R (Wright and Others) v Secretary of State for Health and another
| Jurisdiction | UK Non-devolved |
| Judge | LORD PHILLIPS OF WORTH MATRAVERS,LORD HOPE OF CRAIGHEAD,BARONESS HALE OF RICHMOND,LORD HOFFMANN,LORD BROWN OF EATON-UNDER-HEYWOOD |
| Judgment Date | 21 January 2009 |
| Neutral Citation | [2009] UKHL 3 |
| Court | House of Lords |
| Date | 21 January 2009 |
(on the application of Wright and others)
and another
[2009] UKHL 3
Appellate Committee
Lord Phillips of Worth Matravers
Lord Hoffmann
Lord Hope of Craighead
Baroness Hale of Richmond
Lord Brown of Eaton-under-Heywood
HOUSE OF LORDS
Appellants:
Martin Spencer QC
Jeremy Hyam
Jamie Carpenter
(Instructed by Director of Legal Services Royal College of Nursing)
Respondents:
Nathalie Lieven QC
Zoë Leventhal
(Instructed by Department of Health)
My Lords,
I have had the privilege of reading in draft the speech of my noble and learned friend Baroness Hale of Richmond. From the reasons which she gives I would allow this appeal and make the declaration of incompatibility which she proposes.
My Lords,
I have had the advantage of reading in draft the speech of my noble and learned friend Baroness Hale of Richmond. I agree with her and would make the declaration of incompatibility which she proposes.
My Lords,
I have had the advantage of reading in draft the speech of my noble and learned friend Baroness Hale of Richmond. I agree with it and make the declaration of incompatibility which she proposes.
My Lords,
It is well known that children need protecting from harm, not only in their own homes but in schools, nurseries and other places where they may be looked after away from home. One way of protecting them is to try and ensure that people who pose a risk to children are not allowed to work with them. A system of listing such people is laid down under section 218 of the Education Reform Act 1988 and the Protection of Children Act 1999. It is now also recognised that adults who need special care, either because they are living in care homes or receiving personal care in their homes, should have the equivalent protection. Under Part VII of the Care Standards Act 2000, therefore, care workers employed in looking after such vulnerable adults may be placed on a list of people considered unsuitable to work with vulnerable adults (the "POVA list"). The effect of listing is to deprive the care worker of her employment as a care worker and to prevent her from getting any other such employment. This might be acceptable if there had been at least an opportunity for a judicial hearing before being placed on the list. But the 2000 Act scheme only provides such an opportunity after a lengthy administrative process during most of which the care worker is provisionally on the list. The question for us is whether this aspect of the scheme is compatible with the care worker's rights under articles 6 and 8 of the European Convention on Human Rights.
The statutory scheme
The process of inclusion on the POVA list is closely modelled on the process for inclusion on the lists of those considered unsuitable to work with children (the " POCA list") under the 1999 Act. For the most part inclusion on the one list automatically leads to inclusion on the other. The POVA scheme applies to any "care worker", defined in section 80(2) as:
"(a) an individual who is or has been employed in a position which is such as to enable him to have regular contact in the course of his duties with adults to whom accommodation is provided at a care home;…
(c) an individual who is or has been employed in a position which is concerned with the provision of personal care in their own homes for persons who by reason of illness, infirmity or disability are unable to provide it for themselves without assistance."
This extremely wide definition covers not only professional carers, such as registered nurses, but also people employed in quite different capacities in care homes. Section 80(4) adopts the same wide definition of "employment" contained in section 12(1) of the 1999 Act, which covers paid or unpaid employment, under a contract of service, contract for services or no contract at all. On the face of it, both professionals such as doctors and voluntary workers who regularly visit a care home would be included. On the other hand, the definition only covers care homes and domiciliary services. Section 80(1)(b), dealing with people employed in independent hospitals, clinics, medical agencies or the National Health Service, has never been brought into force.
