Residential Care Homes and Nursing Homes Act 1999

Link to law: http://www.bermudalaws.bm/Laws/Annual%20Laws/1999/Acts/Residential%20Care%20Homes%20and%20Nursing%20Homes%20Act%201999.pdf

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Residential Care Homes and Nursing Homes Act 1999
RESIDENTIAL CARE HOMES AND NURSING HOMES ACT 1999

1

BERMUDA
1999 : 28

RESIDENTIAL CARE HOMES AND NURSING HOMES ACT 1999

[Date of Assent 23 August 1999]

[Operative Date 27 April 2001]

ARRANGEMENT OF SECTIONS

1 Citation
2 Interpretation
3 Registration of homes
4 Exemptions
5 Register
6 Removal from and restoration

to Register
7 Application for registration
8 Advertisement of application,

objections
9 Consideration of applications
10 Conditions
11 Information to applicant
12 Reasons for refusal
13 Registration certificate
14 Duration and fees
15 Cancellation of registration or

variation of conditions

16 Cancellation in urgent
circumstances

17 Surrender of certificate
18 Appeals
19 Administration
20 Inspectors
21 Obstruction an offence
22 Protection from liability
23 Regulations
24 Offences
25 Proceedings
26 Act binds Crown
27 Consequential amendments
28 Savings and transitional
29 Commencement

SCHEDULE

RESIDENTIAL CARE HOMES AND NURSING HOMES ACT 1999

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WHEREAS it is expedient to make provision for residential care
homes and nursing homes and connected matters:

Be it enacted by The Queen's Most Excellent Majesty, by and
with the advice and consent of the Senate and the House of Assembly of
Bermuda, and by the authority of the same, as follows:

Citation
1 This Act may be cited as the Residential Care Homes and
Nursing Homes Act 1999.

Interpretation
2 In this Act, unless the context otherwise requires:

"application" means an application for registration under section
7(1) and "applicant" shall be construed accordingly;

"certificate" means a registration certificate issued by the Chief
Medical Officer under section 13;

"Chief Medical Officer" has the meaning assigned to that
expression under section 2(1) of the Public Health Act 1949;

"disabled person" means a person who is substantially impaired
in seeing, hearing, speaking, breathing, moving, learning or
working;

(a) by reason of injury or disease, whether permanent or
otherwise; or

(b) by reason of some congenital cause;

"home" means a residential care home or a nursing home other
than a hospital maintained or controlled by any public
authority;

"inspector" means an inspector appointed by the Minister
pursuant to section 20;

"Minister" means the Minister responsible for health;

"nursing home" means a residential care home which provides
nursing services;

"nursing services" include services provided by general nurses,
nurse specialists and nursing associates within the meaning
assigned to those expressions by section 2 of the Nursing Act
1997;

"owner" includes:

RESIDENTIAL CARE HOMES AND NURSING HOMES ACT 1999

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(a) a person to whom a certificate has been issued under
this Act; and

(b) the manager, nurse administrator or other person
responsible for a home;

"prescribed" means prescribed by Regulations under this Act;

"Register" means the Register established and maintained under
section 5;

"Regulations" means Regulations made under section 23;

"residential care home" means any establishment where board
and personal care are provided for two or more unconnected
persons who are:

(a) 65 years of age or older;

(b) disabled; or

(c) 65 years of age or older and disabled;

"unconnected person" means a person who is not connected, by
blood or otherwise, with a person who operates a residential
care home.

Registration of homes
3 (1) Subject to section 4, a person shall not operate a home
without first registering that home under this Act.

(2) A person who operates a home in contravention of
subsection (1) commits an offence and is liable on conviction by a court
of summary jurisdiction to a fine not exceeding $2,500.

(3) Where the offence is continued by that person after
conviction that person commits a further offence and is liable to a fine
not exceeding $250 for each day during which the offence continues or a
term of imprisonment not exceeding 6 months or both such fine and
term of imprisonment.

Exemptions
4 (1) Where the Minister, in the special circumstances of a
particular case, considers it appropriate so to do, he may authorise the
Chief Medical Officer to exempt a home from all or any of the provisions
of this Act.

(2) An authorisation under subsection (1) shall be in writing.

Register
5 (1) The Chief Medical Officer shall establish and maintain in
such manner as he considers appropriate a register of homes and shall

RESIDENTIAL CARE HOMES AND NURSING HOMES ACT 1999

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make the register available to the public for inspection during ordinary
business hours.

(2) A list of the homes registered under this Act shall be
gazetted annually by the Chief Medical Officer.

