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Statutory Rules of Northern Ireland
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STATUTORY RULES OF NORTHERN IRELAND

2005 No. 44 (C. 4)

HEALTH AND PERSONAL SOCIAL SERVICES

The Health and Personal Social Services (Quality, Improvement and Regulation) (2003 Order) (Commencement No. 3 & Transitional Provisions) Order (Northern Ireland) 2005

  Made 17th February 2005 

The Department of Health, Social Services and Public Safety, in exercise of the powers conferred on it by Article 1(3) and 48(2) of the Health and Personal Social Services (Quality, Improvement and Regulation) (Northern Ireland) Order 2003[1], and of all other powers enabling it in that behalf, hereby makes the following Order:

Citation and interpretation
     1.  - (1) This Order may be cited as the Health and Personal Social Services (Quality, Improvement and Regulation) (2003 Order) (Commencement No. 3 & Transitional Provisions) Order (Northern Ireland) 2005.

    (2) In this Order, unless the context otherwise requires -

Appointed day
     2. Subject to the remaining provisions of this Order, 1st March 2005 is the appointed day for the coming into operation of the provisions of the 2003 Order specified in Schedule 2, for the purposes only of authorising the making of regulations.

     3. 1st April 2005 is the appointed day for the coming into operation of the provisions of the 2003 Order as described in Schedule 1, in so far as they are not already in operation.

Deemed registration of certain establishments and agencies
     4. Where on the commencement date a person who carries on or manages an establishment or agency to which any of the paragraphs of Article 5 applies, that person is to be treated for all purposes as if he had been registered under Part III of the 2003 Order on that date.

Persons who carry on or manage an establishment or agency are deemed to be registered
     5.  - (1) This Article applies to:

    (2) This paragraph applies to a person carrying on an independent hospital or an independent clinic, which is substantially the same as a nursing home, in respect of which he was, immediately before the commencement date, registered under the 1992 Order as a person carrying on a nursing home and on the commencement date will be carrying on or managing an independent hospital or clinic.

    (3) This paragraph applies to a person carrying on a nursing agency in respect of which he was, immediately before the commencement date, the holder of a licence issued under the 1971 Act.

Duration of Deeming
     6. Where a person is deemed to be registered under Article 4, registration shall cease to have effect -

Certificates, Notices and Licences
     7.  - (1) Where a person who carries on or manages an establishment or agency is, by virtue of Article 4, to be treated as if he had been registered under the 2003 Order, and -

that certificate, notice or licence shall be treated for the purposes of the 2003 Order as if it was the certificate issued under Article 14 of that Order.

    (2) Where no such certificate, notice or licence has been issued as specified in paragraph (1), Article 28 of the 2003 Order shall not apply to a person who carries on or manages an establishment or agency, until the Regulation and Improvement Authority has issued a certificate of registration under that Order.

Continuation of existing conditions
     8. Where a person carrying on or managing an establishment or agency is treated as having been registered by virtue of Article 4, any conditions -

as the case may be shall, so far as they are capable of being conditions to which registration under the 2003 Order is subject, have effect from the commencement date as if they were such conditions which had for the purposes of Article 20 of that Order been agreed in writing between the Regulation and Improvement Authority and the person who carries on or manages the establishment or agency.

Notices of Cancellation, Variation or Additional Condition under the 1992 Order [Residential Care Homes]
     9.  - (1) This Article applies -

    (2) Where this Article applies -

    (3) Where a person to whom paragraph (1)(a) applies, has before the commencement date, applied to the Board specified in paragraph (1)(b) under Article 7(4) of the 1992 Order to impose an additional condition or to vary an existing condition and the Board has not by that date given notice under Article 11(4)(b) of the 1992 Order, the application shall be treated as an application to the Regulation and Improvement Authority, made on that date in accordance with the requirements of Article 16 of the 2003 Order.

Notices of Cancellation, Variation or Additional Condition under the 1992 Order [Nursing Homes]
     10.  - (1) This Article applies where -

    (2) Where this Article applies -

    (3) Where a person to whom paragraph (1)(a) applies has before the commencement date applied to the Board, specified in paragraph (1)(b) under Article 20(4) of the 1992 Order to impose an additional condition or to vary an existing condition and the Board has not by that date, given notice under Article 24 (4) of the 1992 Order, the application shall be treated as an application to the Regulation and Improvement Authority, made on that date in accordance with Article 16 of the 2003 Order.

Notices of Cancellation, Variation or Additional Condition under the 1995 Order [Children's Homes]
     11.  - (1) This Article applies -

    (2) Where this Article applies -

    (3) Where a person to whom paragraph (1)(a) applies has before the commencement date applied to the Board specified in paragraph (1)(b), under Article 81(2) or 97(2) of the 1995 Order, to impose an additional condition or to vary an existing condition and the Board has not by that date given notice under Article 83 or 99 of the 1995 Order, the application shall be treated as an application to the Regulation and Improvement Authority made on that date, in accordance with Article 16 of the 2003 Order.

