Feeling sad and low is reasonably to be expected of us all. Piers Morgan is right that we just have to put up with it.
“To avoid injury or illness or to escape a risk of harm” is a ‘reasonable excuse’ exemption within most of the coronavirus restrictions. Government suggested lanyards and badges are frequently being refused as sufficient, despite government guidance (and even because of government guidance in Wales!). In these circumstances at least, a self-certificate of this exemption may prove very useful if challenged. A suggested template form is here: Notice of Exemption to avoid ill health or injury but do read on first.
Two main points:
- illness includes mental illness
- the purpose is to avoid illness
Illness is not defined in any particular way, but NHS website advice makes clear it need not be so serious that medical treatment is needed. Anything less than ordinary good health is illness, whether short or long term, acute or chronic, mild or severe.
Full blown anxiety and depression certainly count, but so does “low mood”.
Low mood might, pre-lockdown, have often been expected to transient and usually not get to the stage of feeling the need to seek medical treatment. That does not mean low mood wasn’t, or isn’t, ill health. And even if someone wishes to dismiss low mood as relatively insignificant, they would recognise that it may transition to depression or increased risk of depression and long term vulnerability.
If someone relying on this exemption should face prosecution for, for example, not paying a Fixed Penalty Notice, the Court’s view will determine the outcome and, some may argue, the regulations require more significant or defined illness. Until determined by a Court, however, our view is clear.
The NHS website recognises it as serious enough to need addressing in relation to the effects of the restrictions, explaining that symptoms of a general low mood may include feeling:
- anxious or panicky
- more tired than usual or being unable to sleep
- angry or frustrated
- low on confidence or self-esteem
A short trawl of other medical information websites throws up longer lists of common symptoms, such as
- feeling tearful
- feeling bad about yourself
- feeling “empty”
- having little interest or pleasure in things;
- wanting to isolate from others
- feeling tired and lacking energy
- having difficulty concentrating or thinking clearly
- moving or speaking slower than normal
- having a poor appetite
The NHS advice also explains that “A low mood often gets better after a few days or weeks. It’s usually possible to improve a low mood by making small changes in your life. For example, resolving something that’s bothering you or getting more sleep.”
It would seem likely that low mood is an illness foisted on a significant percentage of the population. It needs to be addressed before it transitions to depression or other more severe conditions, true cases of which have risen dramatically.
If a restriction is causing you low mood or other illness, you have a reasonable excuse to ignore it.
Restrictions to be overcome
To avoid injury or ill health is a reasonable excuse exemption in relation to the principle restrictions:
- Gathering (reg 5(3)(c)(v))
- Entering or remaining in a restricted area (reg 6(12)(c)(i)) or leaving a locked down “local health protection area”
- Wearing a face covering (reg 4(1)(a) of the separate regulations dealing with face covering.*
Face covering – different wording but the same result
*The legal eagles will note that drafting in relation to face covering is different. However, we suggest the effect is the same.
The exemption applies if you cannot put on, wear or remove a face covering “because of any physical or mental illness or impairment, or disability (within the meaning of section 6 of the Equality Act 2010)” or “without severe distress”. That phrase “severe stress” is so striking that it may colour thoughts as to defining a ‘mental illness’. However, there is no reason why that is needed or appropriate. It is simply a reasonable excuse not to wear a face covering if you cannot do so “because of a mental illness” and, also of note, a ‘disability’ is not required.
It is a curiosity that the phrase “to avoid” an illness is not used. Nevertheless, if wearing a face covering causes symptoms of an illness to arise or continue, is it really to be suggested that the government intended to prescribe continuing an illness without relief ? It if did, then less ambiguous drafting was required.
As for “without severe distress”, as we have stated before, this does set a high and cruel bar indeed. The implication is the government requires your stiff upper lip to include suffering periods of anxiety and mental or physical fatigue which could be very distressing and cause illness yet not, in the opinion of the relevant person without any medical qualification stood in front of you, causing ‘severe’ distress.
Being excused from the guidance
The need to avoid injury or illness or to escape a risk of harm has, rightly, been considered important enough to require the support of an express law. It must follow, surely, that all guidance is required to be interpreted with regard to the same excuse. If it’s a reasonable excuse in law, any guidance that cuts against that law must be suspect.
It might be argued you need to read the law in light of the guidance, so that ‘illness’ should be interpreted and in a more strict way. However, that is not in line with narrow legal principles by which the Courts normally require law to be clearly written. It would create the unacceptable situation whereby the law is in a constant state of flux dependent upon the guidance of the day, not necessarily signed off by the Secretary of State who signed the law, and a single word could acquire vastly different meanings depending on the day it is applied.
Accordingly, where, for example in context of employment, guidance is being applied that may cause or prolong mental ill health, the reasonable excuse exemption should be applied. One might expect many employers will have genuine concerns that the exemption must be applied for many of their employees.
Assessment on the ground
While there may often be good legal reason or principle not to have to disclose any information as to illness, practical daily encounters may lead many to fight another battle.
So, where a relevant person enforcing restrictions is faced with a citizen who asserts their reasonable excuse as an illness, that person needs to have a ‘reasonable belief’ that the excuse is not true.
If you present some reasonable evidence of your illness, there may be some difficulty dismissing it. Such evidence could be a doctor’s certificate. However, if your GP’s policy is to direct their patients to download lanyards from government websites, there is no reason why you cannot meanwhile present the evidence yourself.
You might be prepared, and even pleased, to share that you are suffering from the symptoms and illness of low mood, via an”Ill Health Declaration” (as an example: Notice of Exemption to avoid ill health or injury) to could be carried and shown when necessary.
If despite offering that evidence, enforcement action was taken such as issuing a Fixed Penalty Notice (FPN), there will be grounds to dispute that action in Court. The relevant person may in due course be required to turn up to Court to give evidence as to their reasonable belief, despite what you showed them at the time. Unless medically qualified, that may be rather difficult.
Approximately half of the current FPNs have not been paid. Given the prevalence of illness sweeping the country, Courts could well be flooded with cases where the ‘reasonable belief’ is in dispute.
Hippocratic oaths (hypocratic?)
As noted above, it seems widespread that GP practices are operating a policy of directing patients to government website guidance suggesting medical certificates are not necessary.
Unfortunately, they seems to be becoming more and more necessary. The general confusion and growing practice – explicitly encouraged by the Wales Assembly Government – is to demand medical evidence of some description. In these circumstances, we would suggest that doctors should review their policies immediately in line with the hippocratic oath. They may otherwise be contributing to, not helping solve, the country’s ill health. That cannot be their intention.
The situation in Wales is almost identical to England, although the face covering wording is of the simpler variety.
However, a recent addition to the list of reasonable excuses is worthy of comment in passing. From 28 August 2020 it was expressly noted that it was reasonable to “visit a person who is resident in a care home, hospice, or in secure accommodation.” If was reasonable to visit then, was it not reasonable earlier? If reasonable in Wales, is it not clearly reasonable in other parts of the UK?
Warning: Law and circumstances can change very quickly. Please note the date of publication of any blog post and check for any updates on the issues addressed. In any event, we do not condone or encourage breaching the law and neither the above nor any information posted on this website constitutes legal advice. It must not be relied upon as such and specialist legal advice should be taken in relation to specific circumstances. Please read our disclaimer.