Oireachtas passes Emergency Measures Legislation to address COVID-19

On 20 March, the Dáil and Seanad passed legislation designed to provide the Government with certain powers to address the COVID-19 outbreak, if they are deemed necessary to invoke. Titled the “Health (Preservation and Protection and other Emergency Measures in the Public Interest) Bill 2020” (the “Bill”), it amends existing legislation in two areas – social welfare and healthcare. The key healthcare provisions are summarised below while the social welfare provisions are summarised in a separate bulletin. The Bill will become effective when it is signed into law by President Higgins.

Summary:

The Health Act 1947 is amended in order to provide the Minister for Health (“Minister") with extensive powers to address the COVID-19 outbreak. These include powers to make healthcare regulations to:

• restrict travel to and from the state;
  
• restrict movement to, from and in any area declared to be affected by COVID-19 (“Affected Areas”) through “Affected Areas Orders”. Effectively, this is the legal mechanism through which the Minister can order localised lockdowns;
  
• prohibit and require safeguards for “events”, which is broadly defined to include gatherings related to work, education, commerce, recreation and entertainment;
  
• order the detention and isolation of a person who may be infected with COVID-19; and 
  
• make provisions of those regulations “penal provisions”, the breach of which by an individual or body corporate is an offence, which can be punished by a fine and/or imprisonment.
  

The Bill’s provisions are considered in more detail below. The powers granted to the Minister in relation to healthcare matters are due to last until 9 November 2020, but may be extended beyond that date by resolutions passed in both the Dáil and Seanad.

The Government has indicated that the Bill “provides for certain extra powers, should they be needed if extreme situations were to arise”. While the powers provided to the Minister are extensive, and would have clear and immediate impacts if implemented, it appears that they will only be used if and when necessary to combat the spread of COVID-19.

Section 31A (1) regulations restricting travel:

The Bill inserts a new section 31A (1) into the Health Act of 1947, authorising the Minister to:

• Restrict travel to and from the state (section 31A (1)(a));
  
• Restrict travel to and from Affected Areas (section 31A (1)(b); and
  
• Restrict the movement of persons residing in, working in or visiting Affected Areas, by requiring them to stay in their homes or other places (section 31A (1)(c)).
  

Section 31A (1) regulations restricting gatherings:

The most noteworthy provisions of this section relate to “events”, which are broadly defined as including “a gathering of persons, whether the gathering is for cultural, entertainment, recreational, sporting, commercial, work, social, community, educational, [religious] or other reasons”. There is no numerical threshold for what constitutes an "event".

As an “event” is defined as including a gathering of persons for work, the Minister is effectively empowered to prohibit the attendance of workers and visitors at offices, factories, shops and other workplaces. 

Section 31A (1) also authorises the Minister to:

• Prohibit events (section 31A (1)(c));
  
• Require event organisers to implement certain safeguards (section 31A (1)(d));
  
• Require the owners and occupiers of both premises and “any other place or class of place” to implement certain safeguards (section 31A (1)(e) and (f));
  
• Require schools, childcare facilities and other educational facilities to implement certain safeguards (section 31A (1)(g)); and
  
• Lastly, the Bill also allows “any other measures that the Minister considers necessary in order to prevent, limit, minimise or slow the spread of COVID-19”. This is broadly-worded and appears to allow the Minister to make additional restrictions and safeguards as he sees fit (section 31A (1)(h)).
  

Exemptions:

The Minister is authorised to exempt certain groups of persons from the measures provided for in section 31A (1), including but not limited to persons performing “essential services”, which may include the emergency services and healthcare workers.

Enforcement and Offences:

The Bill provides the Gardaí and other "relevant persons", such as medical officers and HSE and customs officials, with wide-ranging powers to enforce the provisions of the Bill. It also creates offences for persons breaching “penal provisions” of any regulations which the Minister orders pursuant to the legislation.

In addition, a person who wilfully obstructs or contravenes regulations made pursuant to Section 31A, or who fails to give information which is required of him, is guilty of a Class C offence, punishable on summary conviction only by a fine of up to €2,500 and/or imprisonment for up to six months. Someone who impedes another person in their implementation of the Bill is also guilty of an offence.

Section 31A (15) provides that bodies corporates, such as companies, partnerships and other organisations, as well as their directors, managers, secretaries or other officers, can each be found guilty of an offence, in addition to the body corporate itself, if actions of such bodies corporates resulted in the impeding or breach of regulations made by the Minister. The Bill also allows shareholders of such bodies corporates who have management functions to be held responsible for such breaches.

Civil actions:

One part of the Health Act 1947 which is not amended by the Bill, but which is still relevant, is Section 43. This allows for a person to sue another, if that other person failed to take actions required of him pursuant to regulations made by the Minister (such as those discussed in this bulletin), which resulted in the first person being infected by a disease, such as COVID-19.

Section 43 also states that the courts will apply a rebuttable presumption that the party who failed to take the actions required of him by the regulations caused the other person's infection. Accordingly, individuals and organisations are at risk of facing civil liability if their failure to follow regulations resulted in someone becoming infected by COVID-19. 

Section 38A detention and isolation orders:

The Bill inserts a new section 38A into the Health Act of 1947, authorising a medical officer of health to order the detention and isolation of persons, for such period of time as that officer deems necessary, and where the officer believes in good faith that:-

• the individual is a potential source of COVID-19 infection; and
  
• the individual is a potential risk to public health; and
  
• their detention and isolation is appropriate; and
  
• the individual “cannot be effectively isolated, refuses to remain or appears unlikely to remain in his or her home or other accommodation”.
  

The legislation also allows for such individuals to appeal their detention and for a medical examination of the persons detained to take place within 14 days of their detention. Persons obstructing or interfering with detention and isolation orders can be subject to a Class C fine of €2,500 and/or imprisonment for up to three months, on summary conviction.

How will this impact businesses:

While the above provisions may not need to be implemented, organisations should consider how they may be affected if, for example, their workplace was ordered to be shut down or the location of their workplace was declared an “Affected Area”. 

For more information or advice on what COVID-19 may mean for you or your organisation, please contact a member of our COVID-19 Advisory Team or your usual ByrneWallace contact.