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Coronavirus Act 2020: What is a Reasonable Response to a Pandemic?

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About The Author

Ceylan Simsek (Regular Writer)

Ceylan Simsek is a law school graduate whose main area of interest is medical law and international law. Alongside her studies, she has obtained certifications from Stanford University School of Medicine on overprescription of antibiotics and unconscious bias in medicine. She works at Medical Protection Society, the world's leading medical defence organisation for medical, dental and healthcare professionals. Outside of law, she enjoys learning new languages and, in order to combat her fear of heights, rock climbing.

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In any crisis, leaders have two equally important responsibilities: solve the immediate problem and keep it from happening again.

Bill Gates

At the time of publication there have been more than 11 million cases and half a million deaths worldwide due to the novel coronavirus pandemic. As part of their response to the pandemic, the UK government introduced a raft of new legislation. Given the nature of the emergency, much of this legislation was passed quickly and without significant opposition or scrutiny.

This article will focus on the drafting of Schedule 21 and Schedule 22 of the Coronavirus Act 2020, the impact these will have on UK law and the reasonableness of the restrictions within. However, the Act is only one part of the government’s coronavirus legislation, alongside the Health Protection (Coronavirus) Regulations 2020 (SI 2020/129) and the Health Protection (Coronavirus, Restrictions)(England) Regulations 2020 (SI 2020/350), as well as the existing Public Health (Control of Disease) Act 1984.

Background & Definitions

s1 CVA 2020 uses the following definitions, in line with WHO definitions:

  • "Coronavirus" refers to SARS-CoV-2, the pandemic virus.
  • "Coronavirus disease" means COVID-19, the disease which can be caused by coronavirus.

The government’s initial response to COVID-19 involved three main phases: contain, delay, and research. As part of the “contain” phase, designated treatment/isolation facilities were established at Merseyside, Arrowe Park Hospital and Kents Hill Park, and Health Secretary Matt Hancock introduced the Coronavirus Act 2020 as well as the Health Protection (Coronavirus) Regulations 2020 (SI 2020/129). SI 2020/129 functions as the Secretary of State’s declaration of a “serious and imminent threat”, required by the Coronavirus Act itself before many of its powers can be exercised.

Existing public health legislation - specifically the Public Health (Control of Disease) Act 1984 - only required a physician to notify a "proper officer" of the local authority regarding any person deemed to be suffering from a notifiable disease. It did not allow for restrictions to civilian life, a healthcare professional’s right to detain infected individuals, or the obtaining of medical records. The Coronavirus Act (CA 2020) granted officers significantly expanded powers in an attempt to combat the early spread of coronavirus.

CA 2020 grants the government emergency powers, time limited to two years, for its response to the coronavirus pandemic. It covers areas including:

For the purposes of this article we will be focusing on Schedule 21 and 22 Coronavirus Act 2020, which focus on containing and slowing the spread of the virus through powers relating to infectious persons and public gatherings.

Schedule 21: Powers relating to potentially infectious persons

Schedule 21 of the CVA 2020 (via s51) grants public officials in England emergency powers to test, isolate and detain a person where they have reasonable grounds to think that the person is infected. By doing so, the Health Protection (Coronavirus) Regulations 2020 (SI 2020/129) are given a statutory footing and can be extended to authorities across the UK.

Schedule 21 of the Act provides extensive powers to constables, public health officers and immigration officers for so long as the coronavirus constitutes a “serious and imminent threat” to public health in England. The Health Secretary declared this serious and imminent threat on 10 February, in accordance with s3 of the Regulations.

Schedule 21 begins by defining a “potentially infectious person” in two ways:

  • a person who is or may be infected with coronavirus and poses ‘a risk that [they] might infect or contaminate others’
  • a person who has been in an ‘infected area’ within the previous 14 days

The principle police powers granted under Schedule 21 regarding a “potentially infectious person” are to direct or remove them to a place suitable for screening and assessment (paras 6-7). These powers also include removing a person and keeping them for a "reasonable period of time" (para 20(3)), using reasonable force (para 20(4)), and entering a property to exercise these powers (para 20(5)). 

In addition, where the screening has confirmed the person to have coronavirus or if the screening remains inconclusive, officers may impose “such requirements and restrictions on the person as the officer considers necessary and proportionate”, including requiring them (para 14 (3)):  

(a) to provide information to the public health officer or any specified person; 

(b)to provide details by which the person may be contacted during a specified period;

(c)to go for the purposes of further screening and assessment to a specified place suitable for those purposes and do anything that may be required under paragraph 10(1);

(d)to remain at a specified place (which may be a place suitable for screening and assessment) for a specified period;

(e)to remain at a specified place in isolation from others for a specified period.

These powers can also include a restriction on the person’s activities, contact with other persons, and movements both within and outside the United Kingdom (para 14(4)).

The powers apply during a "transmission control period" declared by the Secretary of State and if the officer has “reasonable grounds” to suspect that a person in England is a potentially infectious person.

