Face-coverings, public transport and mental capacity

[This post has been superseded]

In what is becoming a (rather unhelpful) routine, far-reaching and significant legislation was published on Sunday 14 June to come into effect on 15 June, this time to provide for the mandatory wearing of face-coverings on public transport in England.  The Health Protection (Coronavirus, Wearing of Face Coverings on Public Transport) (England) Regulations 2020 requires, by Regulation 3(1), passengers aged 11 and above to wear a face covering when using public transport services unless they have a reasonable excuse.   From 24 July, face coverings are also required in shops etc in England, as outlined here.

Regulation 2(2) defines the term “public transport service,” as well as the services excluded from the Regulations.  The excluded services include (most importantly) school transport services, taxis and private hire vehicles.

Regulation 4 provides a non-exhaustive list of what may constitute a “reasonable excuse” pursuant to Regulation 3(1).  For present purposes most relevant are:

  • That the person cannot put on, wear or remove a face covering—
    • because of any physical or mental illness or impairment, or disability (within the meaning of s. 6 Equality Act 2010), or
    • without severe distress;
  • The person is travelling with, or providing assistance to, another person and that other person relies on lip reading to communicate with them;
  • It is reasonably necessary for the person to eat or drink, and they remove their face covering to eat or drink;
  • They have to remove their face covering to take medication.

By Regulation 5(1), a relevant person (including the operator of the transport service) can deny boarding of a vehicle providing a public transport service to a person not wearing a face covering.  The relevant person can direct a person either to wear a face covering or disembark from a relevant vehicle.  A constable can remove a passenger from a relevant vehicle, using reasonable force if necessary, if they fail to comply with a direction to disembark from the vehicle.

Failure to wear a face mask absent reasonable excuse is an offence, punishable by a fine, which increases with each offence (the amount being increased with effect from 24 September).

The Explanatory Memorandum gives rather more policy background than might usually be expected for a statutory instrument, and also – rather unusually – guidance as how the Department of Transport anticipates that the Regulations will be deployed:

7.7. The Department will work with operators to ensure widespread communication around the need to wear face coverings on public transport, and to set out the clear exemptions from the need to wear them for particular individuals. The Department expects widespread participation by the public, the majority of whom are in favour of this policy initiative, and who we expect to be willing to wear face coverings to help protect others.

7.8 The Regulations provide powers to transport operators to deny access to someone to a service if they are not wearing a face covering, or to direct them to leave a service if they do not wear a face covering when asked to. Operators have discretion over whether they choose to use these powers; they do not have an obligation to do so.

7.9 Exemptions from this policy exist for passengers with a “reasonable excuse” for not wearing a face covering. A non-exhaustive list of circumstances in which a person has a reasonable excuse is set out in regulation 4, and generally relate to medical and equalities grounds. As with the wider coronavirus restrictions an authorised person is expected to use their discretion and judgement when considering reasonable excuses and exemptions in the circumstances.

As with the movement restriction regulations (which have also been amended, my post on them also being updated accordingly), these Regulations do not address expressly the position of those with impaired decision-making capacity.

Moreover, whilst it is clear that the wording of ‘reasonable excuse’ for purposes of Regulation 4 is not – importantly – limited to the position where it is a physical disability which prevents either putting on or wearing a mask, the concept of a reasonable excuse being ‘severe distress’ raises difficult questions about how this is to be flagged by the relevant person (or those supporting them) without this, itself, causing the individual themselves distress.  It is unsurprising that the Explanatory Memorandum indicates that the Government expects operators to use discretion and judgement, but they will be asked to make some difficult and sensitive decisions.

It seems to me that following the approach set down in our guidance note as to testing that in very many cases, it will be in the best interests of an individual with impaired decision-making to be supported to wear a mask, not just for the public health reasons outlined in the Explanatory Memorandum, but also if, as expected, mask-wearing becomes the norm for almost all passengers, such that those not wearing them visibly stand out, and could in consequence attract negative attention.  However, there will remain difficult situations, and having the threat of criminal sanction hanging over both the individual and – potentially – a person supporting them (Regulation 6(2) making it an offence for a person to obstructs, without reasonable excuse, any person carrying out a function under these Regulations) reminds us that so-called easing of lockdown will continue to pose challenges for those working with individuals with impaired decision-making capacity.

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