I am going to start this post by saying that I have read the very useful note by 39 Essex Chambers on this point. I am certainly not naive enough to think that I know better than they do how the principles apply. But I did think it might help to look at some of how this works on the ground, since there is something of a difference between the land of theory, and the land of practice.
So if you haven’t already, please do have a read of that note. I am not ashamed to say that I used the case law quoted within that to save myself some research time when I delivered a knowledge sharing session to our wider team on this topic (have I mentioned I am our team’s coronavirus lead and how
stressed busy this is making me?). Anyway it’s here.
The virus is certainly posing some interesting questions. Because the vast majority of reported cases where risk to the public has been taken into account have involved situations where P has had contact with the criminal justice system as a mentally disordered offender and is now receiving s117 aftercare. Since the function of aftercare is to prevent a readmission it is not too great a leap to take into account the risk of offending behaviour in the best interests assessment, since offending is likely to lead to readmission.
In many of those cases, the judgements have also put significant weight on the argument that it isn’t in P’s best interests to be arrested and go through the criminal justice system again. It isn’t difficult to see the relevance of that in such cases.
But should those principles apply to coronavirus testing?
I have to say I am not convinced. What are the consequences to P going to be if they aren’t tested? Certainly the involvement of police seems somewhat unlikely. And yes, the compulsory powers under the Coronavirus Act 2020 do enable testing, and use of those powers could be distressing for P, but has anyone come across any examples of them actually being used? If you have, please drop me a message, or swing by our Facebook page because I would very much like to explore that!
There might be some scope in the ‘there will be repercussions from members of the public’ argument, but that would need to be a real, not just theoretical risk. And how are members of the public going to know P hasn’t been tested? How will anyone ever identify P as a vector for the virus when it is still so difficult to trace infections reliably?
So for what it is worth, I think there is probably more benefit in relying on the ‘responsible citizen’ test use in the Skripal case which you can read here. But even that might have difficulties in some cases. Because if P has a lifelong impairment, will they ever have wanted to be a ‘responsible citizen’? Where is the evidence that this is a factor at all in their wishes and feelings?
I am drilling down to a small, but significant number of cases here. If there is evidence that P has always cared about others, respected authority and wanted to do what was generally accepted as ‘the right thing’ then the responsible citizen argument may well be sufficient.
I would also mention the case of MC where P’s desire to be altruistic and help others was also given significant weight in the best interests analysis. That principle may also apply in the context of coronavirus testing.
Of course, that has to be balanced against the risks of testing. If P is likely to be calm and unfazed by the test, then it will be a relatively easy balancing act if there are clear benefits to P of undertaking the test. But if P is going to be very distressed by the test, then greater evidence of benefit to P will be needed. And if P does not give much weight to the thoughts and feelings of others, well then it might get trickier.
Then again, it might not. Because in many situations, failure to be tested for coronavirus may restrict the options available to P to such an extent that this is a benefit of the testing. But that too will need to be probed. My reading of the government guidance is not that testing is compulsory before admission to a supported placement, although it is very much advised. And so the decision to restrict options may need to be probed a bit. Is this a true restricting of options, or an artificial one created by an organisation’s internal policy? If so, is that policy lawful? Does it allow exceptions if circumstances demand this? Are there other ways that P and others safe by, for example, careful isolation within the placement.
Now you might be thinking that I am coming up with theoretical scenarios that have no place in the real world. I’m not. Let’s talk about N.
N has complex mental health issues and has done for years, he is well known to local mental health services. As a result of his mental illness he has not engaged in personal care for at least a year. He will not tolerate being touched. At all. By anyone. If he needs medical treatment, he has to be sedated and the legal process for that has been followed before by the local NHS. Now N has been admitted to hospital after being found unresponsive. He’s fit for discharge after a week or two, he’s assessed as lacking capacity to make decisions about his care and support needs, and a suitable specialist residential placement has assessed and are able to meet his needs. So far, so good.
But local policy is not to admit anyone to any supported placement without having received the results of a coronavirus test. And yes, the government guidance says that people can be discharged pending a test result, but local policy is otherwise. So the powers that be want him tested.
It’s best interests assessment time. So let’s break down the risks and benefits for N.
Benefits of testing:
– there is some evidence in past discussions that he does not wish to harm others, so it is possible that if he understood the situation he would want to be tested for the safety of others
– avoids potential use of compulsory powers under the Coronavirus Act 2020
– knowing the result could lead to a more informed care plan, even though he is currently asymptomatic
You will note that complying with local policy is not a benefit to N, so isn’t listed here.
– test will be very distressing for N
– restraint will need to be used to affect the test
– seeking authority for such measures will create a delay, whereby he will have to remain in hospital, which he finds upsetting
– whilst in hospital he is at increased risk of infection due to his skin integrity and the potential for various bacteria and viruses to circulate
– if N is not in a suitable, specialist placement, there is a risk his mental health will deteriorate
It might be difficult, therefore, to argue that testing for coronavirus is in his best interests, given that less restrictive options are available and the measures needed to affect a test may well be disproportionate.
So in that small number of cases, caution will need to be exercised.
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