Social welfare - Care workers - Listing system for protection of vulnerable adults

R (on the application of Wright and others) v Secretary of State for Health: HL (Lord Phillips of Worth Matravers, Lord Hoffmann, Lord Hope of Craighead, Baroness Hale of Richmond, Lord Brown of Eaton-under-Heywood): 21 January 2009

The appellant registered nurses (W) appealed against a decision of the Court of Appeal ([2007] EWCA Civ 999, [2008] QB 422) that section 82(4)(b) of the Care Standards Act 2000 should be construed as requiring the respondent secretary of state to give care workers the right to make representations before he made a decision to provisionally place the worker on the list preventing her from working as a carer of vulnerable adults, unless the secretary of state reasonably considered that the resultant delay would place a vulnerable adult at risk of harm.

Under part 7 of the 2000 act, care workers employed in looking after vulnerable adults could be placed on a list of people considered unsuitable to work with such adults. The effect of listing was to deprive the care worker of her employment as a care worker and to prevent her from getting any other such employment. The procedure involved an initial reference, the provisional listing of the worker concerned, if thought appropriate, and a determination as to whether that worker should be confirmed on the list. In the four cases with which the instant appeal was concerned, it took between four and six months from the referral to the provisional listing, and eight or nine months from the provisional listing to the determination. W argued that articles 6 and 8 of the European Convention on Human Rights 1950 were engaged and that they were broken both by the lack of a right to an oral hearing before provisional listing and by the low threshold applied to such listing.

Held: (1) Article 6 was engaged. The fact that a ‘civil right’ was involved was uncontroversial. Further, provisional listing amounted to the ‘determination’ of a civil right, even though the listed person would eventually have the opportunity of taking the case before the Care Standards Tribunal. Given that the listed person was deprived of her employment, the case represented an exception to the general rule that article 6 did not apply to provisional measures. Moreover, the relevant scheme breached article 6(1): the process did not begin fairly, by offering the care worker an opportunity to answer the allegations made against her before imposing on her possibly irreparable damage to her employment or prospects of employment. The solution devised by the Court of Appeal when it decided how section 82(4)(b) should be construed was not sufficient to solve the problem. It involved offering some of the care workers the opportunity to make representations in advance, while denying that opportunity to others who might have been just as unfairly treated by their former employers.

(2) Article 8 was engaged and breached. There would be some people for whom the impact on personal relationships was so great as to constitute an interference with the right to respect for private life and others for whom it might not. The scope of the ban was very wide, bearing in mind that the worker was placed on both the list for the protection of vulnerable adults and the list of those considered unsuitable to work with children. The ban was also likely to have an effect in practice going beyond its effect in law. Even though the lists were not made public, the fact was likely to get about and the stigma would be considerable. The scheme had therefore to be devised in such a way as to prevent possible breaches of the article 8 rights. The procedures had to be fair in light of the importance of the interests at stake. The low threshold for provisional listing added to the risk of arbitrary and unjustified interferences and thus contributed to the overall unfairness of the scheme.

(3) In the circumstances, it was necessary to make a declaration that section 82(4)(b) was incompatible with the convention rights.

Appeal allowed.

Martin Spencer QC, Jeremy Hyam, Jamie Carpenter (instructed by in-house solicitor) for the appellants; Nathalie Lieven QC, Zoe Leventhal (instructed by in-house solicitor) for the respondents.