Various persons and authorities are required to refer care workers to the Secretary of State for Health in certain circumstances. We are concerned with section 82(1). This requires the person who carries on a care home or domiciliary service (whom for convenience I shall call the "employer") to refer a care worker in the circumstances set out in section 82(2) and (3). These cover workers who have been dismissed "on the grounds of misconduct (whether or not in the course of his employment) which harmed or placed at risk of harm a vulnerable adult" (section 82(2)(a)); and also workers whom the employer would have considered dismissing if they had not resigned, retired or been made redundant (section 82(2)(b)), workers who have been transferred to a non-care position (section 82(2)(c)), workers who have been suspended or provisionally transferred (section 82(2)(d)), and workers who have left in other circumstances but the employer would have considered dismissing had information which has since come to light been available at the time (section 82(3)), all of these for the same grounds as those set out in section 82(2)(a) above.
The key provision with which we are concerned is the process for provisional inclusion on the list under section 82(4):
"If it appears from the information submitted with a reference under subsection (1) that it may be appropriate for the worker to be included in the list kept under section 81, the Secretary of State shall-
(a) determine the reference in accordance with subsections (5) to (7); and
(b) pending that determination, provisionally include the worker in the list."
Under section 82(5), the Secretary of State must invite observations from the worker on any information submitted with the reference and from the employer on any observations submitted by the worker. Section 82(5) does not expressly require that this be done after the worker has been provisionally included in the list under section 82(4), but the sequence of subsections strongly suggests that this was the intention. Section 82(6) requires that, having considered the information and observations submitted, and any other information he considers relevant, the Secretary of State must then decide whether the test set out in section 82(7) is met:
"This subsection applies if the Secretary of State is of the opinion-
(a) that the provider reasonably considered the worker to be guilty of misconduct (whether or not in the course of his employment) which harmed or placed at risk of harm a vulnerable adult; and
(b) that the worker is unsuitable to work with vulnerable adults."
Thus the test is not whether the misconduct actually took place, but whether the employer reasonably considered that it did. The Secretary of State must then make a judgment as to the suitability of the worker. If he is of the opinion that this test is met, section 82(6) provides that he must confirm the worker on the list (provided that a worker who was suspended or provisionally transferred has now been dismissed or her transfer confirmed). If he is not of that opinion, the worker must be removed from the list.
This can all take some time. The worker is not listed immediately on receipt of the reference. The officials to whom the Secretary of State has delegated these functions not only check whether the person making the reference is qualified to do so, but also address their minds to whether there is a prima facie case that the grounds in section 82(7) will in due course be made out. We were told that over the last 18 months a fairly constant proportion of 45% of referrals have been provisionally listed. In the four cases with which we are concerned it took between four and six months from the referral to the provisional listing. During this time no contact is made with the worker. Once the worker is provisionally listed, and further enquiries begin, it can again take months for the decision whether or not to confirm the person on the list to be made. In these four cases, it took eight or nine months. One of the four was confirmed and the other three were not confirmed. We were told that around 80% of referrals are not in the end confirmed on the list. Under section 81(3), the Secretary of State may, however, take a worker off the list at any time if satisfied that she should not have been included in it.
If a worker is confirmed on the list, she has a right of appeal to the Care Standards Tribunal under section 86(1)(a). A worker may also appeal, under section 86(1)(b), provided that the Tribunal gives her leave, if the Secretary of State refuses to remove her from the list under section 81(3). And, perhaps most importantly for present purposes, a worker cannot remain provisionally listed indefinitely without a right to a judicial hearing. Section 86(2) provides that a worker who has been provisionally listed for nine months may apply to the Tribunal for leave to have the issue of her inclusion in the list determined by the Tribunal rather than the Secretary of State.
Unlike the Secretary of State, the Tribunal is concerned with whether the alleged misconduct actually took place. Section 86(3) provides:
"If on an appeal or determination under this section the Tribunal is not satisfied of either of the following, namely-
(a) that the individual was guilty of misconduct (whether or not in the course of his duties) which harmed or placed at risk of harm a vulnerable adult; and
(b)...
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