Coronavirus Restrictions – tiered Local Alerts and impaired decision-making capacity

With effect from 14 October, restrictions within England are set at one of three levels – medium, high and very high.  The restrictions are set by three different sets of Regulations.   This post addresses the current restrictions in England through the prism of the law relating to those with impaired decision-making capacity.   Those who want to understand the powers of public health officers under the Coronavirus Act 2020 will want to look at this post; to understand the self-isolation regulations, see 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 to what is, or should, be the current version of each of the regulations.

To find out which level of restriction you are in England, you can enter your postcode here.

Tier 1 – Medium 

These restrictions, set out in The Health Protection (Coronavirus, Local COVID-19 Alert Level) (Medium) (England) Regulations 2020 continue the “rule of 6” – i.e. that no-one can gather together in a group of more than 6, and set out other restrictions (in Schedule 1) on gatherings, as well as exceptions to the Rule (in paragraph 3 of Schedule 1).

The exemptions from the rule of six include allowing a household with only one adult in the home (known as a single-adult household) and one other household of any size to link together to form a support bubble.  A gathering that is only made up of people from the same support bubble is not subject to the limits which apply.

Tier 2 – High 

The Health Protection (Coronavirus, Local COVID-19 Alert Level) (High) (England) Regulations 2020, identify (in Schedule 2 the areas where they apply and set out in Schedule 2 restrictions which go further than the Tier 1, medium, restrictions, requiring people to adhere to the rule of six in both, and requiring that:

  • All meetings in outdoor public spaces, outdoor Covid-secure retail and hospitality, and outdoor private dwellings (gardens) are limited to 6 people;
  • All meetings in indoor Covid-secure retail and hospitality, and indoor private dwellings (homes) that are within an area designated Alert Level High must be limited to one household (unless exemptions apply);
  •  A person living in an area designated Alert Level High must limit their meetings indoor Covid-secure retail and hospitality, and indoor private dwellings (homes) to one household (unless exemptions apply).

The exemptions from the rule of six include allowing a household with only one adult in the home (known as a single-adult household) and one other household of any size to link together to form a support bubble.  A gathering that is only made up of people from the same support bubble is not subject to the limits which apply.

Tier 3 – Very High

The Health Protection (Coronavirus, Local COVID-19 Alert Level) (Very High) (England) Regulations 2020 set out the most stringent restrictions, applying to the places set out in Schedule 2.   They provide that

  • Meetings in indoor venues and private gardens within the area must be limited to a single household (unless exemptions apply).
  • Meetings in outdoor venues must be limited to a single household (with certain exemptions) unless these settings meet certain conditions, where they can continue in groups of up to 6.

The exemptions from the rule of six include allowing a household with only one adult in the home (known as a single-adult household) and one other household of any size to link together to form a support bubble.  A gathering that is only made up of people from the same support bubble is not subject to the limits which apply.

Enforcement 

In all three sets of Regulations, Regulation 4 sets out enforcement powers, of which perhaps the most relevant for present purposes are the power for a relevant person (a constable, a Police Community Support Officer, or a designated person) to remove a person from a prohibited gathering, and to use reasonable force for the purpose.   The relevant person can only exercise removal powers if they consider that this is a necessary and proportionate way of ensuring compliance with the relevant restriction.

Regulation 5 provides for criminal offences (with the potential under Regulation 6 for Fixed Penalty Notices to be issued instead).  The fine increases with each offence.

The Regulations and capacity

As has been the case in every set of Regulations to date, none of the Regulations make any provision in relation to those with impaired decision-making capacity.  How, therefore, should they apply to someone who lacks the capacity (applying the MCA 2005, or any common law test that might be said to apply) to understand that they are required to comply with any of the relevant restrictions? And should they be subject to criminal sanction if they do not?

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. It would certainly be very troubling were it to be, and it is also troubling that the CPS guidance does not address this in terms (although a Law Society blog, indirectly, assists in setting out the position of the CPS in relation to one of the earlier sets out Regulations).   But it is perhaps troubling that it would even be possible for a criminal prosecution to be in contemplation in such circumstances.

It is also not clear what a person removing someone with impaired decision-making capacity from a gathering is supposed then to do with them if they have used reasonable force to d so.  Can they use that power to return the person to where they live, or are they simply supposed to stop using the power when the person is now not a part of the gathering?

In addition, those with impaired decision-making capacity and those supporting them will have to navigate the complexities of the self-isolation regulations (discussed here), and obey the face-covering Regulations discussed here.

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