Emergency (Measures In The Public Interest) Act 2020
On 30th January 2020, the International Health Regulations (IHR) (2005) Emergency Committee of the World Health Organisation (WHO) declared that the Covid-19 outbreak now meets the criteria for a Public Health Emergency of International Concern (PHEIC).
On 11 March 2020 the WHO declared the outbreak to be a pandemic. This reflects the gravity of the current outbreak and how speedily the disease has spread. The Act therefore made exceptional provision, in the public interest, having regard to the manifest and grave risk to human life and public health posed by the spread of Covid-19, and in order to mitigate, where practicable, the effect of Covid-19.
Against this background, the Act :
- amends the Health Act 1947 to provide for regulations to impose travel restrictions, prohibit some events (including large gatherings), and for any other measures that the Minister for Health may deem appropriate for the minimisation of the spread of Covid-19;
- enables the detention and isolation of persons who are a potential source of Covid-19 where they do not submit to voluntary self- isolation; and
- provides for amendments to the Social Welfare Consolidation Act 2005 to make exceptional provision, in the public interest and having regard to the grave risk posed by the spread of COVID-19, for amendments in relation to entitlement to illness benefit, jobseeker’s benefit and jobseeker’s allowance.
The amendments to the Health Act 1947 were made on the advice of the National Public Health Emergency Team and are intended to be used in extreme situations, should they arise.
The Health provisions have effect from the time of signing of the Act into law. It also provided for the time period that they shall remain in effect (a ‘sunset’ clause, specifying 9th May 2020) and the continuation (by means of Order) of those provisions beyond the period specified, should this prove necessary
Social Welfare Illness Benefit
The amendments to the Social Welfare Consolidation Act in relation to Illness Benefit were effective from 9th March 2020 and in relation to Jobseeker’s Benefit and Jobseeker’s Allowance from 13th March 2020. Unless they are renewed by way of a formal Government Order, these provisions were to lapse on 9th May 2020. (Any regulations introduced under the provisions of the Act would also lapse on that day).
Part 2 of this Act provides for amendments to the Social Welfare Consolidation Act 2005 to make exceptional provision, in the public interest and having regard to the grave risk posed by the spread of COVID-19, for amendments in relation to entitlement to illness benefit, jobseeker’s benefit and jobseeker’s allowance.
Access to the exceptional arrangements with regard to Illness Benefit (IB) which were introduced were extended to self-employed PRSI contributors. This was aimed primarily at ensuring that, in the interests of public health, self-employed people had access to the special Illness Benefit payment and are enabled to comply when have been advised by a registered medical practitioner to self-isolate.
It extended the scope of the IB scheme to encompass the new arrangements provided for in this Act. It identified the cohort to whom the new IB arrangements would apply. In particular, IB was be available to a person who is deemed incapable of work by virtue of being certified by a medical practitioner (including an instruction a medical officer of health from the HSE) as having been diagnosed with Covid-19 or needing to self-isolate as a probable source of infection with Covid-19.
The Minister may introduce regulations to entitle people who are deemed to be a probably source of infection to IB. It also extended entitlement to people who are in self-quarantine in respect of an order under the Health Act 1947.
The Minister may introduce regulations to exclude certain categories from these special arrangements. The normal requirement that an IB claimant must serve six waiting days would not apply under these new arrangements.
The Minister may introduce regulations to amend the PRSI contribution conditions which must be satisfied to qualify for IB claims arising from COVID-19. The Minister can introduce, by regulation, a higher rate of IB payment to a claimant who meets the qualifying requirements for IB arising from COVID-19.
The regulatory powers were intended to ensure that the emergency operational requirements required to deal with the payment of IB arising from COVID-19 in the interests of public health were legally permissible. The consent of the Minister for Public Expenditure and Reform was required for any such regulations and that the Minister for Health will also be consulted on these regulations. The Act set out the policies and principles to be taken into account by the Minister in introducing Regulations.
The first Covid Related 2020 Act provides a regulation making power to the Minister to vary the three day waiting period for the PRSI contributions-based Jobseekers Benefit scheme. Normally jobseekers must have three days of unemployment before they are entitled to Jobseekers Benefit.
Because many businesses were closing temporarily due to Covid-19, the Minister will have powers in these exceptional circumstances to reduce waiting days for people who have suddenly become unemployed. It provided for parallel powers insofar as they relate to the means-tested Jobseeker’s Allowance payment.
Restrictions by Regulation
The first Covid related 2020 Act inserts two new sections, section 31A and section 31B, in the HealthAct 1947 to provide for regulations to prevent, limit, minimise and slow the spread of Covid-19. The Minister had power to make affected areas orders.
Addressing unprecedented and grave circumstances, regulations could provide for travel restrictions, prohibition or restriction of some events for example large gatherings, and requiring persons to remain at home.
Regulations on travel restrictions may apply to and from the State and within the state, including in locations to which an affected area order applies (please see section 31B). Regulations could prohibit certain types of events in the interest of preventing, limiting minimising or slowing the spread of Covid-19.
Regulations may also be made on the safeguards to be put in place by organisers of events. In addition, regulations may provide for the safeguards to be put in place in relation to premises to prevent the risk of infection to people visiting or working there. The regulations may also provide for safeguards in relation to creches, schools, universities and other educational facilities (including the temporary closure of such facilities). Regulations may provide for any other measures that the Minister may deem appropriate in order to prevent, limit, minimise or slow the spread of Covid-19.
The Minister may (after consultation with any Minister deemed appropriate) exempt specified classes of persons, including but not limited to persons providing essential services, including statutory functions, other specified public services or other services.
The Minister might by means of order, specify an area or region to be an ‘affected area’ (i.e. an area where there is a high risk of infection or importation of with covid-19). Travel restrictions and event restrictions relate here. When making an affected areas order, the Minister will have regard to the advice of the Chief Medical Officer and will consult with relevant Ministers.
The 2020 Act provided for offences relating to the regulations and compliance. There were enforcement powers, including powers for An Garda Síochána. There were also related offences. There were provisions for implementation and enforcement by relevant persons for example medical officers of health. and for assistance to relevant persons by An Garda Síochána.
Detention and isolation of persons
There was provision to allow a medical officer of health to order the detention and isolation of a person where the medical officer of health reasonably believes that the person is a potential source of infection and where the person refuses to self-isolate. The medical officer of health must keep the person under review and a medical examination must be carried out as soon as possible but in any event no later than 14 days after detention. This reflects the incubation period and is intended to indicate an outer time period.
In practical terms, the person would be medically monitored throughout any time of detention. The person detained may also ask for a review of his or her detention by another doctor.
The Act imposed a requirement upon a medical officer of health to certify his or her opinion in relation to the matters outlined in the order in order for it to have effect. A medical officer of health who made and an order wast o keep the matter under review and to ensure that a medical examination is carried out as soon as possible and in any event no later than 14 days from the time a person has been detained. There was provision for a review by another doctor where one is requested by the person detained.
The intention is that the provisions of section 38 of the Health Act 1947 shall apply to a person who is subject to detention and isolation. These provisions include the provision of a copy of the order to the Minister and the person detained or their appropriate person, for example a parent in the case of a child.
There are offences. The costs of maintenance and treatment during detention and isolation will be paid by the HSE.