OLDER PERSONS STANDARDS AUTHORITY ACT

CHAPTER 640

OLDER PERSONS STANDARDS AUTHORITY ACT

AN ACT to provide for the establishment of an Authority to be known

as the Older Persons Standards Authority and for the exercise of that

Authority of regulatory functions regarding the establishment of the

standards for residential services, any other geriatric facility and any other

service of a geriatric nature; as well as to regulate for the powers, duties and

financial resources of the Older Persons Standards Authority set up in

accordance with the provisions of this Act; to regulate the service providers

and establish regulatory standards for different services that are provided to

older persons by agencies or public or private entities or any other entity or

person; establish procedures for the investigation of complaints against

service providers and to make provisions in respect of all such powers as may

be necessary in order for the Authority to fulfil its functions in accordance

with this Act.

24th November, 2023

ACT XXXVIII of 2023

The short title of this Act is the Older Persons Standards

Authority Act.

In this Act, unless the context otherwise requires

"Authority"

means

the

Older

Persons

Standards

Authority;

"Board" means the Board of Governors appointed in

terms of article 6(2);

"Chairperson" means the Chairperson of the Authority;

OLDER PERSONS STANDARDS AUTHORITY

"Chief Executive Officer" means the Chief Executive

Officer appointed in terms of article 16;

"Code of Practice" means a standard, specification or

any other written or illustrated form of practical guidance,

instruction or control;

"Inspectorate Office" means the Inspectorate Office

within the Authority to conduct the monitoring, assessment,

evaluation and enforcement required by this Act;

"financial year" means any period of twelve (12) months

ending on the 31st December of any calendar year

Provided that the financial year commencing

upon the date of entry into force of this Act shall terminate on

the 31 st December of the same year;

"legally responsible person" means any person who is

providing the service in terms of this Act;

"licensed service provider" means any person or

organisation that has been granted a valid licence by the

Authority in terms of this Act;

"Minister" means the Minister responsible for older

persons;

"prospective service provider" means any person or

organisation who applies for a licence to provide a service

under this Act;

"public officer" has the same meaning as that assigned to

it by article 124 of the Constitution;

"service" means residential services, any other geriatric

facility and any other service of a geriatric nature provided to

older persons in terms of this Act;

"service provider" means the person or organisation who

is providing the service in terms of this Act;

"service user" means any older person who is using a

service that is regulated by this Act;

"standard" means those mandatory requirements that are

issued by the Authority to service providers in accordance with

the provisions of this Act;

"Tribunal" means the Administrative Review Tribunal

established by article 5 of the Administrative Justice Act.

PART II

Declaration of Principles

The Government shall, through the establishment of the

Authority, seek to promote and develop the regulation of care,

assistance and service provision in Malta in residential services, any

other geriatric facilities and any other service of a geriatric nature

provided to older persons.

The protection of older persons in services regulated by

this Act or any regulations made in terms of this Act shall be

considered of public interest.

(1)

In accordance with the provisions of this Act, the

Government shall determine Malta’s policies and objectives in the

regulation of care, assistance and service provision to older persons in

Malta in residential services, any other geriatric facilities and any

other service of a geriatric nature provided to older persons.

(2)

The Authority shall achieve the following

(a)

the development of regulatory standards for the

provision of services and assistance to older persons who are in

need of care, determine which standards are necessary,

consistent, person–centred, effective and proportionate;

(b)

the assistance and support of the licensed service

providers to achieve a higher quality of service; and

(c)

the proactive enforcement of the standards and

conditions set in the licences awarded by the Authority to

service providers.

(3)

The Authority shall ensure the holistic well-being of all

older persons using the services regulated by this Act, including the

physical, psychological and social well-being of the older persons and

that these principles are safeguarded by whoever is so obliged to do.

(4)

The Authority shall ensure that the level of standards

established and regulated by this Act are maintained at all times.

PART III

Establishment and Functions of the Authority

(1)

There shall be established an Authority to be known

as the Older Persons Standards Authority, whose functions shall be,

amongst others, to set regulatory standards for all the services

provided to older persons in terms of this Act and to ensure that such

standards are duly complied with in accordance with the provisions of

this Act.

(2)

There shall be a Board of Governors consisting of seven (7)

members of whom one (1) shall be the Chairperson and another

member shall be the Deputy Chairperson.

(3)

Without prejudice to any other law, the members of the Board

of Governors shall be appointed by the Minister from among persons

who appear to him to be qualified by reason of having professional

qualifications, or academic qualifications, or experience in or having

shown capacity in matters relating to care of older persons. The

Commissioner for Older Persons shall be appointed as one (1) of the

members ex officio, however, he shall have the right to abstain from any

decision that he thinks it may be prejudicial to the powers given to him

under the Commissioner for Older Persons Act.

(4)

The Minister shall appoint an additional person who shall

not have any voting rights to act as Secretary to the Board.

(5)

The Chairperson and the other members of the Board shall

hold office for a period of three (3) years

Provided that the members so appointed may be re-

appointed on the expiration of their term of office

Provided further that no members, except for the

Commissioner for Older Persons, shall hold office as a member of the

Board for more than two (2) consecutive terms

Provided further that if a member is appointed at any time

after the other members have already been appointed, the term of

appointment of such member shall end on the same date as that of the

other members.

