Wright & Others v Secretary of State for Health and Secretary of State for Education & Skills [2006] EWHC (Admin)

This case concerned an application for judicial review by four nurses employed as care workers within the meaning of the Care Standards Act 2000 (the Act).  The case raised a number of important issues in relation to Part VII of the Act, which created a scheme for the creation and maintenance of a list of persons who are unsuitable to work with vulnerable adults. The list is known as the Protection of Vulnerable Adults List (the POVA list). Inclusion on the list effectively precludes a person from working as a care worker with vulnerable adults.

Each of the four claimants was placed on POVA list provisionally.  W was included on the list on the basis of alleged misconduct that pre-dated the coming into force of the Act.  The others were placed on the list provisionally but their listing was not confirmed.  There were long delays between the alleged incident and the referral and provisional listing.  In the case of one nurse, there was a two year delay between the incident, the referral and his provisional listing.

A care worker is defined in the Act as an individual who has regular contact with vulnerable adults in a registered care home, through a domiciliary care agency or adult placement scheme.  The Act does not apply to those who work with vulnerable adults in NHS or private hospitals clinics or other facilities or through an independent medical agency.   Other workers excluded are those working in supported accommodation, day care and housing associations and those providing services under direct payments.

A vulnerable adult is defined in s80(6) as someone aged 18 or over who is receiving accommodation and nursing or personal care in a care home, receiving personal care in their own home under arrangements made by through a domiciliary care agency or placed with an adult placement carer by a registered adult placement service.  Section 82 of the Act makes it a statutory duty for the provider of the above services to refer a care worker to the Secretary of State in a range of circumstances set out in s82(1) to (10).  These include where the provider has dismissed the worker on grounds of misconduct (whether or not in the course of employment) which harmed or placed at risk a vulnerable adult, alternatively where the worker has resigned, retired or been made redundant in circumstances such that the provider would have dismissed him or would have considered dismissing him on such grounds. Following a referral, the care worker or provider can make written observations on the information submitted to the Secretary of State.  If it is reasonably considered by the Secretary of State that the worker is guilty of misconduct which harmed a vulnerable adult and is unsuitable to work with vulnerable adults his name will be confirmed on the POVA list.  Section 83 imposes a duty on employers and employment agencies to refer workers in similar circumstances.  Section 84 gives the registration authority, the Commission for Social Care Inspection (CSCI) the power to refer a care worker if the authority considers that the worker has been guilty of misconduct, but only where the misconduct occurred after the commencement of the section.  There is no duty on the CSCI as there is for providers, to make a referral in such circumstances.  The consequences of being placed on the list are significant; the worker commits an offence if he applies to work in a care position and cannot work with vulnerable adults until his name is removed from the list.  An appeal to the Care Standards Tribunal against a provisional decision to include the worker on the list cannot take place without the leave of the Tribunal and not until he has been provisionally listed for a period of 9 months.  (s86 (2))

A care worker who is aggrieved by his provisional listing has three available remedies

(i) convince the Secretary of State that his listing is unjustified by providing observations under s82 (5) (This may be difficult to achieve prior to the outcome of any investigation.)
(ii) apply to the Tribunal under s86 (2) this requires the leave of the Tribunal and an application can only be made after the worker has been provisionally on the list for 9 months.
(iii) Seek judicial review of the Secretary of State’s decision under s82 (4) in that she misapplied the law, or the decision was irrational or disproportionate.

The issues for the court to decide were:

(i) Whether the Secretary of State may place a person on the POVA list following a referral from his employer where the alleged misconduct preceded the coming into force of the Act?

(ii) Whether the provisions of Part VII of the Act were compatible with the rights of care workers under Articles 6 and 8 of the ECHR?

Retrospectivity

A referral by a provider based on a pre-Act event was a referral under s.82 (1) of the Act, and following it the Secretary of State could list a person if it seemed to her to be appropriate. The court held that Parliament must have intended that the section was to apply retrospectively despite the potential for unfairness. If Parliament had intended to exclude pre-Act events from s.82, it would have used similar words to those of s.84 which precluded the CSCI from making retrospective referrals. Therefore a person could be placed on the POVA list in relation to pre-Act events where the conditions listed in s82 (2) were met.
Article 6

“Article 6 (1) is engaged where the decision which is to be given is of an administrative character …… provided that it directly affects civil rights and obligations and is of a serious and genuine nature.” Alconbury v Environment Secretary [2001] UKHL.  The claimants submitted that their civil rights were restricted by being provisionally placed on the POVA list and that this effectively prevented them working in their chosen professions.  They were prevented from continuing with their current jobs and prevented from applying for further employment working with vulnerable adults.  The only judicial remedy within the first 9 months of the listing was judicial review but they argued that this remedy was not practical or adequate.

The court held that Article 6 was engaged in cases of suspension from employment provided that it directly affected the civil rights of a citizen.  The rights and obligations of a contract of employment were civil rights and referring a care worker on to the POVA list had a clear and decisive effect on the contract since the worker may be suspended or transferred as a result.  The procedure laid down in the Act to appeal against a provisional listing on POVA did not comply with the requirements of Article 6.  The procedures for listing care workers on the POVA list should respect their rights and needs as well as being sensitive to the risks to vulnerable adults. The care worker listed provisionally is unable to make any application to set aside the termination of his employment.  As far as the Tribunal is concerned he must wait 9 months before he can apply for leave to make an application. Even if an application for judicial review was a sufficient remedy, all that the court could do would be to quash the decision and it would be for the employer to decide whether to re-employ the care worker.  In other words, the care worker’s employment could be terminated on the grounds of his suspected but unproven misconduct without an opportunity to be heard.  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.

Article 8

The court held that in general, termination of employment, suspension from work or disqualification from specified employments does not engage Article 8.  The Convention does not confer any right to work in a chosen profession.  However, the basis of provisional listing on the POVA list is suspicion of misconduct serious enough to indicate that a person constitutes a risk to vulnerable persons.  That is calculated to interfere with his personal relationships with colleagues and the vulnerable persons with whom he has worked and with others. In such cases Article 8 was engaged.  The next question was whether the provisions of the Act infringed the Article 8 rights.  The court held that the procedure laid down in the Act in relation to provisional listing was unfair and a disproportionate approach to the problem of provisional action.  It did not ensure that respect for the interests of care workers were safeguarded; the Act was incompatible with the rights of the claimants under Article 8.

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