Law Lords rule against government blacklist
Published: 27 January 2009
The Royal College of Nursing (RCN) today applauded the House of Lords for their ruling in favour of four RCN members who were unfairly excluded from the workplace under the Protection of Vulnerable Adults (POVA) and Protection of Children Act (POCA) lists. This judgment comes after a series of cases in the High Court and Court of Appeal, which found that the scheme was unfair and incompatible with both Article 6 and Article 8 of the European Convention on Human Rights.
The judgment means that any nurse or care worker whom the Secretary of State for Health wants to place on the POVA or POCA list now has the right to be heard before they can place them on the “provisional list”. Currently, inclusion on the provisional list results in an immediate ban from work with no opportunity for a hearing.
Dr Peter Carter, RCN Chief Executive & General Secretary said:
“The RCN has been campaigning to end this unfair system since it was first introduced. I am delighted the highest court in the land has upheld the principle that care workers have a right to have their side of the story heard before losing their livelihoods, often for more than a whole year.
“Until now, nurses placed on the list provisionally were banned from working in any care setting – sometimes on the flimsiest of evidence or on the basis of malicious accusations, without the fundamental right to a hearing.
“Public and patient safety is of course always absolutely paramount, and there should be a mechanism to protect vulnerable people when they are in the care of nurses and care workers. However these mechanisms must be simple, understandable and above all fair. Such systems already exist for nurses at the Nursing and Midwifery Council – no nurse loses their registration even on a temporary basis unless there is a full hearing before the NMC. In particular, we welcome the ruling so that the inherent unfairness of this system can be changed before the replacement scheme operated by the Independent Safeguarding Authority comes into operation this autumn. This new system is due to cover an estimated 12 million people who work with vulnerable adults and children.
“This judgment has serious implications for the government’s plans, and the government needs to look into this as a matter of urgency. Public protection is an important duty and should be done in a fair, effective and efficient way.”
The judgment means that the government is liable to pay compensation to people who have been wrongly removed from the workforce, estimated to cost millions of pounds.
Ends
Notes for Editors
Key Impacts of the Judgement:
1. All care workers who have ever been placed on the provisional list from July 2004 should have had the right to make representations before they were listed.
2. No care worker who has been referred to the Secretary of State should be placed on the provisional list unless he or she has been given the right to make representations.
3. RCN has already instructed Leigh Day solicitors to take forward claims on behalf of members who have been placed from the provisional list and who are now seeking compensation against the Secretary of State for Health in the European Court of Human Rights. These claims continue.
The Protection of Vulnerable Adults (POVA) scheme was created by the Care Standards Act 2000 in which the Secretary of State holds a List of people who are considered “unsuitable to work with vulnerable adults”.
The scheme works the following way: A complaint in writing is made (by the employer) to the Secretary of State. If the individual is a care worker the Secretary of State will place that individual on the List on a provisional basis. Investigation takes place by a paper exercise alone. The individual writes to the Secretary of State who then takes further views from the referrer. No hearing takes place.
Once the investigation is complete the individual is either removed from the provisional list or is confirmed on the List. Once confirmed, the impact is that the individual cannot work with vulnerable adults for a period of 10 years. It is a criminal offence for the individual to seek to try to work with vulnerable adults.
There is an appeal mechanism to the Care Standards Tribunal against confirmed listing.
The provisional listing acts as a workforce ban. While the investigation goes on, the individual cannot work with vulnerable adults (POVA) or children (POCA). It is a criminal offence for an employer to take on someone who is on the confirmed list.
Article 6- right to a fair trial
The RCN argued that section 82(4)(b) Care Standards Act 2000 did not give care workers a right to a fair hearing as required under Article 6 ECHR before the Secretary of State made a decision to make a provisional Listing of the person on the Protection of Vulnerable Adults List (POVA) or the Protection of Children Act List (POCA).
Article 8- right to family and private life
The RCN argued that the impact of a provisional listing, which imposes an immediate workforce ban, was contrary to Article 8 ECHR as it affected the care worker’s ability to earn a living.
For further information, interviews or illustrations please contact the RCN Media Office on 0207 647 3633, press.office@rcn.org.uk or visit http://www.rcn.org.uk/newsevents/media
Royal College of Nursing (RCN) is the voice of nursing across the UK and is the largest professional union of nursing staff in the world. The RCN promotes the interest of nurses and patients on a wide range of issues and helps shape healthcare policy by working closely with the UK Government and other national and international institutions, trade unions, professional bodies and voluntary organisations.