The shutters have been pulled down on much of Irish life as the country, along with the rest of the world, grapples with the mounting numbers of cases of COVID-19 appearing on all parts of the island.
Capping off a remarkable St. Patrick’s Day, the cabinet, by way of incorporeal meeting, signed off on the Health Bill 2020 (the “Bill”). The Bill, which is to be put before the Oireachas today, 18 March 2020, provides for extensive powers to be given to the Minister for Health and medical officers in a bid to contain the spread of COVID-19 in Ireland and ‘flatten the curve’, which will help minimise its impact on human life and prevent the Irish health system becoming overwhelmed.
Below is an account of the emergency measures provided for in the Bill, the extent of which is unprecedented in modern peacetime. Note that whilst the Bill not only sets down the emergency measures described below, it also amends existing social welfare legislation to allow for the much discussed payments to those whose jobs have been lost or who are otherwise out of work or without income due to the economic impact of COVID-19. These will be discussed in a separate note.
Events of recent days
Whilst many businesses, including pubs, restaurants, gyms and other places of social gathering voluntarily closed their doors in the interests of public health, controversy arose regarding other such businesses that remained open and that felt, along with their patrons, the ire of the general public following their perceived failure to act in the good of the general population and protect those most vulnerable to the disease in our society.
Matters moved rapidly, with further political and clinical condemnation leading to a directive from the Irish government that all pubs and clubs close with effect from Sunday, 15 March, 2020. This decision was taken following discussions with industry representatives who outlined the difficulty of implementing ‘social distancing’ while pubs remained open. According to the government, the guidelines of social distancing in other parts of society, including venues such as restaurants, cafés and cinemas, would be reviewed and subject to consultation in the coming days.
Whilst most pubs and clubs quickly moved into line with these instructions, it remains the case that, as it stands, they remained nothing more than ‘instructions’, with little currently to back them up from an enforcement perspective.
On 20 February 2020 the Minister for Health, through the Infectious Diseases (Amendment) Regulations 2020, included COVID-19 on the list of notifiable diseases under the Infectious Diseases Regulations 1981 (the “Regulations”). As a result, medical practitioners became obliged to notify the Director of Public Health or the Medical Officer of Health in the local Department of Public Health when a new case of COVID-19 is diagnosed.
The Bill builds on this first step, providing for two primary sets of powers to be granted to the Minister for Health (the “Minister”) and medical officers, respectively. This is effected by way of amendment of the Health Act 1947 (the “Act”), a wide-ranging Act touching on many aspects of public health and under which regulations have been introduced in the past to address previous public health challenges.
The ‘long title’ of the Bill, a part of legislation the purpose of which is to set out in more detail the purpose underpinning the legislation in question, gives a stark indication of the gravity of the Bill and the health crisis it is intended to address, referring to the “extraordinary measures [to] be taken to deal with the immediate, exceptional and manifest risk to human life and public health posed by the spread of COVID-19”, as well as the constitutional duty of the State to, by its laws, to defend and vindicate the rights of citizens to life and to bodily integrity.
Preventing, limiting, minimising or slowing spread of COVID-19
The Bill inserts a new s. 31A into the Act. This section sets down the majority of the measures which the Minister may, by regulation, introduce in order to prevent, limit, minimise or slow the spread of COVID-19 (including the spread outside the State) or where otherwise necessary, to deal with public health risks arising from the spread of COVID-19. The section itself does not set down specific measures, instead allowing for the making of regulations in respect of any or all of the following:
- restrictions to be imposed upon travel to or from the State or within geographical locations to which an ‘affected areas order’ applies
- restrictions to be imposed upon persons or classes of persons resident in, working in or visiting locations to which an ‘affected areas order’ applies, including (but not limited to) requiring persons to remain in their homes, or in such other places, as may be specified by the Minister
- the prohibition of events, or classes
of an event, including (but not limited to) events –
- (which, by virtue of the nature, format, location or environment of the event concerned or the arrangements for, or the activities involved in, or the numbers likely to be attending, the event could reasonably be considered to pose a risk of infection with Covid-19 to persons attending the event,
- at specified geographical locations to which an ‘affected areas order’ applies,
- at locations which by virtue of the nature, format, or environment of the locations concerned or the arrangements for, or the activities involved in, or the numbers likely to be attending the type of events at the locations, could reasonably be considered to pose a risk of infection with Covid-19 to persons attending at an event at that location,
- where the level of proposed attendance at the event could reasonably be considered to pose a risk of infection with Covid-19 to persons attending the event
- the safeguards required to be put in
- event organisers in relation to events
- owners or occupiers of a premises or a class of premises (including the temporary closure of such premises)
- owners or occupiers of any other place or class of place (including temporary closure)
- ‘managers’ of schools, including language schools, creches or other childcare facilities, universities or other educational facilities (including temporary closure)
- any other measures that the Minister considers necessary in order to prevent, limit, minimise or slow the spread of Covid-19
An ‘affected areas order’ may be made by the Minister, in consultation with the Chief
Medical Officer of the Department of Health and such Minister of the Government as the
Minister considers appropriate, in relation to an area or region in the State where “there is known or thought to be sustained human transmission of COVID-19 or from which there is a high risk of importation of infection or contamination with Covid-19 by travel from that area”.
