Intellectual Property and Medical Law, Faculty ,of Law, University of Cambridge, United Kingdom; Centre of Law, Medicine and Life Sciences, University of Cambridge, United Kingdom.
King's College London and 39 Essex Chambers, London, United Kingdom.
Int J Law Psychiatry. 2021 Jan-Feb;74:101649. doi: 10.1016/j.ijlp.2020.101649. Epub 2020 Dec 1.
This article investigates the lawfulness of isolating residents of care and group homes during the COVID-19 pandemic. Many residents are mobile, and their freedom to move is a central ethical tenet and human right. It is not however an absolute right and trade-offs between autonomy, liberty and health need to be made since COVID-19 is highly infectious and poses serious risks of critical illness and death. People living in care and group homes may be particularly vulnerable because recommended hygiene practices are difficult for them and many residents are elderly, and/or have co-morbidities. In some circumstances, the trade-offs can be made easily with the agreement of the resident and for short periods of time. However challenging cases arise, in particular for residents and occupants with dementia who 'wander', meaning they have a strong need to walk, sometimes due to agitation, as may also be the case for some people with developmental disability (e.g. autism), or as a consequence of mental illness. This article addresses three central questions: (1) in what circumstances is it lawful to isolate residents of social care homes to prevent transmission of COVID-19, in particular where the resident has a strong compulsion to walk and will not, or cannot, remain still and isolated? (2) what types of strategies are lawful to curtail walking and achieve isolation and social distancing? (3) is law reform required to ensure any action to restrict freedoms is lawful and not excessive? These questions emerged during the first wave of the COVID-19 pandemic and are still relevant. Although focussed on COVID-19, the results are also relevant to other future outbreaks of infectious diseases in care and group homes. Likewise, while we concentrate on the law in England and Wales, the analysis and implications have international significance.
本文探讨了在 COVID-19 大流行期间将护理院和集体住所的居民隔离的合法性。许多居民行动不便，他们的行动自由是核心伦理原则和人权。然而，这并不是一项绝对的权利，需要在自主、自由和健康之间做出权衡，因为 COVID-19 具有高度传染性，会带来严重的重症和死亡风险。生活在护理院和集体住所的人可能特别脆弱，因为他们难以遵守推荐的卫生措施，而且许多居民年龄较大，/或患有合并症。在某些情况下，只要征得居民同意并在短时间内进行权衡，就可以做出权衡。然而，在一些具有挑战性的情况下，例如对于有“走失”行为的居民和居住者（即他们有强烈的行走需求，有时是由于激动，也可能是一些发育障碍患者（例如自闭症）的情况，或者是由于精神疾病），就会出现困难的情况。本文解决了三个核心问题：(1) 在什么情况下可以合法地将社会护理院的居民隔离以防止 COVID-19 的传播，特别是当居民有强烈的行走冲动而无法或无法保持静止和隔离时？(2) 有哪些合法的策略可以限制行走并实现隔离和社交距离？(3) 是否需要法律改革以确保任何限制自由的行动都是合法和不过度的？这些问题是在 COVID-19 大流行的第一波期间出现的，现在仍然相关。尽管本文侧重于 COVID-19，但结果也与护理院和集体住所中其他未来传染病的爆发相关。同样，虽然我们专注于英格兰和威尔士的法律，但分析和影响具有国际意义。