(6)

A person shall not be qualified to hold office as a member of

the Board if such person

(a)

is a candidate for election to or a member of the

House of Representatives, the European Parliament, a Local

Council or a Regional Council;

(b)

is legally incapacitated or interdicted;

(c)

is otherwise providing a service to the Authority or

employed with an entity or facility that is regulated by the same

Board;

(d)

has been declared bankrupt or has made a

composition or arrangement with his creditors;

(e)

has been convicted of a crime affecting public

trust or theft or fraud or knowingly receiving property obtained

by theft or fraud, or of any offence against this Act or against

any other law, particularly those relating to the abuse against

older persons; or

(f)

has a financial or other interest in any enterprise

or activity which is likely to affect the discharge of the

functions as a member of the Board

Provided that the Minister may determine that the interest of

the person under this paragraph is not likely to affect the discharge of

his functions and upon such determination that person shall be

qualified to hold office of member of the Board provided that the

declared interest and the determination of the Minister are published in

the Government Gazette.

The office of a member of the Board shall become vacant

(a)

at the expiration of the term of office; or

(b)

if any circumstances arise that, if that person were

not a member of the Board, would cause that person to be

disqualified for such appointment.

Without prejudice to any other law, the Chairperson, any

other member of the Board and the Secretary to the Board, but with the

exception of the Commissioner for Older Persons, may be removed

from the office by the Minister if, in the opinion of the Minister, the

Chairperson, member or the Secretary to the Board is unable to

discharge their functions whether the inability arises from infirmity of

mind, manifest behaviour or when the Chairperson, member or the

Secretary to the Board are no longer fit to continue in office.

If the office of the Chairperson of the Board is vacant or if

the Chairperson is for any reason unable to perform the functions of

his office, the Minister may appoint a person to act as a temporary

Chairperson of the Board, and any person so appointed shall cease to

be such a temporary Chairperson when a person has been appointed to

fill the vacancy or, as the case may be, when the Chairperson who was

unable to perform the functions of his office resumes those functions.

In the exercise of its functions the Authority shall not be

subject to the direction or control of any other person or authority.

(1)

The Authority shall be a body corporate having a

distinct legal personality and shall be capable, subject to the provisions

of this Act, of entering into contracts, of acquiring, holding and

disposing of any kind of property for the purposes of its functions, of

suing and being sued, and of doing all such things and entering into all

such transactions as are incidental or conducive to the exercise or

performance of its functions under this Act.

(2)

The legal representation of the Authority shall vest in the

Chairperson and the Chief Executive Officer as appointed in terms of

article 16

Provided that the Authority may appoint any one (1) or

more of its members or of the officers or employees of the Authority to

appear in the name and on behalf of the Authority in any judicial

proceedings as well as in any act, contract, instrument or other

document whatsoever.

(3)

Any document purporting to be an instrument made or

issued by the Authority and signed by the Chairperson or by the Chief

Executive Officer shall be received in evidence and shall, unless the

contrary is proved, be deemed to be an instrument made or issued by

the Authority.

The functions of the Authority shall include

(a)

to establish the minimum regulatory standards

for services regulated by this Act and to enforce such

standards as may be necessary to ensure a quality level of

services provided to older persons;

(b)

to establish the criteria and conditions for the

granting, refusal, suspension and revocation of licences;

(c)

to grant, refuse, suspend or revoke any licence;

(d)

to implement the provisions of this Act and any

other regulations or orders made thereunder;

(e)

to perform such other functions as may be

assigned to it under the provisions of this Act or of any other

law;

and this without prejudice to any other functions which may be

assigned to it by this Act or by any other law or regulations.

The power conferred on the Authority to make, adopt and

publish regulatory standards shall be construed as including the power

which may be exercisable in like manner to vary, substitute or revoke

any such standard.

The powers of the Authority shall include

(a)

to receive and acknowledge applications for

licensing to operate any service related to the care of older

persons;

(b)

to consider the proposed services for older

persons;

(c)

to verify and investigate service providers;

(d)

to grant, refuse, suspend or revoke a licence, as

well as imposing conditions in the licence, to operate a service in

accordance with established criteria;

(e)

to receive, acknowledge, investigate and take any

necessary action in relation to any complaint against any

agency or service provider or public or private entities or any

other entity or person;

(f)

to impose measures to improve the quality of

services for older persons;

(g)

to establish and update a public register of

licensed agencies or service providers or public or private

entities or any other entity or legal person providing services

for older persons as the Authority may deem necessary from

time to time

Provided that for the purposes of this paragraph

this public register shall not contain personal data;

(h)

to modify or remove any of the conditions, or to

impose additional conditions, or change the type of licence,

after the licence has been granted and, unless otherwise

prescribed, such conditions shall become effective within the

time limit imposed by the Authority;

(i)

to make recommendations to the Government to

develop policies in the field of services for older persons.

(1)

The meetings of the Board shall be called by the

Chairperson as often as may be necessary, but at least twice (2) a

month on the Chairperson’s own initiative or at the request of at least

two (2) of the members of the Board.

