be transmitted to the health board for the area in which the person usually resides.

36.This section defines the director of a diagnostic laboratory as a clinical microbiologist, consultant pathologist or other registered medical practitioner or other person in charge of a diagnostic laboratory or to whom the function of making a notification has been delegated, thus providing that the role of director of a diagnostic laboratory can be fulfilled by a person with a non-medical background.

Offences

Section 17 Notifiable organisms: offences

37.This section states that it is an (1)offence for the director of a diagnostic laboratory to fail without reasonable excuse to comply with the duty of notification. Where the director of a diagnostic laboratory commits an offence and is employed by a body corporate, the body corporate also commits the offence. In proceedings for an offence under this section, it is a defence for the accused director of a diagnostic laboratory to prove that all due diligence was exercised and all reasonable steps taken to avoid committing the offence. For the accused body corporate, it is a defence to prove that the body corporate (or its employee or agent) exercised all due diligence and took all reasonable steps to avoid committing the offence.

Supplementary provision

Section 18 Electronic notification

38.This allows a registered medical practitioner, a health board or the director of a diagnostic laboratory to use electronic means (such as e-mail) (1)to satisfy the notification requirements. The electronic document must be capable of being reproduced in legible form. It is taken to be received on the day of transmission.

Section 19 Notifiable diseases etc.: further provision

39.This section allows the (1)Scottish Ministers to make provision, by regulations, (a)as to the way in which notification is to be made, including the way in which the information is to be provided and the manner in which the authenticity or integrity of any electronic communication may be established. The provision in regulations may include: the person by whom the information is to be provided; the person to whom it is to be provided; the nature of the information to be provided; the form and manner in which it is to be provided; and the time by which the information is to be provided. Regulations made under this section may modify any enactment, including this Act, and are to be made by negative procedure.

Part 3 . Public Health Investigations

Public health investigations

Section 20 Public health incidents

40.A public health incident exists if one or more of the circumstances described in subsections (2) to (6) occurs; and there are reasonable grounds to suspect that the circumstance is likely to give rise to a significant risk to public health.

Section 21 Public health investigations

41.This section states what a public health investigation is and outlines who may carry out such an investigation. Subsection (2) provides that the Scottish Ministers, a health board competent person, the Common Services Agency, (d)a local authority competent person, or two or more of these acting together, may appoint a person to carry out a public health investigation. In this Part, that person is referred to as an “investigator”. A health board competent person or a local authority competent person may be appointed as an investigator. Subsection (4) enables the investigator to exercise the powers relating to entry to premises in section 22, other investigatory powers in section 23, and powers relating to questioning in section 24.

Investigators’ powers

Section 22 Powers relating to entry to premises

42.This section sets out the powers an investigator may exercise to enter premises when it is considered necessary for the purpose of a public health investigation. The use of the power of entry in relation to a dwellinghouse is subject to section 26. This section allows an investigator, on entering any premises which that investigator has reason to believe it is necessary to enter, to take any other person (including a constable, if there is reasonable cause to expect any serious obstruction in obtaining access); it allows an investigator to take any equipment or materials which might be necessary for the investigation; and to direct that any premises or anything in them be left undisturbed for as long as the investigator considers appropriate. Subsection (2) places an obligation on an investigator who uses these powers to enter unoccupied premises to leave the premises as effectively secured against unauthorised entry as the investigator found them.

43.The powers contained in this section and the rest of Part 3 sit alongside existing powers of investigation in other legislation, and are not intended to supersede these (see section 25(5)). In particular it is not intended that these powers will be used to investigate incidents arising at nuclear sites, as provision in that area falls outwith the legislative competence of the Scottish Parliament, and existing legislation adequately provides for investigations into such incidents.

Section 23 Other investigatory powers

44.Subsection (1) sets out the investigatory powers being made available to an investigator. The investigator may take measurements and photographs, make recordings which are considered necessary for the investigation, obtain and take samples of any articles or substances found in or on the premises and of the air, water or land in or on the premises or in the vicinity.

