With effect from 6 January 2021 and until 31 March 2021 (unless brought to an earlier end), all parts of England are within a tightened version of the Tier 4 restrictions that had been in force since early December. This has been accomplished by The Health Protection (Coronavirus, Restrictions) (No. 3) and (All Tiers) (England) (Amendment) Regulations 2021, amending The Health Protection (Coronavirus, Restrictions) (All Tiers) (England) Regulations 2020.
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 Ireland, Scotland 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.
The amending Regulations are accompanied by an Explanatory Memorandum setting out the policy background.
These are set out in Schedule 3A. They are based upon a restriction upon people leaving or being outside the place where they are living without reasonable excuse (Paragraph 1 of Schedule 3A). What constitutes a “reasonable excuse” for leaving or being outside the place where they are living is set out in Paragraph 2(4), including to take exercise (there is no restriction in law to once a day). Removed from the list of reasonable excuses with effect from 6 January 2021 is visiting a public open place for the purposes of open air recreation, and the new regulations remove outdoor sports grounds and sport facilities from the list of public open places where you can visit to take exercise.
Paragraph 2 of Schedule 3A 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 Paragraph 7(3). It is therefore clear that such indoor visiting is lawful, although whether and under what circumstances it can take place will depend in any individual case upon how the care home / hospital in question is applying the relevant visiting guidance (for care home visiting guidance, see here, although note that as at 6 January 2021 it has not been updated to reflect the new lockdown; the national ‘stay at home’ guidance (4 January 2021) says that “[v]isits to care homes can take place with arrangements such as substantial screens, visiting pods, or behind windows. Close-contact indoor visits are not allowed. No visits will be permitted in the event of an outbreak“). 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 (Paragraph 2(9) and 7(2)).
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” (Paragraph 3). Paragraph 3(1) prohibits gatherings indoors. Paragraph 4 prohibits gatherings outdoors (although not of two people in a public outdoor space).
Importantly, Paragraph 2(3) discounts for purposes of identifying the limits on numbers allowed for taking exercise outside 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 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 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)).
These regulations continue the concept of support bubbles, most relevantly for these purposes including that the first household in the bubble can now include a household household containing one or more persons who have a disability and who require continuous care on their own or together with either (a) one individual who does not have a disability; or (b) more than one such individual (but including no more than one adult who was 18 or over on 2 December 2020). That household can form a supportive link with another household (and there is no restriction on the size of the second household). Having formed this link, a household can only form another such link with another household if the link ceases (either through choice or because the first household no longer qualifies) and at least 14 days after any member of a household last gathered with a member of the household to which they were previously linked in reliance of the fact they were in a ‘support bubble’.
Review and expiry
Regulation 14 provides that the Secretary of State must review whether each area under Tier 4 restrictions should remain in that Tier at least once every 14 days. In addition, the Secretary of State must review the need for the restrictions within each Tier at least once every 28 days.
Regulation 9 sets out enforcement powers, of which perhaps the most relevant for present purposes are the power for a constable to remove a person from a prohibited gathering, and to use reasonable force for the purpose. The constable can only exercise removal powers if they consider that this is a necessary and proportionate way of ensuring compliance with the relevant restriction.
Regulation 10 provides for criminal offences (with the potential under Regulation 11 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 of 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 constable removing someone with impaired decision-making capacity from a gathering is supposed then to do with them if they have used reasonable force to do 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.