SCHEDULE 21Powers relating to potentially infectious persons
PART 3Powers relating to potentially infectious persons in Scotland
Powers to direct or remove persons to a place suitable for screening and assessment
27
(1)
This paragraph applies if, during a transmission control period, a public health officer has reasonable grounds to suspect that a person in Scotland is potentially infectious.
(2)
The public health officer may, subject to sub-paragraph (3)—
(a)
direct the person to go immediately to a place specified in the direction which is suitable for screening and assessment,
(b)
remove the person to a place suitable for screening and assessment, or
(c)
request a constable to remove the person to a place suitable for screening and assessment (and the constable may then do so).
(3)
A public health officer may exercise the powers conferred by this paragraph in relation to a person only if the officer considers that it is necessary and proportionate to do so—
(a)
in the interests of the person,
(b)
for the protection of other people, or
(c)
for the maintenance of public health.
(4)
Where a public health officer exercises the powers conferred by this paragraph, the officer must inform that person—
(a)
of the reason for directing or removing them, and
(b)
that it is an offence—
(i)
in a case where a person is directed, to fail without reasonable excuse to comply with the direction, or
(ii)
in a case where a person is removed (by the officer or by a constable), to abscond.
28
(1)
This paragraph applies if, during a transmission control period—
(a)
a constable, or
(b)
an immigration officer in the course of exercising any of their functions,
has reasonable grounds to suspect that a person in Scotland is potentially infectious.
(2)
The immigration officer or constable may, subject to sub-paragraph (3)—
(a)
direct the person to go immediately to a place specified in the direction which is suitable for screening and assessment, or
(b)
remove the person to a place suitable for screening and assessment.
(3)
An immigration officer or constable may exercise the powers conferred by this paragraph in relation to a person only if the officer or constable considers that it is necessary and proportionate to do so—
(a)
in the interests of the person,
(b)
for the protection of other people, or
(c)
for the maintenance of public health.
(4)
Where an immigration officer or constable exercises the power to direct or remove a person under this paragraph, the officer or constable must inform that person—
(a)
of the reason for directing or removing them, and
(b)
that it is an offence—
(i)
in a case where a person is directed, to fail without reasonable excuse to comply with the direction, or
(ii)
in a case where a person is removed, to abscond.
(5)
An immigration officer or constable must, before exercising the powers conferred by this paragraph, consult a public health officer to the extent that it is practicable to do so.
Powers exercisable at a screening and assessment place: public health officers
29
(1)
Paragraphs 30 to 32 apply where, during a transmission control period—
(a)
a person is (whether or not pursuant to the exercise of powers under this Part of this Schedule) at a place in Scotland which is suitable for screening and assessment, and
(b)
a public health officer has reasonable grounds to suspect that the person is potentially infectious.
(2)
A public health officer may exercise a power conferred by paragraphs 30 to 32 only if the officer considers that it is necessary and proportionate to do so—
(a)
in the interests of the person,
(b)
for the protection of other people, or
(c)
for the maintenance of public health.
30
(1)
A public health officer may require the person referred to in paragraph 29 to remain at the place for screening and assessment purposes for a period not exceeding 48 hours.
(2)
Where a public health officer requires a person to remain at a place under this paragraph, the officer must inform that person—
(a)
of the reason for imposing the requirement,
(b)
of the maximum period the person may be required to remain there, and
(c)
that it is an offence to fail to comply with the requirement.
(3)
A requirement imposed on a person under this paragraph may be enforced by a constable keeping the person at the place.
31
(1)
A public health officer may—
(a)
require the person referred to in paragraph 29 to be screened and assessed, and
(b)
impose other requirements on the person in connection with their screening and assessment.
(2)
Requirements under sub-paragraph (1)(a) may in particular include requirements on a person—
(a)
at such times as the public health officer may specify—
(i)
to provide a biological sample, or
(ii)
to allow a healthcare professional to take a biological sample by appropriate means;
(b)
to answer questions and provide information about their health or other relevant matters (including their travel history and other individuals with whom they may have had contact).
(3)
In sub-paragraph (2)(a)(ii) “healthcare professional” means —
(a)
a registered medical practitioner,
(b)
a registered nurse, or
(c)
such other registered healthcare professional as may be designated by the Scottish Ministers.
(4)
Requirements under sub-paragraph (1)(b) may in particular include requirements on a person—
(a)
to produce any documents which may assist in their assessment;
(b)
to provide details by which they may be contacted during such subsequent period as the public health officer may specify.