45.The investigator also may dismantle or test (g)any article or substance found in the premises under investigation which appears to be the cause of the public health incident, but may not damage or destroy it unless necessary. Where this power is proposed to be used, the person responsible for the premises being investigated may request that the action be taken in the person’s presence. In addition, the investigator must consult appropriate persons on the premises to determine what dangers there may be in taking this action.

46.The investigator may ask for the production of any records (including electronic ones) which are necessary for the purposes of an investigation and inspect and take copies of the records. Such records includes those which may not be in the possession of the person but which it is reasonable to require the person to obtain for this purpose. The investigator may make such examination and investigation as may in the circumstances be necessary. Nothing in this section compels any person to produce a document which that person would be entitled to withhold on grounds of legal privilege.

Section 24 Power to ask questions

47.This section provides for a power for investigators to require any person whom the investigator has reason to believe has information relevant to the investigation to answer such questions as the investigator sees fit. A person required to answer questions may nominate one other person to be present during questioning. The only persons who may be present during such questioning are the person (if any) nominated by the person being questioned and any other person authorised by the investigator to be present.

48.The section also states that no answer given by a person being questioned under these powers is admissible in evidence against that person in any criminal proceedings.

Section 25 Supplementary

49.This section provides that an investigator may also require facilities and assistance from any person in relation to any matter or thing which is under that person’s control or in respect of which the person has responsibilities.

50.Subsection (3) enables the Scottish Ministers, by regulations, to give such additional powers to investigators as they consider necessary. Regulations will be made by affirmative procedure, except where the Scottish Ministers consider that they need to be made urgently, in which case the procedures in subsections (6) to (10) of section 122 apply. Subsection (5) states that powers outlined in this Part are without prejudice to any other powers conferred on an investigator by this Act or any other enactment, or by any rule of law.

Section 26 Entry to dwellinghouses

51.This section places conditions on the exercise of the power of entry by an investigator proposing to enter a dwellinghouse. The first is that the investigator must give 48 hours’ notice of the proposed entry to the occupier of the dwellinghouse. The second is that the dwellinghouse may only be entered if the occupier has consented or a warrant has been issued under section 27. However, these conditions do not apply where the investigator considers, on reasonable grounds, that there is an emergency, as defined in section 28. Subsection (4) defines “dwellinghouse” as used in this Part.

Section 27 18Public health investigation warrants

52.This section sets out the circumstances in which a sheriff or a justice of the peace may grant a warrant for the purposes of a public health investigation. Subsection (1) lists the circumstances which must exist before a warrant may be applied for and granted: that the investigator has been refused entry to premises or expects to be refused; that the premises are unoccupied; that the occupier is temporarily absent and there is urgency; that an investigator has been prevented from exercising a power (other than the power of entry) or expects to be prevented; or that an application for admission to the premises would defeat the object of the investigation.

53.Subsection (2) states that th(1)e sheriff or justice of the peace may authorise the investigator to exercise the power in relation to those premises according to the warrant and to take any other person (including a constable if serious obstruction is expected) as well as any equipment or material required for the purpose for which the power of entry is being exercised. The power of entry under the warrant may be exercised at any time and includes power to use reasonable force to obtain entry. The investigator may also direct that the premises be left undisturbed and may also exercise any other power mentioned in sections 23 to 25.

54.Subsection (3) specifies that a sheriff or justice of the peace must not issue a warrant authorising entry to a dwellinghouse unless the condition requiring 48 hours’ notice has been satisfied and the period of notice has expired. A warrant under this section continues in force until the purpose for which the warrant is issued is fulfilled.

Section 28 Use of powers in emergencies

55.If an investigator, who is entitled to enter premises under section 22, considers that there is an emergency, the premises may be entered at any time, using reasonable force. The investigator need not satisfy the conditions set out in section 26 (entry to dwellinghouses) nor apply for a warrant. The investigator on entering any premises under this section may take any other person (including a constable if serious obstruction is expected) as well as any equipment or material required for the purpose for which the power of entry is being exercised. The investigator may also direct that the premises and anything in or on them may be left undisturbed for as long as the investigator considers appropriate. All other investigatory powers may also be exercised.

