UK Lawyer: Locking people up to stop coronavirus spread can prompt legal fights

The UK health secretary on Monday morning authorized an unprecedented policy for stopping possible carriers of the coronavirus: Lock them up. It was the first time in modern British history that such a move has been made in response to an epidemic — and it could prompt legal challenges.

The law, introduced under emergency measures, gives the government the power to detain any individuals who may be infected with the virus for at least 14 days, and to force them to give swabs. The decision came after a person in quarantine threatened to leave.

In the US, the government has resorted to similar laws. It’s the first time such a policy has been used in America since the 1960s, when a quarantine order was issued to stop the spread of smallpox, and more than a century since it was used on such a scale.

The measures stop well short of the response to the outbreak in China, where the authorities have locked down cities and regions with tens of millions of residents. Still, the moves are unprecedented in recent years for western democracies as governments try to balance the need to protect public health against a desire to uphold individual rights.

‘Unusual step’

“The unusual step of government making regulations which came into force immediately, before parliamentary scrutiny of them, demonstrates the evolving nature of the threat from the virus and the challenges faced,” said Mark Mills, a London lawyer at Kingsley Napley, referring to the UK measures. “We might yet see the courts drawn in.”

Britain has detained more than 200 people since the virus emerged, according to a person with knowledge of the situation. In the UK, nine people have tested positive for the virus, which has infected tens of thousands of people in China — far more than the severe acute respiratory syndrome, or SARS, epidemic of 2003.

The last time the US government implemented such a wide-ranging quarantine using a federal order was in 1892 to prevent the spread of cholera from ships docking in New York, according to Howard Markel, a professor at the University of Michigan Center for the History of Medicine.

As in the UK, the new US measures were implemented after one person tried to leave a quarantine site.

Countries generally rely on people voluntarily submitting to quarantine measures for public safety. While the UK didn’t impose national restrictions over SARS, the epidemic did lead to an overhaul of laws around public safety and infectious diseases, many of which dated to Victorian times. Revisions in 2008 sought to take into account modern risks of radiation and chemical contamination.

‘Extremely draconian’

While there could be challenges to quarantine measures, lawyers don’t think they would be successful, except in unusual personal circumstances. A spokeswoman for the UK Department of Health and Social Care declined to comment beyond Health Secretary Matt Hancock’s statement that said the regulations had been put in place to reduce the risk of further transmission.

“These are provisions that go way beyond what we would normally accept in our society. They’re extremely draconian and invasive,” said Joseph O’Brien, a UK trial lawyer at St John’s Buildings Barristers’ Chambers. “But when the aim is the prevention of infections that could have lasting consequences, I think the courts would accept such measures as necessary.”