Emergency Legislation - What we know so far

This post considers two pieces of legislation which aim to address the Coronavirus pandemic in England and Wales.   The first is the proposed Coronavirus Bill.  The text of the bill has not yet been released but on 17 March 2020 the Government released guidance which set out what it would do.  This can be found here: 

The second is The Health Protection (Coronavirus) Regulations 2020, which were made on 10 February 2020.   They can be found here.

We intend to provide updates as further information emerges.  At present we do not know what further police and immigration powers are envisaged, other than those in the regulations.

The Coronavirus Bill.

The proposed Bill is intended to address 5 key areas, which in summary are:

1.Increasing available health and social care workforce

2.Easing burden on frontline staff, enabling local authorities to prioritise care for people with the most pressing needs

3.Containing and slowing the virus by reducing unnecessary social contacts and strengthening quarantine powers of police and immigration officers 

4.Managing deceased with respect and dignity

5.Statutory sick pay adjustments. 

This post addresses the steps aimed at 2 and 3, and 4 to the extent the juries are to be removed from inquests into coronavirus deaths.  

Changes to mental health legislation

• One medical opinion to detain and treat patients in need of urgent treatment for a mental health disorder.  It is not clear whether this will apply to detention under sections 2 or 3 of the Mental Health Act 1983.   Section 2 allows detention for up to 28 days authorisation for assessment or assessment followed by treatment.   Section 3 allows detention for treatment for up to 6 months in the first instance.  There may well be cases where a well-known patient urgently needs treatment (and thus might be detained under section 3 rather than 2).  It is questionable whether 6 months detention on the opinion  of one professional is proportionate- it may be that there will be an earlier review requirement.  It is assumed that an application for detention will be made by an Approved Mental Health Professional (AMHP) as is now the case.
• A temporary extension in time limits in mental health legislation to allow for greater flexibility where services are less able to respond.  This would apply only if staff numbers were severely adversely affected. This could involve the removal of the time limits in sections 136 (recently reduced from 72 to 24 hours) or extend the 28 day limit under s2.  It may address the 14 day requirement between medical recommendations and an application by an AMHP in section 6.  

CHC assessments:   

• The NHS to delay CHC assessment for discharge from hospital

Care Act 2014

• Local authorities are to prioritise services to most urgent and serious care needs only.  The powers are only to be used if demand pressures and workforce illness during the pandemic meant LA’s at imminent risk of failing to fulfil their duties and only last the duration of the emergency.

Inquests. 

• Remove requirement for an inquest into a cv death to be held with a jury.  Other notifiable diseases will still require an inquest with a jury.

Comment

In 2018-19 the CQC reported 49,988 new detentions, of which 30,478 took place at the point of admission to hospital. A further 15,834 occurred following admission. There were also  3,504 detentions following a place of safety order and 199 after the revocation of a CTO.  The full figures can be seen here.  

Plainly the measures suggested will free up doctors in order to undertake other urgent treatment or care.   Proposals to limit the timelimits under the MHA are understandable (although we would suggest that 6 months detention under section 3 on one medical recommendation may not be proportionate.   (It is of note that the Independent Review of the Mental Health Act recommended a reduction in the length of orders under section 3 to three months).    

These changes, and the changes in CHC may lead to people remaining in hospitals for longer- something that the Government will wish to avoid.  

It is understood that there will at the same time be emergency amendments to the First Tier Tribunal Rules allowing judges to hear Mental Health cases alone, but with access to specialist evidence where needed.  This is something that has been canvassed before, and it will be very important to assess the impact of this change on the outcome of challenges to detention under the MHA.  

The proposed changes to the Care Act and to duties to children with special needs may give rise to real anxiety on behalf of those who rely on what may be limited local authority resources in any event.   The threshold of being ‘at imminent risk of failing to fulfil their duties’ may be reached quickly.    It is crucial that there is  justification for choices of who needs supporting and who can manage with reduced support, and a care planning process for making those choices.   It is essential that local authorities have sufficient financial support during this period.       