(2)

The Board may act notwithstanding any vacancy among its

members.

(3)

Half of the number of members of the Board shall form a

quorum. Decisions shall be adopted by a simple majority of the votes

of the members present and voting.

(4)

The Chairperson shall have an original vote and, in the

event of an equality of votes, a casting vote. In the absence of the

Chairperson, the Deputy Chairperson shall preside over the meeting

and during such meeting shall have the same rights as the

Chairperson.

(5)

A member of the Board who may in any way be directly or

indirectly interested in a decision made or proposed to be made by the

Board shall immediately after the relevant circumstances have come to

his knowledge, disclose the nature of the interest at the first meeting of

the Board.

(6)

Any disclosure made under sub-article (5) shall be

recorded in the minutes of the meeting of the Board, and that member

(a)

shall not take part in any deliberation and

decision with respect to that deliberation and decision of the

Board after the interest has been disclosed; and

(b)

shall be disregarded for the purpose of

constituting a quorum of the Board for that deliberation or

decision.

(7)

Subject to the provisions of this Act, the Board may

regulate its own procedure.

(8)

The Board shall have the power to consult professionals or

other persons having knowledge and experience in the field of

services to older persons.

(9)

In the exercise of its functions, the Board may, in relation to

any matter that falls under the provisions of this Act, request any

person to provide any information and produce any documentation.

(10) The members of the Board, the Secretary and every person

employed with the Authority shall be bound by confidentiality and

shall not disclose to third parties any information which may come to

their knowledge in the exercise of their functions, unless required to

do so by law.

(11) The Authority shall lay on the Table of the House an annual

report of all its activities during the preceding calendar year by no

later than the 15th April of each year.

(1)

Subject to the other provisions of this Act, the affairs

and business of the Authority shall be the responsibility of the

Authority itself. However, the executive conduct of the Authority, its

administration and organisation, and the administrative control of its

officers and employees shall be the responsibility of the Chief

Executive Officer of the Authority, who, in addition to those

responsibilities prescribed by law, shall also have such other powers as

may from time to time be delegated to him by the Authority.

(2)

The Chief Executive Officer shall be appointed by the Board

of Governors and shall establish the necessary structure vested with all

the powers and responsibilities as the Authority may decide and which it

may vary from time to time, so however, that the Chief Executive

Officer shall have professional qualifications or academic qualifications

or experience in or having shown capacity in matters relating to care of

older persons.

(3)

The structure so established shall be headed by the Chief

Executive Officer appointed by the Board of Governors as provided

for in sub-article (2), and he shall have adequate experience and

knowledge in the sector.

(4)

The Authority may exercise any one (1) or more of its

functions directly through its structure and also through any of its

officers or employees or through an agency authorised for the

purpose, or through a contractor or other person with whom an

agreement for the performance of any one or more of such functions is

made

Provided that nothing in this sub-article shall authorise the

Authority to contract out any of its regulatory or licensing functions.

(5)

Where in this Act anything is to be done by or against or

with respect to the Authority, or any notice is to be or may be given to

the Authority, any such thing or notice may also be done by or against

or with respect to or be given to the structure under whose jurisdiction

the matter falls by reason of a delegation of function to such structure;

and for the purposes aforesaid any reference in this Act to the

Authority shall include a reference to the appropriate structure.

(6)

The Chief Executive Officer shall be responsible for the

implementation of the objectives of the Authority in the exercise of its

functions and, without prejudice to the generality of the foregoing,

shall

(a)

lead the

Authority

towards

fulfilling

its

obligations at law;

(b)

execute the strategic direction of the Authority;

(c)

ensure that the proper organisational structure is

in place to deliver the obligations at law and the

implementation of the strategy as set by the Authority;

(d)

ensure that the decisions taken by the Authority

are properly carried out by the structure of the Authority.

(7)

The Chairperson shall ensure that revocation of a licence is

sanctioned by the majority of the members of the Board present at the

meeting.

(8)

In cases of urgency, the Chairperson may order that

inspections be carried out by the Inspectorate Office of the Authority

at any premises wherein it is believed that a service which is being

provided is prejudicial or harmful to the service user

Provided that in the exercise of this function, the

Chairperson may request the additional assistance of the Executive

Police in order for such inspections to be carried out.

(9)

When an irregularity is found following an urgent

inspection carried out in accordance with sub-article (8), the

Chairperson shall

(a)

report the findings to the Commissioner of Police;

or

(b)

bring the matter before the Board within three (3)

working days so as to decide upon any administrative action.

(10) The Authority shall handle all requests relating to the

licensing of services to older persons and the complaints about the

service or conduct of the service providers.

(11) In carrying out any of its functions, the Authority may

request the assistance of the Executive Police and, or any other entity

and, or authority as may be necessary and wherever so required.

PART IV

Provisions on Licensing

(1)

No person, agency or public or private entity that

provides a service regulated by this Act shall provide any service

without a valid licence required for the provision of that service issued

by the Authority, and no person may provide any service from any

place or establishment unless he is in possession of a valid licence for

that purpose issued by the Authority

Provided that when the agencies or the public or private

entities or any other entity or person intends to provide the same kind

of service but from different premises, a separate application shall be

made for each service.

