UK Offence Report

Fitness of employees

regulation 8(2) of The Healthcare Improvement Scotland (Requirements as to Independent Health Care Services) Regulations 2011

This offence was read from the text as made, and no revised version was available, so a later revocation could not be ruled out. Check the current text at legislation.gov.uk.

What the provision says

2 The following persons are unfit to be employed in the provision of an independent health care service:— a a person who does not have the qualifications, skills and experience necessary for the work that the person is to perform; b any person to whom regulations5(2)(a) or 6(2)(d) apply; c any person who has been convicted, whether in the United Kingdom or elsewhere, of any offence which is punishable by a period of not less than 3months and has been sentenced to imprisonment (whether or not suspended or deferred) for any period without the option of a fine and who in the reasonable opinion of the manager of an independent health care service is unsuitable to work in that service.

Text as made, from legislation.gov.uk. © Crown copyright, reused under the Open Government Licence v3.0. This is the text as originally made; later amendments are not shown here.

Who it binds, and what has to be proved

Binds
a person
Conduct
breaching the provision
Fault element
Strict liability
Burden of proof
No statutory defence — prosecution proves everything

The prosecution must prove that the conduct happened. This is a strict liability offence as drafted: the provision uses no word of intention, knowledge, recklessness or negligence, so there is no need to show that a person meant to do it, knew about it, or was careless.

Intention, knowledge and carelessness are irrelevant to guilt. They may still matter a great deal to sentence.

The provision states no defence, so the prosecution bears the burden on every element of the offence.

Classifier’s reasoning: no word of intention, knowledge, recklessness or negligence in the offence or its provision.

What would breach regulation 8(2)?

These are illustrations, not law. They are generated from the provision’s own words to show the shape of the offence. Whether any particular conduct is caught depends on the full text, on any amendment since, and on the facts.

  1. Doing what the provision prohibits, or failing to do what it requires under the Healthcare Improvement Scotland (Requirements as to Independent Health Care Services) Regulations 2011.

Penalty

Mode of trial
Not determined
Maximum fine
Not determined
Maximum prison (summary)
Not determined

no penalty is stated in this instrument; it may be in the enabling Act, or in a general penalties provision this pass did not connect to the offence.

No penalty was determined from this instrument. It may be in the enabling Act, or in a general penalties provision this pass did not connect to the offence. Absence of a figure here is not evidence that the offence carries no penalty.

Sentencing

Offences of this kind are usually sentenced under the guidelines below. This is a mapping by subject, not a finding about this provision, and the links go to a search of the Sentencing Council’s own site.

Prosecution figures

No published per-offence figure was found for this provision, and it could not be matched to a Ministry of Justice offence code. Offences created by statutory instrument very largely do not have one. Absence of a figure is not evidence that the offence is unused.

Status and lifecycle

Current status
Status not determined
Made
8 March 2011
In force from
1 April 2011
Extent
Not stated

How this was established: read from the text as made; no revised version available, so later revocation could not be ruled out.

What the instrument is for

(This note is not part of the Regulations) — the explanatory note published with the instrument, © Crown copyright.

These Regulations set out requirements which must be complied with by providers of independent healthcare services under the National Health Service (Scotland) Act 1978. An independent healthcare service must be provided in accordance with the general principles set out in regulation2. Regulation3 imposes requirements on providers which relate to the welfare of service users. In accordance with regulation4 the provider is required to prepare a patient care record for each service user setting out how the service user’s care will be delivered. The Regulations specify persons who are not fit to provide (regulation5), manage (regulation6) or be employed in an independent healthcare service (regulation8). Regulation7 requires a provider to notify Healthcare Improvement Scotland where the provider becomes aware that the manager of the independent health care service becomes unfit to manage the service. The Regulations also make provision as to whether persons listed in either the children’s or adults list in the Protection of Vulnerable Groups (Scotland) Act 2007 are fit to provide, manage or be employed in an independent healthcare service (regulation9). Regulation10 makes provision as to fitness of premises. Regulation11 imposes requirements as to facilities for service users. Regulation12 imposes requirements as to staffing. Regulation13 requires providers to ensure the service delivered is of an appropriate quality. Regulation14 makes provision as to the manager of an independent healthcare service. Regulation15 requires the establishment of a complaints service and regulation16 provides that contravening or failing to comply with certain provisions of these Regulations is an offence. A person who commits an offence under these Regulations is liable on summary conviction to a fine not exceeding level5 on the standard scale.

Read the full note and every offence in this instrument

Other offences in the same instrument

How this was identified as an offence

Everything above rests on the judgement that this provision creates a criminal offence, rather than mentioning one. That judgement is made by rule, from the words of the provision, and this is the rule that made it — with a confidence of 0.60.

Basis
the provision says the conduct is “punishable”
Confidence
0.60 of 1.00

A provision that states a penalty for an offence created elsewhere can read very like one that creates an offence, and the rules can mistake the one for the other. If the text quoted above sets a penalty for something made an offence by another provision, treat the classification on this page with that in mind, and read the instrument.

Check the source