Law in the Time of Covid

16 March 2020 by Thomas Hayes

NHS Staff. Credit: The Guardian.

Thomas Hayes is a specialist registrar in vascular surgery and forthcoming pupil at 1 Crown Office Row

As teased earlier, the Covid-19 pandemic gives rise to such a volume of material as to justify a slightly more detailed examination of its consequences. In time, the response of governments across the globe to the disease will no doubt be the subject of detailed study by academics across the fields of biology, history and law. For the time being, however, blog readers will have to tolerate the following words of speculation, much of which will probably suffer the cruel fate of being shown to be out of date and/or inaccurate within hours of publication…

The government has announced its intention to bring before Parliament this week emergency laws to help control the outbreak. Whilst at the time of writing, such draft legislation had not been published, press reports suggested it would include new powers to allow the police to detain those breaking quarantine measures. Where the police might take such recalcitrant citizens is not known, however the prospect of detaining in close proximity those suspected of carrying the highly infectious airborne disease presumably fills neither the police nor public health officials with much joy…

At present, a constable’s powers of arrest are premised on the concept of committing “an offence” (s 24 PACE 1984). It would presumably be possible to define breaking quarantine as an offence, although this would obviously require the individual concerned to know they were subject to quarantine measures in order for them to regulate their behaviour accordingly. Whether or not such a status would be imposed upon them (i.e. by a doctor telling the patient they were to be legally quarantined) or, as the government introduced last week, by the patient self-identifying as subject to quarantine, would be fundamental to how the legislation functions.

The former would likely exert a heavy burden on medical staff, reducing the number of people subject to quarantine and limiting its effectiveness as a public health tool. The later approach, thus far the one employed by the government, would require the citizen to conduct their own assessment of whether or not their behaviour is criminal against a set of medical criteria with which the majority are likely to be unfamiliar. Unlike most criminal offences, the unacceptability of which are usually reflected in a degree of consensus across society, such an exercise would require the individual to assess their conduct on a matter which previously would have been within the field of personal judgement rather than criminality. The scope for innocent infringements in asking people to assess whether their cough is “new and persistent” would thus seem high.

An alternative would be to introduce legislation akin to s 136 of the Mental Health Act 1983, affording novel powers to the police to remove those they consider unwell. Such an approach would not however be without its own problems. If the purpose is to dissuade mentally competent citizens from breaking quarantine, it would seem sensible to attach a punishment or deterrence to non-compliance. The Mental Health Act quite rightly does not function in this way. Furthermore, the MHA 1983, broadly speaking, acts as an instrument by which people can be removed from free society and committed for treatment because the very nature of their condition makes their consent to such a process unreliable. The Government has awarded similar powers to the Secretary of State and Public Health Consultants under The Health Protection (Coronavirus) Regulations 2020, breach of which is designated by the regulations as an offence. However, their enforceability is open to question, as covered by Jim Duffy here. In addition, as cases grow, the reliance of the regulations on the limited number of Public Health Consultants would appear to limit their effectiveness.

Quarantine measures are not the only legal sphere in which the impact of Covid-19 is being felt. The Guardian reported that cleaners at a hospital in Lewisham walked out over pay, however tensions were heightened because of the risk posed by the disease. Employers have a responsibility to protect employees under health and safety legislation from dangers in respect of the work they do, yet personal protective equipment in hospitals is in short supply. The outbreak raises the question of what steps are reasonable for employers to take to protect their workers. S 100(1)(d) of the Employment Rights Act 1996 establishes that where an employee is dismissed for leaving work or refusing to return in circumstances where the employee reasonably believed there to be a serious and imminent danger, it will constitute unfair dismissal. Will a doctor, or a nurse, be in breach of their contract if they refuse to work? Is a higher standard expected of those individuals than say, a hospital cleaner, or a waiter in a restaurant?

It may be that ultimately, whilst employment law confers protection on such individuals, their own professional regulators do not. It is not hard to imagine the General Medical or Nursing and Midwifery Councils holding their members to a higher standard than that required by their employment contracts, and deeming those who have fallen below it to have brought the profession into disrepute. Many members of the public might consider such an approach to be quite reasonable. Yet could such an analysis extend to other professions with similar regulators? Would a teacher who felt keeping schools open in an epidemic was unreasonable and refused to teach be subject to disciplinary proceedings? Or a lawyer who refused to attend a public hearing?

In particular, the impact on criminal justice may be significant. Israel has already suspended criminal trials, which is presumably convenient given the Prime Minister was due to attend one tomorrow on charges of fraud, breach of trust and bribery. Similarly, the Australian state of Victoria has suspended all jury trials due to the risk of transmission during the process of empanelling jurors. Should the virus begin to spread in British jails, the head of the Prison Officer’s Association has stated that prisoners may need to be released early.

How the UK’s already stretched criminal justice system will accommodate this in the context of widespread anticipated absences due to illness amongst court staff, judges and lawyers remains to be seen. If trials are delayed, concerns must exist around custody time limits and prolonged periods of detention without charge. Similarly, how can an individual’s right to justice delivered at a public hearing under the ECHR be maintained at a time when the rest of society is taking measures to prevent the movement and mixing of individuals?

As with speculation concerning the public health response, a lot of this is conjecture. The outbreak may worsen, or it may settle down. What seems likely however is that the next few months will bring numerous challenges, and the fleet footed responses required will likely require a radical departure from previous norms.