The “sunset” provisions will need careful consideration to ensure that the measures are properly time limited.

The Health Protection (Coronavirus) Regulations 2020 

The regulations were made without the prior approval of Parliament, using the powers in the Public Health (Control of Disease) Act 1984, but were subsequently laid before Parliament.  They are in force now.  

They bite where SS declares by notice on www.gov.uk  that the incidence or transmission of Coronavirus constitutes a serious and imminent threat to public health, and that incidence or transmission is at such a point that the measures outlined in these Regs may reasonably be considered as an effective means of preventing the further, significant transmission of Coronavirus.  [“serious and imminent threat declaration”].

A declaration under regulation 3(1) was made as the regulations came into force, based on advice from the Chief Medical Officer, or a deputy. 

The regulations permit:

Detention for screening or assessment (reg 4)-

If two conditions (A or B) are met, detention is permitted by the Secretary of State for Justice or a registered public health consultant for the purposes of screening, assessment and imposition of restrictions or requirements. Reg 4. 

Detention can last for a period of 48 hours or until screening requirements have been complied with or assessment carried out – whichever is the later.

Condition A is that the Secretary of State  (SS) or registered public health (RPH) consultant has reasonable grounds to believe that P is or may be infected or contaminated with C, and the SS or RPH considers that there is a risk that P might infect or contaminate others.   This may be due to contact with someone with symptoms, or who has returned from a contamination hot spot.  

Condition B is that P has arrived from an aircraft, ship or train from outside the UK, directly or via NI, Scotland or Wales, and has left, or SS/rph has reasonable grounds to believe P has left an infected area within the 14 day period immediately preceding the date of P’s arrival in England. 

It will be seen that B is aimed at containment, applying as it does to those travelling in and where there are reasonable grounds to believe that a person has been in an infected area in immediate 14 days before arrival in England.    However,  cases are reported within the population at large and not only those travelling from infected areas. Most cases now will fall under A.

Restrictions and requirements (reg 5)

These powers also depend upon one of the conditions in regulation 4 being satisfied.  The potential restrictions are:

• Orally or in writing impose screening requirements to inform an assessment of whether P presents or could present a risk of infecting or contaminating others, 
• Carry out an assessment
• Following an assessment to impose any other restriction or requirement as necessary for purposes of removing or reducing the risk, including a special restriction or requirement (by a JP)

The restriction or requirement must be proportionate to what is sought to be achieved by imposing it. -

This can be varied by the Secretary of State  or RPH. -

Where applied to children, a responsible adult must secure child’s compliance so far as reasonably able to do so. [(4)].  

If  notification or variation is oral or then it must be provided in writing as soon as possible. 

Screening requirements (reg 6)

These requirements are that the person concerned (or in the case of a child, a responsible adult) must:- 

Answer questions about health or relevant circumstances-

Provide documents or information-

Must provide sample of secretions or blood and other similar.   

Further requirements (reg 7)

Once an assessment has been carried out or a person has been released from detention under reg 5 or isolation under reg 8, further restrictions and requirements may be imposed if Condition A or B is met.  

These can relate to travel, activities, and contact with specified persons [reg 7(3)] for max 14 days.   Before imposing or varying such a requirement, the SS or RPH must have regard to relevant representations by P (or where P is a child, the responsible adult).

Isolation (reg 8)

This power arises if A or B is met. 

The SS or RPH may require P to be in isolation, if there are reasonable grounds to believe that P is or may be infected, or contaminated with Coronavirus, and it is necessary and proportionate to do so to reduce or remove risk of infection to others.

Review by SSH (reg 9)

If a person kept detained or in isolation for a period exceeding 14 days, this  must be reviewed by the SS.  After each subsequent interval of 24 hours during which P is detained or kept in isolation under reg 5 or 8, or subject to restriction or requirements under reg 7, SS must review continuation and conditions of P’s detention.   

The Secretary of State must have regard to the person’s wellbeing.

Application to Groups (reg 10)

The powers under regulations 4,5 and 8 can all be applied to groups, or members of groups,  as well as to individuals.

