Law change may be needed after care worker suspension case falls through

Sunday 05 January 2025

The care regulator’s attempt to suspend a home care provider whose work practices had been called into question fell through due to an apparent gap in the law.

The Royal Court found that the Jersey Care Commission went beyond its legal remit when it tried to suspend the registration of sole trader Hyacinth Downer.

Ms Downer was previously dismissed by LV Care Group after displaying what the Employment Tribunal described as "astonishing" incompetence when she watched and "did nothing" to assist an end-of-life patient who needed medication.

After being dismissed, Ms Downer – who had been a nurse for 17 years – brought an unsuccessful claim for racial discrimination to the tribunal against her employer and two employees.

Subsequently, as a result of an unrelated complaint after she left LV Care Group, Ms Downer was referred to the Nurses and Midwifery Council (NMC), which imposed 12 conditions of practice on her, including a restriction preventing her from having any role in administering medicine.

These conditions prompted the Jersey Care Commission to review Ms Downer's registration as a sole trader home care provider.

Initially, the Commission proposed to cancel Ms Downer's registration in August 2023, then later decided to impose conditions.

But in June 2024, after a second NMC hearing, the Commission decided on a suspension.

However, in a recently published judgment following an appeal from Ms Downer heard in November, the Royal Court concluded that the regulator had suspended the care worker using an article of the law which only applied to managers, which she was not. As a result, the suspension was deemed "ultra vires" – unlawful, as it was beyond the scope of the Jersey Care Commission's powers.

Pictured: The case was heard in the Royal Court in November.

Having consulted the law under which the care regulator operates, the Court noted that it was only possible to cancel the registration of a person who was not a manager, but not take the less serious action of suspending it.

As such, Commissioner Alan Binnington, sitting with Jurats Steven Austin-Vautier and Alison Opfermann, remarked in the judgment that the Commission "may wish to consider" whether the law should be changed.

"There may be policy reasons why such a power was not included in the legislation, but the Commission may find it useful in future to have the less draconian remedy available to it in all cases," the Royal Court judgment read.

It was also noted in the judgment that Ms Downer had a "considerable sense of grievance in relation to the way that she she had been treated", but the Royal Court noted that this likely flowed from mistakes made at the NMC hearing, which "in turn" had led the Commission to make a mistake.

The Royal Court also ordered that the care regulator should pay for any costs incurred by Ms Downer as a result of the case. These, they said, were "likely to be modest" as she had represented herself throughout.