Updated: Health (Preservation and Protection and other Emergency Measures in the Public Interest) Act 2020: Extensive Powers to minimise the spread of COVID-19

By Sarah Slevin, Bryan McCarthy and Maeve Lowry
31 March 2020

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.

The Health (Preservation and Protection and other Emergency Measures in the Public Interest) Act 2020 (the “Act”) was signed into law on 20 March 2020. Under the Act, the Minister for Health (the “Minister”) may make regulations which would allow for restrictions on the freedom of individuals, and medical officers may take certain actions in respect of individuals regarded as “potential sources of infection”, in order to contain the spread of COVID-19, 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 Act, the extent of which is unprecedented in modern peacetime. Note that whilst the Act not only sets down the emergency measures described below, it also amends existing social welfare legislation, namely the Social Welfare Act Consolidation Act 2005, 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.

Events of recent days

Matters have moved rapidly since the first directive of the Irish Government on 15 March 2020. The most recent and most radical announcement from the Government on the country’s response to COVID-19 came on the night of 27 March 2020 when significant restrictions on public life, to be in place until 12 April 2020, were announced by An Taoiseach. However, it remains the case that regulations are yet to be made under the Act, with any of the limited enforcement actions being taken to date being based upon existing laws (for example, the Non-Fatal Offences against the Person Act, 1997).

Why has this Act been introduced, and what additional powers does it enable?

The Act

On 20 February 2020 the Minister, 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 Act builds on this first step, providing for two primary sets of powers to be granted to the Minister and medical officers, respectively. This is effected by way of amendment of the Health Act, 1947 (the “1947 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 Act, 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 Act and the health crisis it addresses, 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, defend and vindicate the rights of citizens to life and to bodily integrity.

Preventing, limiting, minimising or slowing spread of COVID-19

The Act inserts a new s.31A into the 1947 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 place by:
  • 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’, according to s. 31B which is inserted by the Act into the 1947 Act, may be made by the Minister, in consultation with the Chief Medical Officer of the Department of Health (“CMO”) and any 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 Act 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 Act, as well as the advice of the (“CMO”) and guidance provided by the World Health Organisation.

The Act states that any person who contravenes a penal provision of the Act, interferes with or impedes a ‘relevant person’ exercising a power conferred by regulation, fails or refuses to give a relevant person information, or gives information to a relevant person that is false or misleading shall be guilty of an offence and liable to a fine of up to €2,500 and/or imprisonment for up to six months. ‘Relevant persons’ may be specified by the regulations made under the Act and can include medical officers of health, an officer of the Minister for Justice and Equality, customs officers and/or persons appointed by the HSE.

The Act also puts considerable responsibility on business and employers to ensure that they remain fully compliant with any regulations which are issued. In particular, where an offence under the Act is committed by a company and where such offence is committed with the “consent or connivance or was attributable to any wilful neglect” of an officer of a company, the offending individuals as well as the company will face prosecution in respect of that offence.

The Act inserts a number of provisions that expressly give members of the Garda Síochána powers to ensure compliance with regulations made under this new section. Such powers include directing a person to take steps to comply with the regulations and to provide their name/address (and, in the event of a failure to provide such information or providing false information, arrest that individual without warrant).

Detention and Isolation of Persons In Certain Circumstances

The second primary set of powers under the Act are those granted to medical officers under the new s. 38A 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:

1. a potential source of infection, and
2. a potential risk to public health, and
3. 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
4. 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:

1. 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
2. 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
3. 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
4. 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
5. 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 for a person who is the subject of an order to request that their detention be reviewed by a medical officer, other than the officer who made the order concerned, on the grounds that they are not a potential source of infection.

Conclusion

The measures provided for under the Act 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 progression of the virus. The emergency powers under Part 3 of the Act, as discussed here, will continue in operation until 9 November 2020, after which date they will cease to have effect or will have to be approved for continuation by a resolution passed by both houses of the Oireachtas.

For more information on the content of this Insight, please contact:
Sarah Slevin, Associate Solicitor | E: sarah.slevin@rdj.ie | T: +353 1 6054259