Powers of Justice of the Peace (reg 11). 

A Justice of the Peace has powers to make orders under Part 2A 1984 Act, and Reg 11(2). These are exercisable on the application of a local authority: s 45M(1).

Under the new regulations, an application can be made by a RPH for restrictions in s 45G(2)((a)-(d).  These are restrictions which may require a person to submit to medical examination, be removed to a hospital, detained in a hospital, or kept in isolation or quarantine.  

The Secretary of State may apply for orders under s 45K(2), where the Magistrates have a broad discretion to impose restrictions considered necessary to reduce or remove the risk. 

Appeals (reg 12)

A person (or if the person is a child, an adult with parental responsibility may appeal to Magistrates against restriction or requirement. There are no specific criteria, nor is it clear whether such appeals will be funded.   

Power to convey and detain (reg 13)

This enforcement power allows a constable may take the person upon whom requirements have been imposed under regulations 4,5 and 8,  to a suitable place (specified by the Secretary of State or a public health officer), or keep the person in detention or isolation. 

Regulation 13(2) gives the constable the power to return a person if s/he absconds. A constable may use reasonable force, if necessary in the exercise of a power under this regulation.  

Initial detention to enable screening or assessment (reg 14)

This power applies if a constable has reasonable grounds to suspect that a person P is or may be infected, there is a risk they might infect others, and it is necessary to direct, remove or detain P in the interests of P, for the protection of other persons or the maintenance of public safety.   The constable may direct P to go immediately to hospital or other suitable specified place, remove P to a hospital or other suitable place, or if already at a hospital keep P at that place.  

The constable must consult a public health consultant first and must have regard to any guidance issued by Public Health England [14(5)].   

There does not appear to be a time limit within which the person must be brought to hospital.  Once the person is at hospital the person can be detained for up to 24 hours under this power (“the initial period”- [14](10)).  During this period the constable or public health consultant can extend this by a further 24 hours if they consider the extension is necessary, because it is not reasonably practicable for the restrictions and requirements in reg [5] to be completed in this period.  Note that this power can be exercised where the person is at any place, and permits the constable to enter any place.  This includes the person’s home.

Offences (reg 15)

The following are offences punishable by a fine:-

• Failure to comply with restrictions or requirements (or a responsible adult ensuring so far as they are reasonably able to do so, the compliance of a child
• Absconding or attempts to abscond from detention or isolation. -Providing false or misleading information (this also applies to responsible adults where the person concerned is a child)
• Obstruction 

Expiry (reg 16)

This is a “sunset clause” and provides that the powers expire at the end of two years.  

Comment:

These regulations provide a legal framework permitting significant interferences with the rights guaranteed under Articles 5 and 8 of the European Convention on Human Rights.  No one would deny the importance of adequate powers to manage a public health crisis, engaging the State’s duty to protect life under Article 2.   The power to detain can be exercised on the decision of one individual (comparable with the short term powers in section 5 Mental Health Act 1983).   However, that period does not appear to have a clear time limit- it expires either at the end of 48 hours or- if this is later- when the screening requirements and assessments have been carried out.   Given that there is a requirement to review detention and isolation after 14 days, it is clear that it is anticipated that detentions may extend beyond that period.  

The regulations allow discretion as to where a person may be detained, or made subject to requirements.  This can include a facility designated by notice of the Secretary of State; a hospital; a person’s home or another suitable place.  It may well be that the person’s home will be the setting in many cases, and that the powers will be exercised to enforce compliance with the advice on self-isolation.    

The police powers go beyond those in the Mental Health Act 1983, which require a warrant before a constable could enter a person’s home.   The regulations attempt to cater for the situation when the person who may be infectious is a child, by imposing requirements on “responsible adults”.   These are persons with parental responsibility under the Children Act, or a person with custody or charge of the child for the time being (reg [2](1)).   They do not attempt to address the position where the person concerned may lack capacity to decide whether to comply, or where the person has a mental disorder.