Revised Laws of Mauritius
R22 – 1 [Issue 1]
RESIDENTIAL CARE HOMES ACT Act 8 of 2003 – 21 August 2004
ARRANGEMENT OF SECTIONS
SECTION 1. Short title 2. Interpretation 3. Application of Act 4. The Board 5. Functions of Board 6. Meetings of Board 7. Secretary 8. Residential care home to be
licensed 9. Application for licence
10. Publication and notice 11. Consideration of application 12. Grant or refusal of licence 13. Form and duration of licence 14. Display of licence 15. Refusal of licence
16. Cancellation of licence 17. Cancellation in cases of urgency 18. Measures following cancellation 19. Appeal 20. Inspection 21. Contractual relationship 22. The Residential Care Home Fund 23. Investments of assets of Fund 24. The Residential Care Home Advi-
sory Committee 25. Regulations 26. Offences 27. Jurisdiction 28. – 30. — SCHEDULE
RESIDENTIAL CARE HOMES ACT
1. Short title
This Act may be cited as the Residential Care Homes Act.
2. Interpretation
In this Act—
“Board” means the Residential Care Homes Board established under section 4;
“Chairperson” means the Chairperson of the Board;
“disabled”, in relation to a person, means blind, deaf, dumb, or sub- stantially or partially handicapped by illness, injury or congenital deformity or other prescribed disability;
“Fund” means the Residential Care Homes Fund established under sec- tion 22;
“licence” means a licence issued under section 12;
“licensee” means the holder of a licence;
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“Minister” means the Minister to whom responsibility for the subject of social security is assigned;
“personal care” means care which includes assistance with bodily functions of a person;
“residential care home” means an establishment specified in sec- tion 3 (1);
“Secretary” means the Secretary of the Board.
3. Application of Act
(1) This Act applies to any establishment, whether set up by statute or otherwise, which provides, or intends to provide—
(a) personal care and board to persons who by reason of old age, disablement, a physical handicap, dependence on alcohol or drugs, need personal care;
(b) personal care and board for children and women;
(c) nursing for persons suffering from sickness, injury or infirmity;
(d) services for the reception of pregnant women or women imme- diately after childbirth;
(e) nursing, including care, habilitation, rehabilitation under medical supervision, including medical treatment, of persons suffering, or appearing to suffer, from a mental disorder;
(f) a place of safety for persons in distress.
(2) Notwithstanding anything to the contrary provided in any other en- actment, including any provision relating to exemption from payment of any duty, levy, fee, tax or other similar charge, every residential care home shall be governed by the provisions of this Act.
(3) This Act shall not apply to—
(a) a hospital or a clinic providing in-patient and out-patient treat- ment to a person suffering from an illness;
(b) a school, a college or a university.
(4) The Board may exempt, either wholly or partially, any establishment from the application of this Act on account of the number of persons being given personal care, or by reason of the nature of the care being dispensed, or any other reasonable ground.
4. The Board
(1) There is established for the purposes of this Act the Residential Care Homes Board, which shall consist of—
(a) the Permanent Secretary of the Ministry, as Chairperson;
(b) the officer in charge of the Welfare Unit of the Ministry;
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(c) a representative of the Ministry responsible for the subject of finance;
(d) a representative of the Ministry responsible for the subject of public infrastructure;
(e) a representative of the Ministry responsible for the subject of health;
(f) a representative of the Ministry responsible for the subject of family affairs;
(g) a law officer designated by the Attorney-General;
(h) 2 persons who are involved in the management of residential care homes;
(i) 2 persons with wide knowledge in the field of residential care or health matters.
(2) The members specified in subsection (1) (h) and (i) shall be appointed by the Minister.
5. Functions of Board
The Board shall have such functions as are necessary to further the ob- jects of this Act and, in particular to—
(a) exercise general supervision and control over residential care homes;
(b) monitor compliance by licensees with the conditions of their licences;
(c) exercise control over inspectors in the discharge of their func- tions under this Act;
(d) establish codes of practice for residential care homes and moni- tor compliance with the codes.
6. Meetings of Board
(1) The Chairperson, or in his absence, the officer in charge of the Wel- fare Unit of the Ministry, shall preside at the meetings of the Board.
(2) The quorum of the Board shall be 6.
(3) The Board shall meet at least once every 2 months, but the Chairper- son may on his own motion, or shall, at the request of at least 2 members, convene an extraordinary meeting.
(4) Subject to subsections (1) to (3), the Board shall regulate its meetings in such manner as it thinks fit.
