Long-Term Care Services (Health and Social Services Charges) (Jersey) Order 2014: Amendment: Law drafting instructions

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A decision made 14 January 2016:

Decision Reference: MD-HSS-2016-0004
Decision Summary Title :	Amendment of the Long-Term Care Services (Health and Social Service Charges) (Jersey) Order 2014 by removing Article 3(b)		Date of Decision Summary:	6 January 2016
Decision Summary Author:	Director – Older Adult Services		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 :	Amendment of the Long-Term Care Services (Health and Social Service Charges) (Jersey) Order 2014 by removing Article 3 (b)		Date of Written Report:	18 December 2015
Written Report Author:	Director – Older Adult Services		Written Report : Public or Exempt? (State clauses from Code of Practice booklet)	Public
Subject: To Allow the Minister to recover a charge for long term care from people subject to Guardianship under Articles 14 and 16 of the Mental Health (Jersey) Law 1969 (The 1969 Law) through an amendment of the Long-Term Care Services (Health and Social Service Charges ) (Jersey) Order 2014.
Decision(s): The Minister approved the removal of Article 3 (b) from the Long-Term Care Services (Health and Social Service Charges) (Jersey) Order 2014 and decided to instruct the Law Draftsman accordingly.
Reason(s) for Decision: In order to act compatibly with the European Convention on Human Rights it is essential that people are only deprived of their liberty if that deprivation is authorised following a procedure prescribed by law that is subject to sufficient safeguards. The Minister has been advised by the law officers department that Articles 14 and 16 of the Mental Health (Jersey) Law 1969 provide such safeguards. This will result in a significant increase in the numbers of people who will require guardianship under the mental health law. Those people who become subject to deprivation of liberty safeguards through the guardianship process should continue to be eligible to access the long-term care scheme.
Resource Implications: None
Action required: For the Minister to instruct the Law Draftsman to remove Article 3 (b) from the Long-Term Care Services (Health and Social Service Charges) (Jersey) Order 2014.
Signature:		Position: Minister for Health and Social Services
Date Signed:		Date of Decision (If different from Date Signed)

Long-Term Care Services (Health and Social Services Charges) (Jersey) Order 2014: Amendment: Law drafting instructions

Health and Social Services

Amendment of the Long-Term Care Services (Health and Social Service Charges) (Jersey) Order 2014 by removing Article 3 (b)

Background

Recent concerns have arisen as to the change in the definition of ‘deprivation of liberty’ following case law in England. Deprivation of liberty safeguards should be in place if a person does not have capacity to consent to the arrangements for their care: and it is necessary to provide that care in circumstances where the person requires close supervision and control, even though the person makes no attempt to resist those arrangements. The Law Officers advise that HSSD is obliged by Article 7 of the Human Rights Law 2000 to ensure that the legal basis for depriving any person of their liberty is compatible with Article 5 of the ECHR.

Key issues

Currently Jersey does not have a Capacity Law with Deprivation of Liberty Safeguards. However, our current Mental Health (Jersey) Law 1969 contains a statutory provision for people suffering from a mental disorder to be deprived of their liberty following a procedure compatible with Article 5 of the ECHR. It also allows the person detained of their liberty sufficient opportunity to challenge the detention.

The use of the Mental Health (Jersey) Law 1969 as a legal process for providing the deprivation of Liberty Safeguard is a pragmatic solution whilst new mental health law and capacity and self-determination laws are being developed. Currently there are 4 people subject to a guardianship order under mental health law. This number will increase significantly as guardianships are introduced to ensure someone who is deprived of their liberty have the appropriate safeguards in place.

The Long–Term Care (Health and Social Service Charges) (Jersey) Order 2014 (“the 2014 Order”) states that a charge shall not be made in respect of a patient who is received into guardianship and required by the Minister to reside in a hospital in pursuance of Article 16 of the 1969 Law. Currently HSSD would not be able to charge people in guardianship. By changing the 2014 Order people subject to guardianship will have the same rights as other people requiring long term care to apply for the Long Term Care Benefit.

18 December 2015

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