RCN welcomes Appeal Court Ruling on POVA list
Published: 24 October 2007
The Court of Appeal has today ruled that any nurse or care worker whom the Secretary of State for Health wants to place on the Protection of Vulnerable Adults (POVA) list, must have the opportunity to make representations to the Secretary of State, before they are placed on the “provisional list” – inclusion on the list currently results in an immediate ban from work.
This judgement comes after a Government appeal against the High Court’s decision in November last year that the POVA scheme was unfair and incompatible with Article 6 and Article 8 of the European Convention on Human Rights.
Commenting on the judgement in the case of Wright and others v. Secretary of State for Health and Secretary of State for Education and Skills today, Dr Peter Carter, General Secretary of the Royal College of Nursing, said:
“The RCN has been campaigning for the right to a fair hearing for nurses since the POVA scheme was introduced. We are pleased that the Court of Appeal has upheld the key aspects of High Court’s decision against the workings of the scheme; it is a victory of principle that gives care workers and nurses the right to give their side of the story before they are placed on the list.
“Last year, the High Court made it quite clear that the POVA scheme was unfair and incompatible with Articles 6 and Article 8 of the European Convention on Human Rights, when it ruled against the Government.
“Until now, nurses placed on the POVA list provisionally were effectively banned from working - sometimes on the flimsiest of evidence - and without the fundamental right to a hearing. However, today’s ruling means that nurses will now have time to make representations to the Secretary of State, before they are placed on the ‘provisional list.’
“The RCN is currently representing some nurses put on the provisional list on the basis of malicious rumours who have subsequently lost their jobs and homes because they are banned from working under POVA.
“There should, of course, be strong mechanisms to protect vulnerable people when they are in the care of nurses and care workers but we believe these already exist in the form of the government’s own regulatory body, the Nursing and Midwifery Council.
“The RCN will continue to work hard to ensure that all those nurses placed on the POVA provisional list who have been denied a fair hearing receive adequate compensation.”
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The scheme works the following way: A complaint in writing is made (by anyone) 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 provisional list.
There are about 900 000 care workers who fall within the scope of the POVA scheme. Referrals by care providers to the Secretary of State run at about 200 a month. At September 2006 there were about 2000 provisional listings (para 22- statistics from the Secretary of State at the High Court judgment).
The Court of Appeal agreed that this case was “one of important principle” (May LJ para 1). Lord Justice Dyson gave the majority judgment of the Court (paras 75-117). The court heard and decided three different legal arguments:
In deciding this in favour of the RCN, the Court of Appeal has agreed that the relevant legislation should be read as if each care worker had always had the right to make representations before the Secretary of State could make a provisional listing.
All three Court of Appeal judges agreed that the most effective remedy was to redraft the relevant section in the legislation to incorporate a right for each care worker to make representations before the Secretary of State makes a provisional listing. This judicial approach to legislation will mean that no care worker will have to wait for Parliament to find time to introduce new legislation to redraft the Care Standards Act.
For further information, interviews or illustrations please contact the RCN Media Office on 0207 647 3633, press.office@rcn.org.uk or visit the RCN Media center
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.
This judgement comes after a Government appeal against the High Court’s decision in November last year that the POVA scheme was unfair and incompatible with Article 6 and Article 8 of the European Convention on Human Rights.
Commenting on the judgement in the case of Wright and others v. Secretary of State for Health and Secretary of State for Education and Skills today, Dr Peter Carter, General Secretary of the Royal College of Nursing, said:
“The RCN has been campaigning for the right to a fair hearing for nurses since the POVA scheme was introduced. We are pleased that the Court of Appeal has upheld the key aspects of High Court’s decision against the workings of the scheme; it is a victory of principle that gives care workers and nurses the right to give their side of the story before they are placed on the list.
“Last year, the High Court made it quite clear that the POVA scheme was unfair and incompatible with Articles 6 and Article 8 of the European Convention on Human Rights, when it ruled against the Government.
“Until now, nurses placed on the POVA list provisionally were effectively banned from working - sometimes on the flimsiest of evidence - and without the fundamental right to a hearing. However, today’s ruling means that nurses will now have time to make representations to the Secretary of State, before they are placed on the ‘provisional list.’
“The RCN is currently representing some nurses put on the provisional list on the basis of malicious rumours who have subsequently lost their jobs and homes because they are banned from working under POVA.
“There should, of course, be strong mechanisms to protect vulnerable people when they are in the care of nurses and care workers but we believe these already exist in the form of the government’s own regulatory body, the Nursing and Midwifery Council.
“The RCN will continue to work hard to ensure that all those nurses placed on the POVA provisional list who have been denied a fair hearing receive adequate compensation.”
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Notes to Editors
Key Impacts of the Judgement:
- 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.
- 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. The exceptions to this will be a category of cases where the allegation is serious or urgent.
- RCN has already instructed Leigh Day solicitors to take forward claims on behalf of members who have been placed or removed 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 scheme works the following way: A complaint in writing is made (by anyone) 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 provisional list.
There are about 900 000 care workers who fall within the scope of the POVA scheme. Referrals by care providers to the Secretary of State run at about 200 a month. At September 2006 there were about 2000 provisional listings (para 22- statistics from the Secretary of State at the High Court judgment).
The Court of Appeal agreed that this case was “one of important principle” (May LJ para 1). Lord Justice Dyson gave the majority judgment of the Court (paras 75-117). The court heard and decided three different legal arguments:
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). This was the most substantial argument.In deciding this in favour of the RCN, the Court of Appeal has agreed that the relevant legislation should be read as if each care worker had always had the right to make representations before the Secretary of State could make a provisional listing.
All three Court of Appeal judges agreed that the most effective remedy was to redraft the relevant section in the legislation to incorporate a right for each care worker to make representations before the Secretary of State makes a provisional listing. This judicial approach to legislation will mean that no care worker will have to wait for Parliament to find time to introduce new legislation to redraft the Care Standards Act.
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. The High Court agreed with this argument, but this was not dealt with by two of the judges at the Court of Appeal.Retrospectivity
The RCN had argued that referrals to the Secretary of State that involved actions arising before July 2004 (the retrospectivity argument) were also unlawful. Both the High Court and the Court of Appeal decided against the RCN on this point. The impact of this is that care workers who have had their cases confirmed and who are waiting for a hearing at the Care Standards Tribunal should now be able to be heard.For further information, interviews or illustrations please contact the RCN Media Office on 0207 647 3633, press.office@rcn.org.uk or visit the RCN Media center
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.