Regulation of Care
(Jersey) Law 2014
A LAW to establish a Health and
Social Care Commission; to provide for the regulation of activities involving
or connected with the provision of health or social care; and for connected
purposes
Adopted by the States 3rd July 2014
Sanctioned by Order of Her Majesty in Council 5th November 2014
Registered by the Royal Court 14th November 2014
THE STATES, subject to the sanction of Her Most Excellent Majesty in Council, have
adopted the following Law –
part 1
preliminary
1 Interpretation
(1) In this Law, unless the
context otherwise requires –
“certificate”
shall be construed in accordance with Article 8;
“Chairman” means the
Chairman of the Commission;
“Commission” means
the Health and Social Care Commission established by Article 35;
“discretionary
condition” means a condition imposed under Article 12;
“fit
person”, in relation to a provider or manager, shall be construed in
accordance with Article 10;
“health care”
includes all forms of health care (including nursing care) provided for
individuals, whether relating to physical or mental health, and also includes
procedures that are similar to forms of medical or surgical care but are not
provided in connection with a medical condition;
“health
or social care” means health care or social care;
“health
care associated infection” means any infection to which an individual may
be exposed or made susceptible (or more susceptible) in circumstances where –
(a) health or social
care is being, or has been, provided to that or any other individual; and
(b) the risk of
exposure to the infection, or of susceptibility (or increased susceptibility)
to it, is directly or in-directly attributable to the provision of that care,
but does not include an infection to which the individual is
deliberately exposed as part of any health care;
“inspection”
means an inspection under Part 5;
“inspector”
means a person appointed as such under Article 24;
“mandatory
condition” means the condition in Article 11(1) or any condition
imposed in accordance with Regulations made under Article 11(3);
“medical
practitioner” means a person registered as a medical practitioner under
the Medical Practitioners (Registration) (Jersey) Law 1960[1];
“nurse”
means a person registered as a nurse under the Health Care (Registration)
(Jersey) Law 1995[2];
“nursing care” means
services that, by reason of their nature and circumstances, including the need
for clinical judgement, should be provided by a nurse, including –
(a) providing care;
(b) assessing, planning
and evaluating care needs or the
provision of care; and
(c) supervising or
delegating the provision of care;
“personal
care” means assistance in daily living that does not need to be provided
by a nurse, being –
(a) practical
assistance with daily tasks, such as eating, washing and dressing; or
(b) prompting a person
to perform daily tasks;
“personal support” includes
supervision, guidance, counselling (other than counselling that is health care)
and other support in daily living that is provided to an individual as part of
a programme of such support;
“premises”
includes any vehicle or vessel;
“registered”
means registered under this Law in relation to a regulated activity;
“registered
person” means a registered provider or registered manager;
“regulated
activity” has the meaning given in Article 2;
“social care”
includes all forms of personal care and other practical assistance, and all
forms of personal support, provided for individuals who, by reason of their
age, illness, disability, pregnancy, childbirth, dependence on alcohol or
drugs, or by any other reason, are in need of such care, assistance or support;
“States’
employee” has the same meaning as in the Employment of States of Jersey
Employees (Jersey) Law 2005[3];
“worker”
means –
(a) an employee;
(b) a person working
under a contract for services (whether entered into with that person or another
person);
(c) a person working on
a work experience placement; or
(d) a volunteer.
(2) The
States may, by Regulations, amend, in paragraph (1), the definitions
“health care”, “nursing care”, “personal
care”, “personal support” and “social care”.
2 Regulated
activities
(1) Schedule 1
has effect to describe activities that are regulated activities and
circumstances in which any activity is excepted from
being a regulated activity.
(2) The
States may by Regulations amend Schedule 1.
(3) Regulations
under paragraph (2) may add or amend activities only if the activity
involves or is connected with the provision of health or social care.
(4) For
the purposes of paragraph (3), the following activities are examples of activities
connected with the provision of health or social care –
(a) the supply of workers
who are to provide such care;
(b) the provision of
transport or accommodation for those who require such care; and
(c) the provision of
advice in respect of such care.
(5) Regulations
under paragraph (2) may repeal or amend any other enactment
consequentially upon the addition of an activity to, or variation of an
activity in, Schedule 1.
part 2
requirement
and procedure for registration
3 Requirement
to be registered to carry on, or act as manager in relation to, regulated
activity
(1) A
person must not carry on a regulated activity unless he or she is registered as
the provider of the activity.
(2) A
person must not act as the manager in relation to a regulated activity unless
he or she is an individual registered as the manager in relation to that
activity.
(3) A
person must not –
(a) hold himself or
herself out as being registered as a provider of a regulated activity, when he
or she is not so registered;
(b) by his or her
omission, allow another person to believe that he or she is registered as the
provider of a regulated activity, when he or she is not so registered;
(c) hold himself or
herself out as being registered as the manager in relation to a regulated
activity, when he or she is not so registered;
(d) by his or her
omission, allow another person to believe that he or she is registered as the
manager in relation to a regulated activity, when he or she is not;
(e) hold out premises as being premises on which
a person is permitted, by virtue of the conditions of his or her registration
in relation to a regulated activity, to carry on the regulated activity, when
the use of the premises is not so permitted; or
(f) by his or her
omission, allow another person to believe that premises are premises on which a
person is permitted, by virtue of the conditions of his or her registration in
relation to a regulated activity, to carry on the regulated activity, when the
use of the premises is not so permitted.
(4) A
person who contravenes
paragraph (1) or (2) is guilty of an offence and liable to imprisonment
for a term of 12 months and to a fine.
(5) A
person who contravenes paragraph (3) is guilty of an offence and liable to
a fine of level 4 on the standard scale.
(6) The
States may by Regulations make provision for the purposes of this Law for
determining, in relation to a regulated activity carried on by 2 or more
persons acting in different capacities, which of them is to be regarded as the
person who carries on the regulated activity.
(7) Where
a regulated activity is carried on by a Minister, the following person, instead
of the Minister, shall be treated, for the purposes of this Law, as the person
carrying on the activity –
(a) such person as is
specified, in relation to the activity, by Regulations made by the States; or
(b) if no-one is
specified under sub-paragraph (a) in relation to the activity, the person
who, in accordance with Article 37 of the Public Finances (Jersey) Law 2005[4], is the accounting officer for the Ministry.
4 Application for registration as provider or manager
(1) A
person who wishes to carry on a regulated activity must apply to the Commission
to be registered as a provider in respect of that activity.
(2) An
application for registration of an individual as the manager in relation to the
carrying on of a regulated activity must be made by the person who is or wishes
to be registered as the provider in respect of that activity.
