Public health powers and mental capacity

[Given the substantial changes introduced by the Health Protection (Coronavirus, Restrictions) (England) (Amendment) Regulations 2020 with effect from 1 June 2020, this post now refers solely to the public health powers within the Coronavirus Act 2020.   A separate post discusses the regulations that restrict movement],

The Coronavirus Act 2020

Section 51 and Schedule 21 contain powers relating to potentially infectious persons. Part 1 relates to England; Part 2 to Scotland and Part 3 to Wales. They are materially identical, and for present purposes I will only give references to the paragraph numbers in Part 1 (for England).

As the explanatory notes to the Act make clear, Schedule 21 provides public health officers, constables and (in some circumstances) immigration officers with the means to enforce public health restrictions, including returning people to places that they have been required to stay. Where necessary and proportionate, constables and immigration officers will be able to direct individuals to attend, remove them to, or keep them at suitable locations for screening and assessment. Where a person has been screened and assessed and either tested positive, or the screening is inconclusive, paragraph 14 of Schedule 21 enables a public health officer to impose requirements including to remain at a specified place (which may be a place suitable for screening and assessment) for a specified period; and/or to remain at a specified place in isolation from others for a specified period. (‘a requirement to remain’). The public health officer will have when imposing a requirement or restriction to inform the person of the reason for doing so, and that it is an offence to fail to comply with the requirement or restriction. A person could only be required to remain at a place for a maximum of 28 days (paragraph 15), although can be required to remain in isolation indefinitely (although with a review every 24 hours after 28 days). A failure to comply with the requirement to remain at a place or in isolation is a criminal offence (paragraph 23).

Although it is self-evident that the use of ‘requirement to remain’ powers can give rise to a deprivation of the person’s liberty, the Explanatory Notes to the Act did not address this.  It was, however, recognised subsequently in the context of the enactment of The Adoption and Children (Coronavirus) (Amendment) Regulations 2020 (see the Explanatory Memorandum, at paragraph 7.36).

A public health officer, constable or immigration officer may give reasonable instructions to a person in connection with removing someone to or keeping the person at a place under the powers identified here; failure to comply with a reasonable instruction is a criminal offence. A constable or immigration officer (but not a public health officer) may use reasonable force, if necessary, in the exercise of the powers outlined here.

The recourse against the exercise of the draconian (if justified) imposition of a requirement to remain is by way of appeal to the magistrates’ court (paragraph 17).

None of the provisions outlined above make any reference to the position of persons with impaired decision-making capacity. The closest that they come is in paragraph 14, where a public health officer must in deciding whether to impose a requirement to remain “must have regard to a person’s wellbeing and personal circumstances.” “Personal circumstances” here could – and arguably should – include whether they have capacity to understand what it is that they are being required to do, and the consequences if they do not.

In the event that a requirement to remain is imposed, it is not obvious from the face of the Act how it is that a person with impaired decision-making capacity is to make any appeal to the magistrates’ court. So as to comply with the provisions of Articles 5, 6 and 8 ECHR (read alone or in conjunction with Article 14 ECHR), paragraph 17 will have to be interpreted (1) as placing the threshold for bringing an application extremely low (as per the approach before the Mental Health Tribunal; and (2) where the person does not meet that threshold, enabling another person to act on their behalf to bring the application.

Paragraph 21 of Schedule 21 (and its counterparts in the other Parts relating to Wales and Scotland) envisages guidance being issued, and it is to be hoped that this guidance makes clear what is to be done in relation to those with impaired decision-making capacity.

Concluding thoughts

Of course, it is entirely possible that there are those who do have impaired decision-making capacity and pose a public health risk because they are either potentially or actually infectious with COVID-19. Precisely what legal powers can be exercised to require them to remain either in a place or (within that place, within isolation) is a different question, and one that will require to be addressed by a court in short order.

If the person has in place a DoLS authorisation [6] which may authorise the deprivation of their liberty in a particular care home or hospital, then the question of whether they are subject to sufficient additional restrictions in consequence of being kept in isolation within that facility for purposes of preventing transmission of illness to others so as to give rise to an additional deprivation of their liberty will become of importance.  This has been looked at by the European Court of Human Rights in the case of Munjaz, but has not been looked at in the context of DoLS.  If they do amount to an additional deprivation of liberty then it seems to me that some separate form of authority would be required other than DoLS, given the very substantial interference with the person’s Article 8 rights, and the very specific targeting of the restrictions towards public protection rather than the interests of the person themselves.  This is suggested also by the DHSC’s emergency guidance on MCA and DoLS, although the DHSC’s guidance does not address the question of where the line would be crossed between restriction upon liberty and deprivation of liberty.

If they are not in a care home or hospital (and/or the DoLS authorisation is not thought to be enough authority) then, in principle, an order could be sought from the Court of Protection. In reality, and given the pressures that the court it, itself, under arising from COVID-19, it is vanishingly unlikely that the court will be able to address the position and grant the order in a speedy fashion (an update upon the Court’s approach to these applications is to be found here).  Further, although s.4B MCA does provide authority to deprive a person of their liberty upon the making of an application to court and pending its determination, it is only authority where the actions are being taken in the context of either providing life-sustaining treatment or preventing a serious deterioration in the person’s condition. It is not obvious that preventing transmission of illness to others could fall within this.

It may well be that pragmatism will rule (and we have given our thoughts upon it here), but that is an unsatisfactory foundation, especially without any clear guidance as to how to balance the different rights in play.

[1] Regulation 3(2).

[2] Regulation 6(1).

[3] Including police officers, police community support officers, and other people yet to be designated (either by a local authority, for specific purposes, or the Secretary of State).

[4] Regulation 6(2)(m).

[5] I am excluding hospitals here, but a hospital would falls within this power if (on the facts of the case) the person could be said to ‘be a place where they are living.’).

[6] Assuming one can be justified, as DoLS is intended to address the risk of harm to the person, rather than to others: see paragraph 14 of Schedule A1 to the MCA 2005. In Article 5 terms, it is also not designed to respond to public health risks, as opposed to the risks that may arises out of the person’s ‘unsoundness of mind.’

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