Capacity and
Self-Determination (Independent Capacity Advocates) (Jersey) Regulations 2018
1 Interpretation
(1) In these
Regulations –
“authorized person” means any person empowered or
enabled, by Article 51, 64 or 65 of the Law, or by any subordinate
provision under the Law, to instruct or nominate an ICA to represent any other
person;
“ICA” means a person appointed to act as an advocate,
within the meaning given by Article 61(2) of the Law;
“Law” means the Capacity and Self-Determination (Jersey)
Law 2016;
“Mental Health Law” means the Mental Health (Jersey) Law 2016;
“provider” means a provider of advocacy services, being
a person other than the Minister (including a voluntary organization) which
employs or engages individuals to provide services as ICAs;
“qualifying person” means a person lacking capacity in
respect to a matter and requiring the help of an ICA, under Article 51 or
Part 6 of the Law.
(2) A word or expression
used in these Regulations which also occurs in the Mental Health Law shall have
the same meaning for the purposes of these Regulations as the meaning given to
it by the Mental Health Law.
2 Minister
to appoint independent capacity advocates (“ICAs”)
(1) The Minister must make
arrangements for the appointment, either directly or by a provider, of
individuals to act as ICAs.
(2) No individual shall be
appointed under paragraph (1) unless –
(a) in
the case of an appointment by the Minister, the Minister is satisfied that the
individual fulfils the conditions in Regulation 3; or
(b) in
the case of an appointment by a provider –
(i) the arrangements
made between the Minister and that provider include a requirement that the
provider be satisfied, in making the appointment, that the individual fulfils
the conditions in Regulation 3, and
(ii) the
provider is so satisfied.
(3) The Minister may only
make arrangements under this Regulation if he or she has had due regard to the
diverse circumstances (including but not limited to the ethnic, cultural and
demographic needs) of qualifying persons.
(4) In particular, and
without prejudice to the generality of paragraph (3), in making
arrangements under this Regulation the Minister must ensure that, so far as
practicable and as the Minister considers reasonable, there are appointed ICAs
with understanding of, and ability to communicate with, qualifying
persons –
(a) who
are from cultural or ethnic groups forming a minority among the population of
Jersey; or
(b) who
have physical or sensory impairments, learning disabilities or autistic
spectrum disorders.
3 Conditions
for appointment as ICA
(1) The conditions
mentioned in Regulation 2(2) are that the individual in
question –
(a) has
appropriate experience and training such as may be further specified in a code
of practice issued by the Minister under Article 68 of the Law;
(b) is an
individual of integrity and good character; and
(c) is
able to act independently, including independently of any person who requests
the individual to visit or interview a qualifying patient.
(2) Evidence provided for
the purpose of demonstrating fulfilment of the condition in paragraph (1)(b)
must include, in respect of the individual in question, an enhanced criminal
record certificate issued under section 113B of the Police Act 1997
of the United Kingdom as extended to Jersey, with modifications, by the Police
Act 1997 (Criminal Records) (Jersey) Order 2010 (S.I. 1997/765
of the United Kingdom).
(3) In the case of an
appointment by a provider, the arrangements made between the Minister and that
provider must include a requirement that such a certificate as described in
paragraph (2) be provided.
(4) The Minister may by
Order prescribe such further terms and conditions as to the appointment of ICAs
as the Minister may think fit.
4 Powers
and functions of ICAs: general
(1) Without prejudice to
the generality of Part 6 of the Law, where an authorized person instructs
or nominates an ICA to represent a qualifying person, the ICA must determine
how best in all the circumstances to represent the qualifying person’s
interests.
(2) In carrying out the
general obligation in paragraph (1) and the functions in Article 63
of the Law, an ICA must, in particular –
(a) verify
that his or her instructions are given by an authorized person;
(b) to
the extent that it is practicable and appropriate to do so, interview the
qualifying person (and where necessary, in private);
(c) to
the extent that it is practicable and appropriate to do so, inspect the
qualifying person’s health records, including –
(i) any record made
or held by the Minister or the Health and Social Services Department, and
relevant to a decision which is to be made in respect of, or on behalf of, the
qualifying person,
(ii) any
record made or held by a person registered under the Health Care (Registration) (Jersey) Law 1995 or the Nursing and Residential Homes (Jersey)
Law 1994, and relevant to the functions carried out by the ICA, and
(iii) any
record made or held by a person (other than such a person as mentioned in
clause (i) or (ii)) providing domiciliary care to P, and relevant to the
functions carried out by the ICA;
(d) to
the extent that it is practicable and appropriate to do so, consult any person
who, to the ICA’s knowledge or belief –
(i) provides, in a
professional capacity, care or treatment to the qualifying person, or
(ii) is
otherwise such a person as mentioned in Article 6(4) of the Law; and
(e) take
all such other steps as are practicable and as the ICA considers necessary, to
obtain information about the qualifying person and about the matter in relation
to which the qualifying person lacks capacity.
(3) Where the qualifying
person is detained in an approved establishment, the managers of that
establishment must, for the purposes of paragraph (2)(b), ensure that the
ICA is able at all reasonable times to gain access to the qualifying person.
(4) Following the exercise
of any function under this Regulation or under Part 6 of the Law, the ICA
must provide a report in writing to the authorized person who instructed or
nominated the ICA.
(5) An ICA must perform his
or her functions under this Regulation and under Part 6 of the Law in a
timely manner and in accordance with any further provisions made by way of a
code of practice issued by the Minister under Article 68 of the Law and
relating to such functions.