(3) An
application under paragraph (1) or (2) must –
(a) be in the form
required by the Commission;
(b) contain the
information required by the Commission in order to determine the application;
(c) be accompanied by
the documents required by the Commission in order to determine the application;
(d) be accompanied by
the application fee; and
(e) contain a declaration, signed by the person
wishing to carry on the regulated activity and, if the application is for
registration of a manager, by that individual, that the information contained
in the application is, and the documents accompanying the application are, true
and complete, to the best of the declarant’s knowledge and belief.
(4) An
application may, with the permission of the Commission, be made for
registration of a person as the provider of, or the manager in relation to –
(a) 2 or more regulated activities; or
(b) a regulated
activity carried on at 2 or more premises.
(5) The
Commission shall publish application forms for use under this Article, or
otherwise make them available to prospective applicants.
(6) The
Commission may, for the purposes of deciding an application –
(a) request that an
applicant provide further information and documents; and
(b) arrange an
inspection.
(7) The
Commission is not required to make a decision in respect of an application
until –
(a) all the information
and documents required by the Commission have been provided;
(b) the application fee
has been paid; and
(c) any inspection
required by the Commission under paragraph (6) has been carried out.
5 Grant
or refusal of application
(1) The
Commission must grant an application made under Article 4 for the
registration of a person as the provider in relation to a regulated activity if
the Commission is satisfied –
(a) that the person is
a fit person to carry on the regulated activity;
(b) that the condition
in Article 11(1) is complied with; and
(c) as to the matter in
paragraph (3).
(2) The
Commission must grant an application made under Article 4 for the
registration of an individual as the manager in relation to the carrying on of
a regulated activity by a registered provider if the Commission is satisfied –
(a) that the individual
is a fit person to be a manager in relation to the carrying on of the regulated
activity; and
(b) as to the matter in
paragraph (3).
(3) The
requirements specified in Regulations under Article 14 must be, and must
continue to be, complied with, to the extent that they apply to the carrying on
of the regulated activity.
(4) In
deciding whether paragraph (3) is satisfied, the Commission shall have
regard to any standards for compliance issued under Article 15, to the
extent that they apply to the carrying on of the regulated activity.
(5) The
Commission must refuse an application made under Article 4 if it is not
satisfied as to the matters described in this Article.
6 Notice
of intention to refuse application or impose conditions
(1) This
Article applies where the Commission proposes to –
(a) refuse an
application;
(b) impose mandatory
conditions on registration on terms that differ from those (if any) proposed in
the application; or
(c) impose
discretionary conditions.
(2) The
Commission must notify the applicant, in writing, of its proposal and the
reasons for it.
(3) Where
the proposal relates to the registration of a manager, the Commission must also
notify that individual, in writing, of its proposal and the reasons for it.
(4) A
person notified under this Article may make representations, in writing, to the
Commission in respect of the proposal.
(5) The
representations must be made no later than 14 days after the notice is
given.
(6) The
Commission, in reaching its decision, must have regard to any representations
made in accordance with paragraph (4) and (5).
(7) If
the person notified under this Article or, if more than one, each of the
persons notified under this Article, informs the Commission that he or she does
not intend to make any representations, or that he or she accepts the
Commission’s proposal, the Commission need not wait until the expiry of
the period described in paragraph (5) before reaching its decision.
7 Notification
of grant or refusal of application
(1) The
Commission must, upon granting an application, enter the particulars in the
register in accordance with Article 8.
(2) Where
the application is for the registration of a provider, the Commission must also
issue a certificate to the provider.
(3) The
Commission must, upon refusing an application, give written notice of the
refusal, and the reasons for it, to the applicant.
(4) The
Commission must also, when issuing a certificate to an applicant or notifying
an applicant of the refusal of his or her application, notify the applicant, in
writing, of his or her rights of appeal under this Law against, as the case
requires –
(a) the terms upon
which any conditions are imposed upon the registration; or
(b) the refusal of
registration.
8 Keeping
of register and issue of certificates
(1) The
Commission shall keep a register of persons registered under this Law.
(2) The
following particulars shall be entered in the register in respect of a provider
registered to carry on a regulated activity and the manager registered in
relation to that activity –
(a) the name and
business address of the registered provider and the date the provider was
registered;
(b) the names of –
(i) if the registered provider is a body corporate, its
secretary, directors and any other officers,
(ii) if the registered provider is a partnership, the names of
its partners,
(iii) if the registered provider is a trust, the names of the
trustees,
(iv) if the registered provider is a foundation, the name of its
guardian and council members,
(v) if the registered provider is an unincorporated association,
the members of its management committee or, if none, its members;
(c) the name of the
registered manager and the date he or she was registered;
(d) the regulated
activity; and
(e) the mandatory conditions
and any discretionary conditions imposed upon the registration of the provider
to carry on the activity and upon the registration of the manager in relation
to the activity, and the date the conditions were imposed.
(3) The
Commission shall –
(a) make the register
available for inspection, at reasonable hours, by members of the public; and
(b) upon payment of the
relevant fee, provide a person with a copy of an entry in the register.
(4) A
certificate issued to a registered provider must state –
(a) the regulated
activity or activities to which the registration relates;
(b) the name of the
registered provider;
(c) the name of the
registered manager;
(d) the mandatory
conditions imposed upon the carrying on of a regulated activity; and
(e) the date the
certificate takes effect.
(5) A
certificate issued to a registered provider may also state any discretionary
condition imposed upon the carrying on of a regulated activity.
(6) If,
at any time, there is a change in the particulars described in paragraph (4)
or stated in a certificate under paragraph (5), the Commission shall issue
a fresh certificate to the registered provider.
(7) The
Commission shall, if satisfied that a certificate has been lost or destroyed,
and upon payment of the relevant fee, issue a replacement certificate to the
registered provider.
9 Annual
fee
(1) A
registered person must, each year, by such date as is specified in Regulations,
pay a fee to the Commission for the person’s name to be kept on the
register.
(2) A
registered person who does not pay the fee by the date specified must also pay
a surcharge to the Commission.
(3) A
failure to pay the fee and any surcharge is a ground for cancellation of the
person’s registration.
part 3
conditions
and requirements of registration
10 Provider
and manager must be fit persons
The States may, by Regulations,
specify criteria to be applied and requirements to be complied with by the
Commission in determining, for the purposes of this Law –
(a) whether a person is a fit person to be registered as the
provider of a regulated activity;
(b) whether a person is a fit person to be registered as a
manager in relation to a regulated activity.
11 Mandatory
conditions of registration
(1) It
shall be a condition of registration of a provider in relation to a regulated
activity that there is –
(a) an individual who
is registered as the manager in relation to the carrying on of that activity by
the provider; or
(b) in a case where Regulations under paragraph (2)(b)
require more than one manager to be registered, such numbers of individuals
registered as managers in relation to the carrying on of that activity by the
provider as the Regulations require.