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7. Secretary
(1) The Permanent Secretary shall designate a public officer to act as Secretary to the Board.
(2) The Secretary shall—
(a) keep a record of every licence granted under this Act;
(b) keep a record of particulars relating to licences and other matters relating to residential care homes;
(c) carry out such duties as may be assigned to him by the Board;
(d) in the exercise of his functions, act in accordance with such directions as he may receive from the Board.
8. Residential care home to be licensed
No person shall carry on a residential care home unless he is licensed to do so under this Act.
9. Application for licence
(1) Any person who intends to carry on a residential care home shall make an application to the Board in the prescribed form.
(2) The applicant shall furnish to the Board—
(a) evidence of his honourable conduct, or where the applicant is a body corporate, such evidence in respect of every person in- volved in the management of the body corporate;
(b) the following information as may be prescribed—
(i) the availability of land, building, and other infrastructure complying with the minimum norms of sanitary, security and fire safety requirements;
(ii) the availability of such staff, including medical and para- medical staff, in such number and possessing such qualifi- cations as may be required for the type of services proposed to be offered at the proposed residential care home;
(iii) a feasibility study, including evidence of the financial viabil- ity of the applicant;
(iv) any other information in order to enable the Board to de- termine whether the applicant is a fit and proper person to hold a licence;
(c) — [S. 9 amended by s. 40 (a) of Act 6 of 2008 w.e.f. 15 July 2008.]
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10. Publication and notice
(1) Where the information required under section 9 has been supplied, the Board shall request the applicant to cause the publications specified in subsection (2) to be made.
(2) Upon request received from the Board under subsection (1), the ap- plicant shall cause notice of the application—
(a) to be published in the Gazette and, for 2 consecutive days, in not less than 2 daily newspapers; and
(b) to be given in such other manner as the Board directs.
(3) Any interested person may, within 21 days of the last publication specified in section (1), give a notice of objection, or make a representation, stating the grounds of objection or representation.
11. Consideration of application
In determining whether to grant an application, the Board shall have re- gard to—
(a) whether the building and the amenities are suitable for the pur- pose for which the licence is sought to be obtained;
(b) whether the staff is adequate and possesses the appropriate qualifications;
(c) whether the applicant is a fit and proper person to be granted a licence;
(d) any objection raised under section 10;
(e) such other criteria as may be prescribed.
12. Grant or refusal of licence
(1) The Board shall, not later than 3 months from the date of the latest publication specified in section 10 (2), grant or refuse the application.
(2) Where the Board grants an application, it may impose such conditions as it may think fit, including—
(a) the maximum number of persons for whom residential accom- modation with board and personal care may be provided at any one time;
(b) conditions regarding the age, sex and category of persons who may be received in the residential care home;
(c) administration and internal structures of the residential care home;
(d) financial control of the accounts of the residential care home;
(e) conditions regarding training of personnel, recreational activities, catering services, provision of lighting, water and other amenities;
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(f) furnishing of a reasonable security bond;
(g) such other conditions as may be prescribed.
(3) The Board shall notify any person who has given notice under sec- tion 10 (2) of its decision to grant a licence within 7 days of the date of the decision.
(4) Where the Board grants an applicant, it shall issue a licence to the applicant—
(a) on payment of the prescribed fee;
(b) in respect of the residential care home from which the applicant proposes to carry on business;
(c) specifying the activity for which the licence is granted;
(d) the conditions imposed on the licensee.
13. Form and duration of licence
(1) A licence shall be issued in the prescribed form and shall specify the premises from which the licensee shall carry on business.
(2) A licence shall be valid for a period of one year, and be renewed for successive periods of one year upon application made by a licensee in the prescribed form.
(3) Where the holder of a licence dies, or becomes incapacitated by rea- son of infirmity of mind, his surviving spouse, heir or representative, may, if the Board has, on written application made in that behalf, endorsed his name on the licence, carry on his business for the unexpired portion of the licence.
14. Display of licence
(1) A licensee shall display in a conspicuous place—
(a) at his business premises a copy of the licence which relates to those premises;
(b) at the entrance to his business premises, a sign of the prescribed size and style on which shall be written the words “Licensed Residential Care Home”.
(2) Any correspondence or document emanating from a licensee shall state the fact that the licence was issued by the Board and the date and number of the licence at the top left hand corner.
