States of Jersey Law 2005: delegation of functions – Health Care (Registration) (Jersey) Law 1995 – extension of ministerial functions to the Medical Officer of Health.

STATES OF JERSEY

STATES OF JERSEY LAW 2005: DELEGATION OF FUNCTIONS – HEALTH CARE (REGISTRATION) (JERSEY) LAW 1995 – EXTENSION OF MINISTERIAL FUNCTIONS TO THE MEDICAL OFFICER OF HEALTH

Presented to the States on 19th September 2013 by the Minister for Health and Social Services

STATES GREFFE

2013   Price code: A  R.113

REPORT

On  16th  September  2013,  the  Minister  for  Health  and  Social  Services  made  a Ministerial Decision delegating certain of her functions under Article 28 of the States of Jersey Law 2005 (MD-HSS-2013-0029, available at www.gov.je).

Article 28 of the States of Jersey Law 2005 permits a Minister to delegate, wholly or partly, functions to an Assistant Minister or an officer.

The Law states, inter alia –

"28  Power of Minister to delegate functions

1. A Minister may delegate, wholly or partly, functions conferred upon or vested in the Minister by or under this Law or any other enactment or any enactment of the United Kingdom having effect in Jersey, to –

1. one of his or her Assistant Ministers;
2. an officer.

2. A Minister shall not delegate –
   1. any power to make an enactment;
   2. any power to decide an appeal under an enactment;
   3. any function the delegation of which is prohibited by an enactment.
3. The delegation of functions by a Minister under this Article shall not prevent the Minister exercising those functions personally.
4. Where  any  licence,  permit  or  authorization  is granted  in  purported exercise  of  functions  delegated  under  paragraph (1),  no  criminal proceedings shall lie against any person for any act done, or omitted to be done, in good faith and in accordance with the terms of the licence, permit  or  authorization,  by  reason  that  the  functions  had  not  been delegated,  or  that  any  requirement  attached  to the  delegation  of  the functions had not been complied with.
5. In this Article –

"Minister" includes the Chief Minister;

"officer"  means  a  States'  employee  within  the  meaning  of  the Employment  of  States  of  Jersey  Employees  (Jersey)  Law 2005  and includes a member of the States of Jersey Police Force and an officer appointed  under  paragraph 1(1)  of  Part 1  of  Schedule 2  to  the Immigration Act 1971 as extended to Jersey by the Immigration (Jersey) Order 1993.

6. The States  may  by Regulations  amend  the  definition  "officer"  in paragraph (5)."

The terms of the delegations, and the legislation under which those delegations were made,  were  recorded in  a  Report  attached  to the Ministerial  Decision,  as  shown below –

3

Health Care (Registration) (Jersey) Law 1995

Introduction

This report sets out the rationale for extending the delegated functions of the Medical Officer  of  Health  under  the  above  Law  to  include  attaching  conditions  to  the registration or renewal of registration of health professionals.

Background

The Medical Officer of Health has a number of delegated functions under the above Law, in particular related to the registration process. These are –

• approve the registration of persons in registrable occupations;
• remove the name of a registered person from the register if they do not apply for annual registration in the month of December;
• amend the register if any particulars are erroneous in any respect.

The scope of delegation, however, does not extend to the Minister's power under Article 6 to refuse or attach conditions to a registration or a renewal of registration.

Issue

On 25th April 2013, the NMC imposed an interim suspension on a nurse who is also registered in Jersey, on the grounds of protecting the public. The details of the case were forwarded to H.M. Attorney General to request, if possible, temporary removal from the Jersey register during the period of the suspension.

Unfortunately, the view from the Legal Adviser from the Law Officers' (Attorney General's) Department is that there is no provision under the Jersey Law for local suspension or removal on the grounds of interim suspension of registration by the NMC (there is provision in the case of the NMC striking off a registrant or suspension following a substantive hearing).

The Legal Adviser did, however, suggest an alternative route for future registrations of health  professionals  who  are  registered  by  virtue  of  holding  a  prescribed qualification', i.e. registration with a UK regulatory body. This relies on attaching a condition  to  all  new  registrations  and  for  all  renewal  of  registrations  from 31st December 2013.  This  condition  would  require  the  registrant  to  hold  the prescribed qualification for the whole period of his or her Jersey registration. Where there  is  a  breach  of  this  condition,  there  is  power  within  the  Law  to  make representation to the Royal Court to cancel the registration.

As  currently  only  the  Minister  can  apply  such  a  condition,  and  the  volume  of registrations is considerable, it is requested that for logistical reasons this function is delegated to the Medical Officer of Health.

R.113/2013

Drafting instructions are with the Law Draftsman's Office that will substantively amend the Health Care Registration Law and include greater powers of suspension and removal; however, this is likely to take some time, and the proposed is an interim suggestion until the Law is amended.

Recommendation

Delegate the Minister's responsibility under Article 6(1)(b) and 6(2) of the Health Care (Registration) (Jersey) Law 1995 to the Medical Officer of Health, namely –

6  Determination of application for registration

1. , the Minister may –

2. attach conditions to the registration or renewal of registration of any person.

2. Where the Minister refuses to grant the application, or grants the application  subject  to conditions,  he  or  she  shall  furnish  the applicant with a statement in writing of the Minister's reasons for so doing.'