(2) The
States may by Regulations specify, for the purposes of paragraph (1),
circumstances –
(a) in which an
individual who is a registered provider in relation to a regulated activity may
also be the registered manager in relation to the carrying on of that activity;
(b) in which a
registered provider must have more than one registered manager in relation to a
regulated activity.
(3) The
States may by Regulations specify, in relation to any regulated activity, further
conditions that the Commission must impose upon the registration of a provider
or manager in relation to the activity.
(4) The
conditions that may be specified by Regulations made under paragraph (3) include
but are not limited to –
(a) a restriction on the numbers and
descriptions of individuals for whom a regulated activity may be provided at
any place or premises or otherwise, whether individuals are described by age,
physical or mental health or otherwise; and
(b) the premises at
which any regulated activity may be provided.
12 Discretionary
conditions of registration
(1) The
Commission may impose such conditions upon the registration of a provider or
manager as it thinks appropriate to ensure that the needs of users of the
regulated activity to which the registration relates are met.
(2) The
conditions that the Commission may impose under this Article include, but are
not limited to –
(a) a requirement that
a registered manager must complete specified training or obtain a specified
qualification;
(b) a requirement that
alterations are made to any premises on which the regulated activity is to be
carried on; and
(c) the imposition of
minimum requirements as to the numbers, qualifications and training of the workers
used to deliver the regulated activity.
(3) A
condition may be expressed –
(a) to apply
indefinitely or until a specified date or occurrence;
(b) so as to require that
any action required by the condition is completed by a specified date or
occurrence.
13 Offence
of failure to comply with conditions of registration
A registered person who fails
without reasonable excuse to comply with any discretionary condition or
mandatory condition imposed on his or her registration is guilty of an offence
and liable to a fine of £50,000.
14 Requirements
in respect of regulated activities
(1) The
States may by Regulations specify requirements that must be complied with by
either or both of the registered provider and registered manager in relation to
all regulated activities or specified regulated activities.
(2) Regulations
under this Article may in particular make provision with a view to –
(a) securing that any
service provided in the carrying on of a regulated activity is of appropriate
quality;
(b) securing the
health, safety and welfare of persons for whom any such service is provided;
(c) securing –
(i) that the particular needs (whether educational, treatment,
supervisory or otherwise) of each person for whom any such service is provided
are identified, and
(ii) that the service provided meets each person’s
particular needs; and
(d) securing that workers
and premises used to provide such service and that any care and treatment
(including assessment of a person’s care and treatment needs)
administered as part of such service are of an appropriate quality, fit for
purpose and safe.
(3) Regulations
under this Article may in particular –
(a) make provision as
to the manner in which a regulated activity is carried on;
(b) make provision as
to who is a fit person to be a worker in any service provided in the carrying
on of a regulated activity;
(c) make provision as
to the recruitment, management and training of workers who work in any service
provided in the carrying on of a regulated activity;
(d) make provision as
to the fitness of premises;
(e) impose requirements
as to the financial position of a registered provider;
(f) impose
requirements as to the keeping of records and accounts;
(g) impose requirements
for the display or making available of a certificate issued to a registered
provider;
(h) impose requirements
as to the provision of information –
(i) whether periodically or upon the occurrence of any specified
event, and
(ii) whether to the Commission, to persons to whom any service is
provided or to any other persons;
(i) impose
requirements as to the publication of information as to any charges made for
the provision of any service provided in the carrying on of a regulated
activity;
(j) impose
requirements as to the review of the quality of any service provided in the
carrying on of a regulated activity, as to the preparation of reports of such
reviews, and as to the publication of such reports; and
(k) impose requirements
as to the handling of complaints and disputes and the application of lessons
learnt from them.
(4) Regulations
made under this Article by virtue of paragraph (3)(a) may in particular
include provision as to the control and restraint, in appropriate cases, of
persons receiving health or social care or other services in connection with
the carrying on of a regulated activity.
(5) Regulations
made under this Article may make provision for the prevention and control of
health care associated infections and may include such provision as the States
consider appropriate for the purpose of safeguarding individuals (whether
receiving health or social care or otherwise) from the risk, or any increased
risk, of being exposed to health care associated infections or of being made
susceptible, or more susceptible, to them.
(6) Regulations
under this Article may provide for a failure to comply with any requirement in
the Regulations to be an offence liable to a fine up to £50,000.
(7) Regulations
under this Article may –
(a) empower the
Commission to serve a notice (an “improvement notice”) on either or
both of a registered provider and registered manager in relation to a regulated
activity;
(b) specify the
circumstances in which an improvement notice may be served;
(c) specify the
requirements that may be imposed on either or both of a registered provider and
registered manager by an improvement notice;
(d) specify a procedure
for the preparation, completion and service of an improvement notice;
(e) confer a right of
appeal against an improvement notice on a person on whom a notice is served;
and
(f) specify the
consequences of a failure to comply with an improvement notice.
(8) Regulations
under this Article may provide that a person cannot be prosecuted for a failure
to comply with any requirement in the Regulations unless –
(a) an improvement
notice has been served in respect of the failure;
(b) the time by which
that notice must be complied with has passed; and
(c) the improvements
required by that notice have not been effected.
(9) Before
lodging Regulations under this Article, a Minister, in addition to consulting
in accordance with Article 39, must consult with such persons or bodies as
appear to the Minister to be representative of persons who would be affected by
the proposed Regulations.
15 Standards
for compliance with requirements
(1) The
Commission may –
(a) prepare and publish
standards for compliance with requirements imposed by Regulations made under Article 14;
and
(b) keep standards for such
compliance under review and, as necessary, replace, revoke or amend them.
(2) The
Commission must, before publishing a standard for compliance or an amendment of
a standard for compliance, or before revoking a standard for compliance,
consult with such persons or bodies as appear to the Commission to be
representative of persons who would be affected by the proposal.
(3) Standards
for compliance published under paragraph (1) shall be taken into account –
(a) by the Commission,
when making any decision under this Law;
(b) by the Bailiff and
the Royal Court, when making a decision under Article 21;
(c) by a court, when
hearing any appeal against such a decision; and
(d) in any proceedings
for an offence under this Law.
(4) A
standard for compliance is admissible in evidence in any criminal or civil
proceedings that do not arise under this Law.
(5) A
failure to observe a standard for compliance does not, of itself, make a person
liable to any criminal or civil proceedings.
16 Arrangements
during absence of manager
(1) The
States may by Regulations make provision as to the carrying on of a regulated
activity by a registered provider –
(a) when the registered
manager is absent or incapacitated or has died;
(b) when the
registration of the manager in relation to the activity is suspended or has
been cancelled;
(c) when the registered
manager has been dismissed by the registered provider; or
(d) in any other
circumstance when the individual who is or was the registered manager is no
longer discharging the duties of that role.