(2)

No licence shall be granted or renewed under sub-article

(1) when the premises, equipment and facilities as well as the

personnel, whether medical or otherwise, are not such as to provide

such standard of geriatric care or service as the Authority deems to be

satisfactory.

(3)

The Authority may, in granting or renewing any licence

under sub-article (1), impose any conditions and fees as it may deem

fit and it may restrict the services and the activities that may be

provided or carried on in the licensed premises.

(4)

Where any premises are used or any act is done in

contravention of any condition or restriction provided for in a licence

granted or renewed under sub-article (1), any premises so used and

any act so done shall be deemed to have been used and done

without the licence required by this article.

(5)

Any licence granted in accordance with sub-article (1) shall

lapse after one (1) year of issue but may be renewed by the Authority

from year to year. Any such licence shall also lapse if there is a

declaration of guilt under Part X.

(1)

A prospective service provider may apply to the

Authority, in the prescribed form, in order to be granted a licence to

operate a service for older persons in terms of this Act.

(2)

The Authority shall, at any time during the processing of the

application, require the prospective service provider to provide any

documents and, or any other information which it deems necessary and

shall visit the premises intended to be used for the provision of service

in order to make its assessment and ascertain whether the licence

should be granted.

(3)

When a provider fails to provide the documents and, or

information requested by the Authority in the stipulated time period,

that application shall become null.

The Authority shall grant a licence to a prospective service

provider if it is satisfied that the prospective service provider

(a)

complies with the eligibility criteria established

by the Authority;

(b)

complies with the standards relevant to the

proposed services and any regulations issued under this Act;

and

(c)

is not in violation of any other applicable law or

regulation.

(1)

The Authority may grant a temporary or an

emergency licence, as the case may be, to a prospective service

provider who is in the process of setting up a service regulated

under this Act but who still does not meet all the standards

established under this Act or any other regulations made thereunder.

(2)

The Authority shall only grant temporary licences when it is

satisfied that the level of services provided is of quality and after it has

approved a plan of action presented by the provider that conforms with

all the standards established under this Act or any other regulation

made thereunder.

(3)

The Authority may grant an emergency licence to the

prospective service provider when he specifies the emerging

critical situation which is of a temporary nature.

(4)

The Authority may also issue emergency licences when a

licence is revoked or suspended in critical situations of a temporary

nature which affect the health and, or safety of older persons

Provided that a temporary or emergency licence may only

be granted if it is provided for in the relevant regulations and the

prospective service provider is in conformity with the standards

stipulated in the relevant regulations

Provided further that such temporary or emergency licence

may only be issued for a period of three (3) months and may only be

further extended for another maximum period of three (3) months.

Upon granting a licence to a prospective service provider,

the Authority shall issue a licence certificate which shall be valid for a

period of one (1) year from the date of issue, unless otherwise

prescribed in the terms and conditions laid down in the licence.

(1)

A licence may be renewed by the Authority provided

that the licensed service provider has complied with the provisions of

this Act and of any regulations made thereunder.

(2)

A licensee who intends to renew a licence which is due to

expire shall, at least four (4) months before such expiry, apply to the

Authority for such licence to be renewed. The Authority shall renew

the licence if it is satisfied that the services are being provided in

accordance with the provisions of this Act and following an

assessment conducted by the Authority confirming adherence with the

regulations issued in terms of this Act.

(3)

The decision of the Authority on the renewal of the licence

shall be served on the licensed service provider by registered mail not

later than thirty (30) days from date of decision.

(4)

The licensed service provider shall ensure that the original

licence is kept affixed in a prominent place in the principal office of

the premises from which the service is provided. The licensed service

provider shall, upon a request by a service user, provide access to the

licence to the service users or potential service users.

(5)

The issuing and renewal of a licence shall be without

prejudice to the requirement of any other licence or authorization

required under any other law.

(1)

The Authority may refuse an application to grant or

renew a licence in terms of this Part if it deems that the prospective

service provider or licensed service provider is not fit to carry out or

operate the service. The refusal, together with the reasons thereof,

shall be served in writing by registered mail to the prospective service

provider or licensed service provider applying for the licence within

fifty (50) days from the date of application and validation of

documents.

(2)

A prospective service provider or a licensed service

provider shall have the right to request a review of the decision of the

Authority by filing an appeal in terms of Part VII.

(3)

A prospective service provider or a licensed service

provider who has had a licence revoked shall have the right to reapply

to the Authority for a licence if the reason for refusal no longer

subsists.

The Authority shall have the right to revoke a licence

granted in terms of this Act at any time if the licensed service provider

(a)

files a request in writing for revocation;

(b)

ceases to comply with the criteria of eligibility for

licensing;

(c)

is no longer deemed suitable to provide the

service for which he was licensed or if the licensee has been

found guilty of an offence contemplated under this Act;

(d)

is in breach of the conditions for licensing in

accordance with the provisions of this Act or any other law, or

knowingly obstructs, impedes or hinders any person entrusted

with the carrying out of duties and responsibilities under that

licence.

(1) The Authority shall revoke the licence in accordance

with paragraphs 24(b), (c) or (d) after drawing up a report containing

its recommendations on whether the licence should be revoked or

otherwise. This report shall include evidence of due warning to the

licensed service provider that the licence may be revoked unless

appropriate action is taken.