“Reasonableness” in Schedule 21 Powers

Critically, CVA 2020 does not clarify what may or may not be "reasonable grounds to suspect" a person is a potentially infectious person. However, this is a common piece of drafting language and English common law has often attempted to explain what it may mean.

In the case of O’Hara v Chief Constable of the RUC [1997] AC 286, making an arrest based on "suspicion" is in relation to a constable’s subjective state of mind, but for there to be a "reasonable" ground would be an objective test. As a result, the act lacks clarity as to what this objective test may be, particularly as common symptoms of COVID-19 (such as a high temperature or a persistent cough) can also be caused by entirely different illnesses.

These powers apply where the police have "reasonable grounds to suspect" that the person may be infected. As of 25 June, Public Health England has recorded a total of 306,862 confirmed cases and 43,081 deceased, in England only.

With this in consideration the Act confers extensive discretionary police powers, including the ability to use force, detain and enter property, over those who "may be infected" - which at this point could be almost any person in the UK. The Act was drafted at a time when outbreaks were expected to be smaller, localised, and largely brought in from abroad. As the virus continues to be transmitted within the community, across all of the UK, it is increasingly difficult to determine those individuals who "may be infected" based on the original drafting of the Act, and so the discretion granted to officers has grown significantly larger.

As for those who may have "been in an infected area within the 14 days preceding", while this section was initially drafted with travellers from Wuhan (and later Italy) in mind, the rapid spreading of the virus means an "infected area" could be anywhere in the world, therefore rendering this section also unhelpfully vague. However, this criteria may once again become useful once travel restrictions are lifted and the pandemic (hopefully) begins to subside into regional outbreaks.

Under Schedule 21, paragraph 23 it is an offence for a person not to comply with officers acting under CA 2020. Further to this, police have been given powers (summarised by the BBC here) to enforce the government lockdown, including the power to fine an individual who did not follow the government’s self-isolation guidance. Between the start of lockdown and 11 May, a total of 13,445 Fixed Penalty Notices (FPNs) were issued for breach of these regulations according to the National Police Chiefs Council.

However, the exercise of these powers has not been without controversy. The NPCC’s own data shows that some forces have been much more zealous than others in issuing fines, and  back in March, the chair of the NPCC wrote to police chiefs over concerns that some forces were exceeding their legal powers, including issuing fines to children (who are not covered under the police powers). There has been some recent concern over data released by the Metropolitan Police showing that BAME people were disproportionately fined for alleged lockdown breaches; additionally, a damning review by the Crown Prosecution Service found that all 44 of the charges brought under CA 2020 were brought incorrectly, with a lack of evidence that the persons charged were potentially infectious. In general, the rollout of police powers to support Schedule 21 has been poorly communicated and inconsistently applied across the UK, in part due to the vague drafting of the legislati

Schedule 22: Powers to issue directions relating to events, gatherings and premises

The Secretary of State also has the power to issue directions in relation to events, gatherings or premises under Schedule 22. The powers under this schedule can be utilised to prevent, protect or delay transmission (para 3). This includes the power to issue directions in relation to specified premises which include closing or restricting entry to those premises (para 6(5)). In addition, the Secretary of State can impose prohibitions, requirements or restrictions by reference to the following, among other things (para 6(6)):

(a) the number of persons in the premises;

(b) the size of the premises;

(c) the purpose for which a person is in the premises;

(d) the facilities in the premises;

(e) a period of time.

This would, for instance, allow the Secretary of State to prohibit premises from hosting more than a set number of people (para 6(6)(a)), or allow business use of premises (eg. conference centres) while prohibiting their use for leisure or entertainment (para 6(6)(c)). The powers are broad and flexible, but only apply to the owners, occupiers, or persons responsible for managing entry into the specified premises.

Sch. 22 para 5 likewise gives the Secretary of State broad powers to prohibit or impose requirements or restrictions on specified events and gatherings. An event or gathering covered by the Secretary’s directions may be described (para 5(6)):

(a) by reference to he number of people attending,

(b) by reference to a requirement for medical or emergency services to attend, or

(c) in any other way.

(emphasis added)

As with para 6, the powers in para 5 are confined to affecting the owners and occupiers of premises, and any persons involved in holding the event or gathering, but not attendees.

The Secretary of State must "have regard" to the relevant advice given by the chief medical officers (para 8(1)). Where a direction imposes prohibitions, requirements or restrictions on a person or revokes these this must be in writing and should be published in a manner bringing it to the attention of those who may also be affected by it (para 8(2) and (4)). Beyond this, there are few restrictions on the Secretary of State's discretion beyond the traditional grounds of judicial review.

Furthermore, as with Schedule 21 there is a criminal offence for failure to comply with these powers - where the individual does not have a "reasonable excuse" they may be liable on summary conviction to a fine (para 9-10).

Are these powers reasonable?