(2) The
Regulations may further make provision as to circumstances in which another
person may discharge the duties of the registered manager –
(a) without that person
committing an offence under Article 3(2); and
(b) without the
registered provider being in breach of Article 11(1).
(3) The
Regulations may further provide that this Law and Regulations made under it
shall apply to a person discharging the duties of a registered manager in
accordance with provision made under paragraph (2) as if the person was
registered.
part 4
variation
of conditions, suspension and cancellation
17 Variation
of conditions
(1) The
Commission may, of its own volition or upon the written application of a
registered person under paragraph (2), decide to –
(a) vary the terms of a
mandatory condition; or
(b) vary, add to or remove
discretionary conditions,
applicable to that person’s registration in relation to a regulated
activity.
(2) A
registered person may apply to Commission for –
(a) the terms of a
mandatory condition to be varied; or
(b) any discretionary
condition to be varied or removed,
in relation to his or her registration in relation to a regulated
activity.
(3) A
variation of the terms of a mandatory condition or the variation, addition or
removal of a discretionary condition may be expressed –
(a) to apply
indefinitely or until a specified date or occurrence;
(b) so as to require
that any action required by the terms of the mandatory condition or by the
discretionary condition is completed by a specified date or occurrence.
(4) An
application under paragraph (2) must be –
(a) in such form and
provide, or be accompanied by, such information and documents as the Commission
may require; and
(b) accompanied by the application
fee.
(5) Paragraph (4)(a)
does not prevent the Commission requesting that the registered person provide
further information or documents in support of the application.
(6) The
Commission is not required to consider an application under paragraph (2)
until –
(a) all the information
and the documents required or requested have been provided;
(b) any inspection
required by the Commission for the purpose of considering the application has
been completed; and
(c) the application fee
has been paid.
(7) Before
making a decision under paragraph (1) Commission must notify the
registered person, in writing, of its proposal and the reasons for it.
(8) A
person notified under paragraph (7) may make representations, in writing,
to the Commission in respect of the proposal.
(9) The
representations must be made no later than 14 days after the notice is
given under paragraph (7).
(10) The
Commission, in reaching its decision, must have regard to any representations
made in accordance with paragraphs (8) and (9).
(11) Paragraphs (7)
to (10) do not apply where the alteration, variation or removal is made upon
the application of the registered person and as requested in the application.
(12) If
a registered person notified under paragraph (7) informs the Commission
that he or she does not intend to make any representations, or that he or she
accepts the Commission’s proposal, the Commission need not wait until the
expiry of the period described in paragraph (9) before reaching its
decision.
(13) The
Commission must –
(a) notify the
registered person of a decision under this Article and the date it takes
effect; and
(b) if the decision is
made otherwise than upon the application of the registered person and as
requested in the decision, notify the registered person of his or her rights of
appeal against the decision.
(14) A
decision under this Article cannot, without the agreement of the registered
person, take effect earlier than the day on which the right to appeal against
the decision is exhausted.
(15) In
this Article “mandatory condition” means a condition imposed in
accordance with Regulations made under Article 11(3).
18 Expedited
procedure for variation of conditions
(1) Where
the Commission is of the opinion that to delay the imposition or variation of a
condition under Article 17 would be a serious risk to the life, health or
well-being of an individual, the Commission may impose or vary the condition –
(a) without following
the procedure in paragraphs (7) to (10) of that Article; and
(b) notwithstanding Article 17(14),
with immediate effect.
(2) A
notice of a decision under Article 17 that is made in accordance with paragraph (1)
of this Article must, in addition to stating the reasons for the decision,
state the Commission’s reasons for making the decision in accordance with
this Article.
19 Suspension
of registration of manager
(1) The
Commission may suspend the registration of a manager in relation to a regulated
activity, for a period of up to 3 months, if the Commission has reason to
suspect that –
(a) the manager is not
a fit person;
(b) any condition
imposed upon the registration of the manager or the provider in relation to a
regulated activity has not been complied with; or
(c) the manager has not
complied with any requirement relating to the regulated activity that he or she
is required by Regulations under Article 14 to comply with.
(2) The
Commission may further decide, on one or more occasions, to extend the period
of a person’s suspension under paragraph (1) by up to 3 months.
(3) Before
making a decision to suspend the registration of a manager, or to extend the
period of a person’s suspension, the Commission must notify, in writing,
both the manager and the registered provider of its proposal and the reasons
for it.
(4) A
person notified under paragraph (3) may make representations, in writing,
to the Commission in respect of the proposal.
(5) The
representations must be made no later than 14 days after the notice is
given.
(6) The
Commission, in reaching its decision, must have regard to any representations
made in accordance with paragraphs (4) and (5).
(7) If
each of the registered persons notified under paragraph (3) informs the
Commission that he or she does not intend to make any representations, or that
he or she accepts the Commission’s proposal, the Commission need not wait
until the expiry of the period described in paragraph (5) before reaching
its decision.
(8) The
Commission shall give the registered manager and the registered provider notice
of a decision under paragraph (1) or (2).
(9) A
notice under paragraph (8) must –
(a) give reasons for
the decision;
(b) state when the
decision takes effect; and
(c) explain the provider
and manager’s rights of appeal.
(10) Notwithstanding
paragraphs (3) to (6) but subject to paragraph (11), the Commission
may decide, under paragraph (1), to suspend a registered manager with
immediate effect, for an initial period not exceeding 21 days, where it
appears to the Commission that there will be serious risk to the life, health
or well-being of an individual if such suspension does not have immediate
effect.
(11) Where
the Commission has suspended a registered manager with immediate effect –
(a) the persons notified in accordance with
paragraph (10) may, no later than 14 days after being notified, make
representations, in writing, to the Commission in respect of the decision; and
(b) the Commission, in
reaching a decision whether to extend the period of suspension or whether to
terminate it under paragraph (12), must have regard to any representations
made in accordance with sub-paragraph (a).
(12) The
Commission may terminate an initial period of suspension that was imposed, under
paragraphs (1) and (10), with immediate effect.
(13) During
the period for which an individual’s registration as a manager is
suspended, this Law shall apply as if the individual were not so registered,
even though his or her name remains on the register.
20 Cancellation
of registration
(1) The
Commission may cancel the registration of a registered person in relation to a
regulated activity if –
(a) the person has
failed to comply with any mandatory condition imposed upon his or her
registration in relation to the activity;
(b) the person has
failed to comply with any discretionary condition imposed upon his or her
registration in relation to the activity;
(c) the person is not a
fit person;
(d) the person has failed to comply with any
requirement in Regulations made under Article 14, whether in relation to
the regulated activity in question or in relation to another regulated
activity, and whether or not the person has been convicted of an offence for
such failure;
(e) the person has been convicted of an offence
under this Law or Regulations made under Article 14, whether or not in
relation to the regulated activity; or
(f) the person
has failed to pay an annual fee and any surcharge due in respect of his or her
registration under Article 9.
