Alex Ruck Keene looks at another minefield to navigate in the capacity context - how new requirements on self-isolation apply to those with impaired decision-making capacity.
The Health Protection (Coronavirus, Restrictions) (Self-Isolation) (England) Regulations 2020 came into force on 28 September and set out a series of draconian measures that can be taken where a person declines to self-isolate.
This post looks at them primarily through the prism of the law relating to those with impaired decision-making capacity (it focus on the self-isolation aspects – the regulations also include other related aspects such as disclosure of information). The wider restrictions (including the “Rule of 6″‘) are covered here; the powers of public health officers under the Coronavirus Act 2020 are addressed in 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.
Overview of the regulations
The Health Protection (Coronavirus, Restrictions) (Self-Isolation) (England) Regulations 2020 cover the position where an adult has been notified that they (or a child in respect of whom they are a ‘responsible adult’) have have tested positive for coronavirus or have been identified as a close contact of someone who has tested positive. That notification must be by a specified person (who will, in most cases, be employed by or on behalf of an NHS or local authority: these include people working for the NHS Test and Trace service, Public Health England and others working on communicable disease surveillance in an official capacity); notification by the COVID-19 app rolled out in September 2020 does not count.
Where the adult has been notified, Regulation 2 requires the person to self-isolate, either at home or another suitable place. How long that self-isolation lasts is set down in Regulation 3: the periods differ depending on whether a person has tested positive for coronavirus, lives in the same household as a person who has tested positive for coronavirus or is a close contact of a person outside their household who has tested positive:
- For someone who has tested positive for, the requirement is to self-isolate until 10 days after the date on which their symptoms began, if that is known and has been reported, or otherwise 10 days after the date of their test.
- For people who are notified that they are a close contact of another household member who has tested positive, the requirement is to isolate until 14 days after the date that the other household member’s symptoms began, if that is known and has been reported, or otherwise until 14 days after the date of that person’s test.
- For people who are notified that they are a close contact of someone outside their household who has tested positive the requirement is to isolate until 14 days after the date that they were last in contact with that person.
Where a person has tested positive they (or where the positive test relates to a child, the responsible adult) must provide the names of other people living in the same household as them.
There are exceptions to the requirement to self-isolate, which include, for example, leaving the place of self-isolation by reason of seeking urgent medical assistance, fulfilling a legal obligation, and, where it is not possible to do so by another means, to obtain basic necessities such as food or medical supplies.
Regulations 7-9 set out provisions relating to employers, workers and agency workers, Regulation 7 making clear that the employer of a worker or agency worker who is required to self-isolate in accordance with either these regulations or those relating to quarantine after international travel should not knowingly allow them to work other than at the designated place of isolation, during the period of isolation. Regulations 8 and 9 sets out how employees and agency workers are supposed to notify their employers/relevant organisations that they are required to self-isolate.
Regulation 10 deals with enforcement. An authorised person, who could be a police officer or a person designated by the Secretary of State, for example, to act in support of enforcement, is given power to direct the adult to return to the place that they should be self-isolating or to remove them to that place. Regulation 10(2) provides that reasonable force may be used to enforce the regulations’ requirements if that is necessary. There are also provisions relating to ensuring that the responsible adult ensures that the child complies with the regulations, as far as that is possible.
A person commits an offence under regulation 11(1) if they fail, without reasonable excuse, to comply with their requirements. If someone commits an offence in a situation in which they believe they would come into close contact with another person or group, do so and are reckless as to the consequences for that person or group, they commit an offence under regulation 11(2) and a larger fixed penalty can be imposed.
Other offences are created by the regulation. It is, for instance, an offence under regulation 11(3) to obstruct someone carrying out an enforcement function or under regulation 11(4) to contravene a direction given under regulation 10 without reasonable excuse.
Offences are punishable on conviction by fines although fixed penalty notices are available as an alternative means of dealing with the case by regulation 12. The offence of contravening a self-isolation requirement under regulation 2 attracts a fixed penalty of £1,000 for a first offence, £2,000 for a second, £4,000 for a third and £10,000 for each subsequent offence. The offence under regulation 11(2) (i.e. being reckless as to the consequences of another person or group), starts at £4,000 for the first fixed penalty will be £4,000, with each subsequent one giving rise to a penalty of £10,000.
The regulations and capacity
As with all the other regulations passed (and the Coronavirus Act public health powers), these make no 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 that they are required to remain in self-isolation?
Not least because notification arises not just in relation to positive tests, but also in relation to being a close contact of a person with positive a test, the omissions in relation to those with impaired decision-making capacity are particularly stark and give rise to a range of questions, including:
(1) what is to happen where the person cannot understand the notification process – is the notifier supposed simply to notify them regardless? It makes very little sense simply to do so, but is the notifier allowed to notify another individual (for instance a care worker)? The regulations do not appear to allow for this, as it is not obvious that regulation 14 about disclosure of information covers the position;
(2) (assuming that notification to a person incapable of understanding that they have been notified is actually capable of triggering the requirement to self-isolate*), will a prosecution 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 in consequence? It would certainly be very troubling were it to be. A Law Society blog, indirectly, assists in setting out the likely position of the CPS (assuming that the same approach is adopted here). But it is troubling that it would even be possible for a criminal prosecution to be in contemplation in such circumstances.
(3) what, if any, steps are care workers or others allowed under the regulations to take to secure self-isolation on the part of a person with impaired decision-making capacity? And, conversely, would the care workers themselves be exposed to any risk of prosecution for (for instance) aiding and abetting an offence being carried out by such a person if they do not take such steps?
(4) when and how should the power to deploy reasonable force be used to bring about the return of a person with impaired decision-making capacity to their place of self-isolation? Does ‘necessary and proportionate’ in regulation 10(5) provide sufficient guidance for an authorised person to negotiate all the potential pitfalls that might lie here? And what should that person then do at the point when the individual is brought back to the place of their self-isolation – who can they hand over to, and what are those people supposed to do? And what if the person lives in their own home, and does not appear to have anyone there to ‘receive’ them?
There is a very (legally) interesting question as to whether the regulations: (1) give rise to circumstances of deprivation of liberty; and (2) if they do, whether they provide lawful authority to do so for purposes of Article 5 ECHR.
- In relation to ‘ordinary’ individuals it might well be the case that the regulations do not give rise to a confinement for purposes of Article 5 (as they, in effect, impose a requirement that the person is not free to leave, but without the additional requirement of continuous supervision and control so as to satisfy the ‘acid test’ set down in Cheshire West);
- But in relation to those with impaired decision-making capacity, it is likely – at a minimum – that those supporting those individuals are going to feel that they need to take steps to ensure that they are not exposed to (a possibly illusory) risk of prosecution. That means, in turn, that they are likely to want to keep the individuals under a potentially greater degree of supervision and control such that – applying the ‘policy of caution’ recently identified by Sir Mark Hedley in AB) – it is more likely that they will be confined. If they cannot consent to that confinement, then consideration will have to be given as to how to ensure that deprivation of liberty is lawful for my part, it seems to me that these regulations provide thin legal ice upon which to stand as authorisation (for those in the community, and outside the scope of DoLS, this guidance note may assist).
* That assumption itself, may require unpicking, and shows the extent to which the regulations simply do not address the position of those with impaired decision-making capacity.