Health & Social Services
Draft Health Care (Registration) (Amendment) ( Jersey ) Law 200-:
(Drafting instructions)
Issues and proposals
1 Authority to order an investigation - (This particularly relates to Independent Practitioners).
1.1 In the UK, all healthcare professionals who are registered by the Nurses and Midwifery Council (NMC), Health Professions Council (HPC) or other such regulatory body are subject to the statutory authority of these Councils to carry out an investigation in relation to a complaint about professional performance or conduct.
1.2 The HPC, NMC, GMC and other UK regulatory bodies presently register healthcare professionals in Jersey. However, there is some concern that such bodies would cease to do so as they may be unable to exercise their professional regulatory function - principally the power to conduct an investigation in relation to professional conduct or performance in the Island because UK Acts do not as a rule extend to Jersey.
1.3 Whilst there are arguments that the UK regulatory body could, in practice, threaten to cancel the registration of a professional who refused to comply with an investigation, the position remains that the relevant Council would have no formal authority to conduct an investigation or require co-operation outside the UK. It could be claimed, possibly, that in the absence of statutory authority and a corresponding right of appeal in Jersey, such coercion by the regulatory body might be a breach of the individual’s human rights.
1.5 Another practical difficulty, one that has been encountered by the GMC is that, although a Council would in principle be prepared to conduct a hearing in relation to the professional conduct or performance of a healthcare professional in Jersey, it will not do so without satisfactory prima facie evidence, and it has proven impossible to obtain such evidence because of the absence of any formal mechanism to obtain relevant information from a doctor in private practice (GPs).
1.6 Furthermore, some healthcare practitioners who are registered under the Health Care (Registration) (Jersey) Law 1995 are not presently under the regulation of the HPC, NMC or other such statutory regularity bodies (for example, clinical psychologists[1] and psychotherapists). The bodies awarding the relevant professional qualifications, approved for the purposes of the Law, do not exercise the same regulatory functions as the statutory Councils in the UK. For this reason, there would need to be a separate provision to conduct an investigation of the professional conduct and performance of a practitioner in these occupations in Jersey (See 1.12).
Similarly, Chiropractors are registered under the Health Care (Registration) (Jersey) Law 1995. Some are registered under Article 3 1 (b) i.e. they are also registered under the UK Chiropractors Act 1994; others are registered locally under one of the other permissible provisions. The UK Chiropractic Council will only register Chiropractors in Jersey if they also practice in the UK because the UK Chiropractors Act 1994 does not extend to Jersey. Again, for this reason, there would need to be a separate provision to conduct an investigation of the professional conduct and performance of a practitioner in these circumstances. (See 1.12).
1.7 It is understood (memo from Mr R Whitehead, Legal Adviser, dated 18 June 1998) that where a doctor has been convicted of a crime or misdemeanour to which Article 9 of the Medical Practitioners (Registration) (Jersey) Law 1960 applies, or where a complaint is made of ‘infamous or disgraceful’ conduct in a professional respect, that the Attorney General (AG) has an implied authority to require an investigation so as to be able to decide whether to present an application to the Royal Court for cancellation of registration. The same might be assumed in respect of a criminal offence or ‘infamous conduct in a professional respect’ under Article 10 of the Health Care (Registration) (Jersey) Law 1995.
1.8 However, the AG could not act under Article 10 in respect of lesser offences and in the case of matters relating solely to professional performance, as he has insufficient powers to enable a proper investigation to be carried out. This means that whether complaints of professional misconduct are dealt with depends to a large degree on whether the UK regulatory body can investigate, which it may be unable to do in Jersey.
Drafting Proposals
Investigative powers
1.9 It is for the above reasons that the AG needs explicit authority to instigate an investigation. It is proposed that the Law should be amended to include such a power for the AG to order the conduct of a proper investigation.
1.10 The range of circumstances in which an investigation could be required should be extended, in addition to the matters in Article 10, to include allegations of professional misconduct or deficient professional performance.
1.11 It is envisaged that, in practice, an investigation ordered by the AG could be required to be carried out by authorised persons under the direction of the AG, or conducted independently under arrangements to be agreed with the relevant UK regulatory body.
Provisions should be included regarding:
Notification of investigation and nature of any allegations as soon as possible to the person concerned
Invitation to submit written representations within a specified time period
Notification of a hearing, by the relevant professional regulatory body and the right to have a representative present
Notification of right to appeal to the Court within 28 days against an investigation order
Powers for the Court, on a motion of the AG to suspend, or apply conditions to or maintain the registration, as it deems fit, pending the outcome of an investigation
Authority to require the disclosure to authorised persons of any relevant documents, records, computer files etc. Powers to access premises for authorised officers to obtain information or samples etc.