Removal from and restoration to Register
6 Subject to sections 15 and 16, the Chief Medical Officer may:

(a) remove the name of a home from the Register; and

(b) restore to the Register a name which has been removed.

Application for registration
7 (1) A person who wishes to operate a home may make an
application to the Chief Medical Officer for the registration of that home
under this Act.

(2) An application under subsection (1) shall be in the
prescribed form and shall contain such additional information in relation
to the operation of the home as the Chief Medical Officer may require.

Advertisement of application, objections
8 (1) Where the Chief Medical Officer receives an application for
registration he shall publish in the Gazette a notice in accordance with
subsection (2).

(2) A notice under subsection (1) shall specify:

(a) the name of the applicant;

(b) the proposed name of the home;

(c) the address of the proposed home;

(d) the proposed number of residents;

(e) that a person who objects to the registration of that
home may object in writing to the Chief Medical Officer
within 7 days of the date of publication of the notice.

(3) An objection under subsection (2)(e) shall specify the
grounds on which it is made.

(4) The Chief Medical Officer shall take any objections made
under subsection (2)(e) into account in making a decision under section
9(1).

RESIDENTIAL CARE HOMES AND NURSING HOMES ACT 1999

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Consideration of applications
9 (1) Subject to subsection (2), the Chief Medical Officer may
approve, refuse to approve, or approve subject to conditions, an
application.

(2) Where the Chief Medical Officer is satisfied that:

(a) the applicant is a fit and proper person to operate a
home;

(b) the building proposed to be used is fit for use as such a
home;

(c) the applicant is able to provide the facilities, equipment
and staff to operate such a home; and

(d) either there are no objections to the proposed
registration, or any objections have been dealt with in
accordance with section 8(4),

he shall register the home.

Conditions
10 The Chief Medical Officer may attach such conditions as he
considers appropriate to the registration of a home and such conditions,
if any, shall be specified in the certificate.

Information to applicant
11 (1) A decision on an application shall be made not later than
28 days after receipt of an application.

(2) Not later than 7 days after making a decision on an
application, the Chief Medical Officer shall inform the applicant, in
writing, of the decision.

Reasons for refusal
12 The Chief Medical Officer shall, in writing, give to an applicant
reasons for a refusal of registration.

Registration certificate
13 Where, pursuant to section 7(1), the Chief Medical Officer
registers a home, he shall issue to the applicant a certificate which shall
be in such form as the Chief Medical Officer may from time to time
determine.

Duration and fees
14 (1) A certificate shall be issued for a period of one year and may
be renewed.

RESIDENTIAL CARE HOMES AND NURSING HOMES ACT 1999

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(2) An applicant shall, for the period beginning on the day on
which his certificate is issued or renewed and ending on 31 March next
following, pay such fee as may from time to time be prescribed under the
Government Fees Act 1965.

Cancellation of registration or variation of conditions
15 (1) Subject to subsections (2), (3) and (4), and section 16 the
Chief Medical Officer may:

(a) cancel the registration of a home; or

(b) vary any conditions attached to the registration of a
home.

(2) Where the Chief Medical Officer proposes to exercise a
power under subsection (1) he shall:

(a) in writing, inform the owner of the home of the proposal
and the reasons for it;

(b) give the owner an opportunity to make representations,
whether orally or in writing; and

(c) take into account any representations made under
paragraph (b) before a decision is made.

(3) Where the Chief Medical Officer decides to cancel the
registration of a home or vary a condition attached to the registration, he
shall:

(a) set out the decision in writing and state the reasons for
the decision;

(b) serve a copy of the decision on the owner.

(4) Subject to section 18, the cancellation of registration or the
variation of conditions attached thereto has effect on the expiration of 3
months beginning on the date of service of the decision on the owner.

Cancellation in urgent circumstances
16 (1) Notwithstanding section 15, the Chief Medical Officer may,
where it appears to him that there is a serious risk to the life, health or
well-being of the residents in a home, make an application to a
Magistrate for an order:

(a) cancelling the registration of the home;

(b) varying any condition for the time being in force in
respect of the home; or

RESIDENTIAL CARE HOMES AND NURSING HOMES ACT 1999

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(c) imposing conditions, or additional conditions, as the
case may be.

(2) On an application under subsection (1), the Magistrate may,
where he is satisfied that there is a risk referred to in subsection (1),
make the order and the order takes effect from the date on which it is
made.

(3) An application under subsection (1) may be made ex parte
and shall be supported by a written statement of the reasons for making
the application.

(4) The Chief Medical Officer shall, as soon as is practicable
after the making of the order:

(a) serve notice of the making of the order and its terms on
the owner of the home; and

(b) serve on him a copy of the reasons which supported the
application for the order.