32
(1)
If a public health officer considers it appropriate for the purposes of screening or assessing the person, the officer may—
(a)
direct the person referred to in paragraph 29 to go immediately to another place which is specified in the direction and is suitable for those purposes,
(b)
remove the person to another place suitable for those purposes, or
(c)
request a constable to remove the person to another place suitable for those purposes (and the constable may then do so).
(2)
Where a public health officer exercises the powers conferred by this paragraph, the officer must inform that person—
(a)
of the reason for directing or removing them, and
(b)
that it is an offence—
(i)
in a case where a person is directed, to fail without reasonable excuse to comply with the direction, or
(ii)
in a case where a person is removed (by the officer or by a constable), to abscond.
33
Where the powers in paragraph 27, 28 or 32 are exercised in relation to a person in a place so as to direct them to go to, or remove them to, another place, paragraphs 30 to 32 apply in relation to that person afresh in that other place.
Powers exercisable at a screening and assessment place: constables and immigration officers
34
(1)
This paragraph applies where, during a transmission control period—
(a)
a person is (whether or not pursuant to the exercise of powers under this Part of this Schedule) at a place in Scotland which is suitable for screening and assessment, and
(b)
an immigration officer or a constable has reasonable grounds to suspect that the person is potentially infectious.
(2)
The immigration officer or constable may, subject to sub-paragraphs (3) to (6), keep the person at that place until such time as a public health officer can exercise the functions under paragraphs 30 to 32 in relation to that person.
(3)
A person may not under sub-paragraph (2) be kept—
(a)
by a constable, for a period exceeding 24 hours, or
(b)
by an immigration officer, for a period exceeding 3 hours.
(4)
If before the end of the period referred to in sub-paragraph (3)(a) or (b) the immigration officer or constable considers that it is necessary to extend the period because it is not reasonably practicable for a public health officer to exercise the functions under paragraphs 30 to 32 before the end of that period, the officer or constable may, with the consent of a relevant officer, extend the period for a further—
(a)
24 hours, in the case of keeping by a constable, or
(b)
9 hours, in the case of keeping by an immigration officer.
(5)
In sub-paragraph (4) “relevant officer” means—
(a)
a constable of the rank of superintendent or above, in the case of keeping by a constable, or
(b)
an immigration officer not below the rank of chief immigration officer, in the case of keeping by an immigration officer.
(6)
An immigration officer or constable may keep a person under this paragraph only if they consider it is necessary and proportionate to do so—
(a)
in the interests of the person,
(b)
for the protection of other people, or
(c)
for the maintenance of public health.
(7)
Where an immigration officer or constable keeps a person at a place under this paragraph, they must inform that person—
(a)
of the reason for keeping them,
(b)
of the maximum period for which they may be kept (taking into account the effect of sub-paragraph (4)), and
(c)
that it is an offence to abscond.
(8)
An immigration officer or constable must, before exercising the powers conferred by this paragraph, consult a public health officer to the extent that it is practicable to do so.
Powers exercisable after assessment
35
(1)
This paragraph applies where, during a transmission control period—
(a)
a person in Scotland has been screened and assessed by a public health officer (under paragraph 30 or otherwise) and—
(i)
the screening confirmed that the person is infected or contaminated with coronavirus, or
(ii)
the screening was inconclusive, or
(b)
a person in Scotland has been assessed by a public health officer (under paragraph 30 or otherwise) and the officer has reasonable grounds to suspect that the person is potentially infectious.
(2)
A public health officer may at any time during the transmission control period impose such requirements and restrictions on the person as the officer considers necessary and proportionate—
(a)
in the interests of the person,
(b)
for the protection of other people, or
(c)
for the maintenance of public health.
(3)
Requirements under this paragraph may include requirements—
(a)
to provide information to the public health officer or any specified person;
(b)
to provide details by which the person may be contacted during a specified period;
(c)
to go for the purposes of further screening and assessment to a specified place suitable for those purposes and do anything that may be required under paragraph 30(1);
(d)
to remain at a specified place (which may be a place suitable for screening and assessment) for a specified period;
(e)
to remain at a specified place in isolation from others for a specified period.
(4)
Restrictions on a person under this paragraph may include restrictions, for a specified period, on—
(a)
the person's movements or travel (within or outside the United Kingdom);
(b)
the person's activities (including their work or business activities);
(c)
the person's contact with other persons or with other specified persons.
