The House of Lords gave judgment yesterday in this human rights judicial review about provisional listing under Part VII of the Care Standards Act 2000, which sets up a scheme for “listing” people thought unsuitable to work with children and vulnerable adults – and preventing those listed from working in a care position.
Before I go on, I’d better declare an interest: back in 1999 and 2000 I was the lawyer at the Department of Health responsible for Part VII, and who advised ministers it was compatible with the article 6 Convention right to a fair hearing. I’m disappointed that the Lords have unanimously ruled the scheme incompatible with article 6.
The system works like this. If someone is sacked, say by a care home, because they’re suspected for instance of abusing a vulnerable old person – or perhaps for some other potentially harmful misconduct, like getting drunk when you’re supposed to be looking after someone – then the employer must tell the Department. If officials then think the case seems to raise issues of protecting the vulnerable, it then “provisionally lists” the person under section 82(4)(b). This has the effect of preventing the person working in a care position.
Next, the Department (the Secretary of State, as the legislation has it, because the officials act on behalf of the minister) asks for representations from the worker and the employer; and if officials agree the employer was reasonable in thinking the worker committed the misconduct, and that he or she is unsuitable to work with the vulnerable, then they “confirm” the listing. The worker can then appeal to a full singing-and-dancing merits tribunal which will delist them unless satisfied they did commit the misconduct, and are unsuitable.
The beef was about provisional listing: a number of nurses have complained that provisional listing means they were unable to work without having had an opportunity to answer the charges; and that they had no access to a tribunal to air their case until the Department got round to confirming their listing. Their civil rights were thus determined without a fair hearing, contrary to article 6.
Well, the first point I have to make is that the length of time the Department has been taking to process referrals has been simply scandalous. There is no reason – except possibly a lack of proper resources – why provisional listing should not happen within a day or two of referral, and the fact that in these cases it took over four months is simply ridiculous. After that, it should take only a few weeks to confirm listing, or to delist. The fact that in these cases it took about a further eights months is almost unbelievable. I think this is important because these ludicrous delays in operating a process which, when you look at the legislation, is obviously designed to bite and move very quickly (how are the vulnerable protected if provisional listing takes more than about 48 hours?), has coloured the way all judges have looked at the scheme itself – which in my view is plainly compatible with article 6.
I find Lady Hale’s reasoning very bare indeed: have a look at her paragraphs 26 to 28 and see if you can discern why she concludes article 6 is breached. All she really says is that
The process does not begin fairly, by offering the care worker an opportunity to answer the allegations made against her, before imposing upon her possibly irreparable damage to her employment or prospects of employment.
But that’s not good enough. Article 6 does not guarantee a right to a prior judicial determination of your civil rights. Otherwise, the employment tribunal system would be incompatible (for not giving you damages before you’re unfairly dismissed) and the criminal justice system would be incompatible (for allowing you to be arrested and detained, possibly irreparably damaging your employment, before your trial).
To require the Department to delay before provisional listing – which I think Lady Hale’s view necessarily means – could well breach the state’s positive obligations to protect the life of vulnerable adults, because there will be some cases in which lives really are at stake. And if your answer is “oh, then they need to separate out the really dangerous cases from the ordinary ones”, well, you’ve just introduced another issue which of its nature needs a quick decision but which presumably you want the Department to delay making so that representations can be made.
The truth is that some early protective measure is needed before representations can be heard, or else dangerous care workers can simply move from post to post in exactly the way that inquiry after inquiry says shouldn’t be allowed. To my mind, this case is about whether we want a culture that actually protects the vulnerable, or whether we want legalism and serial inquiry to be the way of our social services life until the crack of doom. And frankly, a case like this makes you realise how empty it is for liberal opinion to have wanted the merely symbolic application of the Human Rights Act itself to care homes.
I agree completely with May LJ in the Court of Appeal. This system provides a process which can and should be very speedy and which leads to a full merits tribunal, clearly compatible with article 6, together with two safeguards (the provisional listing check and the “confirmation” check) before that. The delays are scandalous but they do not arise from the structure of the legislation; and as Lady Hale herself said in MH v Secretary of State for Health (see para. 32 of her speech), if
the means exist of operating [the legislation] in a way which is compatible with the patient’s rights. It follows that the section itself cannot be incompatible, although the action or inaction of the authorities under it may be so.
She was quite right. The delays caused by the Department of Health in processing these nurses’ referrals may well have breached the right to a fair hearing within a reasonable time, as required by article 6; but the system is perfectly compatible with that right.
Lady Hale’s reasoning is certainly bare, but doesn’t she say that she adopts the reasoning of the CA (Dyson LJ, wasn’t it?) on the Article 6 point. That’s a well-reasoned judgment which also addresses the issue of more serious allegations perhaps requiring immediate listing. So it’s not as bare as it appears at first sight!