Surrender of certificate
17 Where the Chief Medical Officer cancels the registration of a
home under section 15 or a Magistrate makes an order cancelling the
registration of a home under section 16, the owner of the home shall
surrender his certificate to the Chief Medical Officer:

(a) where section 15 applies, immediately on the expiration
of the three-month period referred to in section 15(4); or

(b) where section 16 applies, on the date on which an order
is made under that section.

Appeals
18 (1) A person aggrieved by a decision of the Chief Medical Officer
or a Magistrate under this Act may, within 28 days after the date on
which notice of the decision is given or within such longer period as the
Court may allow, appeal to the Supreme Court against that decision.

(2) On an appeal under this section the Supreme Court may
make such order as it considers appropriate.

(3) An order under subsection (2) is final.

(4) The practice and procedure to be followed in relation to an
appeal under this section are as prescribed by rules of court.

Administration
19 (1) An owner shall keep proper records relating to the operation
of his home, in respect of such matters as may be prescribed by the
Minister.

RESIDENTIAL CARE HOMES AND NURSING HOMES ACT 1999

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(2) Subject to section 20(3), an owner shall make such records
available to an inspector.

Inspectors
20 (1) The Minister may, in writing, authorise persons to act as
inspectors of homes.

(2) Subject to subsections (3), (4), (5) and (6):

(a) an inspector may enter and inspect a home which is
registered under this Act; and

(b) where an inspector has reasonable cause to believe that
any premises are being used as a home in contravention
of section 3(1), he may enter and inspect that home.

(3) On an inspection under subsection (2), an inspector may
inspect records, other than medical records, relating to a patient in a
home.

(4) An inspector shall:

(a) give an owner not less than 24 hours notice in writing of
his intention to carry out an inspection;

(b) where he is asked to do so, produce the document
authorising him to inspect the home.

(5) Notwithstanding subsections (3) and (4), where the Chief
Medical Officer is satisfied that it is appropriate so to do—

(a) the Chief Medical officer or an inspector authorised by
the Chief Medical Officer for the purpose may inspect
medical records relating to a patient in a home; and

(b) an inspector may carry out an inspection of a home
without giving the notice required by subsection (4)(a).

(6) Not later than 48 hours after an inspection the inspector
shall make a report in writing to the Chief Medical Officer.

Obstruction an offence
21 A person who obstructs an inspector in the performance of his
duties commits an offence and is liable, on conviction by a court of
summary jurisdiction, to a fine not exceeding $500 or to imprisonment
for a term not exceeding 6 months or both such fine and term of
imprisonment.

RESIDENTIAL CARE HOMES AND NURSING HOMES ACT 1999

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Protection from liability
22 An inspector is not liable for any act done or omitted in good
faith and in pursuance of the functions assigned to him under this Act or
regulations made under this Act.

Regulations
23 (1) The Minister may make such regulations as are necessary
to give effect to the provisions of this Act including regulations:

(a) prescribing the qualification which must be attained by
specified members of the staff of homes prior to being
assigned to specified duties;

(b) prescribing the form of any application, certificate,
notice, record, report or other document required under
this Act or the regulations; and

(c) in relation to the establishment and maintenance of the
Register.

(2) The negative resolution procedure applies to Regulations
made under this Act.

Offences
24 The Minister may create offences in relation to the contravention
of Regulations and prescribe penalties therefor.

Proceedings
25 (1) A proceeding for an offence in contravention of this Act or
regulations made under this Act may be instituted by an inspector.

(2) The consent, in writing, of the Director of Public
Prosecutions is required for prosecutions.

Act binds Crown
26 This Act binds the Crown.

Consequential amendments
27 The enactments set out in column 1 of the Schedule are
amended in the manner specified in column 2 of that Schedule.

Savings and transitional
28 (1) Subject to subsection (2), any licence, certificate or
permission, by whatever name called, which, in relation to any
residential home is in force immediately before the date of coming into
operation of this Act ("commencement date") has effect from the
commencement date as if granted under this Act.

RESIDENTIAL CARE HOMES AND NURSING HOMES ACT 1999

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(2) A person who, immediately before the commencement date,
was operating a residential home or other such establishment to which
this Act applies may continue to operate that home or establishment
under this Act:

(a) during the period of 6 months beginning next after the
commencement date; and

(b) if within that period application is made under section
7(1) for registration, until that application is finally
disposed of or withdrawn.

Commencement
29 This Act comes into operation on a day appointed by the Minister
by notice published in the Gazette.

