Today’s question from Western Australia but given the national response the answer is likely to be the same in every jurisdiction. The question is:
In reference to the current climate re: SARS-Cov-2, what is the standing on false information provided to health/emergency services (In the context of a frontline service attending to a request for medical assistance or other requirement)? For example, when the attending service arrive and conduct an initial distanced assessment including direct questions such as “are you isolated/positive test/quarantined persons residing in the premise/displaying symptoms xyz”. Is the person obliged under any legislative or other requirement to provide accurate information? Is there any repercussion for providing false information? Purposefully providing false or misleading information could result in the risk to the health of responding personnel.
It would be valuable to understand the legal standpoint on this topic and if it was possible to advise the patient/POI etc their obligation to provide accurate information (if any) and if any repercussions apply.
After an earlier post (The coronavirus question (March 12, 2020)) I was asked ‘Does a resident have a duty of care then to notify those providing a service (SES) that they have been in contact with, are infected with or potentially carry coronavirus?’ My answer started with ‘There is no clear answer to this…’ and then went onto consider some common law principles (see https://emergencylaw.wordpress.com/2020/03/12/the-coronavirus-question/#comments).
Despite the development of the crisis and numerous orders regarding social distancing and home isolation (in WA see https://www.wa.gov.au/government/document-collections/covid-19-coronavirus-state-of-emergency-declarations) I cannot find any express requirement that a person who has been diagnosed with the condition is under any obligation to tell anyone including, for example, paramedics who are called to their home.
The Public Health Act 2016 (WA) s 34(1) says:
A person must take all reasonable and practicable steps to prevent or minimise any harm to public health that might foreseeably result from anything done or omitted to be done by the person.
That may imply, but it does not expressly give rise to a duty to tell. Further breach of that public health duty does not (s 35(1)):
(a) give rise to any right or remedy; or
(b) constitute an offence.
It is simply a factor to be considered by an authorised officer in deciding whether to impose particular requirements on an individual to manage public health risks.
There are obligations upon people to answer questions asked by authorised officers (ss 133-135) but those obligations relate to contact tracing and not the delivery of information to first responders.
The Self-Quarantine and Isolation (Tested, Close Contact and Appearance of Symptoms) Directions made under the Emergency Management Act 2005 (WA) s 67 says (at ):
A person (C) must not enter premises in which a person (D) is residing in compliance with a direction in paragraph 3 or 4 unless:…
(c) C enters the premises for medical or emergency purposes.
But that does not impose an obligation upon D to tell C of D’s COVID status. The Order also says (at ):
If a person who is in self-quarantine develops symptoms, the person must:
(a) inform a responsible officer as soon as possible that the person has been in self quarantine and has developed symptoms; and
(c) comply with any oral or written instructions given to the person by the responsible officer or any other responsible officer, whether to the person specifically or to all persons who are in self-quarantine and develop symptoms; and
(b) self-isolate until the person is informed in writing by a responsible officer that the person is no longer required to self-isolate.
Again, that does not create an obligation to tell a person that may lawfully come to the premises such as a responding paramedic.
In New South Wales the Public Health (COVID-19 Self-Isolation) Order 2020 says that
… while residing at the residence or place under a direction under this Order, the diagnosed person must do the following— …
(b) not permit any other person to enter the residence or place unless— …
(ii) the entry is for medical or emergency purposes…
It does not say that in allowing entry for medical or emergency purposes the person subject to the order is required to tell the responders of their COVID status.
The Public Health Act 2016 (WA) makes it an offence to ‘engage in conduct that the person knows will cause, or is likely to cause, a serious [(s 37) or material (s 38)] public health risk…’ To engage in conduct means (s 36) to:
(a) do an act; or
(b) omit to do an act.
Arguably not telling the paramedics or others is to ‘omit to do an act’ of telling so I could imagine that in some circumstances that could be relevant. For example if a person allowed paramedics to approach and touch them without full PPE then the person may be allowing ‘conduct to continue to be engaged in in a manner that the person knows will cause, or is likely to cause, a serious public health risk’ (s 37(f)).
On March 13 I was asked:
Does a resident have a duty of care then to notify those providing a service … that they have been in contact with, are infected with or potentially carry coronavirus?
With respect to common law and a duty of care, my answer was, and remains:
There is no clear answer to this. This would not be an established duty of care so a court asked to determine the matter would have to have regard to all the salient features in the relationship between the plaintiff (the SES member who is infected with Covid-19) and the potential defendant (the person who failed to notify of their exposure). The court would consider, but would not be limited to (Caltex Refineries (Qld) Pty Limited v Stavar  NSWCA 258, ):
(a) the foreseeability of harm;
(b) the nature of the harm alleged;
(c) the degree and nature of control able to be exercised by the defendant to avoid harm;
(d) the degree of vulnerability of the plaintiff to harm from the defendant’s conduct, including the capacity and reasonable expectation of a plaintiff to take steps to protect itself;
(e) the degree of reliance by the plaintiff upon the defendant;
(f) any assumption of responsibility by the defendant;
(g) the proximity or nearness in a physical, temporal or relational sense of the plaintiff to the defendant;
(h) the existence or otherwise of a category of relationship between the defendant and the plaintiff or a person closely connected with the plaintiff;
(i) the nature of the activity undertaken by the defendant;
(j) the nature or the degree of the hazard or danger liable to be caused by the defendant’s conduct or the activity or substance controlled by the defendant;
(k) knowledge (either actual or constructive) by the defendant that the conduct will cause harm to the plaintiff;
(l) any potential indeterminacy of liability;
(m) the nature and consequences of any action that can be taken to avoid the harm to the plaintiff;
(n) the extent of imposition on the autonomy or freedom of individuals, including the right to pursue one’s own interests;
(o) the existence of conflicting duties arising from other principles of law or statute;
(p) consistency with the terms, scope and purpose of any statute relevant to the existence of a duty; and
(q) the desirability of, and in some circumstances, need for conformance and coherence in the structure and fabric of the common law.
The best one could say is that it would be arguable that ‘a resident [has] a duty of care then to notify those providing a service (SES) that they have been in contact with, are infected with or potentially carry coronavirus’ but it will take someone to get Covid-19 and to sue in negligence to actually find the answer to that question.
There may be offences relating to public health risks (in WA, Public Health Act 2016 (WA) ss 37 and 38) that may be relevant but determining whether they apply or not would depend on all the circumstances. If there was some doubt about a person’s status it would probably be accurate to say, with reference to ss 34, 37 and 38 ‘You do have an obligation to warn me if there are risks to public health in this house?’ but whether there would be true in any particular case and whether there would be consequences for failure to do so is another matter.