The breadth of these measures does not need to be stated; they allow a wide discretion to the Minister to make regulations in relation to, by way of example, ‘events’, ‘premises or classes of premises’ and ‘places or classes of places’. Similarly, ‘restrictions’ on travel and movement of persons are not specified but left to the regulations themselves. The Bill does, however, provide for the matters to which the Minister shall have regard in making these regulations. Without setting out in detail, these matters include the gravity of the ‘national emergency’ and the significant risks to human life and public health being addressed by the Bill, as well as the advice of the Chief Medical Officer of the Department of Health (“CMO”) and guidance provided by the World Health Organisation.
Note that a person who contravenes a regulation made under this section or who “wilfully obstructs its implementation or gives false or misleading evidence in purported compliance” with it shall be guilty of an offence.
Detention and isolation of persons in certain circumstances
The second primary set of powers under the Bill are those granted to medical officers under the new s. 38A of the Act to order, in good faith, the detention and isolation of a person in a specified hospital or other place until such time as the medical officer certifies that the person’s detention is no longer required for the purposes of this section. Persons that may be subject to such an order are those being:
- a potential source of infection, and
- a potential risk to public health, and
- persons whose detention or isolation is appropriate in order to prevent, limit, minimise or slow the spread of COVID-19 and minimise the risk to human life and public health, and
- persons who cannot be effectively isolated, refuse to remain or appear unlikely to remain in his or her home or other accommodation arranged or agreed.
‘Potential source of infection’ means:
- a person who has been in recent contact with a person whom the CMO believes in good faith to be a probable source of infection with Covid-19 or suffering from COVID-19; or
- a person who has attended an event which the CMO believes in good faith was attended by a person or persons who is or are a probable source of infection with COVID-19 or are suffering from COVID-19; or
- a person who has travelled from, or been in contact with a person or persons who has or have travelled from a place outside the State that the CMO believes in good faith to have a significant number of cases of persons infected with Covid-19; or
- a person who has travelled from, or been in contact with a person or persons who has or have travelled from to or within a geographical area to which an affected areas order applies; or
- any other person whom the CMO believes in good faith to be a potential source of infection.
Again, the breadth of persons against whom an order could be made under this section is self-evident. It is clear that it includes not just confirmed cases of COVID-19, but also close contacts, those who have travelled from severely affected areas outside the State or areas subject to an “affected areas order” and even those attending an event at which persons deemed to be sources of infection were present. However, note that for an order to be made the person must not only be a source of infection but also a ‘potential risk to public health’ and a person who cannot, or will not, isolate themselves or remain in their home. As a result of these conditions, such orders would not be made on a broad or general basis but only when such orders are, indeed, necessary.
Medical officers must have regard to the same matters as listed above in relation to the preventative measures under s. 31A, must certify their opinion in making an order and ensure that a medical examination is carried out on that person as soon as possible (and no later than 14 days from the date of the order). There is also provision made for the review of an order made by another medical officer
The measures provided for under the Bill grant extensive powers to the Minister and medical officers. In the case of the Minister, these powers allow for extensive restrictions to be placed on any, and/or every, aspect of society. Regarding medical officers, they will have the power, where necessary and subject to meeting the criteria, to order the detention of an individual in a manner usually reserved to law enforcement officers.
These measures reflect the gravity of the public health crisis now facing the country. The extent to which these powers will be invoked depends upon to the extent of the progession of the virus.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.