What powers do Trusts have in respect of restricting patients with known/suspected Coronavirus from moving around a hospital, or detaining them if they feel it necessary?
Trusts should bear in mind that there is an important distinction between preventing patients from going somewhere and detaining them.
In terms of preventing any patient from going somewhere, a Trust can prohibit entry to any area as it deems fit; patients will already not be allowed into staff break rooms for example. In terms of enforcement in practice this may well come down to how the Trust would handle a matter if Coronavirus was taken out of the equation, which would presumably either involve security guards (with appropriate personal protective equipment) or calling the Police.
In terms of detaining an patient (who is not subject to the Mental Health Act or DoLS) who may have or is known to have Coronavirus, the recently introduced Coronavirus Act 2020 makes provision for this.
In much the same way that Mental Health Act powers can only be imposed via certain doctors, the majority of restrictive powers relevant to Coronavirus can in practice only be imposed by Public Health Officers. However, the Police have powers to remove / detain people if they reasonably suspect that they have coronavirus (in a fashion similar to section 136 of the Mental Health Act) in order for assessment by a Public Health Officer to take place.
The Police can take people to – or detain them in – environments ‘suitable for screening or assessment’ (which may include particular parts of hospitals but not others) for an initial 24 hours for such screening, so in practice calling the Police is the best initial option if faced with a non-compliant patient – although there are certainly many issues about how this will work in practice.
Once a patient has been assessed by a Public Health Officer they can be subject to various restrictions if certain criteria are met, which could include the patient staying in isolation or being detained with others at the hospital (or elsewhere) for up to 14 days. Once these restrictions are in place they are enforceable by the Police if necessary. Liaison with Public Health Officers about practicalities such as ward occupancy and patient mix will accordingly be essential for Trusts.
An alternative route would be to consider (but certainly not assume) whether a patient’s behaviour in ignoring warnings about the risk of Coronavirus to themselves or others indicates that assessment under the Mental Health Act is warranted or if they lack mental capacity. A Trust would be able to enforce restrictions on movement including detention if someone was subject to the Mental Health Act or if it was in their best interests if they lacked capacity via the Mental Capacity Act via conventional methods (considering any necessary protective equipment). Although unlikely, this could include obtaining a DoLS authorisation in suitable cases.
Trusts should also be mindful that although non-consensual care and treatment can be given if a patient lacks capacity and it is in their best interests (via the Mental Capacity Act), the Coronavirus Act does not permit non-consensual care and treatment of patients who have the mental capacity to refuse it.