House of Lords ruling on POVA list

27 January 2009

House of Lords ruling that POVA list is incompatible with the European Convention on Human Rights coincides with newly introduced changes to the POVA scheme

Background
Under the Care Standards Act 2000, care workers employed in looking after vulnerable adults may be placed on a list of people considered unsuitable to provide such care. This is known as the Protection of Vulnerable Adults (“POVA”) list.

Under the Act, employers were obliged to refer care workers to the Secretary of State when they dismiss, transfer or suspend a care worker for misconduct that harmed, or placed at risk of harm, a vulnerable adult. Before the Secretary of State makes a full determination, the worker is provisionally included on the list.

R -v- Secretary of State ex-parte Wright and Others
The House of Lords decision last week puts in doubt the current POVA processes. The case concerned a number of care workers who were provisionally placed on the POVA list. Some were ultimately confirmed but others were not. The care workers claimed that the POVA scheme was incompatible with their rights under articles 6 (Right to a Fair Trial) and 8 (Right to Respect for Private and Family Life) of the European Convention on Human Rights (“the Convention”).

The issue at the heart of the matter was that there was no opportunity for a judicial hearing before being placed on the provisional list. The worker makes no representations before being provisionally listed and it can then take months for the decision as to whether or not to confirm the person on the list.

The decisions
At first instance, it was held that the automatic effect of provisional listing upon a care worker’s employment was a determination of the worker’s civil rights and obligations within the meaning of Article 6 of the Convention. The right to respect for private life, protected by Article 8, was also engaged. POVA listing was calculated to interfere, not only with employment, but also with personal relationships with colleagues, the vulnerable people with whom they worked and with others. The provisional listing pending the termination was found to be incompatible with the rights granted by the Convention.

The decision was appealed to the Court of Appeal. It found that the provisional listing engaged Article 6 but, reversing the initial decision in parts, upheld that a breach could be avoided by giving the care worker a right to make representations before being placed on the list. This could be effected by a declaration that the relevant section of the Act was to be construed by reading in the words “and after giving the worker an opportunity to make representations…”. The Courts did not think it necessary to consider Article 8.

The appellants in the House of Lords argued that the defects could not be cured by interpretation and application. Only a declaration of incompatibility would do. The House of Lords found that the POVA scheme, particularly provisional listing, was incompatible with Article 6 of the Convention and the solution offered by the Court of Appeal did not cure the problem. The process did not begin fairly as it did not offer the care worker an opportunity to answer the allegations made against him before imposing upon him potentially irreparable damage to his employment or prospects of employment. It also found the scheme to be inconsistent with Article 8. The House of Lords stated that it was not for it to attempt to re-write the legislation.

POVA scheme changes and provisional listing ends
Coincidentally, the House of Lords ruling was handed down on the day after a number of changes to the POVA scheme came into effect. A new scheme laid down by the Safeguarding Vulnerable Groups Act 2006 (“SVGA”) is due to be launched later this year. The SVGA created a new body, now known as the Independent Safeguarding Authority (“ISA”). As part of the transition to the new scheme, on 20 January 2009 the ISA took over responsibility from the Secretary of State for making decisions on all new referrals under POVA. Significantly, ISA has decided that, from 20 January 2009, new referrals will no longer be considered for provisional listing on the POVA list while the referral is being investigated.

Comment
Despite the House of Lords’ declaration of incompatibility with the Convention rights, the POVA scheme legislation remains in effect. The decision, whilst being a victory for civil rights, did not change things. However, it is fortunate that ISA had already given due consideration to the problem and made its own decision that new referrals will not be considered for provisional listing. ISA’s decision fits in neatly, and consistently, with the House of Lords ruling which was handed down the day after the POVA scheme changes. The decision in Wright, perhaps, has most relevance in the context of wrongly accused care workers seeking compensation for the periods they could not work whilst on the provisional POVA list.

Employers should be aware that they are still obliged to refer care workers in accordance with the 2000 Act but new referrals should now be made to ISA. Employers also have new duties to respond to ISA’s requests for further information. Their duty to check against the POVA list before employing a care worker remains the same.

One problem for employers is that, without the provisional listing system, harmful carers, in the period before the determination of their place on the list, may be able to gain new employment in care facilities as their risk will not yet have been published.

NHS employers should note that the POVA legislation only applies to ‘care workers’ in care homes and domiciliary services. The section of the 2000 Act extending the definition to workers providing care within NHS bodies and independent hospitals has never been brought into force. Press comment, as to the dramatic effect of this case on the NHS, is, accordingly, misconceived.