56.This section defines an “emergency” as existing if there is a significant risk to public health and the nature of that risk is such that immediate action is necessary to verify the existence of the risk; to determine the cause of the risk; or to take action to prevent, or prevent the spread of, infectious disease or contamination.

Offences

Section 29 Public health investigation offences

57.Subsection (1) lists the offences under this Part of the Act. Subsection (2) sets out the defence in line with other parts of the Act, whereby it is a defence if the person is able to prove that the person exercised all due diligence and took all reasonable steps to avoid committing the offence. Subsection (3) states that where a person (such as a body corporate) commits an offence due to another person’s act or omission, the body corporate may be prosecuted even if the other person is not. This links with section 119 which makes provision generally about the circumstances in which an offence under this Act can be committed by an individual as well as a body corporate.

Compensation

Section 30 Public health investigations: compensation

58.Section 30 sets out two different situations in which compensation will be paid for loss or damage caused by an investigator (or any other person) exercising certain functions under this Part. In the first situation, compensation will be paid for loss or damage caused by the exercise of the power of entry in section 22, unless the loss or damage is due to the fault of the person who sustained it. In the second situation, compensation will be paid for damage or destruction of an article or substance in the exercise of the power in section 23 unless the article or substance was found to be the cause of the incident. In either case, the person responsible for paying compensation for any damage or loss caused by an investigator or a person authorised by the investigator is the employer of the investigator or of the authorised person, as the case may be. A single arbiter appointed by agreement between the parties to the dispute, or, if such agreement cannot be reached, an arbiter appointed by the sheriff will settle any dispute as to a person’s entitlement to compensation and as to the amount of such compensation.

Part 4 . Public Health Functions of Health Boards

Duty to give explanation

Section 31 Duty of health boards to give explanation of need for action

59.This section provides that if a health board is proposing to take any action mentioned in section 32(a) to (c) or if a health board competent person is proposing to take any action mentioned in section 32(d) or (e) (known as a “relevant action”) in respect of a person, the health board must explain such action to that person. The explanation must convey that there is a significant risk to public health, the nature of that risk and why the board finds it necessary to take the proposed action. In the event that an explanation cannot be given before the relevant action is taken, the health board must, as soon as reasonably practicable after taking action and in so far as it is reasonably practicable to do so, give the explanation. If the person is incapable of understanding the explanation, for whatever reason, explanations should be given to any person having parental responsibilities and parental rights (in respect of those under 16) and in other cases to any guardian, welfare attorney or any other person appointed or having authority to intervene in the affairs of the person.

Section 32 Relevant actions

60.This section lists the relevant actions to which section 31 applies. These are applications for orders to do any of the following: require a person to be medically examined; require a person to be quarantined; require a person to be detained in hospital; require a person to be removed to and detained in hospital; require a person to be detained in hospital under an exceptional detention order. Relevant actions also include the making by a health board competent person of an order excluding a person from specified places (an exclusion order) or from carrying on specified activities (a restriction order).

Medical examinations

Section 33 Application to have person medically examined

61.This section deals with applications to the sheriff for orders to have a person medically examined. A health board may make such an application where it knows or suspects that a person in its area has an infectious disease; has been exposed to an infectious organism which causes such a disease; is contaminated or has been exposed to a contaminant and it appears to the health board that as a result there is, or may be, a significant risk to public health and it is necessary, to avoid or minimise that risk, for the person to be medically examined.

62.Subsection (3) outlines the matters which need to be specified in the application to the sheriff which include the nature of the examination the health board proposes to be carried out, why the health board considers it necessary, who will carry out the examination and whether an explanation has been provided. All applications must include a certificate from a health board competent person that the criteria set out in subsection (1) have been met.