Wright & Others v Secretary of State for Health [2007] EWCA Civ 999

In the High Court, the claimants Wright and others were granted a declaration under s4 (2) of the Human Rights Act 1998 that s82 (4) (b) of the Care Standards Act 2000 (CSA) was incompatible with the rights afforded by articles 6 and 8 ECHR.  A reference may be made either under section 82 of the CSA.  Under s82(2) a reference to the Secretary of State has to be made by the employer where the employment of a care worker has been terminated or altered on grounds of misconduct which harmed or put at risk of harm a vulnerable adult.  A reference under s82(3) will be made where past employment was ended and the former employer subsequently comes into possession of information which if it had been available at the time of the termination, the employer would have dismissed/considered dismissing the care worker  for s82(92) misconduct. If a care worker is included provisionally on the POVA list they will lose their employment in a care position.  Section 82(4)(b) requires the Secretary of State to make a judgment on a referral made from an employer of a care worker whether it may be appropriate for the worker to be included on the POVA list.
Decision of the High Court

The court held that a care worker who was aggrieved by his provisional listing had 3 available remedies, one of which was to apply to the Care Standards Tribunal under s86 (2) This required the leave of the Tribunal and an application could only be made after the worker has been provisionally on the list for 9 months.  The care worker listed provisionally was unable to make any application to set aside the termination of his employment.  As far as the Care Standards Tribunal was concerned the worker had to wait 9 months before he could apply for leave to make an application. The High Court decided that there was no good reason not to give a care worker an opportunity to be heard particularly when other professions, such as the medical profession, had adopted a system which required the order of a Tribunal before a healthcare professional could be suspended.  The statutory prohibition of 9 months, irrespective of the circumstances and the evidence available was inflexible and was an unjustified interference with a care worker’s rights of access to the courts under Article 6.  The provisions of the Act were accordingly held to be incompatible with Article 6.

In the Court of Appeal

The Secretary of State’s case was that:

(i) s81(3) of the CSA allows a care worker  included provisional in the list to apply to the Secretary of State for his name to be removed from the list “at any time” if satisfied that the individual should not have been included in the list.
(ii) The refusal to remove the care workers name from the list could be challenged by way of judicial review thereby making the procedure as a whole, compliant with Article 6 ECHR.
(iii) A balance had to be struck between the rights of the care worker and the vulnerable adult and that a fair final decision could not be made without proper investigation;
(iv) The procedural unfairness complained of was a matter of legislative substance and therefore not amenable to judicial review.
May LJ

Stated that the rationale behind the legislation was that certain care workers may be included on the list pending determination of the reference.  This was a precautionary approach and by no means meant that everyone referred was provisionally included.  A full investigation of the facts behind  the reference would inevitable take time and in the opinion of the court, nine months did not appear to be unduly long.  It did not consider that a delay before a final decision was made by the Secretary of State meant that the statute under s82 (6) was incompatible with the ECHR.

The Secretary of State had consistently argued that a decision to include a care worker on the list was an interim decision; it did not prejudice the final decision and did not amount to a determination of civil rights and obligations.  Article 6 EHCR was therefore not applicable.  May LJ accepted that Article 6 would be capable of applying in some but not all cases but should not lead to the conclusion that a blanket declaration of incompatibility should be made.

A further ground of appeal made by the Secretary of State had been that if Article 6 was applicable, judicial review was a sufficient remedy to make the procedure compliant.  The Care Standards Tribunal was an independent and impartial tribunal. The Court of Appeal held that judicial review was a remedy that was available and that the tribunal would have full jurisdiction.  The court would be able to decide whether the statutory test had been properly applied. The scheme did not therefore infringe Article 6.  It was open to the provisionally listed care worker to challenge the listing by JR or to apply under s81(3) to remove their name form the list and to apply for JR for review of an adverse decision if they have a very good reason for saying that the provisional listing should not have been made.  A provisionally listed care worker who could quickly establish mistaken identity or show that dismissal was unfair (Employment Tribunal) does have an independent judicial remedy  those who do not have this remedy are those against whom there is a reasonably arguable case that they have perpetrated s82(2) misconduct and for whom there was a real prospect that the SS would after due process confirm their inclusion of the list  for these reasons it was held that s82(4) was not incompatible with Article 6 ECHR and declaration of incompatibility should not have been made.

Dyson LJ & Jacob LJ

In his judgement, Dyson LJ disagreed that Article 6 was not engaged in all cases where a worker included provisionally on the POVA list.  The denial of the right to make representations was a breach of the worker’s Article 6 rights not made good by the remedies available under the Act.  He held that the question whether article 6 was engaged should not be decided by examining on a case by case basis the actual effect of provisional listing on an individual worker.  The better approach was to recognise that provisional listing had the obvious potential to cause serious prejudice to workers in all cases and to hold that Article 6 was engaged in all cases.  He did however agree that a declaration of incompatibility should not have been made by the High Court. Section 82(4) could be read and given effect so as to be compatible with Art 6 The statute did not expressly agree or deny to a worker an opportunity to make representations at the provisional listing state; it was silent on the subject.  The section should be interpreted so as to require the Secretary of State to give workers the right to make representations before making a decision under s84 (4) (b) unless she reasonable considered that the resultant delay would place a vulnerable adult at risk of harm.

Appeal allowed.  Declaration of true interpretation of section 82(4) (b) to be made.

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