Proposals under the 1971 Act [Nursing Agencies]
     12.  - (1) This Article applies where -

before that date the period of 14 days referred to in Section 13(2) has not expired.

    (2) Where this Article applies -

Pre-commencement applications for registration
     13.  - (1) Where before the commencement date a person, other than a person to whom Article 5(1) or 7(1) applies, has made an application to -

the application shall, unless it is one to which paragraph (2) applies, be treated as if it had been made to the Regulation and Improvement Authority on that date in accordance with Article 13 of the 2003 Order, for registration.

    (2) This paragraph applies to an application specified in paragraph (1) where -

    (3) Where paragraph (2) applies -

    (4) In this Article -



Sealed with the Official Seal of the Department of Health, Social Services and Public Safety on


17th February 2005.

L.S.


N. McCann
Senior Officer of the Department of Health


SCHEDULE 1

PROVISIONS OF THE ORDER COMING INTO OPERATION ON 1st APRIL 2005


Provision of the Order Subject Matter Purposes
Column 1 Column 2 Column 3
Article 4 General duties in relation to provision of services All purposes.
Article 5 Advice and information about services All purposes.
Article 7 Annual Report All purposes.
In Article 8 - Paragraphs (1)(a), (c), (d), (e), (f) and (h). Paragraphs (2)(c), (d) and (f). Paragraphs(3) and (4). Regulated establishments and agencies: general interpretation All purposes.
Articles 9 to 14 Establishments and Registration All purposes.
In Article 15 Paragraphs (1), (2)(a) to (d) and (3) Cancellation of registration All purposes.
Articles 16 to 33 inclusive Registration - applications, regulations, appeals, offences, annual returns etc All purposes.
Article 35 Role of the Regulation and Improvement Authority All purposes.
In Article 38 Paragraph (4) Statements of minimum standards All purposes.
Article 39 Improvement notices All purposes.
In Article 40 Paragraphs (1), (2) and (3)(a), Power to require information and power of entry and inspection All purposes.
(3)(b)      In so far as it relates to the requirements under regulations under Part III.
(3)(c) to (e) , (4) to (7)      All purposes.
Articles 41 to 43 Inspections and Disclosure of information All purposes.
Article 44 The Care Tribunal All purposes.
Article 45 Arrangements for provision of accommodation outside Northern Ireland All purposes.
Article 49 Transitional Provisions and Savings For the purpose only of commencing paragraph 3 of Schedule 3.
Article 50 Amendments and Repeals For the purposes of commencing certain provisions in Schedules 4 and 5.
In Schedule 2 The Care Tribunal All purposes.
In Schedule 3 Paragraph (3) Saving for amendments All purposes
In Schedule 4 Amendments In so far as it relates to -

The Health and Personal Social Services (Northern Ireland) Order 1972[5]; The Mental Health (Northern Ireland) Order 1986[6]; The Adoption (Northern Ireland) Order 1987[7] only in so far as it relates to amendments to Article 33(2)(a)(ii) of that Order); The Disabled Persons (Northern Ireland) Act 1989[8]; The Children (Northern Ireland) Order 1995, except in so far as it applies to amendments to Article 149(5); The Commissioner for Complaints (Northern Ireland) Order 1996[9]; The Health and Personal Social Services Act (Northern Ireland) 2001[10]; The Justice (Northern Ireland) Act 2002[11]; The Protection of Children and Vulnerable Adults (Northern Ireland) Order 2003[12].
In Schedule 5 Repeals In so far as it relates to -

The Nursing Homes and Nursing Agencies Act (Northern Ireland) 1971; The Nurses, Midwives and Health Visitors Act 1979[13]; The Employment (Miscellaneous Provisions) (Northern Ireland) Order 1981[14]; The Registered Homes (Northern Ireland) Order 1992; The Children (Northern Ireland) Order 1995; The Arbitration Act 1996[15]; The Nurses Midwives and Health Visitors Act 1997[16]; The Health and Personal Social Services Act (Northern Ireland) 2001; The Justice (Northern Ireland) Act 2002; The Protection of Children and Vulnerable Adults (Northern Ireland) Order 2003.



SCHEDULE 2

PROVISIONS OF THE ORDER COMING INTO OPERATION ON 1st MARCH 2005 FOR THE PURPOSES ONLY OF THE MAKING OF THE REGULATIONS.


Provision of the Order Subject Matter Purposes
Column 1 Column 2 Column 3
Articles 9 to 11, 13, 15 to 17, 23, 25, 30 to 33, 40 and 44 Establishments, Registration, Power to require information and entry and inspection For the purposes of authorising the making of regulations


EXPLANATORY NOTE

(This note is not part of the Order.)


This Order brings into operation on 1st April 2005, further provisions of the Health and Personal Social Services (Quality, Improvement and Regulation) (Northern Ireland) Order 2003 ("the 2003 Order").

