Movement restrictions, COVID-19 and mental capacity

[Update 3 July 2020 – with the coming into force on 4 July of the Health Protection (Coronavirus, Restrictions) (No.2) (England) Regulations 2020, the position has sufficiently changed in England that this post is of historic value only, but I will leave it up out of interest.  For the position from 4 July, see this post here

With effect from 1 June 2020, the severe restrictions to which people in England had become (relatively) resigned were changed substantially by The Health Protection (Coronavirus, Restrictions) (England) (Amendment) (No. 3) Regulations 2020.  They were then further amended by the Health Protection (Coronavirus, Restrictions) (Amendment) (No. 4) Regulations with effect from 15 June 2020.

This post addresses the current restrictions through the prism of the law relating to those with impaired decision-making capacity.  Those who want to look at previous restrictions may want to look at my article ‘Capacity in the time of Coronavirus‘ which looked at them as they stood at the point when they prevented anyone leaving (then amended to include ‘being outside’) the place where they lived. 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 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. 

Overview of the regulations

The Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 (as now amended) provides that during the emergency period we are currently in, “[n]o person may, without reasonable excuse, stay overnight at any place other than the place where they are living” (Regulation 6(1)).   There are statutory steps which can be taken to enforce this, including the power for a relevant person[3]  to direct the person to return the place to where they are living  where they are living (the ability to remove the person, including by use of reasonable force, has now been removed).  The person is also committing a criminal offence (which can be discharged by way of the issue of a fixed penalty notice).  What constitutes a “reasonable excuse” for staying overnight for these purposes is set out in Regulation 6(2). and includes “(iv) to avoid injury or illness, or to escape a risk of harm;  (v) to obtain medical assistance.”

Whilst people in England are no longer required to remain at home without reasonable excuse, the substituted version of Regulation 7(1) provides that “unless paragraph (2) applies, no person may participate in a gathering which takes place in a public or private place— (a) outdoors, and consists of more than six persons, or (b) indoors, and consists of two or more persons.”  A “gathering” for these purposes constitutes a situation 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(3)).  Regulation 7(3) provides that a place is “indoors if it would be considered to be enclosed or substantially enclosed for the purposes of section 2 of the Health Act 2006, under the Smoke Free (Premises and Enforcement) Regulations 2006” – in other words, essentially, places where smoking is banned.

Paragraph 8 provides enforcement powers to bring about dispersal of gatherings in public paces.  If the gathering is taking place in a public place, the ‘relevant person’ can remove any person in that gathering to the place where they are living (Regulation 8(9)(c).

The ban on “gatherings” in Regulation 7(1) is not – quite – as draconian as it seems, as it does not relate to situations:

  • where all those involved are members of the same household (Regulation 7(2)(a)),
  • where the gathering is “for work purposes, or for the provision of voluntary or charitable services” (Regulation 7(2)(d)(i));
  • “to provide care or assistance to a vulnerable person, including relevant personal care within the meaning of paragraph 7(3B) of Schedule 4 to the Safeguarding of Vulnerable Groups Act 2006” (i.e., essentially, physical assistance, or prompting required as a result of a person’s cognitive impairments) (Regulation 7(2)(d)(iii));
  • to provide emergency assistance (Regulation 7(2)(d)(iv)).
  • (with effect from 15 June and addressing what I suspect was an oversight), for relevant people to visit someone who is dying, receiving treatment in a hospital or staying in a hospice or care home, or accompanying them to a medical appointment (the category of people being slightly different – and wider – for visiting a dying person than for the others (Regulation 7(2)(h) and (i)).

The regulations also (with effect from 15 June) provide for the ‘linking’ of two households where one comprises one adult (Regulation 7A), and the opening of a wider range of shops and other retail facilities than had been allowed at the peak of lockdown.

The regulations and capacity

The Regulations (still) do not make any provision in relation to those with impaired decision-making capacity.  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 required not to stay overnight without a (statutory) reasonable excuse; (2) to be at an outdoor gathering with more than 6 people or – more problematically – an indoor gathering 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. 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).   But it is perhaps troubling that it would even be possible for a criminal prosecution to be in contemplation in such circumstances.

I should note that, under Regulation 8(9)(c), it would undoubtedly be possible for a person who is at an outside gathering to be removed to the place, whether or not they had the capacity to agree to the steps being taken.  Interestingly, and undoubtedly by a side-wind, this gives a form of power to police offices, PCSOs and other authorised people to return individuals subject to DoLS authorisations in care homes[5] where they have ‘wandered’ (a term I put in parenthesis because in many cases, it is very far from purposeless wandering on the part of a person with dementia).  This power is less extensive than that which existed prior to the amendment of the Regulations on 1 June, and, in any event, it is undoubtedly not the purpose for which Regulation 8(9)(c) was enacted. It will also leave anyone who does take steps to return an individual to somewhere other than a care home in a difficult position.   The Regulations do not provide the power for the person returning the person to where they live to prevent them from leaving their home; any such power would have to (legally) be found in another source, and (practically) be exercised by someone. And what if the person lives in their own home, and does not appear to have anyone there to ‘receive’ them?

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