As the lawyer responsible for Part VII of the Care Standards Act, I’m glad that this attempt has failed to limit the misconduct that can be taken into account by the Care Standards Tribunal on an appeal by a person listed as unsuitable to work with vulnerable adults.
The system works as follows: when a care worker is dismissed for misconduct that risks harm to a vulnerable adult, the employer must report this to the Department of Health, which may then decide – if they take the view that the employer reasonably thought the person guilty of harmful or risky misconduct – to put the person on the list. In effect, listing prevents the person working in a sensitive care position, because anyone recruiting to such positions must check the list via the Criminal Records Bureau before taking someone on, and may not employ a listed person. But the person can appeal against listing; and the appeal process is biased in his or her favour because the Care Standards Tribunal must be satisfied (a) that he or she is guilty of harmful or risky misconduct and (b) that he or she is unsuitable to work with vulnerable adults – or else it must order removal from the list. I’m not sure it’s right to talk of a burden of proof here, but if there is one, it’s on the Department of Health, not the appellant.
What Mrs. Joyce argued, though, was that the Tribunal on appeal is straitjacketed, in that it can only take into account the precise misconduct originally alleged by the employer; to look at anything else is unfair and contrary to the terms of the legislation.
I think that must be wrong, and I’m glad Goldring J agrees. Surely, if previously unknown misconduct comes to light at some stage during the process, the Tribunal – which is designed to be a here-and-now merits tribunal, not simply a reviewer of an administrative decision – must take account of it. Otherwise, the whole purpose of protecting vulnerable adults is defeated.
My experience in working on this legislation (and related legislation relating to protection of children) was that there’s a strong instinct, and not just from lawyers, to make legalistic arguments of this kind, backed by the language of fairness: their tendency is always to water down protection for the vulnerable. But strong systems need to exist precisely in order to shift our culture away from one excessively focused on the rights of those suspected of abuse and misconduct, towards one which prevents harm. It’s the kind of culture shift that sad inquiry after sad inquiry has said needs to be achieved, but which never will be if claims like this one succeed.
The Pinnington case – just decided by the Admin. Court – illustrates how another “strong system” operates with a view to preventing harm. However, there was seems to be no recourse to any tribunal for people who feel aggrieved by criminal record certificates. A mere allegation held on police records can be enough to damn someone. Is that truly fair?
http://www.bailii.org/ew/cases/EWHC/Admin/2008/1870.html
It does seem extreme, I know, and I’m uneasy about it too. But people really do need to face up to the choice: you can’t argue against this kind of thing and at the same time agree with things like the Bichard report and its criticism of the way agencies were not informed of the allegations and/or charges (I can’t recall the detail) that had previously been made about Ian Huntley before he got to Soham.
You’re right, too, though, that the listing process following dismissal contains much more in the way of safeguards than disclosure of this police information does. perhaps there should be a similar recourse to a tribunal – a good point, I think.
Head of Legal – many thanks. I agree that these “strong systems” are needed but I cannot help but contrast the two regimes. The Care Standards/Protection of Children one seems much fairer. In the criminal records system it is the police deciding whether to include an allegation in a report and they could be the same police force which was required to investigate the allegations in the first place. They are hardly likely to decide that an allegation might not be true in such circumstances. The Pinnington case makes interesting reading.