Magistrates’ Powers to Make Orders to Control People, Things, and Premises to Reduce Infection Risk

Introduction

Magistrates (Justices of the Peace) have the power to control people, things, and premises, in relation to contamination and infection risks that present or could present significant harm to human health. The powers are exercisable on the application of a local authority. The powers are found in Part IIA of the Public Health (Control of Diseases) Act 1984, with supplementary provision made in the Health Protection (Part 2A Orders) Regulations 2010.

Orders made be made in relation to individual or groups of people, things, or premises. An order may include, in addition to the restrictions or requirements mentioned below, such other restrictions or requirements as the justice considers necessary for the purpose of reducing or removing the risk in question.

The powers represent a profound challenge to personal liberty, the right to respect for a private life, and the right to peacefully enjoy one’s possessions. Such interferences may only be justified in the public interest to protect public health and where necessary and proportionate. The exercise of such powers requires careful scrutiny.

Powers to Order Health Measures in Relation to People

A justice of the peace may make an order in relation to a person if satisfied that the person:

  • is or may be infected or contaminated
  • the infection or contamination is one which presents or could present significant harm to human health
  • there is a risk that the person might infect or contaminate others, and
  • it is necessary to make the order in order to remove or reduce that risk.

The justice of the peace must be satisfied on the balance of probabilities that those conditions are satisfied. Among the conditions to be satisfied is that it is necessary to make the order in order to remove a risk of infection.

The order may impose restrictions or requirements that represent that include the power to enforce a person’s removal, to detain them, and keep them in isolation or quarantine. The restrictions and requirements that may be imposed are that a person:

  • submit to medical examination (including microbiological, radiological, or toxicological tests)
  • be removed to a hospital or other suitable establishment
  • be detained in a hospital or other suitable establishment
  • be kept in isolation or quarantine
  • be disinfected or decontaminated
  • wear protective clothing
  • provide information or answer questions about their health or other circumstances
  • be monitored and the results reported
  • attend training or advice sessions on how to reduce the risk of infecting or contaminating others
  • be subject to restrictions on where they go or with whom they have contact
  • abstain from working or trading

Where there is a risk that a related party (another person who has or may have infected or contaminated a person, or another person whom the person has or may have infected or contaminated) might infect or contaminate others, the order may impose on a person a requirement to provide information or answer questions about the person’s health or other circumstances, including, in particular, information or questions about the identity of a related party.

An order may order a person with parental responsibility for child to secure that the child submits to or complies with the restrictions or requirements imposed by the order.

Power to Order Health Measures in Relation to Things

 A justice of the peace may make an order in relation to a thing if satisfied that:

  • the thing is or may be infected or contaminated
  • the infection or contamination is one which presents or could present significant harm to human health
  • there is a risk that the thing might infect or contaminate humans, and
  • it is necessary to make the order in order to remove or reduce that risk

‘Thing’ includes (but is not limited to) human tissue, a dead body or human remains, animals, and plant material.

The restrictions and requirements that may be imposed are:

  • that the thing be seized or retained
  • that the thing be kept in isolation or quarantine
  • that the thing be disinfected or decontaminated
  • in the case of a dead body, that the body be buried or cremated
  • in any other case, that the thing be destroyed or disposed of

Where there is a risk that a related party (a person who has or may have infected or contaminated the thing, or a person whom the thing has or may have infected or contaminated) or a related thing (another thing which has or may have infected or contaminated the thing, or another thing which the thing has or may have infected or contaminated) might infect or contaminate others, the order may require the owner of the thing, or any person who has or has had custody or control of the thing, to provide information or answer questions about the thing,  including, in particular, information or questions about where the thing has been or about the identity of any related person or the whereabouts of any related thing.

Powers to Order Health Measures in Relation to Premises

 A justice of the peace may make an order in relation to premises if satisfied that:

  • the premises are or may be infected or contaminated
  • the infection or contamination is one which presents or could present significant harm to human health
  • there is a risk that the premises might infect or contaminate humans, and
  • it is necessary to make the order in order to remove or reduce that risk

The restrictions and requirements that may be imposed are that:

  • the premises be closed
  • in the case of a conveyance or movable structure, the conveyance or structure be detained
  • the premises be disinfected or decontaminated
  • in the case of a building, conveyance or structure, the premises be destroyed

Additionally, a justice of the peace may make an order in relation to premises if satisfied that:

  • the premises are or may be infected or contaminated or are or may be a place where infection or contamination was spread between persons or things
  • the infection or contamination is one which presents or could present significant harm to human health
  • there is a risk that a related person or related thing might infect or contaminate humans, and
  • it is necessary to make the order in order to remove or reduce that risk

The order may require the owner or any occupier of the premises to provide information or answer questions about the premises, including, in particular, information about the identity of any related person or the whereabouts of any related thing.

