Coronavirus Regulations: Reasonable Excuse to Leave Home
Allowing an appeal in the Court of Protection today, Mrs Justice Lieven held that the mother and certain other members of the family had a reasonable excuse to leave their homes to provide care to NG pursuant to regulation 6(2)(d) of the Health Protection (Coronavirus Restrictions (England) Regulations 2020): NG (by his litigation friend, the Official Solicitor)(Appellant) v (1) Herfordshire County Council (2) AG (3) HG (4) NDG (Respondents) [2021] EWCOP 2
There was a significant history (involving a previous judgment) around the care of NG who was aged 30. He had moderate to severe autism with some mild learning difficulty. His ability to communicate was severely impaired and he was considered to be vulnerable to the influence of others.
It was not disputed that NG lacked capacity to conduct proceedings in respect of decisions as to his residence, care arrangements and contact with NDG and AG.
In considering the proper construction of regulation 6(2)(d) it was important to see the regulation as a whole.
Regulation 6 concerned restrictions on movement and at (d) “to provide care or assistance, including relevant personal care within the meaning of paragraph 7(3B) of Schedule 4 to the Safeguarding of Vulnerable Groups Act 2006, to a vulnerable person, or to provide emergency assistance”.
In parts of regulation 6 it was immediately clear that in some of the exceptions the concept of “need” was hard edged, capable of objective judgment, such as the need to buy food, whereas in others there was necessarily an element of subjective judgment, such as the need to visit a cemetery or burial ground.
Regulation 9 made it a criminal offence to act in breach of Regulation 6. The regulations had changed on a number of occasions since the first lockdown.
The appeal was allowed on two grounds, the first of which involved the provision of care, the parents being the primary carers. It was important to look at the substance of the care and not the labels.
Secondly, regulation 6 had to be interpreted on its clear language, particularly as it created a criminal liability.
The different limbs of regulation 6 related to very different matters and the approach to “need” would to some degree vary depending on the different limbs.
The first restrictions Regulations made little sense if a hard edged objective test of necessity were to be applied to each one.
The government had not chosen to use the word “essential” anywhere other than in relation to provisions in (a) (to obtain basic necessities etc), and where a particularly high test was being required such as in (i) and the access to “critical” public service that was expressly stated.
The context and mischief of the first restrictions Regulations was highly important and fully explained in R (Dolan) v Secretary of State for Health and Social Care [2020] EWCA Civ 1606.
From NG’s perspective, it was clear that he needed parental care as well as paid care. His emotional needs and best interests were met by having a mix of family and paid care. It was wrong to focus simply on the fact that his physical needs could be met by paid care.
This interpretation was supported by the words of regulation 6(1) and the defence of reasonable excuse. Delivering care pursuant to a court order to a family member must amount to a reasonable excuse to leave home.
It was also important when interpreting regulation 6(2)(d) to have regard to Art 8 ECHR and the protection of family life, subject to the justifications of Art 8(2).
A ban on family members being able to provide care to loved ones where paid care was available would be a very serious interference with the right to family life.
It did not mean that such interference would be incapable of justification, but it did mean that a court should be very careful before reaching an interpretation which would give such precedence to paid over family care.
Nothing in the Regulations or Guidance suggested that the government prioritised paid over family care.
Bennion on Statutory Interpretation (6th ed) stated “It is a principle of legal policy that a person should not be penalised except under clear law”. The wording of regulation 6(2)(d) was broad and unspecific in respect of the nature of the care.
It would be wrong to create a criminal offence for someone providing care in the circumstances of AG and NDG.