(6) In paragraph (2)(c),
“health records” means any records –
(a) consisting
of information relating to the physical or mental health or condition of an
individual; and
(b) made
by or on behalf of a person acting in a professional role in connection with
the care or treatment of that individual.
5 Powers
of ICAs to challenge decisions
Where –
(a) an ICA has been
instructed or nominated to represent a qualifying person in relation to any matter;
and
(b) a decision affecting
the qualifying person (including a decision as to his or her capacity) is made
under the Law in that matter,
the ICA shall have the same rights to challenge that decision as he
or she would have if he or she were a person (other than an ICA) caring for the
qualifying person or otherwise interested in the qualifying person’s
welfare.
6 Cessation
of services of ICA
(1) The provision of
services by any individual ICA to any particular qualifying person shall cease
upon the occurrence of any of the events listed in paragraph (2).
(2) The events mentioned in
paragraph (1) are that –
(a) the
qualifying person regains capacity to the extent that he or she no longer
requires the services of the ICA;
(b) the
qualifying person, or that person’s attorney or delegate, makes a request
to the Minister or the provider (as the case may be) for the appointment of a
different individual ICA, and the request is approved;
(c) the
ICA is unable to provide such services because he or she –
(i) ceases to be
domiciled in Jersey,
(ii) is
under sentence of imprisonment,
(iii) is
declared bankrupt,
(iv) lacks
the capacity to provide such services, or
(v) is suspended from any
appointment by the Minister or by a provider;
(d) the
appointment of the ICA is terminated under Regulation 7;
(e) in
the case of the provider in question being a registered charity within the
meaning given to that term by the Charities (Jersey) Law 2014 or an entity meeting the
charity test under that Law, the provider ceases to be so registered or to meet
that test;
(f) in
the case of the provider in question being a company registered under the Companies (Jersey) Law 1991, the provider ceases to be
so registered.
(3) Where the services of
the ICA were provided by the Minister, upon the occurrence of such an event as
listed in paragraph (2)(c) or (d) the authorized person must take all such
steps as are reasonable to ensure that the qualifying person (and with the
consent of the qualifying person, his or her nearest person) is informed of –
(a) the
date when those services are to cease; and
(b) relevant
details of the services which are to be provided in substitution for the
services which have ceased,
and must do so before the date mentioned in sub-paragraph (a)
or as soon as reasonably practicable after that date.
(4) Where the services of
the ICA in question were provided to the qualifying person in question by a
provider, upon the occurrence of such an event as listed in paragraph (2)(c),
(d), (e) or (f) –
(a) the
provider must inform the Minister, as soon as reasonably practicable, of the
occurrence of the event; and
(b) the
authorized person must take all such steps as are reasonable to ensure that the
qualifying person (and with the consent of the qualifying person, his or her
nearest person, if any) is informed of –
(i) the date when
those services are to cease, and
(ii) relevant
details of the services which are to be provided in substitution for the
services which have ceased,
and must do so before the date mentioned in clause (i) or as
soon as reasonably practicable after that date.
(5) The authorized person
must also give the same information as is required to be given under paragraph (3)(b)
or (4)(b) –
(a) in
the case of a qualifying person who is liable to detention under the Mental
Health Law, to the qualifying person’s responsible medical officer; or
(b) in
the case of a qualifying person who is subject to guardianship under the Mental
Health Law, to the qualifying person’s guardian.
7 Termination
of appointment of ICA
(1) Where an individual
ceases to fulfil any of the conditions for appointment specified in
Regulation 3 –
(a) in
the case of an individual appointed by the Minister, the Minister must
terminate the appointment;
(b) in
the case of an individual appointed by any provider, that provider must
terminate the provision of services by that individual; and
(c) the
individual must immediately cease to provide services as an ICA.
(2) The Minister or the
provider, as the case may be, must as soon as reasonably practicable give
notice in writing of termination of an appointment under this Regulation, to –
(a) the
individual in question;
(b) any
qualifying persons to whom services were provided by the individual; and
(c) in
relation to each such qualifying person, any nearest person (with the consent
of the qualifying person), responsible medical officer, guardian or managers of
an approved establishment, as the case may be,
and the Minister or provider must take all such steps as are
reasonable, including but not limited to giving notice in writing, to ensure
that any qualifying person and any other person mentioned in sub-paragraph (c)
is informed of relevant details of services which are to be provided in
substitution for the services which have ceased as a result of the termination
of appointment.
(3) A provider which
continues, in breach of paragraph (1)(b), to provide services by an ICA
whose appointment has been terminated, is guilty of an offence and liable to a
fine of level 3 on the standard scale.
(4) An individual whose
appointment as an ICA has been terminated but who nevertheless –
(a) holds
himself or herself out as providing the services of an ICA; or
(b) by
his or her omission, allows another person to believe that he or she is capable
of providing such services or entitled or authorized to provide such services,
is guilty of an offence and liable to a fine of level 3 on the
standard scale.
8 Fees
and expenses of ICAs
The Minister may by Order make provision regarding payment of fees
to, and the reimbursement of expenses of, ICAs providing services under these
Regulations (whether individually or by way of providers), including (but not
limited to) provision as to the level of such fees, and different provision for
different cases or types of case.
9 General
(1) The appointment of ICAs
under these Regulations is without prejudice to and shall not affect the
appointment of an independent mental health advocate or any entitlement to the
help or services of an independent mental health advocate under the Mental
Health Law.
(2) Notwithstanding
paragraph (1), an individual may be appointed as an ICA and as an
independent mental health advocate, whether generally or in relation to an
individual qualifying patient.
10 Citation
These Regulations may be
cited as the Capacity and Self-Determination (Independent Capacity Advocates)
(Jersey) Regulations 2018.