(2)

The written revocation, together with the reasons thereof,

shall be served on the licensed service provider by registered mail.

Such revocation shall have effect from date of notification.

(3)

If the licence of a licensed service provider is revoked, the

licence certificate and all the records and documentation relating to

the service shall become the property of the Authority

Provided that if a licence is revoked for any reason

whatsoever under this Act, the Authority shall have the right to

demand a migration plan from the service provider of service delivery

to service users so as to ensure the continuity of service delivery. This

plan shall be provided within two (2) working days from the final date

of revocation of licence. Should the service provider fail to provide

this plan, the Authority shall take any action required to safeguard the

interests of service users and continuity of service provision to service

users in terms of this Act. This shall be without prejudice to any legal

action or punitive measures which may be applicable to the

circumstances.

(1)

During the month of January of every year, the

Authority shall publish in the Government Gazette

(a)

a list of the licensed service providers; and

(b)

a list of the licensed service providers whose

licence has been revoked throughout the previous calendar year

and any changes in the conditions required for licensing or

renewal.

(2)

The Authority shall ensure to publish online the same lists

and also to update the said lists online at the end of every month.

PART V

Regulatory Standards

(1)

The Authority shall be responsible for establishing,

publishing and reviewing regulatory standards for services for older

persons in accordance with the provisions of this Act.

(2)

For the purpose of sub-article (1), the Authority shall

consult any person or group of persons as it deems appropriate.

(3)

The purpose of the regulatory standards shall be to

(a)

improve and standardise the regulation of the

services provided to older persons;

(b)

render effective the essential regulation of the

services;

(c)

re-assure the service users that the services for

older persons are appropriate to their needs and respect their

rights and dignity; and

(d)

emphasize that the welfare, well-being and care

of the service users is to be considered as paramount

Provided that the standards and any amendments thereto

shall be made by regulations issued by the Minister after consulting

the Authority

Provided further that, without prejudice to the other

provisions of this Act or of any other law, the list of standards and any

amendment thereto by the Authority shall be made, published,

prescribed or made available to the public in both the Maltese and

English languages. Where technical terms in the English language

cannot be translated into the Maltese language in a precise manner, the

English language shall be used.

PART VI

Enforcement of Standards

(1)

The Authority shall have the right to enter any

premises of a licensed service provider in order to inspect and assess

the service being offered. Inspections and assessments shall be carried

out by the employees of the Authority nominated by the Inspectorate

Office and shall have the power to

(a)

enter any premises without prior notice at any

reasonable time to carry out an inspection in terms of this Act;

(b)

carry out in all such premises any search,

examination, test or inquiry which may be deemed necessary to

ensure that the provisions of this Act, or of any regulations or

orders made thereunder, and all recognised standards are being

observed, and in particular

(i)

to interview, in the presence of witnesses,

any person whom they consider was involved in the

provision of the service in terms of this Act and any

person whom they consider has made use of such

service;

(ii)

to require the production of any books,

registers or other documents being kept by the service

provider and to make a copy of such books, registers or

documents or take extracts therefrom;

(iii) to require any information as may be

reasonably required in relation to the investigation;

(c)

take photographs, films, video recordings or

electronic images;

(d)

require the assistance of the Police whenever

deemed necessary;

(e)

inspect all equipment, instruments, financial

records, medical records, procedural manuals and any other

records kept by the service provider in fulfilment of their

obligations under this Act and any regulations made under this

Act;

(f)

take any action as may be necessary to ensure and

audit the quality of the service provided by each licensed

service provider; and

(g)

carry out any other activity which may be deemed

necessary in accordance with the provisions of this Act or any

regulations made thereunder.

(2)

Following the conclusion of an investigation, the Authority

(a)

submit a report to the Executive Police for further

investigation in all cases involving a criminal offence;

(b)

take any administrative action which it deems

appropriate in the circumstances of the case;

(c)

take any such other action as it deems

appropriate in the circumstances of the case.

The Authority shall request, at any time, a licensed service

provider or any other person directly or indirectly involved in the

provision of the licensed service to supply it with any information

and, or documents relating to the service which are deemed necessary

or expedient to require for the purposes of fulfilling their functions

under this Act and any regulations made thereunder.

(1)

Following the issue of a licence, the Authority shall

have the right to inspect and audit the service and the premises from

which it is offered at any time. If the inspecting officers deem that the

service is not compliant with the provisions of this Act, or with the

terms of the licence, the inspecting officers shall draw up a report

recommending any changes required to be undertaken by the licensed

service provider. The Authority shall then compile a report which shall

be notified to the licensed service provider.

(2)

The licensed service provider shall effect the changes

indicated in the report within the time frame established by the

Authority. In the event that the service provider does not comply with

the required changes within the specified time frames, the Authority

shall take any action it deems fit.

(1)

The Authority acting in its capacity of controller in

terms of Article 4(7) of Regulation (EU) 2016/679 of the European

Parliament and of the Council of 27 April 2016 on the protection of

natural persons with regard to the processing of personal data and on

the free movement of such data, and repealing Directive 95/46/EC

(General Data Protection Regulation), shall perform the relevant data

processing operations which are limited to the attainment of the

purposes of this Act, and to that which is necessary and proportionate

so the Authority may exercise its functions and powers.

