On Thursday 20 March 2020, Mr. De Jonge of the Dutch Ministry of Health, Welfare and Sport announced that all nursing homes and small-scale housing in the elderly care sector are to be closed to visitors and any others whose presence is not required in the provision of basic healthcare. De Jonge sent a letter to the Dutch Lower House of Parliament (Tweede Kamer) concerning this new measure to combat the COVID-19 crisis, and also gave a press conference.
Communication on coronavirus measures inadequate
Remarkably, neither in the letter nor at the press conference was any reference made to the legal basis for this measure or the manner in which it is to be implemented.
The obvious route to pursue here would have been that followed in the announcement of previous measures such as those prohibiting large-scale events and the closure of hospitality, sport and other leisure establishments. We have described that methodology in a previous blog. Put briefly, on the basis of Section 7 of the Dutch Public Health Act, the minister may order the chairs of the security regions to implement the measures decided upon by the government through their public order competences. The order Minister Bruins gave in this regard may be found in his letter to the chairs of the security regions.
Legal basis left unmentioned
It might therefore have been expected that this route would once again have been followed, so we were surprised to find that the legal basis for the measure was left unmentioned. This was not, in fact, the first time that something like this had happened. A statement of the legal basis was also lacking when the previous measures (prohibition of large-scale events and closure of hospitality, sport and other leisure establishments) were taken. As mentioned above, the basis of those measures was evident from Minister Bruins’ letter to the chairs of the security regions, but there was certainly no public announcement made. The letter was only published as an appendix to one of the subsequent emergency orders.
Since then, critical questions have been put to the Minister in the Lower House of Parliament concerning this apparent failure to state the legal basis of those previous measures.
We would concur in that criticism. The government’s measures in respect of COVID-19 have been very drastic. They involve significant restrictions to the freedoms of citizens and businesses. The measure in relation to nursing homes is affecting vulnerable elderly people and their families and friends, which the minister has failed entirely to acknowledge. At the very least, in terms of legal certainty and adequate government communication, it might be expected of the minister that he make the following sufficiently clear:
- which competence(s) he is exercising;
- what exactly his measure entails;
- insofar as the measure requires further orders: who must take them, and when, and on the basis of which competence;
- who is authorised to enforce the measure.
We hereby call upon the government to meet at least this requirement in all measures it takes in response to COVID-19.
The measure on nursing homes and small-scale housing in the elderly care sector
Luckily, we have since been able to establish how the measure on nursing homes and small-scale housing in the elderly care sector was designed. The template appears to have been the same as was used in the previous order. We will now briefly go into further detail regarding the measure:
By letter of 20 March 2020, the minister handed down to the chairs of the security regions the ‘Order in respect of nursing homes and small-scale housing’ on the basis of his powers under Section 7 of the Public Health Act. In that letter, the minister refers to a decree of the Ministerial Commission on Crisis
Management of 19 March 2020, in the presence of a representative of the security region chairs. It was decreed that:
“from 20 March 2020 to 6 April 2020, all nursing homes and small-scale housing in the elderly care sector are to be closed on a precautionary basis to visitors and any others whose presence is not required in the provision of basic healthcare. Where patients are in the dying phase or similar circumstances, an institution may deviate occasionally from this measure. An exception is also possible for regular volunteers.”
The minister states that he is taking into account the possibility that the measure will be extended after 6 April.
The minister issued the following order to the security region chairs:
“On the basis of Section 7 of the Public Health Act and in due observance of Section 39(1) of the Security Regions Act, I therefore order you to use your powers in the area of public order and security should nursing homes or small-scale housing schemes experience problems, despite their best efforts, in refusing visitors or third parties attempting to enter the location.”
A noticeable difference with the order concerning events and the closure of institutions is that the earlier order appears to automatically assume that the security region chairs would deploy their public order competences to implement the measure. In the order cited, the minister is more reserved: the security region chair only has to make use of his/her public order competences if the nursing homes or small-scale housing schemes experience problems in the refusal of visitors or third parties attempting to enter the location.”
In our view, this measure does not explicitly require an emergency order. Under private law, its enforcement lies primarily with the nursing homes and small-scale housing schemes. If the measure can be implemented everywhere without problems, then public order measures will be unnecessary. Should problematic incidents occasionally arise, then it is logical for the security region chair to provide orders tailored to those incidents. Depending on the circumstances, this could for example be an order under Section 172(3), 174(2) or 175 of the Dutch Municipalities Act (Gemeentewet). Such orders may of course also conceivably be deployed in respect of any nursing homes refusing to cooperate.
If a justified fear exists that the wider application of the measure may lead to problems with the refusal of visitors, an emergency order may potentially then be adopted. It remains to be seen whether this approach is likely to be followed by the chairs of the security regions, or whether they will instead transform the measure into a generally enforceable ban in the form of an emergency order. The formulation of the ministerial order does not in any case compel such an approach.
Conclusion
This blog is the seventh in Kennedy Van der Laan's series on issues of public law in relation to the coronavirus crisis. See also: ‘What can municipal government and the security regions do to rein in the coronavirus crisis?’, ‘Should the COVID-19 crisis be considered an emergency?’, ‘Avoiding empty shelves in time of crisis: COVID-19 and the Dutch Hoarding Act’, ‘The legal basis for measures to combat COVID-19 in the hospitality and events industry’, ‘The coronavirus crisis: how does a lockdown work?’ and ‘The requisitioning of surgical masks’.
If you have any questions in relation to this article, please do not hesitate to contact either Jan van der Grinten or Jutta Wijmans.