(2) The
Commission may cancel the registration of a manager in relation to a regulated
activity if there ceases to be a provider registered to carry on that activity.
(3) Before
making a decision to cancel the registration of registered person in relation
to a regulated activity, Commission must notify, in writing, both the provider
and the manager in relation to that activity of its proposal and the reasons
for it.
(4) A
person notified under paragraph (3) may make representations, in writing,
to the Commission in respect of the proposal.
(5) The
representations must be made no later than 14 days after the notice is
given.
(6) The
Commission, in reaching its decision, must have regard to any representations
made in accordance with paragraph (4) and (5).
(7) If
each of the registered persons notified under paragraph (3) informs the
Commission that he or she does not intend to make any representations, or that
he or she accepts the Commission’s proposal, the Commission need not wait
until the expiry of the period described in paragraph (5) before reaching
its decision.
(8) The
Commission must give the registered person written notice of the cancellation
of his or her registration in relation to a regulated activity.
(9) A
notice under paragraph (8) must –
(a) give the reasons
for the decision;
(b) state when the
decision takes effect; and
(c) explain the
provider or manager’s rights of appeal.
(10) The
cancellation of a person’s registration cannot, without his or her
agreement, take effect before his or her rights of appeal are exhausted.
(11) If
the Commission gives notice of cancellation to a provider in respect of the
carrying on of a regulated activity, the Commission must, at the same time,
give a copy of the notice to the manager registered in relation to that
activity.
(12) If
the Commission gives notice of cancellation to a manager in relation to a
regulated activity, the Commission must, at the same time, give a copy of the
notice to the provider registered to carry on that activity.
(13) Paragraphs
(11) and (12) do not apply if the same individual is both the provider and the
manager.
21 Immediate
cancellation of registration
(1) The
Commission may apply to the Bailiff for a provisional order for the immediate
cancellation of the registration of a registered person in relation to a
regulated activity.
(2) An
application under paragraph (1) shall be made ex parte and shall be supported by an
affidavit made on behalf of the Commission, stating the reasons for the
application.
(3) The
Bailiff may grant an application under paragraph (1) if –
(a) he or she is
satisfied that there are grounds for such cancellation under Article 20;
and
(b) it appears to him
or her that there is prima facie evidence that there will be serious risk to
the life, health or well-being of an individual if such cancellation does not
have immediate effect.
(4) A
provisional order made by the Bailiff under this Article shall be of immediate
effect.
(5) If
the Bailiff makes a provisional order under this Article –
(a) the Bailiff must
refer the provisional order to the Royal Court for consideration; and
(b) both the registered
provider of, and the registered manager in relation to, the regulated activity
must be served with –
(i) notice of the
making of the order and of its terms,
(ii) a copy of the affidavit referred to in paragraph (2),
and
(iii) notice of the date on which the provisional order shall be
considered by the Royal Court.
(6) On
considering the provisional order for cancellation of registration, the Royal
Court may –
(a) confirm, vary or
cancel the order; and
(b) make such other
order as it think in the interests of any user of the regulated activity to
which the cancellation of registration relates.
22 Report
on essential services
(1) In
this Article “essential service” means a regulated activity –
(a) which is carried on
by a Minister; and
(b) which is not
carried on by any other person.
(2) Where
the Commission considers that there are grounds for cancellation of
registration of the provider in relation to an essential service the Commission
may prepare a report under this Article.
(3) Before
making a report under paragraph (8), the Commission must send a draft of
the report to the Minister, the registered provider and the registered manager.
(4) A
person notified under paragraph (3) may make representations, in writing,
to the Commissioner, in respect of the draft report.
(5) The
representations must be made no later than 28 days after the draft report
is sent under paragraph (3).
(6) The
Commission, in completing the report, must have regard to any representations
made in accordance with paragraphs (4) and (5).
(7) If
each of the persons notified under paragraph (3) informs the Commission
that he or she does not intend to make any representations, the Commission need
not wait until the expiry of the period described in paragraph (5) before
completing the report.
(8) A
report under this Article in relation to an essential service –
(a) shall be made to
the Council of Ministers;
(b) shall specify the
grounds on which the report is made;
(c) shall recommend
actions that should be taken in relation to the essential service.
(9) The
Commission shall publish the report, subject to the restrictions in Part 6.
23 Cancellation
of registration upon request
(1) A
registered person may apply, in writing, to the Commission for his or her
registration in relation to a regulated activity to be cancelled.
(2) A
registered provider who makes an application under paragraph (1) must give
a copy of the application to the manager registered in relation to the activity.
(3) A
registered manager who makes an application under paragraph (1) must give
a copy of the application to the registered provider who carries on the
activity.
(4) Paragraphs (2)
and (3) do not apply if the same individual is both the provider and the
manager in relation to the activity.
(5) The
Commission may decide to refuse an application under paragraph (1) or
defer granting such an application if, at the time it is made, the Commission
suspects that the person making the application may have failed to comply with
any mandatory or discretionary condition imposed on his or her registration or
any requirement imposed by Regulations under Article 14.
part 5
inspections,
investigations and complaints
24 Inspectors
(1) The
Commission may appoint one or more persons as inspectors for the purposes of
this Law.
(2) The
Commission may only appoint a person as an inspector if the Commission is
satisfied that the person has the appropriate qualifications and knowledge to
conduct inspections under this Part.
25 Requirements
for inspection of premises
(1) The
Commission may, for the purposes of the discharge of its functions under this
Law or Regulations made under Article 30(3), direct an inspector to
conduct an inspection of premises on which a regulated activity is, or is
believed to be, carried on.
(2) An
inspector shall, as directed by the Commission under paragraph (1) –
(a) conduct inspections
of premises on which a regulated activity is, or is believed to be, carried on;
and
(b) submit his or her
findings upon any inspection to the Commission together with an inventory of
any documents, records or other items seized by him or her in exercise of the
powers conferred by Article 26.
26 Powers
of inspection
(1) An
inspector directed under Article 25 to conduct an inspection of premises
may enter and inspect those premises, in accordance with this Article for the
purpose of checking –
(a) compliance with the requirements imposed by
or under this Law in relation to any regulated activity carried on on premises;
and
(b) the meeting of
standards set under Article 15 in relation to such requirements.
(2) An
inspector shall not enter a private dwelling without the prior consent of an
occupier.
(3) Notwithstanding
paragraph (2), if the sole occupier of a private dwelling is unable to
give his or her consent, by reason of mental or physical incapacity, an
inspector may enter the dwelling if he or she is of the opinion that it is in
the best interests of the occupier that the inspection is conducted.
(4) An
inspector shall, if requested by an owner or occupier of premises, produce
proof of his or her authority to conduct an inspection of those premises.
