Case study: an update

It seems a few of you have been reading my case study about the difficulties of enforcing the social distancing guidance and regulations. It’s testament to how little guidance there is on this issue that my little blog is getting so many hits. I’m grateful and mildly intimidated.

So I thought I would provide you with a short update. The original post is here if you missed it https://musingsoflocalauthorityasclawyer.wordpress.com/2020/03/25/case-study-a-question-with-no-clear-answer/

I have spent the best part of the last 4 days researching this issue. My advice note ended up being 12 pages long. I won’t recount it here (it was met with a distinct lack of gratitude by the practitioners who requested it, so as a piece of writing, it isn’t exactly getting rave reviews. At least my legal colleagues were grateful to receive it, if only because I saved them from also having to undertake 4 days of research).

But where we appear to have landed is this:

It may be possible to use the Mental Capacity Act, in conjunction with DoLS or an order of the Court of Protection to restrict her behaviour IF she lacks capacity to make care and support decisions AND there is a clear identified risk to the individual herself of her behaviour (whether virus related or otherwise) AND these risks are sufficient to outweigh the negative impact of restricting her behaviour and overriding her wishes. This is the approach favoured by the consultant involved, who thinks A should have been in a more restrictive environment from the start. I’ve not seen evidence of clear risk to A as yet though. And the placement still say they could manage her within the current package if it weren’t for the virus, which isn’t exactly convincing…

We agreed detention in hospital isn’t going to work. There’s no bed, so that’s the end of that.

Guardianship has been discussed, but ruled out. It doesn’t come with the ability to deprive A of her liberty, and that is, realistically what is needed. There is no evidence that A would respond to instruction from a guardian anyway. She is very resistant to authority.

She’s not going to be prosecuted for intentional or reckless transmission of the virus. Even if the courts were prepared to extend the principles that currently apply only to STIs, this is not the case to test it on. And how would you prove who she has infected by her actions anyway?

The Health Protection (Coronavirus Restrictions) (England) Regulations 2020 give the police enforcement powers. They could return her to the placement if they found her in the community, and they could issue a prohibition notice. But she’s not going to comply with a notice, and she’d probably quite enjoy a big game of hide and seek with the police.

If the powers to detain within the Coronavirus Act 2020 come into force, then they’ll be a good solution. She can be placed somewhere safe, tested and detained if she is infectious. But they are unlikely to come into force until the NHS has a place to put these people. So I don’t expect that they’ll be usable until the so-called Nightingale Hospitals are up and running. I have no inside knowledge on this whatsoever and am just applying some common sense to the situation. In any event, police might be reluctant to use these powers on A, but we’ll see.

In the meantime, what we have agreed is that public health will be approached to see if they will apply to the magistrates court for a Part 2A order under the Public Health (Control of Disease) Act 1984. This would allow A to be tested for the virus, and if infectious, placed in a suitable facility (hospital or care home most likely), in isolation if needed, for up to 28 days. If she tests negative, then it might be possible to find her a suitable respite facility where she can wait out her current provider’s staffing problems, and her neighbour’s infectiousness. But currently most respite placements are refusing to accept her because of the risk she could pose to other residents.

It remains to be seen if public health will use this power. But I hope they do, because their use of this power has to be reported to Public Health England, and if they get a lot of notifications then they might actually turn their minds to this issue and provide some assistance.

However, it is equally possible that I am wrong, and this power doesn’t apply (we are all human and liable to make mistakes) or that I will be told I am wrong because public health would really rather social care deal with it.

But on the evidence we have at the moment, social care are liable to ‘deal with it’ by continuing to reinforce with A what she should be doing, continuing to support other residents to refuse her access to their flats, and not much else. Because human rights are important, especially at a time like this.

In case it isn’t obvious from the fact I still haven’t identified the authority I work for, the views expressed on this blog are my own opinion and not the opinion of that local authority