(2)

Nothing in this Act shall prejudice the applicability of

Regulation (EU) 2016/679 of the European Parliament and of the

Council of 27 April 2016 on the protection of natural persons with

regard to the processing of personal data and on the free movement of

such data, and repealing Directive 95/46/EC (General Data Protection

Regulation), including the regulations made thereunder and the

fundamental rights and freedoms of data subjects

(3)

The processing of personal data, including any processing

of special categories of personal data shall, for the purposes of this

Act, comply with the principles relating to the processing of personal

data pursuant to Article 5 of Regulation (EU) 2016/679 of the

European Parliament and of the Council of 27 April 2016 on the

protection of natural persons with regard to the processing of personal

data and on the free movement of such data, and repealing Directive

95/46/EC (General Data Protection Regulation).

(1) The Authority shall implement those appropriate

technical and organised measures to ensure an adequate level of

security which is appropriate to the risk posed, and in particular to

prevent unauthorized disclosure of or unlawful access to information

pertaining to data subjects. In the implementation of the mentioned

measures the nature, scope, context and purposes of the processing

shall be considered.

(2)

The data protection officer designated by the controller in

terms of Article 37 of Regulation (EU) 2016/679 of the European

Parliament and of the Council of 27 April 2016 on the protection of

natural persons with regard to the processing of personal data and on

the free movement of such data, and repealing Directive 95/46/EC

(General Data Protection Regulation) shall be involved and consulted

properly and in a timely manner on all issues in relation to the

protection of personal data processed for the purposes of this Act.

(3)

For the purpose of ensuring and in order to be able to

demonstrate that the processing of personal data is performed in

accordance with the provisions of Regulation (EU) 2016/679 of the

European Parliament and of the Council of 27 April 2016 on the

protection of natural persons with regard to the processing of personal

data and on the free movement of such data, and repealing Directive

95/46/EC (General Data Protection Regulation), the controller shall

implement all appropriate data protection policies, which policies shall

be periodically reviewed and updated where necessary.

(1)

The Authority shall have the right to inspect all

premises where the services for older persons are provided without the

licence required under this Act. Following such inspection, the

Authority shall

(a)

draw up a report of its findings;

(b)

where possible, work with the non-registered

service provider so the organisation complies with the

provisions of this Act;

(c)

allow the service provider reasonable time within

which to regularize his position;

(d)

re-inspect the services offered by the service

provider at the end of the period given in order to assess

(i)

whether the service provider meets the

necessary criteria for temporary licensing, in which case

it shall issue such a temporary licence; or

(ii)

whether the service provider requires more

time to meet the necessary criteria for the issue of a

temporary licence, in which case the Authority may

direct the service provider to cease all activity until such

criteria are met

Provided that in exceptional cases, and where the Authority

deems that no serious prejudice will affect the service user, the

Authority may allow the service provider to continue offering the

service until the service provider meets the required standards within a

time frame established by the Authority.

(2)

Notwithstanding the provisions of sub-article (1), a non-

registered service provider shall still be liable to fines and penalties

that may be imposed for non-compliance with the provisions of this

Act.

(3)

Where the Authority deems that the service is not compliant

with the provisions of this Act, or with the terms of the licence, a

report shall be drawn up including an assessment together with

recommendations, where applicable, about changes that the licensed

service provider should undertake.

PART VII

Appeals

(1)

An appeal shall lie to the Tribunal on any decision

of the Authority in accordance with the provisions of this Act and any

regulations made thereunder. Any person who feels aggrieved by any

such decision shall have the right to appeal within ten (10) days from

the date of service of the decision.

(2)

The provisions of the Administrative Justice Act shall apply

to the composition of the Tribunal in any appeal made to the Tribunal,

or in all cases where a reference by this Act is made to the Tribunal.

(3)

The Tribunal may, upon good grounds being shown, stay the

execution of the decision of the Authority appealed from.

Any party to the proceedings before the Tribunal who feels

aggrieved by a decision of the Tribunal, may appeal to the Court of

Appeal in accordance with the provisions of the Administrative Justice

Act.

PART VIII

Officers and Employees of the Authority

(1)

The Authority shall appoint and employ, at such

remuneration and upon such terms and conditions such officers and

employees of the Authority as may from time to time be necessary for

the due and efficient discharge of the functions of the Authority.

(2)

The Prime Minister may, at the request of the Authority,

from time to time order that any public officer shall be detailed for

duty with the Authority in such capacity and with effect from such

date as may be specified in the Prime Minister’s order.

(3)

The period during which an order as aforesaid shall apply to

any officer specified therein, shall, unless the officer retires from the

public service, or otherwise ceases to hold office at an earlier date, or

unless a different date is specified in such order, cease to have effect

after one (1) year from the effective date of such order unless the order

is revoked earlier by the Prime Minister.

(4)

Where an officer is detailed for duty with the Authority,

such officer shall, during the time in which such order has effect in

relation to him, be under the administrative authority and control of

the Authority but he shall for other intents and purposes remain and be

considered and treated as a public officer.