In this context, ‘related person’ means a person who has or may have infected or contaminated the premises; a person who has or may have infected or contaminated a person who or thing which is or has been on the premises;  a person whom the premises have or may have infected or contaminated; or a person who has or may have been infected or contaminated by a person who or thing which is or has been on the premises.

In this context, ‘related thing’  means a thing which has or may have infected or contaminated the premises; a thing which has or may have infected or contaminated a person who, or thing which, is or has been on the premises; a thing which the premises have or may have infected or contaminated; or a thing which has or may have been infected or contaminated by a person who, or thing which, is or has been on the premises.

The Procedure for Making Orders and the Duty to Give Notice

 A local authority must apply for an order for a justice of the peace to have the power to make an order. Local authorities must co-operate with each other in deciding which of them should apply for an order in any particular case.

The local authority must make reasonable enquiriesas to the existence and location of persons specified below. Having made reasonable enquiries the local authority must give noticeof the application to the specified persons where such persons are known to the local authority and contactable by it.

In relation to an application for an order in relation to people, the persons specified are the person subject to the application; another person with parental responsibility for a person who is a child; and a person’s decision-maker.

‘Decision-maker’ means a person’s donee of enduring power of attorney or lasting power of attorney under the Mental Capacity Act 2005 or a deputy appointed by the Court of Protection in relation to that person, where decisions in connection with these applications or orders are within the scope of that person’s authority.

In relation to an application for an order in relation to things, the persons specified are the owner of the thing, and the person with custody or control of the thing. However, in relation to an application for an order in respect of a dead body or human remains, the person specified is the deceased’s next of kin, or where the deceased has more than one next of kin, any one of those persons.

‘Next of kin’ means the person accorded highest rank in the following list. Where two or more persons are accorded equal ranking then each of those persons is to be treated as next of kin:

  • a person with parental responsibility for the deceased person
  • the deceased person’s husband, wife or civil partner
  • a person who had been living with the deceased person up to the time of their death as husband, wife or civil partner
  • the deceased person’s child where aged 18 years or over
  • the deceased person’s parent
  • the deceased person’s brother or sister where aged 18 years or over

In relation to an application for an order in relation to premises, the persons specified are the owner of the premises and the occupier of the premises.

If a justice of the peace considers it necessary to do so, the justice may make an order without a person having been given such notice as is otherwise required to be given to that person under rules of court or regulations.

A local authority is not required to give notice a person, in the reasonable view of the local authority, is likely to abscond or otherwise take steps to undermine the order applied for.

As regards an order in relation to a person, a local authority is not required to give notice to another person with parental responsibility for a person who is a child, where exceptional circumstances exist which mean that notifying such a person would not be in the child’s best interests.

Evidence Required for an Application in Relation to Persons

A justice of the peace cannot be satisfied that the criteria to order health measures in relation to persons are met unless the following evidence is available to the justice:

  • a report which gives details insofar as known and relevant, or gives reasons for the omission of details, of at least one of: (1) the signs and symptoms of the infection or contamination in the person who is the subject of the application; (2) that person’s diagnosis; (3) the outcome of clinical or laboratory tests; and (4) that person’s recent contacts with, or proximity to, a source or sources of infection or contamination;
  • a summary of the characteristics and effects of the infection or contamination which that person has or may have which includes an explanation of: (1) the mechanism by which the infection or contamination spreads; (2) how easily the infection or contamination spreads amongst humans: and (3) the impact of the infection or contamination on human health by reference to pain, disability and the likelihood of death
  • in relation to applications seeking an order in relation to a person, an assessment of the risk to human health that the person presents, including a description of any acts or omissions, or anticipated acts or omissions, of that person which affect that risk;
  • in relation to applications seeking an order in relation to a related party of a person, an assessment of the risk to human health that the related party presents, including any acts or omissions, or anticipated acts or omissions, of the related party which affect that risk
  • in relation to applications seeking an order in relation to a person, an assessment of the optionsavailable to deal with the risk that person presents; and
  • in relation to applications seeking an order in relation to a related party of a person, an assessment of the options available to deal with the risk that the related party presents

The evidence must be given by persons who are suitably qualified to give the evidence. It may be given orally or in writing.