(5) An
inspector conducting an inspection of premises –
(a) may be accompanied
by a police officer and such other persons as he or she considers necessary for
the purposes of the inspection; and
(b) may have with him
or her such equipment as he or she considers necessary for the conduct of the
inspection.
(6) An
inspector conducting an inspection of premises may –
(a) make any examination
into –
(i) the state of the premises,
(ii) the management of the premises,
(iii) the treatment of persons receiving care at, or accommodated
on, the premises;
(b) inspect and take
copies of any documents or other records;
(c) have access to, and
check the operation of, any computer, and any associated apparatus or material
which is or has been in use in connection with any documents or records;
(d) inspect any other
item; and
(e) seize and remove
from the premises any documents, records and other items.
(7) The
power of inspection in paragraph (6)(b) includes
the power –
(a) to require any
person holding or accountable for documents or records (whether or not kept at
the premises) to produce them for inspection at the premises; and
(b) to require any
records which are kept by means of a computer to be produced in a form in which
they are legible and can be taken away.
(8) An
inspector conducting an inspection of premises may interview, in private –
(a) the provider of any
regulated activity carried on, or believed to be carried on, on the premises;
(b) the manager in
relation to any regulated activity carried on, or believed to be carried on, on
the premises;
(c) any worker working
on the premises;
(d) any person
receiving care at, or accommodated on, the premises, if he or she consents to
the interview.
(9) The
power under paragraph (8)(a) to interview a registered provider includes,
in the case of a body corporate, limited liability partnership or separate
limited partnership, the power to interview, in private, any director, manager,
secretary, partner or other similar officer of the body corporate or
partnership.
(10) An
inspector conducting an inspection of premises may examine in private any
person receiving care at, or accommodated on, the premises if –
(a) the inspector is a
medical practitioner or nurse;
(b) the inspector has reason to believe that the
person to be examined is not receiving proper care or, as the case requires, is
not properly accommodated, at the premises; and
(c) the person to be
examined –
(i) is capable of
giving consent to the examination, and does so, or
(ii) is incapable of
giving consent to the examination.
(11) An
inspector may –
(a) require any person to afford the inspector
such facilities and assistance with respect to matters within the
person’s control as are necessary to enable the inspector to conduct the
inspection; and
(b) take such
measurements and photographs, and make such recordings, as the inspector
considers necessary for the purposes of the inspection.
(12) In
this Article, “documents or records” includes
a reference to personal and medical records.
(13) For
the purposes of paragraph (3), in determining whether a property is in
sole occupation, there shall be disregarded any person who resides at the
property for the purpose of providing a regulated activity to the occupier of
the property.
27 Report
following inspection
(1) The
Commission shall prepare a report following an inspection that is carried out
pursuant to a requirement imposed by Regulations under Article 30(3).
(2) The
report shall include the Commission’s conclusions as to whether there has
been any failure to comply with mandatory conditions, discretionary conditions
or requirements imposed by or under this Law and as to whether standards set
under Article 15 have been met.
(3) The
Commission shall, before finalizing a report, send a copy of the draft report
to the registered provider carrying on the regulated activity under inspection
and the registered manager in relation to that activity.
(4) The
registered provider and the registered manager may each, within the period of 28 days,
submit a response to the draft.
(5) If
a response submitted under paragraph (4) identifies an error of fact in
the draft report, and the inspector accepts the error, the inspector must
correct the error before finalizing the report.
(6) Once
the report is finalized, the Commission shall –
(a) send a copy of the
report and the inventory to the registered provider and registered manager; and
(b) make arrangements
for the publication of the report in such manner as the Commission thinks fit.
(7) The
Commission may, before complying with paragraph (6)(b),
omit from the report any confidential information.
(8) The
Commission shall not publish any report prepared following an inspection
carried out under Article 4(6)(b) or 17(6)(b).
28 Power
to require documents and information
(1) The
Commission may require a registered provider or registered manager to provide
the Commission with such documents, information and records as the Commission
considers it necessary or expedient to have for the purpose of the discharge of
its functions under this Law or Regulations made under Article 30(3).
(2) The
power in paragraph (1) to require the provision of information, documents
or records includes, in relation to information, documents or records kept by
means of a computer or other electronic device for the storage of information,
power to require the provision of the information, documents or records in
legible form.
(3) In
this Article, “documents or records” includes
a reference to personal and medical records.
29 Offence
of obstruction or non-compliance
A person who, without reasonable
excuse –
(a) obstructs the conduct of an inspection under this Part; or
(b) fails, without reasonable excuse, to comply with a
requirement imposed under Article 26 or Article 28,
is guilty of an offence and liable to a fine of level 4 on the
standard scale.
30 Complaints
and further requirements as to inspections
(1) The
Commission shall ensure that complaints concerning the carrying on of a
regulated activity are dealt with and, if appropriate, investigated, whether by
the Commission itself or by another person.
(2) The
Commission shall decide and publish its procedures for dealing with and
investigating complaints.
(3) The
States may by Regulations require that the Commission carries out inspections
of any regulated activity at such intervals, for such purposes, or upon the
occurrence of such events, as are specified in the Regulations.
part 6
use of
information
31 Offence
of disclosing confidential personal information
(1) This
Article applies to personal confidential information, being information which –
(a) has been obtained
by the Commission on terms, or in circumstances, requiring it to be held in
confidence; and
(b) relates to and
identifies an individual.
(2) A
person is guilty of an offence under this Article if, during the lifetime of an
individual, the person knowingly or recklessly discloses personal confidential
information that relates to that individual.
(3) A
person guilty of an offence under this Article is liable to a fine of
level 4 on the standard scale.
(4) For
the purposes of paragraph (1)(b), information
obtained by the Commission is to be treated as identifying an individual if the
individual can be identified from a combination of –
(a) that information;
and
(b) other information
obtained by the Commission.
(5) References
in this Article to information obtained by the Commission include references to
information obtained by an inspector.
32 Defence
to Article 31
(1) It
shall be a defence for a person charged with an offence under Article 31
to prove that, at the time of the alleged offence –
(a) any of the
circumstances in paragraph (2) applied in relation to the disclosure; or
(b) the person
reasonably believed that any of them so applied.
(2) The
circumstances are –
(a) that the disclosure
was made in a form in which the individual to whom the information relates is
not identified;
(b) that the disclosure
was made with the consent of that individual;
(c) that the
information disclosed had previously been lawfully disclosed to the public;
(d) that the disclosure
was made in accordance with any enactment or order of a court;
(e) that the disclosure
was necessary or expedient for the purposes of protecting the welfare of any
individual; or
(f) that the disclosure was made to any
person or body in circumstances where it was necessary or expedient for the
person or body to have the information for the purpose of exercising functions
of that person or body under any enactment.
