R (Wright and Others) v Secretary of State for Health and another
| Jurisdiction | England & Wales |
| Judgment Date | 16 November 2006 |
| Neutral Citation | [2006] EWHC 2886 (Admin) |
| Docket Number | Case Nos: CO/1557/2006 CO/1932/2006 CO/1819/2006 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 16 November 2006 |
[2006] EWHC 2886 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Before MR JUSTICE STANLEY BURNTON
Case Nos: CO/1557/2006
CO/1559/2006
CO/1932/2006
CO/1819/2006
Martin Spencer QC and Jamie Carpenter (instructed by Helen Caulfield, Legal Department, Royal College of Nursing) for the Claimants
Nathalie Lieven QC (instructed by the Office of the Solicitor) for the Defendants
Stanley Burnton J
Introduction
These conjoined applications for judicial review, made with the support of the Royal College of Nursing, raise a number of important issues in relation to Part VII of the Care Standards Act 2000 ("the CSA"). Part VII created a scheme for the creation and maintenance of a statutory 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 POVA list effectively precludes a person from working as a care worker with vulnerable adults.
Each of the Claimants was placed on the POVA list provisionally. Mrs Wright was included in the list on the basis of alleged misconduct that pre-dated the coming into force of the statutory provisions. She has appealed against her inclusion in the list to the Care Standards Tribunal, which has stayed her appeal pending the outcome of these proceedings. Mr Jummun was placed on the list provisionally but the Secretary of State decided not to confirm his listing. Mary Quinn and Barbara Gambier were placed on the list provisionally; following representations on their behalf, the Secretary of State decided not to confirm their listing.
These are representative applications, in the sense that there are other cases brought by other members of the RCN that await the decisions in the present cases.
The issues before the Court
The issues I have to consider are:
(a) Whether the Secretary of State may include a person in the POVA List under section 82 of the Act, following a reference from his employer, where the alleged misconduct of that person preceded the coming into force of that section.
(b) Whether the provisions of Part VII are compatible with the rights of care workers under Articles 6 and 8 of the European Convention on Human Rights and under Article 1 of the First Protocol of the Convention.
There was originally a further issue, namely whether Mr Jummun, the Second Claimant, was a care worker within the meaning of the Act. Having considered Ms Lieven's submissions and reconsidered the evidence on this issue, Mr Spencer realistically and commendably conceded that Mr Jummun is indeed such a care worker, and I do not consider the issue further.
The statutory provisions
Two of the basic definitions in the Act are those of a care home and a care worker. A care home is defined in section 3:
(1) For the purposes of this Act, an establishment is a care home if it provides accommodation, together with nursing or personal care, for any of the following persons.
(2) They are
(a) persons who are or have been ill;
(b) persons who have or have had a mental disorder;
(c) persons who are disabled or infirm;
(d) persons who are or have been dependent on alcohol or drugs.
(3) But an establishment is not a care home if it is
(a) a hospital;
(b) an independent clinic; or
(c) a children's home,
or if it is of a description excepted by regulations.
"Care worker" is defined by section 80(1):
(1) Subsections (2) to (7) apply for the purposes of this Part.
(2) Care worker means
(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;
(b) 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 prescribed services are provided by an independent hospital, an independent clinic, an independent medical agency or a National Health Service body;
(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.
Paragraph (b) of section 80(2) is not in force.
"Vulnerable adult" is defined in section 80(6):
(6) Vulnerable adult means
(a) an adult to whom accommodation and nursing or personal care are provided in a care home;
(b) an adult to whom personal care is provided in their own home under arrangements made by a domiciliary care agency; or
(c) an adult to whom prescribed services are provided by an independent hospital, independent clinic, independent medical agency or National Health Service body.
Again, paragraph (c) is not yet in force.
Sections 81 and 82 are, so far as relevant, as follows:
81 (1) The Secretary of State shall keep a list of individuals who are considered unsuitable to work with vulnerable adults.
(2) An individual shall not be included in the list except in accordance with this Part.
(3) The Secretary of State may at any time remove an individual from the list if he is satisfied that the individual should not have been included in it.
82 (1) A person who provides care for vulnerable adults (the provider) shall refer a care worker to the Secretary of State if there is fulfilled -
(a) any of the conditions mentioned in subsection (2); or
(b) the condition mentioned in subsection (3).
(2) The conditions referred to in subsection (1)(a) are
(a) that the provider has dismissed the worker 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;
(b) that 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 if he had not resigned, retired or been made redundant;
(c) that the provider has, on such grounds, transferred the worker to a position which is not a care position;
(d) that the provider has, on such grounds, suspended the worker or provisionally transferred him to a position which is not a care position but has not yet decided whether to dismiss him or to confirm the transfer.
(3) The condition referred to in subsection (1)(b) is that-
(a) in circumstances not falling within subsection (2), the provider has dismissed the worker, he has resigned or retired or the provider has transferred him to a position which is not a care position;
(b) information not available to the provider at the time of the dismissal, resignation, retirement or transfer has since become available; and
(c) the provider has formed the opinion that, if that information had been available at that time and if (where applicable) the worker had not resigned or retired, the provider would have dismissed him, or would have considered dismissing him, on such grounds as are mentioned in subsection (2)(a).
(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.
(5) The Secretary of State shall-
(a) invite observations from the worker on the information submitted with the reference and, if he thinks fit, on any observations submitted under paragraph (b); and
(b) invite observations from the provider on any observations on the information submitted with the reference and, if he thinks fit, on any other observations under paragraph (a).
(6) Where
(a) the Secretary of State has considered the information submitted with the reference, any observations submitted to him and any other information which he considers relevant; and
(b) in the case of a reference under subsection (2)(d), the provider has dismissed the worker or, as the case may be, has confirmed his transfer on such grounds as are there mentioned,
the Secretary of State shall confirm the worker's inclusion in the list if subsection (7) applies; otherwise he shall remove him from the list.
(7) 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.
(8) The reference in subsection (6)(b) to the provider dismissing the worker on such grounds as are mentioned in subsection (2)(d) includes-
(a) a reference to his resigning, retiring or being made redundant in circumstances such that the provider would have dismissed him, or would have considered dismissing him, on such grounds if he had not resigned, retired or been made redundant; and
(b) a reference to the provider transferring him, on such grounds, to a position which is not a care position.
(9) This section does not apply where-
(a) the provider carries on a domiciliary care agency, or an independent medical agency, which is or includes an employment agency or an employment business; and
(b) the worker in question is a supply worker in relation to him.
(10) Nothing in this section shall require...
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