Health and Community Services Department: Delegation of Functions

Information about the publication of Ministerial Decisions

A formal published “Ministerial Decision” is required as a record of the decision of a Minister (or an Assistant Minister where they have delegated authority) as they exercise their responsibilities and powers.

Ministers are elected by the States Assembly and have legal responsibilities and powers as “corporation sole” under the States of Jersey Law 2005 by virtue of their office and in their areas of responsibility, including entering into agreements, and under any legislation conferring on them powers.

An accurate record of “Ministerial Decisions” is vital to effective governance, including:

demonstrating that good governance, and clear lines of accountability and authority, are in place around decisions-making – including the reasons and basis on which a decision is made, and the action required to implement a decision
providing a record of decisions and actions that will be available for examination by States Members, and Panels and Committees of the States Assembly; the public, organisations, and the media; and as a historical record and point of reference for the conduct of public affairs

Ministers are individually accountable to the States Assembly, including for the actions of the departments and agencies which discharge their responsibilities.

The Freedom of Information Law (Jersey) Law 2011 is used as a guide when determining what information is be published. While there is a presumption toward publication to support of transparency and accountability, detailed information may not be published if, for example, it would constitute a breach of data protection, or disclosure would prejudice commercial interest.

A decision made 27 November 2018:

Decision Reference: MD-HSS-2018-0057
Decision Summary Title :	Health and Community Services-Ministerial Delegation of Authority to officers for the Capacity and Self-Determination (Jersey) Law 2016		Date of Decision Summary:	21st November 2018
Decision Summary Author:	Senior Project Manager, Capacity and Self-Determination Law		Decision Summary: Public or Exempt? (State clauses from Code of Practice booklet)	Public
Type of Report: Oral or Written?	Written		Person Giving Oral Report:
Written Report Title :	States Of Jersey Law 2005: Delegation Of Officer Functions – Health And Community Services Capacity and Self-Determination (Jersey) Law 2016 Report		Date of Written Report:	21st November
Written Report Author:	Senior Project Manager, Capacity and Self-Determination Law		Written Report : Public or Exempt? (State clauses from Code of Practice booklet)	Public
Subject: To delegate to the Capacity and Self-Determination Law Administrator or deputy functions within the Capacity and Self-Determination Law (Jersey) Law 2016 as described within the attached report.
Decision(s): Having been briefed by his officers the Health and Community Services Minister under Article 28 of the States of Jersey Law 2005 approved delegation of responsibility for the Ministerial functions to the Capacity and Self-Determination (Jersey) Law 2016 Administrator or deputy as described in the attached report.
Reason(s) for Decision: To allow the smooth running of the processes relating to the Capacity and Self-Determination (Jersey) Law 2016.
Resource Implications: There are no resource implications
Action required: For the Minister to sign and publish the order
Signature:		Position: Minister for Health and Social Services
Date Signed:		Date of Decision (If different from Date Signed):

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Health and Community Services Department: Delegation of Functions

STATES OF JERSEY LAW 2005:

DELEGATION OF OFFICER FUNCTIONS –

HEALTH AND COMMUNITY SERVICES

CAPACITY & SELF-DETERMINATION (JERSEY) LAW 2016

REPORT

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 –

(a) one of his or her Assistant Ministers;

(b) an officer.

(1A) A Minister shall not delegate to an Assistant Minister any function the delegation of which is wholly prohibited by an enactment.

(1B) Where a Minister delegates to an Assistant Minister a power to make an enactment, paragraphs (4) and (5) of Article 26 shall apply to the making of an enactment by the Assistant Minister, in exercise of the delegated power, as they would apply to the making of the enactment by the Minister.[59]

(2) A Minister shall not delegate to an officer –

(a) any power to make an enactment;

(b) any power to decide an appeal under 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[62].[63]

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

Health and Community Services Delegated Officer Functions to the Capacity and Self-Determination Law Administrator, as defined in Article 4 of the Mental Health (Jersey) Law 2016 or Deputy.

All decisions will be recorded and, where appropriate, included in the annual report to the Minister.

Article	Scope of Delegation
Article 40(1)(a)– Arrangements to be made by Minister: designation of assessors	To designate registered persons to act as assessors under Part 5 and maintain a register of persons so designated.
Article 41 - Arrangements to be made by Minister: requirement for authorization	To appoint a person to carry out assessments in accordance with Articles 43 to 46.
Article 42 – Urgent authorizations	To receive applications made under this Article and give notice in writing of the terms and conditions (if any) in which an urgent authorization is granted.
Article 43 - Request for assessment	To receive requests for assessment in accordance with Article 43.
Article 44 – Manner of assessment	To designate registered medical practitioners to act for the purposes of Article 44(2)(b), and maintain a register of persons so designated,
Article 45 – Report of assessment	To receive from the assessor reports of an assessment in accordance with Article 45(2) to (6).
Article 46 – Effect of report	To deal with requests for fresh assessments or reviews of assessments in accordance with Article 46(1).
Article 47 – Record of assessments etc.	To keep a record of all assessments carried out, and all authorizations granted, under this Part, together with copies of reports of all such assessments.
Article 48 – Standard authorizations	To authorize the imposition of significant restrictions and give notice in writing of the authorization to the assessor and M in accordance with this Article.
Article 49 - Rectification etc. of reports and recommendations	To rectify errors or defects in reports as necessary, or give notice in writing to the assessor and M if a recommendation in any report of an assessment is insufficient to warrant the imposition of a significant restriction on P’s liberty in accordance with this Article.
Article 51 - Advocates to be appointed	To nominate an independent capacity advocate to represent P in accordance with this Article.
Article 52 – Renewal of standard authorization	To receive requests for renewal in accordance with Article 52(3). To appoint an assessor to carry out a further assessment of P following the receipt of a request duly made under Article 52(3). And further, to renew the standard authorization if satisfied that it is appropriate in accordance with any fresh recommendation made by the assessor under Article 45(2)(e).
Article 54 - Continuity of authorization: changes of place and in management	To receive notification where P is to be moved from the relevant place to which an authorization relates to another relevant place and direct in accordance with this Article.
Article 55 - Review of authorizations by Tribunal	Request for a review of an authorization be made by the Tribunal where appropriate, on behalf of the Minister. To deal with any orders made by the Tribunal under Article 55(6).
Article 56 - Monitoring of authorizations	To review, audit and direct Managers of relevant places in the application and use of authorizations; and the operation of significant restrictions on liberty authorized by them as necessary on behalf of the Minister.