At 6.50 am on 10 February 2020 Matt Hancock signed off the Health Protection (Coronavirus) Regulations 2020, SI 2020/129. The press reported that the urgent need for the regulations was that some people subject to quarantine by agreement had said they could see little point in the process and intended to leave. I suggested when I last wrote about quarantine that the lack of an enforcement power made contractual agreement a shaky basis for detaining hundreds of people for 14 days.

The Secretary of State has now put in place a raft of coercive powers, including a power to hold people in isolation and for a constable to take someone back to isolation – using reasonable force – and to enter premises to enforce the regulations. This note summarises those powers.

The new regulations create additional powers to control people who may have coronavirus where the Secretary of State declares that the transmission of coronavirus is a “serious and imminent threat to public health” by way of a notice on the gov.uk website – gone are the old days of publishing notices in the Official Gazette.  At the same time as making the regulations the Secretary of State declared that such a threat existed, and that, for the purposes of exercising these powers, Wuhan and Hubei province were “infected areas” and that Arowe Park and Kents Hill Park hospitals were “isolation facilities”.

A note on the law and practice of quarantine – of individuals, of groups and of places, of the unwell and of the healthy.

1. Kaci Hickox is a Johns Hopkins’ qualified nurse who worked as a team leader in an Ebola treatment unit in Sierra Leone in September 2014. When she arrived at Newark Liberty International Airport on 22 October 2014 she was taken into custody for 80 hours. On the same day the governor of New Jersey had signed an executive order providing that travellers arriving at New Jersey who were asymptomatic but at high risk of exposure to Ebola could, if out of state residents, be transferred to a “temporary housing arrangement”. In response to her detention Ms Hickox brought a claim against the state of New Jersey, including for violation of her right to be free from deprivation of liberty, denial of due process and false imprisonment.

2. Time Magazine gave “Ebola fighters” their Person of the Year award in 2014, the article noting of Ms Hickox’s quarantine: “The problem with irrational responses is that they can cloud the need for rational ones”.

3. In July 2017 Ms Hickox entered into a settlement agreement with the state of New Jersey. The parties agreed to a new Addendum to the “New Jersey Mandatory Quarantine and Screening Protocols” for Ebola Virus disease. The state agreed only to use quarantine “insofar as a medically and epidemiologically necessary” and only after less restrictive measures had been “explicitly explored”. An order providing for quarantine would have to give a start date and an end date and state the legal authority and medical basis on which it was issued. It would need to explain why less restrictive options had been rejected and confirm the right of the person in quarantine to a lawyer and to challenge the order[1].
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Judges in the Family Division and the Court of Protection are regularly asked to perform the unenviable task of balancing the pros and cons of continuing life-sustaining treatment. The Judge’s decision determines whether the person at the heart of those proceedings should live or die. As the Supreme Court confirmed in a number of appeals including those launched on behalf of both Charlie Gard and Alfie Evans, the Judge must apply the best interests tests in serious medical treatment cases. Thus, although the individual facts will frequently place a great burden on the Court, the legal test at least, is clear.

In Manchester University NHSFT v Midrar Namiq (a minor) and others, [2020] EWHC 6 (Fam) Lieven J was asked to consider a different, but equally momentous issue – whether the child was in fact already dead.

The Trust argued that the Court’s function was to assess whether the relevant testing had established “on the balance of probabilities” that the child was brain stem dead. In contrast, the family’s representatives argued that the Court’s role was to apply the best interests test to the question of whether the intensive care support that was still keeping oxygenated blood circulating the body should be removed.

The Royal Bournemouth and Christchurch Hospitals NHS Foundation Trust and Dorset Healthcare University NHS Foundation Trust and SE (by her litigation friend, the Official Solicitor) [2018] EWCOP 45

When incapable patients require life saving surgery against their wishes, judges of the Court of Protection are readily available to provide best interests declarations at short notice. However, making such life and death decisions under pressure will never be the preferable approach. As this recent case shows, the court will look disapprovingly on NHS Trusts who leave such applications to the very last minute. All NHS Trusts should ensure their staff understand the correct procedural routes to approach the court and that these are used before a difficult case has become an emergency.

Royal Bournemouth and Christchurch Hospitals NHS Foundation Trust v TG and another [2019] EWCOP 21

What are the practical implications of this case?

‘The Lord giveth, and the Lord taketh away’ (Job 1:21). If this phrase reflects the patient’s (P) views on life, the Court of Protection will need to take it into consideration, as should the treating hospital prior to bringing an application for withdrawal of life-sustaining treatment. In this case, the Royal Bournemouth and Christchurch Hospitals NHS Foundation Trust (the Trust) sought to withdraw endo-tracheal intubation, but the same principles would apply to withdrawal of clinically-assisted nutrition and hydration (CANH).

The recent case of Royal Bournemouth and Christchurch Hospitals NHS Foundation Trust v TG and another confirms that the focus of any decision to withdraw CANH must remain firmly on the individual at the heart of the case, and on their wishes, views and beliefs.

The issue in this case was whether continuation of intubation was in the best interests of P. Withdrawal of treatment would certainly lead to P’s death. The Trust argued that given the medical evidence, there was no benefit in continuing treatment except that P would remain alive.