(5)
Where a public health officer imposes a requirement or restriction on a person under this paragraph, the officer must inform the person—
(a)
of the reason for doing so, and
(b)
that it is an offence to fail to comply with the requirement or restriction.
(6)
In deciding whether to impose a requirement referred to in sub-paragraph (3)(d) or (e) the public health officer must have regard to a person's wellbeing and personal circumstances.
(7)
A public health officer may vary or revoke a requirement or restriction imposed on a person (but may only extend the period to which a requirement referred to in sub-paragraph (3)(d) or (e) or a restriction relates in accordance with paragraph 36).
36
(1)
The period specified in relation to a requirement referred to in paragraph 35(3)(d) or (e) (a “requirement to remain”), or in relation to any restriction under paragraph 35, may not exceed 14 days.
(2)
After the imposition of a requirement to remain or a restriction under paragraph 35, a public health officer must—
(a)
assess the person within 48 hours, and
(b)
in the light of that assessment reconsider which requirements or restrictions it is necessary and proportionate to impose on that person under paragraph 35 for the purposes referred to in paragraph 35(2).
(3)
The public health officer may, following reconsideration under sub-paragraph (2)—
(a)
revoke the requirement to remain or the restriction or specify a different period not exceeding 14 days in relation to it;
(b)
substitute a different requirement or restriction under paragraph 35.
(4)
If under sub-paragraph (3) the public health officer revokes the requirement to remain or the restriction, the Scottish Ministers may, if satisfied that the person is potentially infectious, re-impose the requirement or restriction (for the period originally specified).
(5)
If before the end of the period specified in relation to a requirement to remain or restriction (under paragraph 35(3) or sub-paragraph (3)(a))—
(a)
a public health officer reasonably suspects that the person will be potentially infectious at the end of that period, and
(b)
the officer considers that the requirement or restriction is still necessary and proportionate for the purposes referred to in paragraph 35(2),
the officer may extend the period for a further specified period.
(6)
Except in the case of a requirement referred to in paragraph 35(3)(e) (requirement to remain in isolation), the further period specified under sub-paragraph (5) may not exceed 14 days.
(7)
Where the period to which a requirement to remain or restriction under paragraph 35 relates is extended under sub-paragraph (5), a public health officer must review the requirement or restriction at least once in every period of 24 hours.
(8)
If on a review under sub-paragraph (7) the public health officer considers that the person is no longer potentially infectious, the officer must revoke the requirement to remain or the restriction.
(9)
If on a review under sub-paragraph (7)—
(a)
sub-paragraph (8) does not apply, but
(b)
the public health officer considers that the requirement to remain or restriction is no longer necessary and proportionate for the purposes referred to in paragraph 35(2),
the public health officer may substitute a different requirement or restriction under paragraph 35 (which may not apply beyond the end of the further period specified under sub-paragraph (5)).
37
Where a person is required to remain at a place under paragraph 35(3)(d) or (e) the requirement may be enforced—
(a)
by a constable or public health officer removing the person to the place;
(b)
by a constable or public health officer keeping the person at the place;
(c)
if the person absconds, by a constable taking the person into custody and returning them to that place or another place a public health officer may specify.
38
(1)
A person on whom a requirement or restriction is imposed under paragraph 35 may appeal against it (or against any variation of it or any extension of the period to which it relates) to the sheriff or summary sheriff.
(2)
On an appeal under this paragraph the sheriff or summary sheriff may—
(a)
confirm the requirement or restriction (or variation or extension), with or without modification, or
(b)
quash the requirement or restriction (or variation or extension).
39
The Scottish Ministers may compensate any person on whom a requirement or restriction is imposed under paragraph 35.
Children
40
(1)
An individual who has responsibility for a child must, so far as reasonably practicable, secure that the child complies with any direction, instruction, requirement or restriction given to or imposed on the child under this Part of this Schedule.
(2)
An individual who has responsibility for a child must provide to a person exercising a power under this Part of this Schedule such information and assistance in relation to the child as is reasonably necessary and practicable in the circumstances.
(3)
A power under this Part of this Schedule to direct or require a child to go to a place may instead be exercised by directing or requiring an individual who has responsibility for the child to take the child to the place.
(4)
A power under paragraph 31 or 35 may only be exercised in relation to a child in the presence of—
(a)
an individual who has responsibility for the child, or
(b)
if the child is not accompanied by such an individual, an adult (not being a person on whom powers are conferred under this Part of this Schedule) that the person exercising the power considers to be appropriate, having regard to any views of the child.
