Emergency Measures to Halt the Spread of Covid-19
Emergency measures to combat the spread of COVID-19. Government seeks to pass emergency COVID-19 Bill by end of week.

 

Just before the address about Covid-19 made by An Taoiseach, Leo Varadkar on St. Patrick's Day, the Government published the Health (Preservation and Protection and other Emergency Measures in the Public Interest) Bill 2020 (the Bill). On 19 March the Bill cleared the Dáil with one amendment, a sunset clause which provides for a review of the measures on 9 November 2020. The following day during its debate the Seanad tabled 34 amendments to the Bill, however none were carried. That evening, 20 March, the Health (Preservation and Protection and other Emergency Measures in the Public Interest) Act 2020 was signed by the President, becoming the first Act of 2020 (the Act).

The Act introduces illness benefit for those who have been diagnosed with or are a probable source of the Covid-19 infection (Illness Benefit)

The Act also gives the Minister for Health more powers to combat the spread of Covid-19 and greater powers to detain and isolate people in certain circumstances.

Social Protection Measures 

The Act provides several amendments to the Social Welfare Consolidations Act 2005 to allow a person avail of Illness Benefit where they meet the existing requirements for illness benefit and they are incapable of work or deemed incapable of work by virtue of:

  1. being certified by a registered medical officer as being a person diagnosed with Covid-19, or a person who is a probable source of infection of Covid-19;
  2. being notified by a medical officer of health or such other person that may be prescribed, that they are a probable source of the Covid-19;
  3. being a deemed to be a probable source; or
  4. being a person in respect of whom an order for detention or isolation has been made;

Following consultation with the Minister for Health, and with the consent of the Minister for Public Expenditure and Reform, the Minister for Employment and Social Protection may make regulations in relation to:

  1. the procedures by which, a person is certified;
  2. the procedure by which a person is deemed to be a probable source of infection of Covid-19; and
  3. the requirements in relation to which a relevant person shall notify the Minister of the circumstances of their incapacity for work.

The guiding principles that the Minister for Employment and Social Protection must consider when making such regulations include the nature and potential impact of Covid-19 on individuals, society and the country, as well as the need to ensure the most beneficial, effective and efficient use of resources. 

Greater Powers for the Minister for Health 

The Act allows the Minister for Health to make regulations to prevent, limit, minimise or slow the spread of Covid-19 by ordering: 

  1. restrictions to be imposed upon travel to and from Ireland, or from geographical locations within Ireland to which an affected areas order applies;
  2. people to remain in their homes or such other places as the Minister may specify; and
  3. the prohibition of events, where the event could reasonably be considered to pose a risk of infection with Covid-19 to attendees (or the event location is subject to an affected areas order).

An affected area is an area or region in Ireland declared by the Minister for Health to be an area where there is a known or thought to be sustained human transmission of Covid-19, or from where there is a high risk of infection with Covid-19 by travel from that area. 

Under the proposed new regulations, the Minister for Health may also order certain safeguards be put in place by event organisers, owners or occupiers of a premises or any place, and managers of any educational facilities (including creches and childcare facilities).

Under these new proposed regulations, the Minister for Health may enforce "any other measures that the Minister considers necessary in order to prevent, limit, minimise or slow the spread of Covid-19".  These include "such additional, incidental, consequential or supplemental matters as the Minister considers necessary or expedient for the purposes of giving full effect to the regulations." 

In implementing these regulations, the Minister for Health must consider a range of factors, especially that "a national emergency has arisen of such character that there is an immediate and manifest risk to human life and public health, of a consequence which it is expedient in the public interest that extraordinary measures need to be taken".  The Minister must also consider the need to act quickly and the resources available, including the financial resources of the country.  Advice from the Chief Medical Officer must be sought when implementing the regulations.

The Minister may, but is not obliged, to take into account any relevant guidance, including World Health Organisation and European Centre for Disease Prevention and Control guidance when exercising his powers under this emergency legislation.

Any person who contravenes the regulations is guilty of an offence that carries a fine not exceeding €2,500. 

Greater Powers of Detention and Isolation 

Powers of detention and isolation for people with infectious diseases already exist under the Health Act 1947 (1947 Act). 

The Government sought powers that went beyond the existing legislation. The key changes are:

  1. The power of  a chief medical officer under the 1947 Act  to order the detention and isolation of a person that "is a probable source of infection with an infectious disease" is broadened to permit a chief medical officer to make an order if they believe, among other things, that "a person is a potential source of infection" and "the person is a potential risk to public health".

    These broad criteria aim to prevent the spread of Covid-19 more effectively than the provisions of the 1947 Act, under which it is necessary to prove that a person is infected with COVID-19 before an order can be made.
  2. The scope of an order is broadened to permit detention or isolation "to – prevent, limit, minimise or slow the spread of Covid-19 and…minimise the risk to human life and public health". Currently under the 1947 Act, orders are permitted only where "isolation is necessary as a safeguard against the spread of infection".
  3. The scope of an order for detention and isolation is widened to where a person "cannot be effectively isolated, refuses to remain or appears unlikely to remain in his or her home or other accommodation arranged" rather than under the 1947 Act, where such an order can be made only because "such person cannot be effectively isolated in his home".

It is clear from the wording of the Act that the Government is aware of the pressures under which the health service may be required to function. For example, when making a detention or isolation order, a medical officer shall consider "the resources of the health services including the number of health care workers available at a given time, the capacity of those workers to undertake measures, the necessity to take such measures as are appropriate to protect health care workers from infection from Covid-19, and the capacity of hospitals or other institutions".

A person who is the subject of a detention or isolation order may request their detention to be reviewed on the grounds that they are not a potential source of infection.  However, the Act does not give a time limit for when such a review should take place, merely that the order shall be "reviewed as soon as practicable". 

A person who breaches a detention or isolation order shall be liable to a fine not exceeding €2,500 or to imprisonment for a term not exceeding three months, or to both.

For more information on the Health (Preservation and Protection and other Emergency Measures in the Public Interest) Act 2020 and the impact of its provisions on your business, please contact our Covid Task Force or your usual William Fry contact.

For more information on the Health (Preservation and Protection and other Emergency Measures in the Public Interest) Bill 2020 and the impact of its provisions on your business, please contact our COVID-19 Dedicated Group or your usual William Fry contact.

 

Contributed by Bill Ryan, Ruth Fahy & Robert Ryan

 

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