(5)

Without prejudice to the generality of the foregoing, an

officer detailed to perform duties as aforesaid

(a)

shall not during the time in respect of which he is

so detailed

(i)

be precluded from applying for a transfer

to any department of the Government in accordance with

the terms and conditions of service attached to the

appointment under the Government held by him at a date

on which he is so detailed for duty; or

(ii)

be so employed that his remuneration and

conditions of service are less favourable than those

which are attached to the appointment under the

Government held by him at the date aforesaid or which

would have become attached to such appointment,

during the said period, had such officer not been detailed

for duty with the Authority; and

(b)

shall have the right to have his service with the

Authority considered as service with the Government for the

purposes of any pension, gratuity, or benefit under the Pensions

Ordinance and the Widows’ and Orphans’ Pensions Act and of

any other right or privilege to which he would be entitled, and

liable to any liability to which he would be liable, but for the

fact of his being detailed for duty with the Authority.

(6)

Where an application is made as provided for in sub-article

(5)(a)(i) the same consideration shall be given thereto as if the

applicant had not been detailed for service with the Authority.

(7)

The Authority shall pay to the Government such

contributions as may from time to time be determined by the Minister

responsible for finance in respect of the cost of pensions and gratuities

earned by an officer detailed to perform duties with the Authority as

aforesaid during the period in which he is so detailed.

(8)

The Authority may, with the approval of the Prime Minister,

offer to any officer detailed for duty with the Authority under any of

the provisions of this Act permanent employment with the Authority at

a remuneration and on terms and conditions not less favourable than

those enjoyed by such officer at the date of such offer.

(9)

The terms and conditions comprised in any offer made as

aforesaid shall not be deemed to be less favourable merely because

they are not in all respects identical with or superior to those enjoyed

by the officer concerned at the date of such offer, if such terms and

conditions, taken as a whole, in the opinion of the Prime Minister,

offer substantially equivalent or greater benefits.

(10) Every officer who accepts permanent employment with the

Authority offered to him, under the provisions of sub-article (8), shall

for all purposes other than those of the Pensions Ordinance and of the

Widows’ and Orphans’ Pensions Act, be deemed to have ceased to be

in service with the Government and to have entered into service with

the Authority on the date of his acceptance, and for the purposes of the

said Ordinance and of the said Act, so far as applicable to him, service

with the Authority shall be deemed to be service with the Government

within the meanings thereof respectively.

(11) Every such officer as aforesaid who, immediately before

accepting permanent employment with the Authority, was entitled to

benefit under the Widows’ and Orphans’ Pensions Act, shall continue

to be so entitled to benefit thereunder and for all intents as if his

service with the Authority were service with the Government.

(12) The Authority shall pay to the Government such

contributions as may from time to time be determined by the Minister

responsible for finance in respect of the cost of pensions and gratuities

earned by an officer who has accepted performance of employment

with the Authority as aforesaid during the period commencing on the

date of such officer’s acceptance.

(13) The officers and employees of the Authority shall not have

any direct or indirect interest in any contract made or proposed to be

made by the Authority, or in any enterprise which has or proposes to

have any business relations with the Authority.

(14) Employees who, on the date of coming into force of this Act

are performing duties with the Social Care Standards Authority and

who wish to be deployed with the Authority shall be regarded as

employees of the Authority under the same terms and conditions

prevailing at the date of coming into force of this Act.

PART IX

Financial Provisions

(1)

The Authority shall be governed by the provisions of

the Public Finance Management Act.

(2)

The Authority shall levy all the tariffs, rates and other

payments prescribed or deemed to be prescribed by or under this Act

or any other law related to the powers and functions of the Authority.

(3)

The Authority shall be paid by Government out of the

Consolidated Fund such sums as Parliament may, from time to time,

authorise to be appropriated to meet the costs of specified works that

shall be continued or otherwise carried out by the Authority

Provided that any subvention received from Government

shall be exempted from any liability for the payment of income tax and

duty on documents under any law for the time being.

(4)

Any excess of revenue over expenditure shall, subject to

such directives as the Minister, after consultation with the Minister

responsible for finance, may from time to time give, be applied by the

Authority to the formation of reserve funds which shall be used for the

purposes of the Authority and without prejudice to the generality of

the powers given to the Minister by this sub-article, any direction

given by the Minister as aforesaid may order the transfer to the

Government, or the application in such manner as may be specified in

the direction, of any part of the tariffs, rates and other payments levied

in accordance with sub-article (2) or any such excess as aforesaid.

(5)

Any funds of the Authority not immediately required to

meet expenditure may be invested in such manner as may from time to

time be approved by the Minister.

The Authority shall, not later than six (6) weeks after the

end of each financial year, make and transmit to the Minister and to the

Minister responsible for finance a report dealing generally with the

activities of the Authority during that financial year and containing

such information relating to the proceedings and policy of the

Authority as either of the said Ministers may from time to time

require.

(1)

The Authority shall cause to be kept proper accounts

and other records in respect of its operations, and shall cause to be

prepared a statement of accounts in respect of each financial year.

