Regulation of Care (Jersey) Law 2014 (FOI)

Request

During the quarterly hearing between the Health & Social Services scrutiny panel and the Minister for Health & Social Services on 16 November 2023, the Minister stated that "the Care Quality Commission in the UK is established within law but that our law (Jersey law) has established the Jersey Care Commission and the regulatory framework that we use for health is enacted through the work of the Jersey Care Commission and some of the way in which the regulatory frameworks appear through the Jersey Care Commission have some similarities with what the Care Quality Commission offer. But the detail of how the Jersey Care Commission organised its work identified its work, organised its standards, set out its policy framework. We have the expert in the room who has designed all that if you want to talk to the policy officer in more details about that, we can go into more details. But the Care Quality Commission is an organisation that is established under UK law and in Jersey our regulatory body is the Jersey Care Commission."

Given the above statement, there has actually been a gap in the law since 2014 as the framework in the Regulation of Care Law 2014 does not include the hospital. The previous Government of Jersey stated that the Law Offices would be redrafting the law to enable the JCC to fully inspect the Jersey General Hospital, Overdale and St Saviour's Hospital.   Please confirm the floowing:-

A

Has that law been redrafted yet?

B

If not, why not and when will this be finalised?

C

If not could I please provide a copy of the new law and when will be actually be implemented?

D

Is the new law now available online?

E

If the Jersey Care Commission (JCC) is independent, why (as identified during this meeting) is the Government Policy Officer who works for Health and Community Services (HCS) also developing policy for the JCC? Surely this is a conflict?

Response

The Regulation of Care (Jersey) Law was adopted by the States Assembly on 3 July 2014, please see the link below: 

Regulation of Care (Jersey) Law 2014. pdf (jerseylaw.je)

It was set out in the report to the proposition that establishing regulation of previously unregulated environments across Jersey’s health and social care sector is a sizeable and complex task. Implementing regulation across the whole sector overnight would overwhelm both the regulator and the regulated entities. It is for this reason that Regulations under the framework law have been, and will continue to be, brought for debate in the Assembly in phases. 

Phase 1 of the project was to regulate care home (including children’s home), home care and adult day care services. These Regulations were adopted by the States on 20 November 2018 and came into force on 1 January 2019 – please see the following link:

Draft Regulation of Care (Regulated Activities) (Jersey) Regulations P.126/2018. pdf (statesassembly.gov.je)

Phase 2 of the project was to regulate children’s social care and children’s outpatient mental health services.  These Regulations were adopted by the States on 25 April 2022 and came into force on 1 January 2023. Please see the link below: 

Draft Regulation of Care (Regulated Activities) (Amendment of Law) (Jersey) Regulations p.45 2022.pdf (statesassembly.gov.je)

The Minister for the Environment has decided that phase 3 of the project will include the regulation and inspection by the Jersey Care Commission of hospital, ambulance and Government of Jersey provided mental health services (not including children’s outpatient mental health services which are already regulated).  The States Assembly agreed to provide funding for the Jersey Care Commission, the Ambulance Service and for the Department for Health and Community Services under the Government Plan 2023-26.  This is detailed in the annex to the Government Plan, a link to which can be found below:

Government Plan 2023 to 2026 Annex.pdf (gov.je)

This has enabled the Care Commission to prepare to regulate and for health care services to prepare to be regulated in 2023 and 2024, and for regulation and inspection to commence in late 2024.

A to D 

The Minister for the Environment issued a Ministerial Decision to request that the Legislative Drafting Office commence drafting amendments to the Regulation of Care (Jersey) Law 2014 to include hospital, ambulance and Government of Jersey provided mental health services under the regulatory remit of the Jersey Care Commission in March 2023.  Draft amendment legislation is currently being developed to this effect.  

The draft legislation will be published and subject to full public consultation when it has been developed.  It is currently envisaged that this consultation will commence in January 2024.

Subject to the responses to the consultation, the draft legislation will be finalised and prepared to be debated by the States Assembly later in 2024.  It is anticipated that the draft legislation will come into force in late 2024. The draft legislation is exempt from publication under Article 35 of the Freedom of Information (Jersey) Law 2011.

E

Full responsibility for health and social care regulatory policy sits with the Minister for the Environment.  The Minister is supported by dedicated health and social care regulatory policy expertise in the Governance Policy team in the Cabinet Office.  While policy officers supporting the Minister for Health and Social Services hold expertise across all health and social care policy areas, including regulatory policy, they do not support the Minister for the Environment in developing regulatory policy.

It should also be noted that, while the Minister for the Environment is responsible for policy in this area and the States Assembly is responsible for approving any amendments to legislation, the Jersey Care Commission is a fully independent body corporate.  This is provided for under Articles 35 and 36 of the Regulation of Care Law:

Regulation of Care (Jersey) Law 2014 (jerseylaw.je)

Responsibility for the development of inspection standards and responsibility for regulating and inspecting entities that are regulated under the Law rests solely with the independent Jersey Care Commission, which is managed by a board of 7 independent Commissioners, including an independent Chair.

Article applied 

Article 35 - Formulation and development of policies

Information is qualified exempt information if it relates to the formulation or development of any proposed policy by a public authority.

Public Interest Test 

Article 35 is a qualified exemption, which means that a public interest test has to be undertaken to examine the circumstances of the case and decide whether, on balance, the public interest in maintaining the exemption outweighs the public interest in disclosing the information.  

Although there is a need for transparency, accountability, financial and good decision making by public authorities this information relates to an ongoing situation. The Scheduled Public Authority, and indeed good government, requires Ministers to be provided with full, frank advice from officials about the possible impact of proposed policy, and for Ministers and officials to be able to discuss and test those proposed policies in a comprehensive way.   

The following considerations were taken into account:  

Public interest considerations favouring disclosure:  

• disclosure of the information would support transparency and promote accountability to the general public.
• disclosure to the public fulfils an educative role about the early stages in policy development and illustrates how the department engages with parties for this purpose. 

Public interest considerations favouring withholding the information:   

• in order to best develop policy, Officers and Ministers need a safe space in which free and frank discussion can take place. The need for this safe space is considered at its greatest during the live stages of a policy. Sharing views is important to ensure that all relevant considerations are taken into account in developing and implementing policy. Disclosure at a time when these views are still being considered would negatively impact the Department's ability to fully consider the information
• the need for this safe space is considered at its greatest during the live stages of a policy
• release of the information at this stage might generate misinformed debate in areas where future options have yet to be finalised. This would affect the ability of officials to consider and develop policy away from external pressures, and to advise Ministers appropriately
  
• disclosure of this information may limit the willingness of parties to provide their honest views and feedback in future. This would hamper and harm the policy–making process not only in relation to this subject area but in respect of future policy development across wider Departmental business.

Taking into account the various factors, the Scheduled Public Authority decided in favour of withholding the information.