(3) It
shall also be a defence for a person charged with an offence under Article 31
to prove that the disclosure was made –
(a) for the purpose of
facilitating the exercise of any of the Commission’s functions;
(b) in connection with
the investigation of a criminal offence (whether in Jersey or elsewhere); or
(c) for the purpose of
criminal proceedings (whether in Jersey or elsewhere).
(4) If
a person charged with an offence under Article 31 relies on a defence in paragraph (1)
or (3), and evidence is adduced which is sufficient to raise an issue with
respect to that defence, the court must assume that the defence is satisfied unless
the prosecution proves beyond reasonable doubt that it is not.
(5) For
the purposes of paragraph (2)(a), information disclosed by a person is to
be treated as being in a form in which an individual is identified if the
individual can be identified from a combination of –
(a) the information;
and
(b) other information
disclosed by the person or by the Commission.
33 Use
of information by Commission
(1) Information
obtained by, or documents or records produced to, the Commission in connection
with any of its functions under this Law may be used by the Commission in
connection with any of its other functions.
(2) The
reference in paragraph (1) to information obtained by, or documents or
records produced to, the Commission includes a reference to information
obtained by, or documents or records produced to, an inspector.
34 Permitted
disclosure of information by Commission
(1) Paragraphs (2)
and (3) apply to information obtained by the Commission in the course of discharging
any of its functions.
(2) The
Commission may disclose information that relates to an individual if –
(a) the disclosure is
made in a form in which the individual is not identified; or
(b) the disclosure is
made with the consent of the individual.
(3) The
Commission may disclose information (whether or not related to an individual)
if –
(a) the information has
previously been lawfully disclosed to the public;
(b) the disclosure is
made in accordance with any enactment or order of a court;
(c) the disclosure is
necessary or expedient for the purpose of protecting the welfare of any
individual;
(d) the disclosure is made to any person or body
in circumstances where it is necessary or expedient for the person or body to
have the information for the purpose of exercising functions of that person or
body under any enactment;
(e) the disclosure is
made for the purpose of facilitating the exercise of any of the
Commission’s functions;
(f) the disclosure
is made in connection with the investigation of a criminal offence (whether in
Jersey or elsewhere); or
(g) the disclosure is
made for the purposes of criminal proceedings (whether in Jersey or elsewhere).
(4) Paragraphs (2)
and (3) have effect notwithstanding any rule of customary law which would
otherwise prohibit or restrict the disclosure.
(5) For
the purposes of paragraph (2)(a), information
disclosed by the Commission shall be treated as being in a form in which an
individual is identified if the individual can be identified from a combination
of –
(a) the information;
and
(b) other information
disclosed by the Commission.
(6) The
reference in paragraph (1) to information obtained by the Commission
includes a reference to information obtained by an inspector.
PART 7
eSTABLISHMENT
AND gENERAL FUNCTIONS OF COMMISSION
35 Establishment
of Health and Social Care Commission
(1) There
shall be a Health and Social Care Commission.
(2) The
Commission shall be a body corporate with perpetual succession.
(3) The
Commission shall consist of not less than 4 and not more than 8 Commissioners.
(4) The
States may by Regulations amend, in paragraph (3), the minimum and maximum
number of Commissioners.
(5) Schedule 2
has effect regarding the appointment of the Commissioners, the discharge of the
functions of the Commission, and the resources and funding of the Commission.
36 Independence
of Commission
The Commission is independent of
the Minister for Health and Social Services, the Chief Minister and the States.
37 Functions
of Commission
(1) The
Commission shall discharge the functions conferred on it by or under this Law and
any other enactment.
(2) The
States may by Regulations transfer, from a Minister to the Commission, any function
of regulating the provision of any description of health or social care.
(3) Regulations
under paragraph (2) may contain such incidental, consequential,
supplemental and transitional provisions as may be necessary or expedient for
the purpose of giving full effect to the Regulations, including provisions –
(a) for
the transfer of any movable property held, any rights enjoyed and any
liabilities (whether civil or criminal) incurred by the Minister in connection
with any function transferred, including any such rights and liabilities in respect
of which, at the time of transfer, no claim has been made or no proceedings
have been commenced;
(b) for
the carrying on and completion by or under the authority of the Commission of
anything commenced, before the Regulations have effect, by or under authority
of the Minister;
(c) for the amendment of enactments relating to any functions
transferred;
(d) for the construction of enactments of the United Kingdom
having effect in Jersey relating to any functions transferred;
(e) for the construction and adaptation of any instrument,
contract or legal proceedings made or commenced before the Regulations have
effect.
(4) Only
the Chief Minister may lodge Regulations under this Article.
38 Reports,
information and advice
(1) The
Commission shall, when requested by the Chief Minister or the Minister for
Health and Social Services –
(a) prepare a report
upon an aspect of health and social care, as requested by that Minister; and
(b) submit the report
to that Minister.
(2) The
Commission may prepare and publish report on aspects of health and social care,
as it thinks fit.
(3) The
Commission shall publish information and give such advice to the public as the
Commission considers appropriate regarding –
(a) the operation of
this Law;
(b) any matters
relating to the functions of the Commission under this Law or any other
enactment.
(4) The
Commission may offer for sale information published under paragraph (3).
(5) The
Commission may, if it thinks fit, make a reasonable charge for advice given under
paragraph (3) at the request of a member of the public.
(6) The
Commission may charge a member of the public a fee for the provision of a paper
copy of a report published by it under this Law or any other enactment.
39 Minister’s
duty to consult Commission
(1) A
Minister –
(a) shall consult the
Commission upon any proposals for the preparation of Regulations under this Law
or any other enactment concerning health or social care;
(b) may consult the
Commission upon any other matter relating to the provision of health or social
care.
(2) The
Commission shall advise a Minister when so consulted.
40 Limitations
of liability
(1) The
Commission, the Commissioners, its employees and other appointees are not
liable in damages for any act done in the discharge, or purported discharge, of
any function of the Commission.
(2) Paragraph (1)
does not apply –
(a) if it was shown
that the act was done in bad faith; or
(b) so as to prevent an
award of damages made in respect of an act on the ground that the act was
unlawful as a result of Article 7(1) of the Human Rights (Jersey) Law 2000[5].
(3) Except
as any enactment or contract provides to the contrary, the Chief Minister, the
Minister for Health and Social Services and the States are not liable for any
act or omission, or debt or other obligation, of the Commission.
41 Fees
and surcharge chargeable by Commission
(1) Where
a provision of this Law or any enactment made under it provides for the payment
to the Commission of a fee, the fee that may be charged shall be the fee
related to the provision that is for the time being –
(a) prescribed by Order
made by the Chief Minister; or
(b) if a fee is not
prescribed under sub-paragraph (a), published by the Commission in
accordance with this Article.