(5)
Where a power under this Part of this Schedule is exercisable in relation to a child but the child is not accompanied by an individual who has responsibility for the child, the person by whom the power is exercisable must—
(a)
if practicable, contact an individual who has responsibility for the child before the power is exercised, or
(b)
if that is not practicable, take reasonable steps after the power is exercised to contact such an individual and inform them of any exercise of the power in relation to the child.
(6)
Where a child has a right of appeal (see paragraph 38), the right may be exercised by an individual who has responsibility for the child.
(7)
For the purposes of this paragraph—
“adult” means a person aged 16 or over;
“child” means a person under the age of 16;
an individual has responsibility for a child—
(a)
if the individual has custody or charge of the child for the time being (without being a person on whom powers are conferred by this Part of this Schedule), or
(b)
if the individual has parental responsibilities or parental rights in relation to the child (see sections 1(3) and 2(4) of the Children (Scotland) Act 1995).
Formalities
41
(1)
A direction, instruction, requirement or restriction under this Part of this Schedule may be given or imposed orally or in writing.
(2)
But where a requirement or restriction under paragraph 35 is given to a person orally by a public health officer, the public health officer must as soon as reasonably practicable thereafter give the person a notice setting it out in writing.
Ancillary powers
42
(1)
A public health officer, constable or immigration officer may give reasonable instructions to a person in connection with—
(a)
a direction given to that person under a power conferred by this Part of this Schedule, or
(b)
removing the person to or keeping the person at a place under a power conferred by this Part of this Schedule.
(2)
Where a public health officer, constable or immigration officer gives a reasonable instruction to a person under sub-paragraph (1), the officer or constable must inform that person—
(a)
of the reason for the instruction, and
(b)
that it is an offence to fail to comply with it.
(3)
A power conferred by this Part of this Schedule to remove a person to a place includes a power to keep the person for a reasonable period pending their removal.
(4)
A constable or immigration officer may use reasonable force, if necessary, in the exercise of a power conferred by this Part of this Schedule.
(5)
A constable may enter any place for the purpose of the exercise of a power conferred by this Part of this Schedule.
Guidance and advice
43
(1)
A person exercising a power conferred by this Part of this Schedule must have regard to—
(a)
any relevant guidance issued, before or after the passing of this Act, by the relevant authority, and
(b)
any advice given by a public health officer in relation to any particular case.
(2)
In sub-paragraph (1) “relevant authority” means—
(a)
in relation to the exercise of a power by an immigration officer, the Secretary of State;
(b)
in relation to the exercise of a power by a public health officer or constable, the Scottish Ministers.
End of transmission control period
44
When the transmission control period during which a power conferred by this Part of this Schedule is exercised comes to an end, any requirement or restriction imposed under the power ceases to have effect in respect of times after the end of the period.
Offences
45
(1)
A person commits an offence if the person—
(a)
fails without reasonable excuse to comply with any direction, reasonable instruction, requirement or restriction given to or imposed on the person under this Part of this Schedule,
(b)
fails without reasonable excuse to comply with a duty under paragraph 40(1) or (2) (duties of individuals who have responsibility for a child),
(c)
absconds or attempts to abscond while being removed to or kept at a place under this Part of this Schedule,
(d)
knowingly provides false or misleading information in response to a requirement to provide information under this Part of this Schedule or otherwise in connection with the exercise of any power under this Part of this Schedule, or
(e)
obstructs a person who is exercising or attempting to exercise a power conferred by this Part of this Schedule.
(2)
A person guilty of an offence under this paragraph is liable on summary conviction to imprisonment for a term not exceeding 12 months or to a fine not exceeding level 5 on the standard scale (or to both).
Modifications of Public Health etc. (Scotland) Act 2008
46
During a transmission control period, sections 56(1) and 58(2) of the Public Health etc. (Scotland) Act 2008 (asp 5) (which relate to compensation) have effect as if for “must” there were substituted “
may
”
.
Constables
47
(1)
The chief constable of the Police Service of Scotland may authorise a police custody and security officer (see section 28 of the Police and Fire Reform (Scotland) Act 2012 (asp 8)) to exercise the powers conferred on a constable by this Part of this Schedule.
(2)
Accordingly references to a constable in this Part of this Schedule include a police custody and security officer so authorised.