STATES OF JERSEY
DRAFT REGULATION OF CARE (JERSEY) LAW 201 - (P95/2014)
SCRUTINY PANEL REPORT & RECOMMENDATIONS
COMMENTS
_______________________________________
Presented to the States on July 1st 2014
By the Minister for Health & Social Services
COMMENTS
INTRODUCTION
First and foremost, the Draft Regulation of Care (Jersey) Law is about ensuring the safety and well-being of vulnerable people in Jersey. Those who, when being cared for, either in their own homes, or while in Health and Social Services residential or long term nursing care, are not currently protected by regulation.
Some of these people, particularly those being cared for at home, are at the highest risk of abuse, ill-treatment and exploitation, yet our existing Laws, designed to protect them, are over 30 years out of date.
People are often surprised to learn that most of the care provided in Jersey is not regulated, and there is a public expectation, or rather a demand, that we must do something about it.
Current legislation is unsatisfactory. In some areas, it is effectively non-existent.
This new legislation is essential if we are to maintain public confidence in care services in Jersey.
It is also important to note that, while care homes and domiciliary care will be the first Regulated Activities, under the new legislation, cosmetic procedures, acute hospital services, social services and primary care will all follow in due course.
RESPONDING TO THE SCRUTINY PANEL RECOMMENDATIONS
I am grateful to the Panel and their adviser for their comments about the Draft Regulation of Care Law 201-
I agree with many of the recommendations in the Scrutiny Panel Report. Indeed, the draft Law, the policy on which the Law is based, States report R42/2013 and the outcome of the recent stakeholder consultation, all address the very issues the Adviser has raised.
I cannot agree, however, with the adviser’s first recommendation to “suspend signing off the Regulation of Care Law 201- until the Care Act 2014 consultation on market oversight – monitoring financial sustainability guidance is completed which could then be used as a base for inclusion due to be implemented by April 2015”.
The consequences of a decision to delay approving this Law, on the basis of waiting to see what happens next in the UK, could be serious and significant. Jersey has been down that route with other legislative projects in the past.
If we take the view that we should wait, because the UK is considering changes, the reality is that Jersey legislation may never get completed and that is an unacceptable risk for the States to take.
The panel adviser accepts the Law is ‘fit for purpose’ and makes no suggestions for any amendments to the Primary Law.
She states that “Overall, the draft law provides a sound framework for regulating health and social care services, which reflects the key aspects of the requirements particularly identified in the England regulatory standards at present.”
The draft Law is not just ‘cut and pasted’ from UK legislation.
It was carefully formulated, taking into consideration local experience of regulating care services, as well as the deficiencies of the UK regulatory framework. The draft Law is designed to ensure that Jersey does not replicate the defects of the UK system, the consequences of which have been tragic.
I, and my Department, concur with most of what the Panel is suggesting.
Indeed, there is very little that we haven’t already considered and incorporated, either in the draft Law or in the legislation policy
However we do not agree with the recommendation to suspend the Law until the UK brings in legislation relating to market oversight and providers’ financial stability.
The reason they have given is misguided, in that much of the proposed UK law is irrelevant in Jersey, and the section about CQC’s role in requiring providers to give the regulator financial information is already provided for in the draft Jersey Law.
Most of the questions about the appointment of the Commission are already set out in Schedule 2 of the draft Law, while questions about the recruitment process itself are answered in the Jersey Appointment Commission’s Code of Practice on appointments to autonomous public bodies.
Of the other recommendations in the Adviser’s Report:
- We have already given an undertaking to consult with stakeholders about Regulations; we do not need to update the Law as it already contains the necessary provisions.
- The commission will be created independently using a transparent process, in that it will follow the requirements set out in the legislation and the JAC code of practice
- Provision will be made for the Law to be reviewed following implementation, in accordance with good legislation practice. However, we would argue that 12 months is unrealistic and too short a period to gauge how effectively a new Law is working
- It is anticipated the Commission will set a strategy. However, as an independent autonomous public body, it will decide about producing a strategy and its timeframe
- The Commission will be responsible for the implementation of the Law and Regulations once enacted. There will, however, be a project lead and a project plan, together with a legislation team for the drafting of the Regulations and Standards who will ensure stakeholder engagement.
- An undertaking to consult with stakeholders in development of the Regulations has already been given.
- The Commission will also be responsible for developing the Standards.
- However, it is likely these will be service specific - as is the case in Scotland, Northern Ireland and Wales.
- The CQC model of having the same standards for high tech, acute hospital services and small group homes for people with Learning Disabilities is not sensible, nor is it sufficiently responsive to the varying, and often complex, needs of different services
- Once established, the Independent Commission will be responsible for providing information and developing the framework to support all providers in understanding their responsibilities, interpreting standards, implementing outcomes, registering for the first time etc.
- It is anticipated that the Commission will have an infrastructure to support its regulatory activities.
- In terms of reviewing and maintain standards, the Commission is to review any standards under Article 15 of the draft Law
In preparing the Draft Regulation of Care (Jersey) Law 201 - lessons have been learned. The deficiencies and failures in the UK are well understood and have been taken into account when drafting the Jersey legislation to avoid the same thing happening here.
In terms of Financial and Manpower Implications, the business case in the proposition refers only to the operational costs of the Commission.
It does not include compliance costs for providers. The Panel’s Report, however, ignores the section which acknowledges that most providers are already compliant with the expected requirements and will have little additional costs.
Where there are significant failures in meeting standards, this is likely to be symptomatic of unacceptably low levels of care and, as such, detrimental to the health, safety and welfare of individuals using that service.
The Panel is seeking a detailed cost analysis of all financial implications that will be incurred within specific regulations, but this is not feasible. Any future Regulations brought before the States will, however, include a statement on financial and manpower implications.
Finally, we wholly concur with the Panel’s conclusion. Indeed, we have many times, given an undertaking to ensure that a thorough consultation period is held for each Regulation to allow adequate time for any concerns to be addressed before lodging.
This legislation is of utmost importance and I am happy to agree with the Panel, that future Regulations should be fit for purpose and able to meet the needs of the Island”
SUMMARY
This legislation is about securing the safety and well-being of vulnerable people in Jersey. We know people are at risk, and delaying progress towards legislation that will protect them, when we know the risk that such lack of regulation in this area continues to present, is not a decision that I would want to be a part of.
That the UK has yet to finalise its care legislation, to put right the deficiencies of their existing regulation, is not good reason to delay putting our own house in order, and I would urge Members to support the Proposition, allowing the next steps towards regulation to be progressed with the utmost priority.
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