On the outcome of a hearing regarding professional conduct or performance being notified to the AG, the Court may determine the appropriate action in regard to cancellation/restoration of registration or application of conditions (However, the appropriate action would normally arise from a decision of the UK professional regulatory body - i.e. if struck off in the UK, then the person would have registration cancelled in Jersey).
These proposal mirrors those incorporated in the draft Medical Practitioners (Jersey) Law 200-
Drafting Proposals
Removal of professions from registered occupations
1.12 Paragraph 1.6 explains that currently two registered occupations, these being Clinical Psychologists[2] and Psychotherapists are not regulated by statutory authorities in the UK.
Such authorities –
Set standards for their respective professions
Approve courses that enable registration
Register health and social care professionals who meet the said standards
Take action against professionals who do not meet the required standards – including deregistration.
1.13 In essence registration exists to protect the public by demonstrating that the professions meet nationally recognised standards set by Law.
1.14 For the aforementioned occupations no such authority exists to undertake such functions including investigations as are undertaken by such authorities to ensure the public are protected.
1.15 Whilst it is feasible for the investigative powers as set out in paragraph1.6 to exist in Law – what authority or body exists in Law nationally and certainly not locally to perform such functions?
1.16 It is for these reasons that it is proposed that these two occupations are removed from the schedule of registered occupations until such time that the occupations are registered with a relevant statutory authority in the UK.
1.17 Paragraph 1.6 also addressed the ‘anomaly’ that some local Chiropractors are registered with the Chiropractic Council under the UK Chiropractors Act 1994, whilst others are not. For similar reasons as stated above it is proposed that Chiropractors are removed from the schedule of registered occupations until such time that all Chiropractors can be registered with the Chiropractic Council under the UK Chiropractors Act 1994.
2 Cancelling registration
2.1 There are specific provisions for cancelling registration under Article 10 of the Law on the motion of the AG for specific circumstances. However, there is an anomaly in the Law - that being that if an individual correctly registers under the local Law and subsequently is removed from a register prescribed in Article 3 (1) (b) - in essence one of the UK regulatory authorities, there is no current mechanism to deregister them locally.
2.2 It is not proposed to include under Article 10 of the Law such a provision since this requires recourse to the AG and the courts.
Drafting Proposals
2.3 It is proposed that the Minister shall have the power to cancel a person’s registration if the person is not registered under a prescribed register under Article (3) (1) (b).
3 New registrable occupations (Regulation and Order)
Drafting Proposals
3.1 The Law will be amended to include the following occupations as registrable occupations under the Health Care (Registration) (Jersey) Law 1995.
3.2 To amend by regulation the list of registrable occupations specified in the schedule to this Law to include –
Operating Department Practitioners
Art Therapists
3.3 To prescribe by Order Article 3 (b) and 17 the qualifications for that registrable occupation that being an entry as for the said occupations above in the register established and maintained under Article 5 of the Health Professions Order 2001 of the United Kingdom.
Social Workers registration
3.4 Unlike healthcare professionals, social workers in England and in Jersey have not had protection of title. The title ‘social worker’ became protected in England from 1 April 2005, when a new legal restriction contained in Section 61 of the Care Standards Act 2000 came into force. As with the principle for healthcare professional in the UK and locally, it has been introduced to ensure that only those who are properly qualified, registered and accountable for their work describe themselves as social workers. It is now a criminal offence for an unregistered person to use the title ‘social worker’ with intent to deceive, from 1 April 2005 in England.
Drafting Proposals
3.5 As with healthcare professionals the proposal is to include social workers as a registrable occupation under the Health Care (Registration) (Jersey) Law 1995.
3.6 The Law will be amended to include the following occupation as registrable occupation under the Health Care (Registration) (Jersey) Law 1995.
3.7 To amend by regulation the list of registrable occupations specified in the schedule to this Law to include –
Social Worker
3.8 To prescribe by Order Article 3 (b) and 17 the qualifications for that registrable occupation that being an entry as for the said occupation above in the register established and maintained by the General Social Care Council under section 56 of the Care Standards Act 2000.
Minor Amendment
4.1 To insert the word Podiatrist alongside Chiropodist in the Schedule of the Health Care (Registration) (Jersey) Law 1995; and similarly insert the word Podiatrist alongside Chiropodist in column 1 and 2 of the Health Care (Registration) (Prescribed Qualifications) (Jersey) Order 200-
Andrew Bannister
Assistant Director
Corporate Planning
And Performance Management
31 May 2006
[1] Applied, but not presently registered with the HPC – registered locally but not by prescribed qualification - would register by prescribed qualification once registered with HPC.
[2] If during the course of the drafting process Clinical Psychologists are approved to be registered by the HPC even if not actually registered at that time the occupation would remain on the schedule of registered occupations.
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