UK Offence Report

1 A contravention, or failure to comply with any of the provisions of regulation 5 to 14, 15(1) to (4), 16…

regulation 49(1) of Private and Voluntary Health Care (Wales) Regulations 2002

The provision has been revoked and no saving provision preserving liability for earlier conduct was found.

What the provision says

1 A contravention, or failure to comply with any of the provisions of regulation 5 to 14, 15(1) to (4), 16 to 31, 33 to 41 and 43 to 47 shall be an offence.

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 This is the text as originally made; later amendments are not shown here.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
failing to do something the instrument requires
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 49(1)?

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. Not doing what the provision requires under the Private and Voluntary Health Care (Wales) Regulations 2002, by the time it requires it to be done.
  2. Doing it, but not in the manner or to the standard the instrument specifies.

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
Revoked
Revoked by
The Independent Health Care (Wales) Regulations 2011
Revoked on
5 April 2011
Made
12 February 2002
In force from
1 April 2002
Extent
Not stated

How this was established: the instrument was revoked by a later instrument found in this corpus.

What the instrument is for

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

These Regulations are made under the Care Standards Act 2000 (“the Act”) and apply to independent hospitals and independent clinics in Wales. The Act provides in relation to Wales for the registration and inspection of establishments and agencies, including private and voluntary health care establishments, by the National Assembly for Wales and empower the National Assembly to make regulations governing their conduct. Section 2 of the Act defines a number of “listed services” which (if they are provided in an establishment) bring an establishment within the definition of an independent hospital. Regulation 3 provides that “listed services” include treatment using the prescribed techniques and technology set out in regulation 3(1). Regulation 3(2) then excepts certain techniques and technology from being “listed services”, namely certain infra-red heat treatment, certain laser treatment and the use of ultra violet lamps for acquiring an artificial sun tan. Regulation 3(2) excludes certain establishments from the definition of an independent hospital under section 2 of the Act. The exceptions include establishments providing medical or psychiatric treatment but which have no overnight beds for patients, establishments which are service hospitals under the Armed Forces Act 1981, or which are establishments catering for offenders under the Prison Act 1952. In addition, independent clinics (as defined in these Regulations) are excluded, as well as establishments where general practitioners provide NHS services, but where there may be a small minority of private patients who also receive treatment. The private residence of a patient is also excluded provided that treatment is provided there only to that patient. There are also excluded surgeries and consulting rooms (which are separate from a hospital) which provide medical services under arrangements made on behalf of patients by their employers or others, and sports grounds and gymnasia where treatment is given to those taking part in sporting activities and events. Regulation 3(4) modifies the definition of cosmetic surgery for the purposes of section 2(7) of the Act so that “listed services” do not include ear and body piercing, tattooing, injection of substances into the skin for cosmetic purposes and the removal of hair roots and small blemishes on the skin by the application of heat using an electric current. Regulation 4 defines the meaning of the term “independent clinic”. Each establishment must have a statement of purpose consisting of the matters set out in Schedule 1 and a patients' guide to the establishment which must be kept under review (regulations 5 to 7). By virtue of regulation 5(3) the establishment must be carried on in a manner which is consistent with the statement of purpose. Regulation 8 sets out the policies and procedures which must be prepared and implemented in relation to an establishment. Regulations 9 to 13 make provision about the fitness of the persons carrying on and managing an establishment and require full and satisfactory information to be available in relation to the matters prescribed in Schedule 2. Where the provider is an organisation, it must nominate a responsible individual in respect of whom this information must be available (regulation 9). Regulation 10 and 11 prescribe the circumstances where a manager must be appointed for the establishment and for the fitness requirements of a manager. Regulation 12 imposes general requirements in relation to the proper conduct of an establishment and the need for appropriate training. Regulation 13 requires offences and being charged for certain offences to be notified to the National Assembly. Part III of the Regulations makes provision about the conduct of establishments, in particular about the quality of the services to be provided in an establishment, including matters relating to the privacy, dignity and religious observance of patients, the staffing of the establishment, the suitability of employees and about complaints and record keeping. Provision is also made about the suitability of premises and the fire precautions to be taken and the management of establishments. The registered provider is required to visit the establishment as prescribed (regulation 25) and regulation 26 imposes requirements relating to the financial viability of the establishment. Regulations 27 to 31 deal with the giving of notices to the National Assembly when certain events occur such as the death or serious injury of a patient; in the case of a manager’s absence from the establishment; where certain changes occur, for example, a change in the registered person and other personnel or significant changes to the premises; where liquidators and others are appointed and where the registered person dies. Part IV and Schedule 4 sets out additional requirements that apply to independent hospitals in relation to pathology services, resuscitation, the treatment of children, certain surgical procedures, dental treatment, obstetric services and the use of certain techniques and technologies. Part V (regulation 47) contains additional requirements where antenatal care is provided by an independent clinic. Part VI deals with miscellaneous matters. In particular, regulation 49 provides for offences. A breach of regulations 5 to 14, 15(1) to (4), 16 to 31, 33 to 41 and 43 to 47 may found an offence.

Read the full note and every offence in this 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 0.88.

Basis
the provision says the conduct “is an offence”; the provision says an offence is committed “if” something happens
Confidence
0.88 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