RCN Judicial Review on Vetting and Barring Scheme
Published: 10 November 2010
The Royal College of Nursing (RCN) is pleased to announce that its Judicial Review regarding the Vetting and Barring Scheme has been successful in the High Court. The RCN challenged the lawfulness of the auto barring element of the scheme.
A High Court Judge, Mr Justice Wyn Williams, found “the denial of the right to make representations in advance of listing is....a denial of one of the fundamental elements of the right to a fair determination of a person’s civil rights, namely the right to be heard.”
Dr Peter Carter, RCN Chief Executive and General Secretary, said today:
“We are naturally delighted at the outcome of today’s Judicial Review. No-one would ever doubt that the protection of children and vulnerable people is of the most critical importance. However, we had long-standing concerns about the procedural fairness of this scheme, which we felt needed to be challenged.
“We are delighted that the four clients we supported have now been removed from the barred list and that other members of the RCN will not have to face the emotional and financial hardship caused by the auto-barring scheme. We look forward to building upon the Judges comments and working with the government to create a fairer vetting system for nurses and health care support workers.”
The RCN challenged four issues in the courts: listing without representation, the lack of a right to oral representation, the grounds for appealing a barring decision, and the ten year minimum barring period. The Judgement confirmed the RCN’s view that the listing without representation breached a fundamental human right, and the judge’s anxieties over the other three issues should be taken into account by the forthcoming government review.
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Notes for Editors
The grounds for the RCN Judicial Review were as follows –
Listing without representation – any person convicted – or cautioned for one of a long list of offences is automatically placed on the Adults’ Barred List without the right to make representations beforehand. The RCN believes that automatic barring with no right to make representations should only be for the most serious offences, but that a right to be heard should apply for all other cases. The judge upheld the RCN’s view.
No right to oral representation – currently, prior to being barred, individuals are only allowed to make representations in writing, but not in person. The RCN believes that Article 6 ECHR requires an individual who may be barred to have an oral hearing prior to the barring decision. The Home Office accepted as part of the defence to this case that individuals can request an oral hearing as part of the process.
Right to appeal – the RCN believes that individuals should be able to appeal a barring decision based on whether or not it was an appropriate decision, not just on the application of the law or a mistake as to the facts of the case. During the course of the case, the Home Office representatives have accepted that the reasonableness or proportionality of a decision can be challenged on appeal as a mistake of law.
Minimum barring periods - The RCN believes that it is disproportionate for an individual to be unable to have their case reviewed until 10 years have passed. The Court accepted that the ISA have a system in place for reviewing the proportionality of the length of a barring period but the Judge said “Since the scheme as a whole is under review, I express the hope that the issue of minimum barring periods will be looked at anxiously in the light of all the information available”
The creation of the ISA is part of the biggest overhaul of vetting and barring arrangements ever undertaken in the UK, and will eventually cover almost 10 million people. When fully rolled out in 2015, the ISA will be the biggest scheme of its kind in the world.
The ISA has replaced schemes such as the Protection of Children Act (PoCA), the Protection of Vulnerable Adults (PoVA) and List 99. It was intended that the ISA will be a database of all individuals who work frequently or intensively with children and vulnerable adults. All nurses, midwives, nursing students and health care assistants working in a regulated environment were originally required by law to register. However, the Home Office suspended the implementation of the registration scheme in June 2010 as part of its review of the effectiveness of the VBS. The whole scheme is now under review.
Claimants Backgrounds
The RCN believes that it would be helpful to set out the backgrounds to some of the Claimants involvement in the case.
First claimant – Royal College of Nursing
The RCN has approximately 400,000 members in nursing and allied professions, including healthcare assistants. The RCN has had long-standing concerns about the treatment of its members under both the present scheme and its predecessor scheme, a central element of which was declared to be incompatible with the Convention by the House of Lords in R (Wright) v Secretary of State for Health and another [2009]. Both the Wright case and this action have been brought by the RCN’s in house legal team. With the exception of the RCN, the remaining Claimants in the case have been anonymised under an order made by the High Court
Second Claimant – Mr O.
Mr O is a nurse with an exemplary record. Mr O’s wife left their children alone for a short time while Mr O was at work. Mr O’s wife was arrested and detained overnight and subsequently cautioned. Mr O attended the police station the following day voluntarily and was also cautioned. There is no suggestion that Mr O was aware that his wife intended to leave the children alone. However on 2nd March 2010, over nine months since Mr O accepted the caution, the ISA wrote to inform him that it had automatically included his name on the Children’s and Adults’ Barred Lists for a full ten years. Mr O remained on the Barred Lists until 24th July 2010 until his name was removed after representations were made by the RCN. During this time he was unable to work as a clinical nurse.
Third Claimant – Mrs W.
Mrs W is a nurse who was automatically included on the Barred Lists for ten years by ISA on 7th June 2010 after she had accepted a caution for leaving her 11 year old son at home on his own when she went shopping. Mrs W’s case was referred to the Nursing and Midwifery Council which made a finding after an investigation that she had no case to answer. Mrs W was unable to work as an agency nurse as she was prior to being placed on the Barred Lists and remained on unpaid leave. This placed her under significant financial pressures as a single parent responsible for her son. Mrs W was removed from the auto bar list on 18th August 2010 after the RCN made representations on her behalf.
For further information, interviews or illustrations please contact the RCN Media Office on 0207 647 3633, press.office@rcn.org.uk or visit www.rcn.org.uk/news/mediacentre.php
The 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.