Back into lockdown in England – the regulations from 5 November

[This has now been superseded by this post, dealing with the regulations which came in on 2 December]

For 28 days from 5 November, The Health Protection (Coronavirus, Restrictions) (England) (No. 4) Regulations 2020 will re-impose a variation of the lockdown that prevailed in England from March to June 2020.

This post addresses the new restrictions through the prism of the law relating to those with impaired decision-making capacity.  Those who want to look at restrictions in March-June may want to look at my article ‘Capacity in the time of Coronavirus.‘  Those who want to understand the powers of public health officers under the Coronavirus Act 2020 will want to look at this post.

The positions in Northern IrelandScotland and Wales are now sufficiently different to the position in England that this post does not attempt (with apologies for Anglo-centricity) to address the position in each of these three jurisdictions, but the links above take you (hopefully) to where you can find the current position.

Overview of the regulations

The Health Protection (Coronavirus, Restrictions) (England) (No. 4) Regulations 2020 provide that for 28 days  from coming into force (Regulation 23) that “[n]o person may leave or be outside of the place where they are living without reasonable excuse,” (Regulation 5(1)).   What constitutes a “reasonable excuse” for leaving or being outside the place where they are living is set out in Regulation 6, including to take exercise or visit a public open place for the purposes of open air recreation (there is no restriction to once a day).  Regulation 6 also includes under Exception 4 (“medical need etc”): a range of important exceptions, including “to visit a person (“V”) receiving treatment in a hospital or staying in a hospice or care home, or to accompany V to a medical appointment,” where the person visiting is (a) a member of V’s household; (b)  a close family member of V; or (c) a friend of V.  The exceptions to gatherings (set out below) mirror this (in Regulation 11(10).  In other words, and whilst there is no doubt that the updated visiting guidance (yet to be published as of 3 November 2020) will set out the Government’s guidance as regards visiting in hospitals and care homes, it is clear that such visiting is lawful (as the Vice-President of the Court of Protection confirmed was also the case even in the highest tier of the pre-November 5 restrictions).  It is also important to note that the exceptions do not limit the position by reference to such wording as “exceptional circumstances,” or to the person being visited being close to death (indeed, there are specific additional provisions making it lawful to leave home and gather to visit a dying person (Regulations 6(8) and 11(12)).

The Regulations also prohibit gatherings, subject to exceptions.  A “gathering” for these purposes constitutes a situation – either inside or outside – when “two or more people are present together in the same place in order to engage in any form of social interaction with each other, or to undertake any other activity with each other” (Regulation 7(2)).   Regulation 8 prohibits gatherings indoors, and Regulation 9 gatherings outdoors (although not of two people in a public outdoor space).  Importantly in relation to outdoor gatherings, and a difference to the approach previously, Regulation 9 discounts the presence of a “carer for a person with a disability who needs continuous care, provided that there are no more than two people present in that capacity.”  The Regulations set out exceptions in Regulation 11.

The regulations also continue the ability to provide for the ‘linking’ of two households where one comprises one adult or one adult and one or more people who were under the age of 18 on 12 June 2020 (when the first lockdown ended) (Regulation 12), and also continue the ability to create linked childcare households to enable informal childcare in relation to children under 13 (Regulation 13).

There are statutory steps which can be taken to enforce both the requirement not to leave home and not to gather, including;

  • the power for a relevant person[3]  to direct the person to return the place to where they are living  (Regulation 19(3) (unlike in the first lockdown there is no power to use reasonable force to enforce this direction).
  • the power to to bring about dispersal of gatherings. The ‘relevant person’ can remove any person in that gathering by the use of reasonable force (Regulation 19(6)).

The regulations bring about a range of criminal offences (which can be discharged by way of the issue of a fixed penalty notice, increasing in amount with repeat infractions): see Regulations 20 and 21.

Separately, Part 4 of regulations also provide for the closure of certain businesses and maintenance of essential retail.

The regulations and capacity

As with all previous lockdown regulations, the new lockdown ones  do not make any provision in relation to those with impaired decision-making capacity (although they do make a helpful clarification of the position of carers for persons with disabilities requiring continuous care).  How, therefore, should the Regulations apply to someone who lacks the capacity (applying the MCA 2005, or any common law test that might be said to apply) to understand: (1) that they are not supposed to be away from where they live without reasonable excuse; (2) to gather with one other person; or (3) the consequences of so doing? And should they be subject to criminal sanction if they do so?

One would like to think that it would be very unlikely that any prosecution would be brought against a person who did not – because they could not – understand what it is that they should or should not have been doing.  The DHSC’s Emergency MCA/DoLS guidance provides helpful clarification of the approach that is likely to be taken to the self-isolation regulations, and it is to be hoped that a similar pragmatic approach would be taken in relation to these regulations.

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