15. Refusal of licence
(1) The Board may refuse to grant an application if—
(a) the applicant does not furnish sufficient evidence of the matters set out in section 9 (2);
(b) the applicant is not a fit and proper person to be granted a licence;
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(c) it is not satisfied of the matters specified in section 11 (a) and (b);
(d) any objection under section 10 (3) is legitimately taken;
(e) the way in which it is intended to carry on the residential care home is such as not to provide services or facilities reasonably required.
(2) The Board shall notify the applicant by registered letter, within 7 days of its decision, of the refusal to grant the licence and the reasons for doing so.
16. Cancellation of licence
(1) The Board may cancel a licence in respect of a residential care home—
(a) on any ground which would entitle it to refuse an application for a licence;
(b) where the annual fee in respect of the residential care home has not been paid on or before the due date;
(c) where the licensee has failed to operate within 6 months from the date of the issue of the licence;
(d) where the licensee has ceased his operation under the licence;
(e) where the licensee has failed to comply with any condition included in the licence and imposed by the Board;
(f) where the licensee has been convicted of an offence involving fraud or dishonesty under this Act or regulations made under this Act, in respect of that or any other residential care home;
(g) where the licensee has failed to comply with such code of con- duct as may be prescribed;
(h) where it is in the public interest to do so.
(2) Before making a decision cancelling a licence, the Board shall, by no- tice in writing require the licensee, within 14 days from the date of service of the notice, to show cause why his licence ought not to be cancelled.
(3) Where the Board is satisfied that, having regard to all the circum- stances of the case, and where necessary, after the holding of an oral hear- ing, it is expedient to do so, it may cancel the licence.
17. Cancellation in cases of urgency
(1) Where there is serious risk to life, health or the well-being of the resi- dents of a residential care home, the Board may apply to the Judge in Chambers for an order—
(a) cancelling the licence of a person in respect of a residential care home;
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(b) varying any condition in respect of such licence;
(c) imposing any appropriate additional condition.
(2) An application under subsection (1) may be made ex parte and shall be supported by an affidavit setting down the Board’s reasons for making the application.
18. Measures following cancellation
Where a licence has been cancelled, the Board may—
(a) entrust to any other licensee the administration of a residential care home for a maximum period of one year;
(b) take such other appropriate measures to protect the residents of the residential care home from any risks to their physical or men- tal health or to their property.
19. Appeal
(1) An appeal against a decision of the Board shall lie to Minister.
(2) The appeal shall be lodged within 21 days of the service of the notifi- cation of the decision of the Board.
(3) The Minister may, on an appeal, give such direction as he may deem fit in the circumstances, including—
(a) varying any condition for the time being in force in respect of the residential care home;
(b) directing that any condition shall cease to have effect;
(c) directing that any condition as he thinks fit shall have effect in respect of the residential care home.
20. Inspection
(1) There shall be designated by the Permanent Secretary of the Ministry a number of public officers who shall inspect and exercise the powers, and perform the duties, imposed upon them by this section.
(2) Any person who has been designated inspector under subsection (1) shall take the oath of office in terms of the Schedule.
(3) An inspector or a police officer, not below the rank of Inspector of Police, may, for the purpose of ensuring that this Act and any regulations made under this Act have been complied with—
(a) at all times enter and inspect any building, premises, means of transport and any other facility which are used, or which the in- spector has reasonable cause to believe to be used, for the pur- poses of a residential care home;
(b) examine any record or document required to be kept under this Act or regulations made under this Act;
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(c) establish contraventions under this Act or regulations made under this Act, or for breach of conditions of a licence;
(d) institute proceedings for any breach of this Act, regulations made under this Act or for breach of conditions of a licence.
(4) In exercising his functions under this section, the inspector or the po- lice officer—
(a) shall have regard to the privacy of residents;
(b) treat every resident with humanity and respect.
(5) Where an inspector is so required by any person in charge, or con- cerned in the management of a residential care home, he shall produce some duly authenticated document showing his authority to exercise the powers of an inspector under this Act.
(6) For the purposes of exercising his duties and functions, an inspector or a police officer may interview any resident or staff of the residential care home, record a statement from him and secure any exhibit.
21. Contractual relationship
(1) No person shall be admitted to a residential care home unless a writ- ten contract is drawn up between the licensee and that person, or where he is incapacitated by reason of infirmity of body or mind, his next of kin.
(2) The contract specified in subsection (1) shall set out—
(a) the name of the parties;
(b) the exact location of the residential care home to which the person is admitted;
(c) the services to be provided;
(d) the length of stay agreed upon; and
(e) such other matters as may be prescribed.
(3) The Landlord and Tenant Act shall not apply to a contract under this section.