(2)

The accounts of the Authority shall be audited by an auditor

or auditors to be appointed by the Authority and approved by the

Minister

Provided that the Minister responsible for finance may, after

consultation with the Minister, require the books and accounts of the

Authority to be audited or examined by the Auditor General who shall

for that purpose have the power to carry out such physical checking

and other verifications as he may deem necessary.

(3)

The Authority shall, in accordance with regulations

published by the Minister, cause a copy of the statement of accounts

duly audited to be transmitted together with a copy of any report made

by the auditors on that statement or on the accounts of the Authority.

(4)

The Minister shall cause a copy of every such statement and

report laid before the House as soon as practicable.

(5)

The Authority shall ensure that an audit trail of all files,

including all documentation and reports are kept

Provided that the files, documentations and reports may be

digitised and the Board may after digitisation dispose of hard copies of

files, documentations and reports after a period of at least six (6)

months from date of submission to or decision of the Authority or to

any other previous entity carrying out the same functions.

The Authority shall not award or enter into any contract for

the supply of goods or materials or for the execution of works, or for

the rendering of services, to or for the benefit of the Authority, except

in accordance with regulations in force regulating the procurement of

all goods and services in the public sector.

PART X

Offences and Penalties

(1) Any person who acts in contravention of the

provisions of this Act, or in contravention of any of the provisions of

any regulations made under this Act, and any person who conspires,

attempts, aids, abets, counsels or procures any other person, to

contravene the provisions aforementioned, shall be guilty of an

offence against this Act.

(2)

Any person who in any way hinders or obstructs the

Authority or any of its officers in the performance of any of their

functions shall be guilty of an offence and shall, on conviction by the

competent Court, be liable to imprisonment for a term of not more than

three (3) months or to a fine (multa) of not less than one hundred euro

(€100) but not exceeding five thousand euro (€5,000), or to both such

imprisonment and fine.

In the event of non-compliance, the Authority may impose

an administrative penalty of not less than one hundred euro (€100) but

not exceeding ten thousand euro (€10,000), or in the case of

continuance of non-compliance a daily penalty of not less than fifty

euro (€50) but not more than three hundred and fifty euro (€350) for

each day that the non-compliance continues.

(1) Any penalty established for any offence in this Part

shall be without prejudice to any other penalty established for any

other offence under any other applicable law or regulations prescribed

under this Act.

(2)

The Authority shall have the power to establish criteria for

the provision of penalties that shall be imposed by it in accordance to

the circumstances of the prescribed cases including the suspension

and, or revocation of licence.

PART XI

Miscellaneous

The Minister may by order make such incidental,

consequential or supplemental provisions as may be necessary or

expedient for the purpose of securing and giving full effect to the

transfer of any undertaking or any right, power, liability or obligation

to the Authority by or under this Act and may make such orders as

may be necessary to make any powers or duties exercised by the

Government, in relation to anything transferred to the Authority by

virtue of this Act, exercisable by and on behalf of the Authority.

The Minister, acting on the advice of the Authority, may

make regulations to give better effect to the provisions of this Act.

PART XII

Transfer of Powers and Responsibilities

(1)

All licensing powers and all other duties and

functions of the Social Care Standards Authority and all other services

for older persons shall, upon the coming into force of this Act, be

vested in the Authority and the Chief Executive Officer respectively,

established under this Act

Provided that any decision or licence granted by the Social

Care and Standards Authority before the coming into force of this Act

shall continue to have effect as though the decision or licence had been

given under the relative provisions of this Act subject to the

satisfaction of all conditions stipulated in this Act.

(2)

All provisions and regulations made and relating to inter

alia high dependancy chronic care services for older persons,

residential services for senior citizens and residential services for

persons living with dementia in homes for senior citizens in terms of

the Social Regulatory Standards for High Dependency Chronic Care

Services for Older Persons Regulations, the Mandatory Measures for

Residential Services for Older Persons Regulations, the Social

Regulatory Standards for Residential Services for Senior Citizens

Regulations, the Social Regulatory Standards for Residential Services

for Persons Living with Dementia in Homes for Senior Citizens

Regulations and any other regulations relating and, or relevant to

services provision of older persons and which are directly related to

the remit of the Authority shall upon the coming into force of this Act

be vested in the said Authority established under this Act.

All licensing powers of homes for older persons in terms of

article 98 of the Medical and Kindred Professions Ordinance shall,

upon the coming into force of this Act, be vested in the Authority

established under this Act

Provided that any decision or licence granted under article

98 of the Medical and Kindred Professions Ordinance before the

coming into force of this Act shall continue to have effect as if the

decision or licence had been given under the relative provisions of this

Act subject to the satisfaction of all conditions stipulated in this Act.

(1)

Where any act or process has been commenced by or

under the authority of the Government prior to the date of entry into

force of this Act and such act or process is in relation to anything

transferred to the Authority by virtue of this Act, such act or process

may be carried on and completed by or under that authority of the

Government.

(2)

Where on the date of entry into force of this Act any legal

proceeding is pending to which the Government is a party or is entitled

to be a party, and such proceeding relates to anything transferred to the

Authority by virtue of this Act, the Authority shall be substituted in

such proceeding for the Government and shall be entitled to be so

substituted.