The Procedure for Varying and Revoking Orders 

An order may be varied or revoked by a justice of the peace on the application of an affected person, a local authority, or any other authority with the function of executing or enforcing the order in question.

As regards orders in relation to people, affected persons are the person concerned; in relation to a child, a person with parental responsibility; the person’s husband, wife or civil partner; another person living with the person as their husband, wife or civil partner; or the person’s decision maker.

As regards orders in relation to things, affected personsare the owner of the thing; any person with custody or control of the thing; or in relation to a dead body or human remains, the deceased’s next of kin.

As regards orders in relation to premises, affected persons are the owner of the premises; any occupier of the premises.

Variation or revocation of an order does not invalidate anything done under the order prior to the variation or revocation.

Duty to Provide Information to in Relation to an Order in Relation to Persons

 As regards an order made in relation to persons, the local authority must take all reasonable steps to ensure that the person who is the subject of the order understands the effect of the order, the reason it has been made, the power under which it has been made and that person’s right to apply for a variation or revocation of the order; and the relevant support services available to that person and how to access them. The local authority must take the steps as soon as reasonably practicable after the order is made. Where a person is under the age of 18 years, the duty is to ensure that another person with parental responsibility for that person understands the matters.

Duty in Relation to Person’s Detained of Kept Isolated

 Where a person is detained in a hospital or other suitable establishment, or is kept in isolation or quarantine, the local authority which made the application for order must have regard to the impact of the order on the welfare of that person and their dependants, if any, for the duration of the order.

 The Content and Operation of Orders

 Conditions and Directions  

 The order may be expressed to take effect subject to conditions specified in the order and may contain such directions as the justice of the peace considers appropriate to give effect to it.

 Powers of Action, Entry and Seizure

 An order is authority for those persons to whom it is addressed to do such things as may be necessary to give effect to it

 An order may authorise entry of a premises to search the premises; carry out measurements and tests of the premises or of anything found; take and retain samples of the premises or of anything found; inspect and take copies or extracts of any documents or records found; require information stored in an electronic form and accessible from the premises to be produced in a form in which it can be taken away and in which it is visible and legible or from which it can readily be produced in a visible and legible form; and seize and detain or remove anything which the person authorised reasonably believes to be evidence of any contravention relevant to the purpose for which entry is authorised.

The Imposition of Charges

 An order may order the payment of compensation or expenses in connection with the taking of measures. Where a local authority has incurred costs taking measures pursuant to an order in relation to things or in relation to premises, the local authority may impose a charge the owner or person with custody or control of the thing, or the owner or occupier of the premises. The amount of the charge imposed must not exceed the actual costs, including staff costs, incurred by the local authority in taking measures in relation to the thing or premises pursuant to the order, and must be reasonable in the circumstances. However, a local authority may not impose a charge in connection with an orders that relates to a dead body or human remains.

The Duration of an Order

An order must specify the period for which any restriction or requirement imposed by or under the order is to remain in force. That period may be extended by further order of a justice of the peace.

In relation to orders imposing a requirement or restriction in relation to people, neither the initial period ordered nor any further extension period may exceed 28 days. Where an order (other than one concerning detention in a hospital or other suitable establishment, being kept in isolation or quarantine) is varied to impose a new restriction or requirement, the period for which new restriction or requirement may be in force may not exceed 28 days.

Enforcement and Criminal Offences

 A person commits an offence if they fail without reasonable excuse to comply with a restriction or requirement imposed by or under an order, or if they wilfully obstruct anyone acting in the execution of an order. A person guilty of an offence is liable on summary conviction to a fine.

If a person is convicted of an offence under subsection, and the court is satisfied that the failure or wilful obstruction constituting the offence has caused premises or things to become infected or contaminated or otherwise damaged them in a material way, the court may, if it considers it appropriate to do so, order the person to take or pay for such remedial action as may be specified.

Where an order imposes a requirement that a person be detained or kept in isolation or quarantine in a place, and the person leaves that place contrary to the requirement, a constable may take the person into custody and return the person to that place during the period for which the requirement is in force.

 

2 comments

  1. […] to seek orders from Magistrates to control persons, things, and premises, see my blog post Magistrates’ Powers to Make Orders to Control People, Things, and Premises to Reduce Infection Ri…, and from local authority enforcement of public health regulations, see my blog posts UK Government […]

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