(4) For the purposes of this section, “next of kin“—
(a) means spouse, child, father, mother, brother, sister, grandpar- ent, grandchild, uncle, aunt, nephew or niece;
(b) includes— (i) any person with whom the person to be admitted ordinarily
resides or under whose responsibility or control that person lives or has been placed;
(ii) any person who has taken charge of any other person.
22. The Residential Care Home Fund
(1) There is established a Residential Care Home Fund which shall be administered by the Minister in accordance with the Finance and Audit Act.
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(2) There shall be paid into the Fund—
(a) all donations and contributions;
(b) grants from Government; and
(c) all sums that may lawfully accrue to it.
(3) There shall be paid out of the Fund such sums as may be recom- mended by the Board and approved by the Minister, in respect of—
(a) any financial assistance to be extended to the residential care homes, and
(b) all administrative costs.
(4) (1) (a) No document shall be executed by or on behalf of the Fund unless it is signed by the Chairperson.
(b) No cheque shall be executed by, or on behalf of the Fund, unless it is signed by the Chairperson and the Secretary, or in the absence of the Chairperson, by any other member of the Board designated by the Board.
(2) (a) The Fund may sue or be sued in its name.
(b) Service of any process by or on the Fund shall be sufficient if made on behalf of or on the Chairperson.
23. Investments of assets of Fund
Subject to the Finance and Audit Act, any surplus remaining in the Fund may be held on deposit with the Government or any other recognised finan- cial institutions as may be determined by the Minister responsible for the subject of finance.
24. The Residential Care Home Advisory Committee
(1) The Minister may set up a Residential Care Home Advisory Commit- tee on an ad hoc basis.
(2) The Committee shall consist of a Chairperson and not more than 4 other members with wide knowledge in the field of residential care and health matters to be appointed by the Minister.
(3) The Chairperson and members shall hold office on such terms and conditions as the Minister may determine.
(4) There shall be a Secretary to the Committee who shall be a public of- ficer designated by the Permanent Secretary.
(5) The Committee shall—
(a) advise the Minister on all matters relating to residential care homes and health matters;
(b) advise the Board on such matter relating to the functions of the Board as may be referred to it by the Minister; and
(c) consider any matter affecting the standard of service of residen- tial care homes.
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25. Regulations
(1) The Minister may make such regulations as he thinks fit for the pur- poses of this Act.
(2) Without prejudice to subsection (1), the Minister may make regula- tions, in particular, with regard to—
(a) the facilities and services to be provided in residential care homes;
(b) the numbers and qualifications of staff to be employed;
(c) the numbers and competency of staff to be on duty;
(d) the records and registers to be kept;
(e) the notification of events;
(f) giving notices of absence of qualified staff;
(g) religious ministration of residents;
(h) information to be supplied on application for a licence.
(3) The regulations may provide for the levying of fees and charges.
26. Offences
(1) Any person who contravenes section 8 shall commit an offence and shall, on conviction, be liable to a fine of not less than 25,000 rupees and not more than 100,000 rupees and to imprisonment for a term not exceeding 5 years.
(2) Any person who—
(a) prevents an inspector or a police officer from entering or inspect- ing any residential care home;
(b) hinders an inspector or a police officer in the exercise of his duties under this Act;
(c) fails to comply with any lawful request of an inspector or officer in the execution of his duty under this Act;
(d) refuses or neglects to give any information which may reasona- bly be required of him and which he has power to give;
(e) in an application for a licence, makes any statement which is false in any material particular;
(f) fails to comply with any provision of this Act or regulations made under this Act,
shall commit an offence and shall, on conviction, be liable to a fine not exceeding 50,000 rupees and to imprisonment not exceeding 2 years.
27. Jurisdiction
Notwithstanding—
(a) section 114 (2) of the Courts Act; and
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(b) section 72 (5) of the District and Intermediate Courts (Criminal Jurisdiction) Act,
a Magistrate shall have jurisdiction to try any offence under this Act and may impose any penalty provided by this Act.
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SCHEDULE [Section 20 (2)]
OATH OF SECRECY
I ................................................................ hereby make oath/solemn affirmation as a ...................................... and declare that in the discharge of my duties as an inspector under the Residential Cares Home Act, I shall deal with and regard all documents and information to which I have access as SECRET AND CONFIDENTIAL and refrain from disclosing any such documents and information to any unauthorised person.
Sworn/solemnly affirmed by the deponent in Chambers,
This ...................................................... 20 ........
.......................................................... Before me, District Magistrate for ...................