Schedule 22 does not precisely identify the ways in which these powers should or should not be exercised by Secretary of State, and as is the case with many pieces of secondary legislation, leaves a great deal up to his or her subjective view of the situation – if the Secretary of State believes it would be useful for them to have these powers, they may have them. In addition, it could be argued that some of these powers (as well as some of those contained in Schedule 21) are ultra vires as they may impinge on international human rights standards, in particular the rights to liberty and privacy as discussed in a previous KCTL article by Adiba Firmansyah.  

On the other hand, it can be argued that coronavirus presents a clear risk to a significant portion of the population, particularly the elderly and those in at-risk groups, and that the current regulations were a reasonable attempt to prevent individuals becoming a health risk to others during a crisis situation.

The case of Patient-31 in South Korea is a great example of the dangers of having a quarantine that is insufficiently enforced.

Although it is unclear where Patient-31 became infected, until the emergence of Patient-31 the COVID-19 pandemic in South Korea seemed to be largely contained. Patient-31 travelled to crowded spots in Daegu Seoul. On February 6, she suffered from a minor traffic accident and checked herself into hospital, while also attending the Shincheonenji Church of Jesus in Daegu on February 9 and again on February 16.

Due to her high fever, the doctors suggested she should be tested for coronavirus but she refused (though the patient later denied that a test was offered by the doctors). Her condition worsened on 17 February and she was confirmed to be the 31st confirmed case in the country. The Korea Centers for Disease Control and Prevention (KCDC) tested those who attended the Shincheonenji Church and surrounding areas. Around 1,200 who had also attended the church were found to have flu-like symptoms. Another cluster of coronavirus cases was then found in a hospital near Daegu. KCDC traced 1,160 contacts with Patient 31 herself, and by March 18 more than 5,000 people had been infected in the “Shincheonenji cluster”, more than 60% of all of the cases in South Korea at that time. Even compared to other pandemic diseases, novel coronavirus is exceptionally contagious, which has contributed to the difficulty in containing it.

While necessary, however, these powers should be exercised reasonably and without unnecessarily draconian measures where the human rights of an individual, such as their right to freedom and right to privacy, are threatened. There is no express provision within CA 2020 referring to the right of freedom or the right to privacy or human rights generally, only a requirement for constables to consult public health professionals "where possible" before exercising some powers (s14 HP(C)R 2020) and the “reasonable grounds” requirement, which as we have discussed is unhelpfully vague and poorly understood by office

Conclusion

The CA 2020 attempted to provide guidance for the public and healthcare workers, as well as powers for public health officers, at a time when COVID-19 cases were surging worldwide. The health risk to the vulnerable population could not and still cannot be ignored. However, it also cannot be ignored that the Act suffers from poor, potentially rushed drafting. In particular, it does little to clarify the "reasonable grounds" test, which has lead to misinterpretations of the Act and confusion among police forces, and it leaves many of the powers in Schedule 21 and 22 to the Secretary of State’s unfettered discretion.

It it also true that once governments acquire power they are often loathe to release it – it is worth at least asking what impacts the Act might have in the longer term. The Coronavirus Act 2020 has some strengths in this regard, in that it is specific to the novel coronavirus pandemic (rather than applying to any pandemic or public health emergency), and contains provisions for its own expiry in two years (s89 CA 2020) and for parliamentary review every six months (s98 CA 2020). In the long term, the Act is unlikely to present a major threat to human rights, although its specific nature and expiry provisions also mean new legislation will likely be needed to respond to a pandemic on this scale occurring again in the future, and this new legislation will need to be carefully examined from a rights perspective.

There have also been issues with the Act's implementation in the present crisis, from both a rights perspective and a practical one. The Act’s vagueness and discretionary nature can be both a blessing and a curse. For example, in the case of quarantining the elderly for 14 days, a healthcare provider must consider the long-term benefits and drawbacks as elderly individuals may suffer more than younger patients from a lack of exercise – the damage done by time trapped inside in quarantine may outweigh the risks presented by coronavirus. It is therefore advisable for health professionals to assess each individual on a case by case basis rather than applying standard, blanket rules for every individual. On the other hand, a lack of specificity has also resulted in inconsistent enforcement by police forces unsure on the exact boundaries of the law.

The Coronavirus Act 2020 was a necessary response to the early outbreak and provides a useful framework for dealing with COVID-19 patients, but it does so by placing large amounts of discretionary power in the hands of the Secretary of State, and onto front-line officers who may have little guidance on how to use that power. Another issue, as was discovered in the writing of this article, is that the pandemic has changed even more rapidly than the government’s own rules. The Act was devised for one situation and is now being used to combat quite a different one. Ultimately, the Act is a reasonable but flawed piece of legislation, and as with much of the response to the coronavirus pandemic, we may not know how effective it has really been for some time.

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Tagged: Administrative Law, Criminal Law, Medical Law & Ethics, Policing, Public Law

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