Regulation 2 and Schedule 1 set out the provisions of the 2003 Order which are to come into operation on 1st April 2005. Regulation 3 and Schedule 2 set out the provisions of the Order which are to come into operation on 1st March 2005 for purposes of exercising powers to make regulations.

The commencement of these Articles includes a duty on the Regulation and Improvement Authority to keep the Department informed about the provision of services, including their availability and quality and to encourage improvement in the quality of services (Article 4) and advice to the Department on standards and provision of these services (Article 5). The Regulation and Improvement Authority is required to produce an annual report to the Department (Article 7). This Order commences provision of powers to the Regulation and Improvement Authority from 1st April 2005 for regulation (Articles 8, 9, 10 and 11 and 23) and registration (Articles 12 to 21) of children's homes; independent clinics; independent hospitals; nursing homes; residential care homes; independent medical agencies and nursing agencies (Articles 8, 9, 10 and 11 and Article 23) and right of appeal to, and provision for the Care Tribunal (Articles 22, 44 and Schedule 2).

Provision for offences and proceedings (Articles 24 to 29) are also commenced, including the taking into account of minimum standards in the making of any decision by the Regulation and Improvement Authority to cancel registration, in proceedings on appeal and in any proceedings for an offence (Article 38 (4)).

Power is provided to issue Improvement Notices to persons registered under Part III of the Order, HSS Boards or Trusts or special agencies (Article 39), and power to require information and power of inspection (Articles 40, 41, 42) are commenced.

Articles 4 to 13 of this Order contain transitional arrangements. Article 4 provides for certain persons carrying on or managing existing establishments or agencies, which are either registered under the pre-commencement statutory regime or which are inspected as if that regime applied, to be treated as already registered under Part III of the Order. Article 6 provides for the period of deeming to apply for six months and, where the person carrying on or managing the establishment or agency has applied to the Regulation and Improvement Authority within that period for registration under the 2003 Order, a further six months. Under Article 7, where a person is deemed to be registered under the 2003 Order by virtue of this Order, any existing certificate of registration, notice or licence is to be treated as if it were issued under Article 14 of the Order. Where there is no certificate, notice or licence, the requirement to display is disapplied until a certificate notice or licence is issued. Where a service is deemed to have been registered by virtue of this Order, Article 8 provides that any existing conditions of registration are treated as if they were agreed conditions of registration under the 2003 Order. Articles 9 to 12 deal with the situation where the person carrying on an establishment or agency is deemed to be registered under the 2003 Order but the original registration or licence has proposed to cancel the registration or to impose or vary a condition of registration. In such cases the pre-commencement law is preserved for purposes of determining whether proposed action is to be taken and, where it is, the outcome is to be treated as if it had been reached by the Regulation and Improvement Authority under the 2003 Order. Article 13 preserves the pre-commencement law for purposes of determining applications for registration under the law which have not been dealt with before 1st April 2005. Once determined by the original registration or licensing authority, the result is to be treated as if the decision had been made by the Regulation and Improvement Authority.

Schedule 1 of this Order commences amendments in Schedule 4 of the 2003 Order, not previously commenced in the earlier Commencement Orders with the exception of certain amendments to The Adoption (Northern Ireland) Order 1987, the Adoption (Intercountry Aspects) Act (Northern Ireland) 2001 and the Children (Northern Ireland) Order 1995, which are to be commenced at a later date.

Schedule 2 of this Order commences the repeals in Schedule 5 of the 2003 Order, with the exception of repeals to the Adoption (Northern Ireland) Order 1987 and the Adoption (Intercountry Aspects) Act (Northern Ireland) 2001 which are to be repealed at a later date.


NOTE AS TO EARLIER COMMENCEMENT ORDERS

(This note is not part of the Order.)


The following provisions of the Health and Personal Social Services (Quality, Improvement and Regulation) (Northern Ireland) Order 2003 were brought into operation by the Health and Personal Social Services (Quality, Improvement and Regulation) (2003 Order) (Commencement No. 1) Order (Northern Ireland) 2003 (No. 239 c. 18) on 25th April 2003:

Notes:

 [1] S.I. 2003/431 (N.I. 9)back

[2] S.I. 1995/755 (N.I. 2)back

[3] 1992/3204 (N.I. 20)back

[4] 1971 c. 32back

[5] 1972/1265 (N.I. 14)back

[6] S.I. 1986/595 (N.I. 4)back

[7] S.I. 1987 (N.I. 22)back

[8] 1989 (c. 10)back

[9] 1996 No. 1297 (N.I. 7)back

[10] 2001 c. 3 (N.I.)back

[11] 2002 c. 26back

[12] S.I. 2003/417 (N.I. 4)back

[13] 1979 c. 36back

[14] 1981 No. 839 (N.I. 20)back

[15] 1996 c. 23back

[16] 1997 c. 24back


ISBN 0 337 95838 6


  © Crown copyright 2005

Prepared 1 March 2005

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URL: http://www.bailii.org/nie/legis/num_reg/2005/20050044.html