Ministerial Sponsor: Senator Le Fondré, Chief Minister
Date of MD: 17/03/2020
Instructing Officer: Francis Walker, Policy Principal, Department for Strategic Policy, Planning and Performance
Legal Adviser: Veronica Dempsey
- Introduction
1.1 Law drafting is required to amend the Regulation of Care (Standards and Requirements) (Jersey) Regulations 2018 (the “2018 Regulations”) in response to the Covid-19 pandemic which is currently affecting Jersey and most of the globe.
1.2 The Regulation of Care (Jersey) Law 2014 (the “2014 Law”) provides a legislative framework for the independent regulation of health and social care in Jersey. It is underpinned by the 2018 Regulations, covering each regulated activity listed under the Schedule to the 2014 Law.
1.3 Requested amendments will give registered providers of adult day care, care home and home care services flexibility to disapply some of the usual restrictions on the services which they provide.
- Amendments to Conditions of Registration
2.1 Under Regulation 3 of the 2018 Regulations, currently the Jersey Care Commission (JCC) must impose certain relevant conditions on each registered service provider. In the normal course of events, it is right that the JCC should limit the nature of the services provided in this way, including the number of beds each care home can provide and the number of hours each home care service can provide. However, it is clear that the Covid-19 pandemic has the potential to drastically affect the ability of service providers to maintain services as per the usual conditions imposed upon them.
2.2 It is therefore necessary to amend Regulation 3 of the 2018 Regulations so that the Care Commission must disapply any condition placed on a service provider’s registration in the event that the Covid-19 virus prevents them from being in compliance. The new provision should set out that the JCC must suspend any condition placed on a service provider’s registration under Regulations 3(1)(d),(e),(f),(g),(h),(i) or (j) if:
a) the registered provider is unable to operate their service in accordance with a condition imposed under one of these provisions and this is as a direct or indirect result of the outbreak of Covid-19/coronavirus; and
b) the registered provider notifies the JCC that they are unable to comply with the conditions of their registration, informs the JCC which conditions they cannot comply with and evidence that they are unable to comply.
2.3 It is only upon completion of the notification process outlined above that the condition/conditions will be suspended. If a registered provider fails to notify the JCC that they are unable to comply with a condition of their registration as a result of Covid-19, then all conditions will still apply.
2.4 The suspension of the condition/conditions will last until the:
a) registered provider informs the JCC that the outbreak of Covid-19 no longer prevents them from adhering to the conditions originally imposed on their registration; or
b) for 3 months from the date that the registered provider notified the JCC that they could not comply with their registration conditions as per paragraph 2.2 b), above.
2.5 If paragraph 2.4 b), above, applies and 3 months have elapsed, the JCC must inform the registered provider that they intend to reinstate the suspended conditions. If, at this stage, the registered provider notifies the JCC that they require the condition/conditions to remain suspended because an outbreak of Covid-19 is still impacting on their service, the JCC may continue to suspend conditions for up to 3 months at a time. This is a discretionary power and the registered provider must provide the JCC with evidence as to why any condition should remain suspended before the JCC can make a determination.
- Amendments to Requirements for Workers
3.1 Similar amendments are required to the provisions relating to workers in regulated activities under Regulation 17 of the 2018 Regulations. These amendments should be limited in scope and provide registered providers with an additional degree of leeway to hire staff who may not be fully qualified to undertake roles they are being asked to perform.
3.2 In the event that the Covid-19 outbreak in Jersey is significant, it is envisaged that it will be difficult to maintain a sufficiency of health and social care professionals to treat/care for patients across the Island. This is a challenge, as the potential number of individuals who may require treatment and the potential number of health and social care workers who may become infected with the virus and are therefore unable to treat patients could be substantial. It is therefore reasonable to assume that unqualified or under-qualified individuals will be asked to perform certain roles.
3.3 New provisions under Regulation 17 should set out that, in response to the Covid-19 outbreak, regulated activities should, in the first instance, put in place a plan to mitigate against the shortage of suitably qualified, skilled, competent and experienced staff in certain functions. If, however, a registered provider provides evidence to the JCC that they have an appropriate mitigation plan in place, but they are unable to hire suitable staff and to implement the plan fully due directly or indirectly to the outbreak of Covid-19, the JCC may disapply any of Regulations 17(1)(a), (3), and (4) to the relevant registered provider.
3.4 This is a discretionary power and the registered provider must provide the JCC with evidence of both the mitigation plan and their inability to hire suitable staff to the Commission. The Regulations apply until the JCC notifies the registered provider that they do not. The JCC can decide that these Regulations do not apply to a registered provider for up to 3 months. After 3 months, the JCC must apply the Regulations unless the registered provider provides evidence to the JCC that Covid-19 is still preventing them from hiring suitable staff. The JCC may extend the disapplication of any of Regulations 17(1)(a), (3), and (4) for 3 months at a time but for no more than 1 year in total. At this point the registered provider must comply with the Regulations.
- Amendments to the Requirement for the JCC to Inspect
4.1 It is likely that the JCC will be unable to inspect all regulated activities at least once every 12 months, as is currently required by Regulation 32(1) of the 2018 Regulations. This is because – due to the outbreak of Covid-19 – regulated activities may be placed in “lockdown” and/or the JCC may have an insufficient number of inspectors to complete inspections.
4.2 Amendments are therefore required to Regulation 32 of the 2018 Regulations, allowing the JCC to defer inspections for 12 months in the event that it is unable to conduct inspections as a direct or indirect result of Covid-19. Where the JCC determines that it will not be possible to discharge its duty to inspect regulated activities at least once in a 12-month period it should notify the Chief Minister. It should inform the Chief Minister why it will be unable to perform an inspection.
- Commencement
5.1 The amendment Regulations should come into force as soon as they are made.
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