There are legal and moral issues around enforcement for failing to properly isolate. But if our goal is stamping out Covid, don’t overlook the unintended consequences, writes law professor Andrew Geddis.
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The revelation that Auckland’s new level three lockdown was triggered by infectious individuals failing to properly self-isolate has awakened some people’s vengeful angels. The rules must be tightened, it’s claimed. The police must prosecute, it’s argued.
Even Jacinda Ardern came as close to leading out a torches-and-pitchfork mob as we’re ever likely to see from her: “No one – in Cabinet, no minister, no politician, none of us that I’ve spoken to – think that this is tolerable. You know, what has happened here has been a clear breach and everyone is frustrated by it.”
Jacinda’s not just disappointed. She’s more than a bit miffed.
There are quite understandable reasons for her reaction. After all, the consequence of failing to properly isolate is that a third of the country now faces a minimum of another week of lost freedoms, kids away from school, slashed business incomes and trying to find something new on Netflix to watch. Not to mention the more serious threat of Covid-19 spreading more widely, and our national death toll of 26 increasing.
So, what are the current rules applying to those in self-isolation, are they sufficient, and what should be done about those breaking them?
First of all, we need to distinguish targeted self-isolation rules from the general level three lockdown rules that apply to everyone in Auckland this week. These latter rules have been applied through an order under the Covid-19 Public Health Act 2020. Anyone who intentionally breaches these rules can be prosecuted, with a potential penalty of up to six months imprisonment or a $4000 fine.
And these sorts of prosecutions do occur; apparently there’s been over 800 of them since Covid-19 hit our shores a year ago. Of course, that’s only a small sample of total lockdown breaches as police practice has been to only prosecute egregious, or repeat, offenders. Which probably is fair enough if we want to avoid completely clogging up our courts.
However, orders under the Covid-19 Public Health Act cannot be made in respect of specific individuals, such as close contacts of those testing positive to the virus. Those situations instead are dealt with under the Health Act 1956, s 70. This legislation empowers a medical officer of health to “require persons … to be isolated [or] quarantined … as he (sic) sees fit”. And refusing to comply with such requirements is, again, an offence with a potential penalty of up to six months imprisonment or a $4000 fine.
All of which might then seem pretty straightforward. There’s an existing legal power to make people self-isolate. Failing to comply with such a requirement can attract reasonably severe sanctions. Why, then, do we not start hanging some more admirals pour encourager les autres?
Perhaps matters aren’t quite so cut-and-dried, however.
First of all, it’s not clear that people who currently are being “required” to self-isolate are told to do so using the Section 70 powers in the Health Act. Note that only medical officers of health can issue a legally binding self-isolation requirement under Section 70, not the individual contact tracers who ring up those identified as close contacts. And as the High Court noted in the Borrowdale v Attorney General decision on the legality of New Zealand’s first lockdown, any s 70 mandate “requires appropriate notification to those affected”. That likely means telling people that this power has been exercised and so their self-isolation isn’t just a good or desirable action to prevent Covid spreading, but a legally obligated one.
I simply don’t know whether this was done in relation to the “close contacts” presently attracting the public’s ire for failing to adhere to self-isolation protocols. However, it clearly isn’t what is being done for every “close contact”. Consider, for example, those customers who were at Botany K-Mart between 3.30pm and 10.30pm on 20 February, whom the Ministry of Health has designated as being close contacts and so advises to “please self-isolate for 14 days and get a test on the 25th February and 4th March.”
I don’t doubt that this is the right thing for such customers to do, and anyone who doesn’t do it is acting in a wrong manner. But this “self-isolate and get tested” advice doesn’t appear to be a legally enforceable requirement, and so failing to comply with it isn’t a matter for the police. Which may also be true for the other so-called “clear breaches” of the self-isolation “rules” – we just don’t know enough about that at present.
So, perhaps what is needed is for medical officers of health to start using their s 70 powers more widely and give some legal teeth to the self-isolation requirements. And then for the police to move more aggressively with prosecutions against those who fail to comply with these requirements.
The problem here is balancing incentives for people to comply with the self-isolation rules against getting information from those who fail to do so, in order to minimise any damage done. Because, if the consequence of telling contact tracers how and when you breached a self-isolation requirement is prosecution and potential jail time or a hefty fine … well, would you do it? And without that information, it will be harder to track the potential spread of the virus through the community, which may lead to even longer and wider lockdowns.
How, then, do you solve that particular calculation? Are any deterred self-isolation breaches worth the lost information about whatever breaches occur in spite of the law? When giving your answer to this problem, show your workings.
Which likely is why Jacinda Ardern leaned so heavily on the social-sanctions aspect of breaching Covid-19 rules in her press conference yesterday. After all, our disapprobation doesn’t depend on whether the rules in question are legal or moral in nature. We can say that doing the right thing to stop Covid-19 is just as important as doing the legally required thing. And having a friend or colleague tell us this to our faces when we’re breaking “the rules” likely is far more effective in stopping us from doing so than is the threat of the police arresting us at some point in the future. Which will in turn be better at stopping the sort of “rule breaking” that threatens to undermine our Covid elimination strategy.
Just don’t go trying to impose those sanctions over social media. Social media is just the worst.
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