Blog by Tim Baldwin of the Garden Court Chambers Community Care Team.
R (on the application of Francis) v Secretary of State for Health and Social Care  EWHC 3287(Admin)
The court held that the concept of "self-isolation" under the Health Protection Regulations 2020 was not the same as isolation or quarantine which, in the context of the Defendant's power to legislate under the Public Health (Control of Disease) Act 1984 s.45C, involved acts by clinicians.
The claimant’s judicial review sought to quash the Health Protection (Coronavirus, Restrictions) (Self-Isolation) (England) Regulations 2020 (“2020 regulations”) on the basis that the Defendant had no power to impose them.
In September 2020, in response to the imminent threat posed by Covid 19, the Defendant brought into force the Regulations, which required anyone notified of a positive test to self-isolate. The Regulations were made pursuant to the Defendant’s powers under the Public Health (Control of Disease) Act 1984 Pt II (“the 1984 Act”) inserted by the Health and Social Care Act 2008 with the purpose of providing more flexible and wider powers to deal with pandemics. Section 45C(1) of the 1984 Act included power to make regulations to protect against the spread of infection, and could include imposing restrictions on individuals and "special restrictions" imposed by magistrates, including under s.45G(2). Section 45D(3) placed restrictions on the s.45C power, prohibiting any such regulation from imposing a special restriction listed in s.45G(2)(a) - (d), namely that a potentially infected individual submit to medical examination, be removed to or detained in a hospital or other suitable establishment, or that they be kept in isolation or quarantine.
The claimant argued that requiring a person notified that they had tested positive or had been in close contact with someone who had tested positive to self-isolate under reg.2 constituted a requirement that they be kept in isolation as referred to in s.45G(2)(d) of the Act 1984. Thus under s.45D(3), it could not be the subject of legislation made by the Defendant and was unlawful. The claimant submitted the powers enacted, including the power awarded under reg.10(1)(b) of the 2020 regulation to an authorised person to remove an individual back to the place where they were self-isolating, constituted detention within the meaning of s.45G(2)(c) under the 1984 Act and were proscribed under s.45D(3). The claimant argued that the power of an authorised person under reg10(1)(b) 2020 regulations constituted a step towards removing him to a hospital or other establishment under s.45G(2)(b) of the 1984 Act and could therefore not, under s.45D(3), be the subject of regulation made by the Defendant and was unlawful. In response to the claimant's isolation argument, the Defendant submitted the terms "isolation" and "quarantine" were used in a medical context, involved some degree of clinical involvement and meant separation from other people except those looking after them.
On refusing the claim for judicial review the court held it was necessary to discover the intention of the legislation, which was to be gathered from the words used by Parliament, considered in the light of their context and purpose, referring to R (on the application of Black) v Secretary of State for Justice  UKSC 81  A.C. 215, and R (on the application of Dolan) v Secretary of State for Health and Social Care  EWCA Civ 1605.
In interpreting the meaning of isolation under s.45G(2)(d) of the 1984 Act the court rejected the premise of the claimant's argument which was that "self-isolation" was the same as isolation or quarantine. The court held that "self-isolation" was a term of art and was defined in reg.2(3) of the 2020 regulations as remaining in a particular place. The individual's ability to have contact with others in the household was unimpeded. The court held the 2020 regulations were governing where an individual could go and with whom they had contact. Thus neither "isolation" nor "quarantine" were defined in the 1984 Act and it was therefore necessary to consider their ordinary use and meaning. The court held that it was self-evident the meaning could not be defined in terms of the restrictions on where an individual went and with whom they had contact, and thus in ordinary usage, "to isolate" meant to cause to be alone. Further the terms "isolation" and "quarantine" in s.45G(2)(d) in the 1984 Act involved action by a clinician whereas the 2020 regulations restricted movement but not those with whom an individual could live. The court noted that they balanced the need to prevent contact with others with a need for a proportionate response. The term "isolation" was intended to ensure that an individual was properly treated as well as reducing the spread of disease, whereas the self-isolation required by the 2020 regulations was exclusively focused on reducing the reproduction rate of the virus. Thus, the Defendant had power to make the regulations and they were not contrary to s.45D(3) and s.45G(2)(d) of the 1984 Act.
On the meaning of detention under s.45G(2)(c) of the 1984 Act the 2020 regulations gave very wide options for where an individual might self-isolate and provided only that the location must be suitable and was readily distinguishable from the concept of imprisonment. Thus, the requirement to self-isolate did not amount to detention and was not unlawful. On removal to hospital or other establishment under s.45G(2)(b) of the 1984 Act the court held the predecessor to reg.10(1) 2020 regulations had given the power to remove to hospital alone for clinical management and as such there nothing to suggest that a fundamental change had been envisaged in its repeal. Thus, while a home might fall within the definition of "other suitable establishments", it could only be such if clinical supervision was in place and therefore reg.10(1) of the 2020 regulations was not contrary to s.45D(3) and s.45G(2)(b) of the 1984 Act.
It is unlikely this will be the last case in which the use of these regulations and the making of regulations to combat Covid 19 transmission and infection will be challenged even though the earlier case of Dolan (above) has been refused permission to appeal to the Supreme Court. It does, however, identify the complexity of the framework governing the powers to detain someone for the purposes of preventing the spread of infection versus directions to self-isolate or to quarantine.