TL; DR: where care homes and hospitals are isolating people to prevent the spread of coronavirus infection without that person’s consent, then they are likely to be deprived of their liberty. If the main reason for this is public health – to protect others – then the deprivation of liberty safeguards cannot be used to authorise this detention, and public health powers can be used. Detention to prevent the spread of coronavirus within care homes is likely to be happening on a widespread basis at the moment. However, a recent FOI response from Public Health England indicates that these powers were only used 4 times until mid-May. This suggests that throughout the peak of the coronavirus pandemic, when the need to isolate to prevent the spread of infection was greatest, large numbers of people are likely to have been detained in care homes without the legal safeguards they are entitled to.
As readers will no doubt have noticed, we are living through the most significant pandemic in a century. Older people, and people with certain health conditions are especially vulnerable to the novel Coronavirus, Covid 19. Many of these people will live in congregate settings like care homes, where the risk of infection transfer between residents is very high. For this reason, government guidance on admission and care of care home residents advocates various measures involving isolation of care home residents in their own rooms. This includes isolating new residents or residents returned from hospital for 14 days, residents with symptoms of Covid 19, and residents who are known to have been exposed to a person with possible or confirmed COVID-19. Many care homes have stopped all visits, or only allow ‘safe’ visits – for example through a window. The guidance doesn’t say much about whether care home residents themselves can exercise the same rights as the rest of the population to go out for exercise, meet up in ‘socially distanced’ ways, go shopping or even go to the zoo. It would be interesting to know whether any care homes are supporting residents to leave the setting at this time.
All of this amounts to a heightened level of restriction in care homes – beyond anything I suspect we’ve seen before in community settings. Under normal circumstances, measures like this would be called ‘seclusion’, ‘segregation’ or even solitary confinement, and they usually attract additional scrutiny and regulatory controls to ‘normal’ detention.
Although all of us in the UK have been living under lockdown conditions, in most cases these will have been self-policed measures. We choose not to violate the lockdown rules (or, we should do). Some of us have still enjoyed small freedoms, like exercising outdoors or going to the shops. And some of us are enjoying more freedoms now, meeting up in gardens or even non-essential shopping. But for the most part, the situation of those not living in congregate care settings is locked-down, but we are not locked in. Nobody is directly preventing us from leaving our homes, let alone our rooms. And that is an important difference.
Those who are locked in, rather than locked down, are likely to be deprived of their liberty in the meaning of article 5 of the European Convention on Human Right. The rest of us are ‘merely’ restricted in our liberty and experiencing masssive interferences with our rights to home, family and private life under Article 8. When the degree of restriction on liberty tips over into deprivation of liberty, Article 5 ECHR requires formal procedural safeguards to protect people’s rights. Note that this isn’t saying you cannot impose such measures, just that they must be necessary, proportionate, and entail due process safeguards to protect the person’s rights, and include rights of challenge.
Where a person can consent to their isolation, then article 5 is not engaged. If a person agrees to comply with the call to isolate to prevent infection spread, then they are locked-down, not locked in, and this will be true of some people in care homes. But when they either ‘lack capacity’ to consent to this, or they are refusing, then some formal measure must be used to authorise the detention.
Prior to the pandemic, several hundred thousands of people – mostly those with dementia and some with learning disabilities – were considered to be deprived of their liberty in care homes. The procedural safeguard used to secure article 5 compliance was the Mental Capacity Act 2005 deprivation of liberty safeguards (DoLS). There’s a lot that can be said about the problems with this framework, but it did at least provide some mechanisms for scrutiny of restrictions and due process if the person objected. It also gave people rights to advocacy and representation to monitor their rights and well being.
The government has provided emergency guidance on using the DoLS during the pandemic. The guidance makes clear that DoLS procedures still apply. We won’t know until this autumn at the earliest how the pandemic has impacted on the use of DOLS (for last year see here).
The DoLS can be used where a) the person lacks capacity to consent to the deprivation of liberty, and b) where it is in their best interests (and is necessary and proportionate to the risk of harm to them). This presents two critical limitations: firstly, where the person has capacity but is refusing to isolate, the DoLS cannot be used; secondly, where the main purpose of the isolation is to stop the person spreading infection to others then the DoLS generally cannot be used.* So if you are trying to stop the person catching the virus, basically you are shielding them, then possibly DoLS can be used – but you’d have to consider this on a case by case basis (for example, would shielding actually benefit them if they are already dying and would like to enjoy their remaining time in non-isolation?). But if you are following the government’s guidance to protect others, then you need to use an alternative power to authorise the detention.
These alternative powers of detention, for the protection of others, are known as ‘public health powers. The guidance describes them here and Alex Ruck Keene has written a good article about them here. To use these powers care homes need to contact their local health protection teams. The public health officer will consider whether the MCA DoLS could be used instead. If public health powers are deemed more appropriate, the public health officer must still consider the person’s wishes and feelings, involve those close to the person, and seek to support the person to make the decision for themselves. This means the public health powers should still provide some similar safeguards to the DoLS, in theory anyway.
So how often have these new public health powers been used to authorise detention? I was interested so I put in a Freedom of Information request to Public Health England. I was expecting low numbers but their reply really surprised me:
(Drop me an email if you’d like to see the full response.)
This suggests that during the height of the pandemic in the UK, public health powers were barely used to authorise detentions to prevent infection spread. I have no idea if these uses were even in care homes – they could also have been from hospitals.
We will have to wait and see what happens with the DoLS data, but this seems to confirm my hunch that already we are seeing a massive intensification of the degree of restriction and detention taking place in care homes, this is largely being done without any clear legal authority.
My point isn’t that people should be allowed to spread coronavirus within care homes. My point is that we are at very great risk of normalising this degree of restriction and isolation without recognising it for what it is, and providing legal safeguards to those who are locked-in. An important and related question is whether, if the only way we can actually control the spread of infection in care homes is by isolating residents in their rooms, congregate settings should be used at all going forwards. Coronavirus has shone a harsh light on the very real dangers – physical and human rights – posed by congregate settings, and any future inquiry into the pandemic as it affected care settings needs to consider both elements.
*There is some interesting debate about this from the perspective of whether the person would wish to be restricted if they understood, and whether therefore that is in their best interests. But lets leave that rabbit hole for another day.