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The Health (Preservation and Protection and Other Measures in the Public Interest) Act 2020 gives the Minister for Health broad powers to make Regulations to prevent, limit, minimise or slow the spread of COVID-19. (The Act also makes amendments to our social welfare legislation, but these are not considered here. Please see our Employment FAQs briefing).

The Act amends existing legislation, the Health Act 1947, that gives the Minister for Health power to make Regulations to prevent the spread of an infectious disease and to provide for the detention and isolation of those suffering from an infectious disease in certain limited circumstances. The changes introduced by the Act are time limited. They will remain in operation until 9 November 2020, though the Oireachtas may by order extend this.

With the passing of the Act, the Minister now has the power to introduce any measure that he thinks necessary to prevent, limit, minimise or slow the spread of COVID-19. The Act does not itself introduce any restrictive or protective measures: it gives the Minister power to do so should the need arise.

The Minister is not restricted in the type of measure he may introduce, but the Act sets out a non-exhaustive list of measures that may be covered by Regulations (see below).

The Act provides for certain safeguards, including a requirement that the Minister must consult with other Ministers or persons as he considers appropriate.

Affected areas orders

The Minister can declare an area or region in the State to be an “affected area”. An “affected area” is an area where there is known or thought to be sustained transmission of COVID-19 or from which there is a high risk of importation or infection or contamination with COVID-19 by travel from that area. An affected area may be subject to travel restrictions and people in an affected area may also be ordered to remain at home or in a place designated by the Minister (see below).

Non-exhaustive list of restrictions that may be imposing by regulation

Regulations passed under the Act may deal with any of the following:

• Travel restrictions to or from Ireland
• Travel restrictions to, from or within affected areas in Ireland (see above);
• Restrictions on persons living in, working or visiting affected areas in Ireland (see above), including requiring them to remain in their homes or to remain in a place designated by the Minister;
• Prohibitions on certain events where there is a reasonable risk that those attending the event could be infected with COVID-19;
• A requirement that event organisers put safeguards in place to prevent, limit, minimise or slow the risk of infection to those attending events;
• A requirement that owners or occupiers of premises or any other place put safeguards in place in order to prevent limit, minimise or slow the risk of infection (this could include temporary closure);
• A requirement that managers of schools, crèches and other childcare facilities, universities or other educational facilities put safeguards in place in order to prevent limit, minimise or slow the risk of infection (this could include temporary closure)

Certain persons (for example those who perform essential services) may be exempted from any restrictive measures introduced.

It is an offence (punishable by a fine of up to €2,500 and/or 6 months in prison) to contravene any regulation, or to obstruct, interfere or impede a person in the exercise of their powers under a regulation, or to fail or refuse to give information that is required or to give information that is false or misleading in purported compliance with a regulation.

The Act gives the gardaí broad powers to ensure compliance with any regulations made.

Detention and isolation

The Act also broadens the detention and isolation measures set out in the Health Act 1947 in respect of COVID-19 cases only.

Under section 38 of that Act, a chief medical officer (with the agreement of a second medical practitioner), may order that a person who is a probable source of infection with an infectious disease be detained and isolated in a specified hospital or other place, where isolation is necessary as a safeguard against the spread of the infection and the person cannot be effectively isolated in his/her own home.

Where necessary to prevent, limit, minimise or slow the spread of COVID-19 and to minimise the risk to human life and public health, a medical officer of health may make an order for the detention and isolation of a person who he/she believes is a potential source of infection (see below) and a potential risk to public health. A detention or isolation order can only be made where the person concerned cannot be effectively isolated or refuses to remain or appears unlikely to remain in his/her own home or other accommodation arranged or agreed by the Health Service Executive (HSE). The person can be detained and isolated in a hospital or other place for as long as the medical officer believes is necessary.

The Act provides for certain safeguards, including a requirement that the medical officer ensure that any person detained is medically examined within 14 days of the detention. Further, a person who is detained and who believes that they are not a potential source of infection may request that their detention be reviewed by a different medical officer of health.

The HSE must bear the cost of the maintenance and treatment of any person detained or isolated in this manner.

The Act also makes it an offence (punishable by a fine of up to €2,500 and/or 6 months in prison) to prevent or attempt to prevent a person’s detention or to assist a detained person escape.

Potential source of infection

The definition of a person who is a “potential source of infection” is very broad and includes anyone who:

• has been in recent contact with a person whom the medical officer of health believes in good faith to be a probable source of infection with COVID-19, or suffering from COVID-19;
• has attended an event which the medical officer of health believes in good faith was attended by a person who is a probable source of infection with COVID-19, or is suffering from COVID-19;
• has travelled from, or been in contact with a person who has travelled from a place outside the State that the medical officer of health believes in good faith to have a significant number of cases of persons infected with COVID-19;
• has travelled from, or been in contact with a person who has travelled from, to or within an affected area (see above);
• the medical officer of health believes in good faith to be a potential source of infection.

Other considerations

The Act is a swift and measured response to the worldwide crisis now facing us and gives the Minister for Health extremely broad powers to do what is necessary to prevent, limit, minimise or slow the risk of infection posed by COVID-19.

There are some further measures that may need to be considered in order to alleviate pressure on our health professionals and allow them to focus on COVID-19 cases. These might include, for example, relaxing the requirements for GPs to issue repeat prescriptions and allowing pharmacists to dispense
without a repeat prescription; further expanding the role of nurses to prescribe medicines; amending or suspending certain regulatory and registration requirements and reporting obligations in the healthcare sector which may not be possible to adhere to in the context of the COVID-19 crisis.

We will keep you updated on any further legislative developments.