The power to quarantine

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].
   

The limits of quarantine

4. We have seen with recent outbreaks, including this outbreak of coronavirus, 2019-nCoV, that quarantine can take many forms – from regions larger than the UK in lock down to individuals in intensive treatment via groups of people detained for precautionary monitoring. That last category includes the recent evacuees to the UK from Wuhan who signed a “contract” to remain at Arrowe Park Hospital in the Wirral for 2 weeks.

5. The much litigated Article 5 European Convention provides that “No one shall be deprived of his liberty”. But this is subject to exceptions and one of those exceptions is “the lawful detention of persons for the prevention of the spreading of infectious diseases…” (Article 5(1)(e)). What rights are there in the UK for people compulsorily detained, not for their own treatment, but on a precautionary basis for the protection of others from infectious disease?

6. In addition to article 5 people in the UK are protected by the positive duties of article 2, the right to life, the procedural rights of article 6, the right to private life and autonomy in article 8 and the procedural rights relevant to civil and criminal proceedings.

Control of diseases

7. Any contract between the new residents of Arrowe Park Hospital and the state may provide clarity and a statement of intentions for both parties, but it is difficult to see how it could provide sufficient enforcement mechanisms in the unlikely event enforcement should be required.

8. Domestic law in England and Wales starts with the Public Health (Control of Disease) Act 1984. This consolidated legislation passed since the C19 and – right up until 2010 – provided that it was an offence to let anyone with one of a number of “notifiable diseases” do certain things, such as use a book from a public library. The Health and Social Care Act 2008 substituted a new code into the 1984 Act intended to be Article 5 compliant – and without any special protection for library books. This Act now empowers the Secretary of State to make regulations for the purpose of controlling the spread of infection (ss.13 and 45B-F). Regulations can impose a duty on medical practitioners to record and notify cases of particular diseases, confer monitoring functions on local authorities and impose restrictions on individuals. These can include requirements to keep a child away from school, a prohibition on events and restrictions on the handling of dead bodies.

Precautionary quarantine of individuals

9. None of that is quarantine. Those orders may be made under part 2A of the 1984 Act where a person “is or may be infected” with a medical condition which presents “significant harm to human health” and where any risk that the person might infect others could be reduced by imposing restrictions on that person. In that situation the Act empowers a magistrate to make an order requiring a person to submit to medical examination, to be “removed to a hospital or other suitable establishment” and there to be “kept in isolation or quarantine” (s.45G). That person can be required to answer questions about people he may have infected or who may have infected him. These powers extend to groups of people, to objects and to premises.

10. A government paper in the 1940s noted that while people always co-operated with quarantine the existence of a back-up power made co-operation more likely. The 1984 Act is our back up power. It may be that this explains the use of a contract in the Arrowe Park case, if that is what has happened. Most of us would advise caution about this approach however – dodging procedural requirements can lead to otherwise avoidable claims.

11. The procedural code under the 1984 Act covers many of the protections sought in Ms Hickox’s claim in the United States[2]. Applications for a Part 2A order are to be made by local authorities and an application may be made without notice. Enforcement is relatively benign: a fine and being returned to the place of quarantine. The procedural steps before an order can be granted are considerable – including a diagnosis, the outcome of clinical tests and a report on contacts with other people – albeit it is expressly provided that an explanation for the absence of some, but not all, of the information is sufficient. The magistrate must be told of the options available and an order cannot last for more than 28 days at a time. The local authority is under a duty to have regard to the welfare of the person quarantined and their family, i.e. not only to have regard to the wider community welfare.

12. The evacuation to Arrowe Park Hospital shows one of the difficulties of using the 1984 Act and of procedural protections in a health crisis: could that process have been used for hundreds of people, many of whom, since they were living overseas, would have been little known to any public authority in the UK?

Treatment of the unwell

13. England has two “High Level Isolation Units”, one at the Royal Free Hospital and one at Newcastle Royal Victoria Infirmary. These are generally used for the 8 specified High Consequence Infectious Diseases (Ebola and similar). There are also 4 Treatment Centres for Airborne High Consequence Infectious Diseases, a category now including the 2019 novel Coronavirus. Arranging treatment for people with those diseases is unlikely to require much compulsion but this is an area that the 1984 Act largely avoids. Neither the Secretary of State nor a magistrate may impose a requirement for treatment, other than under s.13 of the 1984 Act, which is prospectively repealed and appears aimed at vessels arriving from overseas. The closest that the 1984 Act gets to compulsory treatment is allowing compulsory “disinfection or decontamination” and compulsory “training and advice” on reducing the risk to other people.

Area quarantine

14. None of this provides a legal basis for area quarantine in England and Wales. It is hard to see that a town or county could be isolated on the basis of a series of individual orders requiring individual evidence. There is an unresolved debate about whether area quarantine is necessary, triggering a folk memory of plague ships waiting off-shore (a scene partly played out in a number of cruise liners in recent days). Informed on-line discussion of area quarantine varies between regarding it as ineffective, and seeing it as buying useful time for other areas to prepare and for work to start on a vaccine.

15. Area quarantine should be possible under the Civil Contingencies Act 2004, an Act which applies to the whole UK. Emergency regulations can last for 30 days and make “any provision” appropriate for protecting human life or treating human illness (s.22). This section allows “any provision of any kind that could be made by Act of Parliament”, expressly including “the prohibition of movement to or from a specified place” or requiring movement to a specified place. The orders may create new criminal offences, punishable by up to 3 months in prison, and may create new tribunals. There is only a duty to “have regard” to the importance of the High Court and Court of Session being able to conduct proceedings in connection with the regulations. The orders made must be appropriate to mitigate the risk posed by the emergency, must be proportionate and may not amend the Human Rights Act.

16. The preconditions for making emergency regulations include that there is an emergency (a situation threatening serious damage to human welfare) and that it is urgent and necessary to take steps to mitigate the emergency.

Civil and criminal proceedings

17. There are some obvious potential proceedings: claims for judicial review, claims or prosecutions created under the Acts referred to above and possible Habeas Corpus applications. What about compensation claims? An immediate difficulty is that the state is contending with competing pressures – people might consider claims both for failing to protect them from communicable disease or for taking excessive steps to protect other people. So any financial claim outside established categories would face the objection that it was not fair, just or reasonable to impose a new duty of care and that it might prevent effective action from being taken. It would be hard, for example, to establish that the state owed a duty of care to healthy individuals to find and isolate people suffering from infectious diseases. Challenges under article 5 to any widespread quarantine are, conversely, likely.

18. Individuals who deliberately or recklessly infect another person might face criminal trial, but the facts for airborne viral infection are, obviously, a long way from the well-known cases of transmission of STDs (see R v. Golding [2014] EWCA Crim 889). There are established duties of care for responsibility to defined and narrow groups, such as employees at work and prisoners, and it might be shown that there is a duty, even in a national crisis, to take additional steps to protect such groups from infection from an airborne virus (clearly a significant challenge to an over-stretched prison service).

19. One alternative option might be compensation for people who suffer loss from quarantine imposed for the benefit of others, similar to the Vaccine Damage Payment Scheme which recognises the herd immunity benefits of mass vaccination or compensation for vCJD.

20. Many people have watched with fascination the steps taken to control the spread of coronavirus. The challenges of operating restrictive state powers in an age which has embedded legal protection for individual autonomy may be considerable.

 

Footnotes

[1] The Centres for Disease Control issued new federal rules in 2016

[2] Health Protection (Part 2A Orders) Regulations 2010, SI 2010/658

 

First published in Public Law Today, 4 February 2020