Story updated 2 October 2020
A law enforcing self-isolation to control coronavirus risks subjecting those who lack capacity to comply to criminalisation or unreasonable force, legal and human rights experts have warned.
The regulations – which were published on Sunday evening and came into force on Monday without parliamentary scrutiny – also potentially created risks for care workers should they be expected to ensure people they support comply with directions to self-isolate, critics said.
The law introduces fines starting at £1,000 for a first offence, rising to £10,000 per offence from the fourth case onwards, for those who fail to comply with requirements to self-isolate.
However, it makes no provision for anyone who lacks the capacity to understand they must comply with the requirements.
What self-isolation law says
The Health Protection (Coronavirus, Restrictions) (Self-Isolation) (England) Regulations 2020 apply to adults who have been notified that they have tested positive for coronavirus, have come into close contact with someone who has, or who are ‘responsible adults’ for children in either of these positions. The adult must then self-isolate, at home or in a suitable place, for the required period of time or ensure that the child they are responsible for does. Notification will be from either a government, NHS or local authority worker.
Notified people may only leave their place of self-isolation in certain limited circumstances, including to avoid risk of harm, seek urgent medical help or obtain basic necessities where this is otherwise not possible.
A police officer or someone designated to enforce the regulations by government or a local authority can direct an adult to return to a place of self-isolation, or ensure a child they are responsible for does so, with use of reasonable force where necessary.
Failure to comply with such a direction, or to comply with the requirement to self-isolate without reasonable excuse, is an offence.
Source: Enforcement of self-isolation: another minefield to navigate in the capacity context (Alex Ruck Keene)
‘In danger of unreasonable force’
The Law Society said the regulations needed to be “urgently updated to include clear, explicit provisions for people with impaired decision-making capacity”.
President Simon Davis said: “The Law Society is concerned that vulnerable people who may not understand the new regulations on self-isolation are in danger of unreasonable force being used against them to make them comply with the rules or that they may face criminal prosecution for non-compliance with provisions they do not understand.
“Vulnerable people are at a heightened risk during the pandemic, and safeguards have been reduced. As a minimum, guidance must be provided as to how rules can be enforced safely with vulnerable people, for example if a person with autism is out of their place of self-isolation and is becoming distressed at being told to return.
“Anyone who lacks capacity deserves at least the same rights under the new legislation as they would normally have, and safeguards should be increased, not decreased, during this time.”
Sanchita Hosali, director of the British Institute of Human Rights, said the regulations had “not considered the situation of many disabled people”, and risked “pushing us further towards a human rights crisis in responses to the pandemic”.
“Many questions need to be asked to make sure disabled people’s human rights aren’t further compromised, particularly their rights to liberty, involvement in decisions, and non-discrimination,” she said.
“For example, what happens when a person may not be able to consent to the direction to self-isolate due to a mental capacity issue; will people effectively be criminalised on the basis of capacity?”
Deprivation of liberty concerns
Hosali also raised questions about how self-isolation would be dealt with in residential settings.
“The regulations refer to a person’s home (or that of their friend of family) or immigration accommodation, and “other suitable accommodation”; what does this mean for people living in other places, such as a mental health hospital or residential unit? Are [Deprivation of Liberty Safeguards] or court authorisations needed?
“For people who are already under an authorised deprivation of liberty, enforcing self-isolation will be a significant further restriction.
“If restrictions of liberty for “self-isolation” are permitted, how will it be enforced by care staff, support workers, or even families?
She pointed to the fact that government guidance on the use of the Mental Capacity Act 2005 and DoLS under Covid-19 had not been updated since 7 September.
In reference to the fact that the regulations were passed without parliamentary scrutiny, Hosali added: “All these questions should have been part of the process of scrutinising draft laws, a process which is currently near impossible as the government continues to issue regulations without parliamentary involvement or consultation.”
In a blog post on the regulations, leading Court of Protection barrister Alex Ruck Keene raised a number of questions about the regulations’ impact on people with impaired decision-making capacity and those who support them, including:
- What if the person cannot understand the process of being notified to self-isolate?
- Will a prosecution be brought against a person who did not – because they could not – understand what they should have been doing?
- What steps, if any, are care workers or others allowed to take to secure self-isolation on the part of a person with impaired decision-making capacity?
- 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?
- Whether the regulations give rise to circumstances of deprivation of liberty and, if so, whether they provide lawful authority for this for the purposes of Article 5 of the European Convention on Human Rights.
Update to MCA guidance
In response to the concerns, the government said it was likely that the Covid-19 guidance on the MCA and DoLS would be updated in the light of the regulations.
A spokesperson said: “We always consider different groups, with diverse needs, when making decisions about our response to the pandemic.
“The government is considering how these rules may affect people without the required mental capacity, and the people who work with them, with a view to further updating the guidance.”
Crown Prosecution Service guidance in relation to suspects or defendants with mental health conditions or disorders says the test for whether a prosecution is in the public interest – which must be met before it proceeds – includes consideration of the person’s condition.
It says: “Prosecutors should also have regard to whether the suspect is, or was at the time of the offence, affected by any significant mental or physical ill health or disability, as in some circumstances this may mean that it is less likely that a prosecution is required. However, prosecutors will also need to consider how serious the offence was, whether the suspect is likely to re-offend and the need to safeguard the public or those providing care to such persons.”