(2) The
Chief Minister may prescribe fees, or the Commission may set fees, that are
calculated by reference to any factor that is relevant to the carrying on of a
regulated activity, including, but not limited to –
(a) the number and
classes of persons for whom a service is provided; and
(b) the number and size
of premises on which a service is provided.
(3) The
amount of the surcharge due under Article 9(2) shall be the amount for the
time being –
(a) prescribed by Order
made by the Chief Minister; or
(b) if the amount is
not prescribed under sub-paragraph (a), published by the Commission in
accordance with this Article.
(4) The
Commission must, at least 28 days before publishing a fee under paragraph (1)(b)
or surcharge under paragraph (3)(b), publish a report that must include –
(a) details of the duty or
power for or in respect of which any fee is to be determined;
(b) details of the
proposed fee or surcharge.
(5) The
Commission must, before publishing a fee under paragraph (1)(b) or a surcharge under paragraph (3)(b), consult the
Chief Minister on the proposed fee or surcharge.
(6) A
fee or surcharge determined by the Commission cannot take effect before it is
published in accordance with this Article.
(7) In
this Article “publish” means publish in a manner that is likely to
bring it to the attention of those affected.
(8) Except
as provided by this Article, nothing in this Article otherwise limits any right
or power the Commission has to charge, recover and receive any fees, charges,
costs, proceeds and other amounts.
42 Exemption
from income tax
The income of the Commission is not
liable to income tax under the Income Tax (Jersey) Law 1961[6].
43 Requirement
to prepare annual accounts and reports
(1) The
Commission shall, as soon as possible after the end of a year, prepare a report –
(a) providing
information regarding the discharge of the Commission’s functions during
the year; and
(b) containing a copy
of the Commission’s accounts for the year.
(2) The
Commission shall –
(a) publish the report;
and
(b) submit a copy of
the report to the Chief Minister.
(3) The
Chief Minister shall present to the States a report submitted under paragraph (2)(b).
part 8
appeals,
general offences and closing
44 Rights
of appeal
(1) The
following persons have a right of appeal to the Royal Court against a decision
of the Commission under this Law –
(a) the provider and
the manager, in relation to the refusal of any application under Article 5;
(b) the registered
provider and the registered manager, in relation to –
(i) the
terms on which any mandatory conditions imposed in accordance with Regulations
made under Article 11(3) are imposed, or the terms on which any such
conditions are varied under Article 17 (whether or not in accordance with Article 18),
(ii) any
discretionary conditions imposed or varied under Article 12 or under Article 17
(whether or not in accordance with Article 18),
(iii) a suspension under Article 19,
(iv) the cancellation of the provider’s or manager’s
registration in relation to a regulated activity under Article 20,
(v) a refusal to remove the provider or manager from the
register under Article 23 in relation to a regulated activity, or a
decision to defer such removal.
(2) An
appeal under paragraph (1) must be made within the period of 28 days
following the day the person having the right of appeal receives notice of the
decision of the Commission.
(3) On
hearing an appeal, the Royal Court may –
(a) confirm the
decision of the Commission; or
(b) direct that the
decision of the Commission shall not have effect.
(4) For
the purposes of this Law, a person’s rights of appeal are exhausted upon
whichever is the earlier of –
(a) the expiry of the
period within which an appeal must be made, without an appeal being made;
(b) the withdrawal of
an appeal;
(c) the dismissal of
the appeal without any further right of appeal.
45 Offence
of providing false or misleading information, etc.
A person –
(a) who, in connection
with any application under this Law; or
(b) who, when required
by the Commission or an inspector under this Law to provide information,
documents or records,
provides any information, document or record knowing or reckless as to
whether it is false or misleading in a material particular is guilty of an
offence and liable to imprisonment for a term of 12 months and a fine.
46 General
provisions as to offences
(1) Where
an offence under this Law or Regulations made under it, committed by a body
corporate, limited liability partnership or separate limited partnership, is
proved to have been committed with the consent or connivance of, or to be
attributable to any neglect on the part of –
(a) a person who is a
partner of the partnership, or director, manager, secretary or other similar
officer of the company; or
(b) any person
purporting to act in any such capacity,
the person shall also be guilty of the offence and liable in the same
manner as the partnership or body corporate to the penalty provided for that
offence.
(2) Where
the affairs of a body corporate are managed by its members, paragraph (1)
shall apply in relation to acts and defaults of a member in connection with his
or her functions of management as if the member were a director of the body
corporate.
47 Defence –
due diligence
(1) In
any proceedings for an offence under this Law, subject to paragraph (2),
it shall be a defence for the person charged to prove –
(a) that
the commission of the offence was due to a mistake or to reliance on
information supplied to him or her or to the act or default of another person,
an accident or some other cause beyond his or her control; and
(b) that he or she took all reasonable precautions and exercised
all due diligence to avoid the commission of such an offence by himself or
herself or any person under his or her control.
(2) If
in any such case the defence provided by paragraph (1) involves the
allegation that the commission of the offence was due to the act or default of
another person or to reliance on information supplied by another person, the
person charged shall not, without leave of the court, be entitled to rely on
that defence unless, within a period ending 7 clear days before the
hearing, he or she has served on the prosecution a notice in writing giving
such information identifying or assisting in the identification of that other
person as was then in his or her possession.
48 Service
of documents
(1) Any
decision, notice or other document to be given or sent to person may be given
or sent to the person by delivering it personally to him or her or by posting
it to his or her proper address.
(2) The
proper address of a person in respect of whom an application has been made is
the address given for the person in the application.
(3) The
proper address of a registered provider or registered manager is the address
recorded in the register for that person.
49 Transitional
and transfer Regulations
(1) The
States may by Regulations make such transitional and supplementary provisions
as may be expedient for the purposes of the commencement of any provision of
this Law or of any amendment to this Law.
(2) The
States may by Regulations provide for the employment of specified States’
employees to be transferred to the Commission, on such terms and subject to
such conditions as are imposed (which may include conditions imposed on the
Commission) as ensure continuity of the employees’ conditions of
employment and rights, including membership of any pension scheme.
(3) The
States may by Regulations provide for any description of information held by a
Minister in connection with any function discharged by the Minister under
an enactment amended or repealed by Regulations under Article 2, or
amended by Regulations under Article 37, to be transferred to the
Commission.
50 Citation
and commencement
(1) This
Law may be cited as the Regulation of Care (Jersey) Law 2014.
(2) The
following provisions of this Law shall come into force on the day after this
Law is registered –
(a) Article 1;
(b) Article 2 and Schedule 1;
(c) Article 3(6);
(d) Articles 10 and 11;
(e) Articles 14 to 16;
(f) Article 30(3);
(g) Part 7 and Schedule 2;
(h) Article 49; and
(i) this Article.
(3) The
remaining provisions of this Law shall come into force on such day or days as
the States appoint by Act.
L.-M. HART
Deputy Greffier of the States