A number of unprecedented powers to restrict and control our behaviour and freedom of movement have been introduced by the government in an attempt to contain the spread of the coronavirus. There are three main sources of these powers.
The first two sources are schedules 21 and 22 of the Coronavirus Act 2020, which deal with the screening and assessment of potentially infectious persons and the restriction of gatherings in public, respectively. The third source is the 'lockdown Regulations' (aka the Health Protection (Coronavirus, Restrictions) (England) Regulations 2020) by which the government is enforcing its ‘lockdown’ programme, by placing restrictions on everyday movements and gatherings outside of the home for everyone. Each of these sources creates offences.
These provisions are a real onslaught on our personal freedoms. There is no reference in any of the new legislation to people lacking the mental capacity to comply with the new controls, or to the Mental Capacity Act 2005 (“MCA”).
This post considers the impact of schedule 21, part 2 of the Coronavirus Act 2020 (powers relating to potentially infectious persons in England) and the lockdown Regulations, on a person lacking capacity to make decisions as to their care and treatment under the Mental Capacity Act 2005.
The lockdown Regulations
The 'lockdown Regulations' will be reviewed by the Secretary of State ‘at least once every 21 days' (reg 3(2)). They deal with the closure of premises and businesses and prevent a person from leaving their home without reasonable excuse, such as to shop for basic necessities, or to exercise, as in regulation 6(2).
They also restrict 'gatherings' in a public place of more than two people except “where reasonably necessary… to provide care or assistance to a vulnerable person” (reg 7(d)(ii)). This could permit a person to be out and about with reasonable excuse under reg 6(2), accompanied by two carers.
These provisions are without doubt draconian. They are enforceable by a “relevant person” (reg 8(1)) , defined as a constable, community police officer or other designated person (reg 8(12)) who may direct or remove the person back to the place where they live, using reasonable force, if necessary (reg 8(4)). These powers are exercisable if they are a ‘necessary and proportionate’ means of ensuring compliance with the Regulations (reg 8(8)). It is an offence to contravene the Regulations, punishable by a fine (reg 9(4)) or payment of a fixed penalty (reg 10).
Schedule 21, Coronavirus Act 2020
Schedule 21 of the Coronavirus Act 2020 provides heavy duty coercive powers in relation to a person who is or may be infected, or is at risk of infecting others. In summary these are:
a) Powers to direct that a person goes to, or removes a person to a place suitable for screening and assessment for a maximum of 48 hours (paras 6-12)
b) Powers to keep a person at the place pending screening and assessment, exercisable by a constable or an immigration officer (para 13)
c) Powers after screening and assessment to impose requirements and restrictions, including to remain or be isolated at a particular place, enforceable by a public health officer or constable (paras 14-17)
d) A constable or immigration officer may use reasonable force, if necessary, in the exercise of a power under this part (para 20(4))
e) A constable may enter any place for the purpose of exercising a power under this part without a warrant (para 20(5)).
The key actor is a ‘public health officer’ (PHO), i.e. a registered public health consultant, or other officer - both designated by the Secretary of State, assisted by constables and immigration officers. Public health consultants are not necessarily medically trained.
All steps at a) – c) above must be founded on “reasonable grounds to suspect that a person is potentially infectious”, or the person is confirmed by screening to be infected or screening was inconclusive. Any steps taken must expressly be those that are “necessary and proportionate…a) in the interests of the person, b) the protection of others, or c) for the maintenance of public health". There are regular reviews of the use of compulsion at each stage, and a limited right of appeal to the Magistrates Court (para 17(1)). There is no reference to funding arrangements.
There is no definition of a "suitable place" for screening and assessment in Schedule 21. Prior Regulations (now revoked, see para 24 of Schedule 21) defined a "suitable place" as a "designated facility", the person’s home, a hospital or another suitable place. Schedule 21 of the Act defines an “assessment” as an assessment of the appropriate measure to take to mitigate the risk that the person might spread the infection, and “screening” as assessing the extent to which a person has been exposed to the virus, determining whether they are infected, an assessment of symptoms and state of health.
Schedule 21 also permits the taking of ‘biological samples’ (para 10(2)(a)), defined as blood or respiratory secretions including a swab of the nasopharyngeal cavity (para 3(1)). There is the potential, therefore, for invasive medical procedures. It may also require the disclosure of personal information.
Possible human rights breaches
The exercise of these powers will almost invariably amount to an interference with private life rights under Article 8 of the European Convention on Human Rights ("ECHR"), and may also amount to a deprivation of liberty under Article 5 ECHR. It is worth noting that precursor Regulations to Schedule 21 (see above), expressly granted a power to impose “a requirement to be detained”. Schedule 21 refers at paragraph 13, more euphemistically, to a power to “keep” a person and paragraph 14(3)(d) grants a power to impose a requirement to remain, but also refers to isolation at 14(3)(e).
Schedule 21 is intended to be fully compliant with Article 5(1)(e) and 5(4) which permits the loss of liberty to prevent the spread of infectious diseases, providing there is a speedy review by a court.