SCHEDULE (section 27)

Column 1 Column 2

Section 2 of the Bermuda
Nursing Association Act 1957:

delete subsection (1)(b) and sub-
stitute:

"(b) establish and operate
nursing homes under the
Residential Care Homes and
Nursing Homes Act 1999".

RESIDENTIAL CARE HOMES AND NURSING HOMES ACT 1999

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Section 1 of the Registration
(Births and Deaths) Act 1949:

(a) delete from the definition of
"nursing home" the words
"under the Public Health Act
1949;" and substitute the
words "registered under the
Residential Care Homes and
Nursing Homes Act 1999;"

(b) insert next after the definition
of "register" the following
definition:

" "residential care home"
means a residential care
home registered under
the Residential Care
Homes and Nursing
Homes Act 1999;".

Section 6(2) of the Registration
(Births and Deaths) Act 1949:

insert next after the word
"hospital" wherever they appear
the words ", residential care
home".

Section 2 of the Immature Spirits
Restriction Act 1921:

insert next after the word
"hospital" the words ", residential
care home".

Section 14 of the Spirits Act
1890:

insert next after the word
"hospital" the words ", residential
care home".

Section 103(1)(b) of the Public
Health Act 1949:

delete the words "nursing home".

Section 161 of the Public Health
Act 1949:

(a) delete the definition of
"nursing home"; and

(b) in the definition of "maternity
home", insert next after the
word "children" the words ",
but does not include any
hospital or other premises
maintained or controlled by
any authority or other body
constituted by any Act".

RESIDENTIAL CARE HOMES AND NURSING HOMES ACT 1999

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Section 162 of the Public Health
Act 1949:

(a) in the heading to the section,
delete the words "nursing
home" and substitute the
words "maternity home"; and

(b) in subsection (1), delete the
words "nursing home"
wherever they appear and
substitute therefor the words
"maternity home".

Section 163 of the Public Health
Act 1949:

(a) in the heading to the section,
delete the words "nursing
homes" and substitute the
words "maternity homes";

(b) in subsection (1), delete the
words "nursing homes" and
substitute the words
"maternity homes";

(c) in subsection (2)(a):

(i) delete the words "nursing
homes" and substitute
the words "maternity
homes";

RESIDENTIAL CARE HOMES AND NURSING HOMES ACT 1999

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(ii) in subparagraph (i),
delete the words "nursing
home" and substitute the
words "maternity home";

(iii) in subparagraph (ii),
delete the words "nursing
home" and substitute the
words "maternity home";

(d) in subparagraph (2)(e), delete
the words "nursing homes"
and substitute the words
"maternity homes"; and

(e) in subsections (3) and (4),
delete the words "nursing
home" wherever they appear
and substitute the words
"maternity home".

Section 164 of the Public Health
Act 1949:

(a) in the heading to the section,
delete the words "nursing
homes" and substitute the
words "maternity homes";

(b) delete the words "nursing
home" wherever they appear in
the section and substitute the
words "maternity home".

Regulation 2 of the Census
Regulations 1991:

delete from the definition of
"institution" the words "home for
the aged, the sick or destitute"
and substitute the words
"residential care home, a nursing
home or a home for the
destitute,".

RESIDENTIAL CARE HOMES AND NURSING HOMES ACT 1999

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Regulation 1 of the Misuse of
Drugs Regulations 1973:

(a) delete from the definition of
"nursing home" the words
"under the Public Health Act
1949 [title 11 item 1]" and
substitute the words "under
the Residential Care Homes
and Nursing Homes Act 1999;"

(b) insert next after the definition
of "register" the following
definition:

" "residential care home"
means a residential care
home registered under
the Residential Care
Homes and Nursing
Homes Act 1999;"

Regulation 7(3)(c) of the Misuse
of Drugs Regulations 1973:

insert next after the word
"hospital" the words ", residential
care home".

Regulation 9(4)(b) of the Misuse
of Drugs Regulations 1973:

insert next after the word
"hospital" the words ", residential
care home".

Regulation 10(2) of the Misuse of
Drugs Regulations 1973:

insert next after the word
"hospital" the words ", residential
care home".

Regulation 13(4)(b) of the Misuse
of Drugs Regulations 1973:

insert next after the word
"hospital" the words ", residential
care home".

The Schedule to the Government
Fees Regulations 1976:

insert next after Head 49 the
following new Head:

RESIDENTIAL CARE HOMES AND NURSING HOMES ACT 1999

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"Head 49A

Residential Care Homes and
Nursing Homes Act 1999

Issuing a registration
certificate under
section 13: $75".