Two sets of regulations brought into force have radically changed the legal landscape in England & Wales, effectively placing the population under severe restrictions (which the Daily Mail might even characterise as house arrest) for their good, and the good of society. This post looks at them through the prism of the law relating to those with impaired decision-making capacity; it also looks at through a similar prism at a part of the Coronavirus Act 2020.
[The article was updated on 12 May to reflect the changes brought in by The Health Protection (Coronavirus, Restrictions) (England) (Amendment) Regulations 2020, The Health Protection (Coronavirus, Restrictions) (England) (Amendment) (No. 2) Regulations 2020 and The Health Protection (Coronavirus Restrictions) (Wales) (Amendment) (No. 3) Regulations 2020, as well as other relevant developments]
English regulations – overview
The Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 will expire in 6 months’ time, although regular reviews must be carried out by the Secretary of State, the first of which was carried out on 16 April 2020. For the time being, however, there are statutory restrictions on every person in England from either leaving or being outside of the place where they are living “without reasonable excuse.” There are statutory steps which can be taken to enforce this, including the power for a relevant person to direct the person to return the place to where they are living or remove them to the place where they are living (including by the use of reasonable force). 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 these purposes is set out in Regulation 6(2). This includes taking exercise, to visit a public open space for the purposes of open-air recreation to promote their physical or mental health or emotional wellbeing, as well as ‘to avoid illness or injury,’ or to escape a risk of harm.’
There are some very interesting questions that arise as to whether the Regulations are ultra vires the Act under which they were made (the Public Health (Control of Disease) Act 1984) – in other words, whether that Act actually gave the Secretary of State the power to make them. I do not address them here, but David Anderson QC has written a stimulating blogpost on the question.
Nor do I address the question of whether the Regulations give rise to industrial scale deprivation of liberty for purposes of Article 5(1) ECHR (and, if so, whether it is justified under Article 5(1)(e) for purposes of the “prevention of the spreading of infectious diseases”). These are both interesting questions, my tentative thoughts being, respectively (1) probably not; but (2) if they do, it would be challenging to justify the position by reference to Article 5(1)(e), at least without further clear evidence that this was both necessary and proportionate. Francis Hoar has also written an interesting blog post on whether the Regulations breach the ECHR more broadly.
The regulations and capacity
Rather, what I want to focus on here is the question of interest to capacity nerds such as myself: namely that the Regulations 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 leave or be outside the place where they are living without a (statutory) reasonable excuse); or (2) the consequences of so doing without such a reasonable excuse? 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 one hopes that this will be made clear in any CPS guidance to be issued. But it is perhaps troubling that it would even be possible for a criminal prosecution to be in contemplation in such circumstances.
It may, perhaps, be that the answer is to be found in the wording of Regulation 6(2), which is not exclusive in terms of reasonable excuses. Rather, it provides that “a reasonable excuse includes.” That a person lacks the capacity to understand what it is that the regime requires would appear, on its face, to be a reasonable excuse. Whether any of the near constant stream of guidance coming out (but not, so far, relating to the MCA specifically) will address this issue is not known, but I would hope it would.
I should note that, under Regulation 8(4), it would undoubtedly be possible for a person to be returned to the place where they are living by the use of reasonable force whether or not they had the capacity to agree to the steps being taken. Interestingly, and undoubtedly by a side-wind, this has suddenly given a previously missing power to police offices, PCSOs and other authorised people to return individuals subject to DoLS authorisations in care homes 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). But this is undoubtedly not the purpose for which Regulation 8(4) 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?
The Welsh Regulations do not address the position of those with impaired decision-making capacity either. They have some curious differences, reflecting the divergent approaches between London and Cardiff. These differences have been accentuated as successive amendments have been made (most recently, with effect from 11 May 2020, by The Health Protection (Coronavirus Restrictions) (Wales) (Amendment No. 3) Regulations 2020).
The Coronavirus Act 2020
Many of the issues raised above are equally relevant in the somewhat different context of 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.
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  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.
 Regulation 3(2).
 Regulation 6(1).
 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).
 Regulation 6(2)(m).
 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.’).
 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.’