The most familiar and closest existing analogy is the Mental Health Act 1983 (“MHA”) which permits treatment for mental disorder under compulsion. It is self-contained and A5(1)(e) and 5(4) compliant in its detaining and review powers, without reference to the mental capacity of a patient to consent to treatment, in respect of which separate provisions exist. Of course, coronavirus is not a mental disorder but a physical illness.
Schedule 21 powers are likely to be triggered by a person found in the community in contravention of the lockdown Regulations (above); or if a person in their own home, in a hospital or other institutional setting shows signs of having contracted the virus and is refusing to self-isolate, or is otherwise creating a risk of spreading the virus.
As with the MHA, it seems right that if a person is cooperating with screening and assessment requirements and lockdown restrictions voluntarily, then these emergency provisions will not need to be used. But what should happen if a person is unable to provide informed consent to proposed restrictions or medical procedures and is not cooperating?
Caring for a person lacking mental capacity
The challenge for staff and carers of vulnerable people will be securing compliance with the lockdown Regulations.
Individuals and groups, depending on their particular abilities arising from a diagnosis of dementia or autism or learning disability, will require different responses to support them. None of the emergency provisions permit non-compliance with the MCA.
A decision to follow rules on self-isolating and social distancing is likely to be properly regarded as an aspect of a ‘care’ decision as it is about social welfare and wellbeing. Implementation will need planning and assessment for each individual.
The main problems are likely to arise where a person needs coaxing or continual reminding to keep their distance from others, and where space constraints make this difficult in any event, or where regular outings must now be curtailed. Capacity and best interests assessments of a person’s ability to comply with the current coronavirus restrictions must still be conducted in order to adjust care and support plans.
Conducting capacity and other assessments will be more difficult while this emergency persists, and carers and staff must be sensitive to devising means that are tailored to the individual and likely to yield the most productive assessment.
The ‘relevant information’ for a capacity assessment is likely to include the details of the restriction concerned and the reason why it is necessary, namely the risks not only to the life and health of the individual but the community as a whole and the urgency with which measures must be implemented.
Fundamental rights under Article 5 and Article 8 ECHR are already likely to be compromised where a person’s private life, freedom of movement and liberty are restricted by their care plans in their best interests, so any additional restrictions to secure compliance with the lockdown Regulations must be carefully imposed.
We are firmly of the view that the provisions of schedule 12 of the Coronavirus Act (not yet in force - see here), whereby a local authority ‘does not have to comply’ with its Care Act 2014 duties, including the preparation and review of care plans, cannot apply in these circumstances.
During the passage of the Coronavirus Bill through the House of Lords, the government minister acknowledged that the challenge to social care is profound and stressed that local authorities are still expected to do everything they can to meet all assessed needs. He also referred to the need to strike a careful balance between the need to protect vulnerable people and preventing the spread of the virus. In this context, emergency guidance on the use of deprivation of liberty safeguards under the MCA, and conduct of assessments, are promised and awaited. Even without such guidance, it is likely that additional restrictions preventing access to the community, travel and contact with others might well cross the threshold into a deprivation of liberty (Surrey County Council v P  2 WLR 642) so that the need for DOLs authorisations must be considered.
The approach under Schedule 21 may be different because it provides a complete compulsory framework, that is intended to comply with human rights laws, in a manner similar to the MHA. It concerns compulsion without consent. There are, however, obvious concerns, for example, will it matter if the PHO is not medically qualified? Most alarmingly, it would appear that a person’s resistance to an invasive procedure (performed by a medical practitioner) to secure a biological sample may be overcome by the use of reasonable force applied by a constable or immigration officer, whether or not the person has capacity to consent to the same.
Schedule 21 also provides at each stage for the provision of information to the person, for example, the reason for removing them, or for imposing restrictions, and that failure to comply will amount to an offence. How is this information to be meaningfully provided to a personal lacking the mental capacity to consent or refuse to the proposals?
These provisions are crying out for guidance on how to screen and assess people lacking mental capacity, on ‘suitable’ places for them to be assessed and treated in, and on the use of restraint. One would expect that the PHO would at the very least consult with carers and family at every stage to assess what is ‘necessary and proportionate’ in individual cases. NHS England has recently issued guidance to healthcare professionals working with those with learning disabilities and autism, stressing the need to make reasonable adjustments, pay attention to the person’s communication need, and assess capacity in accordance with the MCA.
There are difficult decisions around deprivation of liberty. After assessment the PHO may impose ongoing requirements and restrictions, which may amount to a deprivation of liberty. Will a person who is required to remain in such conditions in a care home or hospital, in independent living or at home, require DOL safeguards whether under schedule A1 or authorised by the Court of Protection under section 16A MCA in addition, or are the safeguards in Schedule 21 sufficient? There is no provision in Schedule 21 for an advocate or representative or other person to initiate the appeal procedure, or to support a person subject to restrictions, raising issues of access to justice.
These provisions are an unprecedented onslaught on our personal freedoms. There is no reference to people lacking capacity to comply with the new controls, or to the Mental Capacity Act 2005 (“MCA”).