R (Wright and Others) v Secretary of State for Health and another
| Jurisdiction | England & Wales |
| Judge | Lord Justice May,Lord Justice Dyson,Lord Justice Jacob |
| Judgment Date | 24 October 2007 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C1/2006/2585 |
| Date | 24 October 2007 |
[2007] EWCA Civ 999
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
MR JUSTICE STANLEY BURNTON
CO/1557/2006; CO/1559/2006; CO/1932/2006
CO/1819/2006
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice May
Lord Justice Dyson and
Lord Justice Jacob
Case No: C1/2006/2585
Philip Sales QC and Nathalie Lieven QC (instructed by Office of the Solicitor) for the Defendants/Appellants
Martin Spencer QC and Jamie Carpenter (instructed by Helen Caulfield, Legal Department, Royal College of Nursing) for the Claimants/Respondents
Hearing dates: 19 th and 20 th July 2007
Introduction
On the 16 th November 2006, Stanley Burnton J granted the claimants a declaration under section 4(2) of the Human Rights Act 1998 that section 82(4)(b) of the Care Standards Act 2000 was incompatible with the rights afforded by articles 6 and 8 of the European Convention on Human Rights. The Secretary of State appeals against this decision with permission of the judge who wrote, as I agree, that the issue is one of important principle. There was another issue of statutory construction which the judge decided in favour of the Secretary of State. The claimants appeal against this decision, again with the judge's permission. The judge's judgement is at [2006] ECHC 2886 (Admin) where extended detail, which I shall not need to repeat, may be found.
Part VII of the 2000 Act introduced for the protection of vulnerable adults the essentials of a listing system which already existed for children under the Protection of Children Act 1999. Part VII of the 2000 Act also made amendments of the 1999 Act.
The list for the Protection of Vulnerable Adults is referred to as “the POVA list”. The list provided for by the Protection of Children Act is referred to as “the POCA list”. The central structure of the system under each of the statutory schemes is that care workers or individuals who are included in the lists are prevented from working as carers of vulnerable adults or in a child care position respectively. There is an obvious and unchallenged public interest in having an appropriate system for protecting vulnerable adults and children from the risk of harm from unsuitable carers. It is also necessary that any scheme takes a proportionate account of the rights of those who have worked and wish to continue to work as carers.
There is extended citation from or summary of sections 80 to 89 of the 2000 Act in paragraphs 6 to 13 of the judge's judgment. In shorter summary, the scheme is as follows.
The Secretary of State has to keep a list of individuals who are considered unsuitable to work with vulnerable adults. “Vulnerable adult” and “Care worker” are defined in section 80(6) and (2) respectively. Parts of these subsections are not in force so that the definitions are currently limited to those who are provided with personal care in a care home, or in their own home under arrangements with a domiciliary care agency, or under an agreement providing support, care or accommodation; and those whose employment brings them into regular contact with such vulnerable adults. Those parts not in force would extend the definitions to include care in an independent hospital, clinic or medical agency or the National Health Service. This is relevant because it is agreed that the question of Human Rights compatibility arises in relation to the statutory provisions in force; and the restrictions on employment deriving from a person's inclusion in the list are less extensive than they would be if sections 80(2) and (6) were fully in force – see section 89(1),(2) and (5) and the definition of “care position” in section 80(3). In short, an individual who is included in the list is not currently prevented by statute from being employed in a care position by, for example, the National Health Service or an independent hospital.
By section 82(1) persons who provide care for vulnerable adults have a duty to refer a care worker to the Secretary of State if any of the conditions in sections 82( 2) or (3) are fulfilled. These subsections provide as follows:
“(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).”
Thus a reference to the Secretary of State under section 82(2) has to be made by the employer of a care worker whose employment has terminated or altered on grounds of misconduct which harmed or placed at risk of harm a vulnerable adult. I shall refer to this as “section 82(2)(a) misconduct”. This is not, as Mr Spencer QC for the respondent claimants was inclined to suggest, trivial. If a person caring for vulnerable adults has perpetrated such misconduct, appropriate steps should obviously be taken to protect other vulnerable adults from similar misconduct. Of course allegations of misconduct may be made which are unfounded; and there may be questions in individual cases whether alleged conduct characterised as misconduct was serious enough to have harmed a vulnerable adult or placed him or her at risk of harm. But the care worker's employment is terminated or altered on such grounds before they are referred to the Secretary of State. The reference and subsequent listing, if it occurs, does not itself have this effect if the employment was current immediately before the reference to the Secretary of State was made. The effect of a reference and listing under this subsection in these circumstances is to restrict the individual's ability to obtain future employment. It is also, I think, generally relevant to the application of article 6 of the Convention in particular that the care worker has or had rights against their employer under employment legislation or their employment contract. The court is, of course, concerned in addressing article 6 in the present case with civil rights and obligations which the 2000 Act may determine, to which a care worker's rights against their employer may not be directly relevant. But what is a fair hearing within a reasonable time by an independent and impartial tribunal established by law may be tempered by the context in which the determination of civil rights and obligations comes to be made.
A reference under section 82(3) is different. The subsection essentially applies to past employment which came to an end for reasons or on grounds which did not relate to section 82(2)(a) misconduct. But the employer subsequently receives information from which he forms the opinion that, if the information had been available at the time, he would have dismissed or considered dismissing the care worker on grounds of section 82(2)(a) misconduct. Here the necessity for a scheme to protect vulnerable adults remains evident, but the need for proportionate safeguards for the care workers against references which turn out to be unfounded may be rather greater. The employer did not dismiss the care worker for section 82(2)(a) misconduct. The care worker retains no relevant employment rights. As will appear, if the care worker is included provisionally on the list, they will lose their present employment if it is in a care position but the misconduct will not have related to their present employment. The information subsequently becoming available from the former employer may be unreliable, as for instance from an elderly or infirm adult of deteriorating mind, or it may even be malicious. The former employer has not relevantly decided to dismiss the care worker or alter their employment. He only has to form an opinion about what he might have done.
I pause to note that, during the hearing of this appeal, I at one time thought that a possible view might be that provisional listing following a reference under section 82(2) might be Human Rights Act compatible, but that provisional listing under section 82(3) might not be compatible. I note also that I found persuasive the submission of Mr Sales QC, for the Secretary of State, that a...
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