Law Lords Support Banned Nurses In Rights Ruling

Safeguards to protect children and vulnerable adults from abuse are an unlawful infringement of the human rights of staff working in the NHS and social care, five law lords ruled yesterday in a test case brought by the Royal College of Nursing.

The House of Lords outlawed a procedure that allows ministers to put staff on a provisional employment blacklist without investigating the strength of allegations made against them or listening to their side of the case.

The RCN said it would seek millions of pounds in compensation for employees who were suspended for long periods without pay on the basis of allegations that were shown to be unfounded.

The judgment cast doubt on the procedures for placing staff in England on the Protection of Vulnerable Adults (Pova) scheme and Protection of Children Act (Poca) lists. The charity Age Concern warned this “could be a major setback in the drive to safeguard vulnerable older people from abuse”.

Peter Carter, the RCN general secretary, said: “I am delighted the highest court in the land has upheld the principle that carers have a right to have their side of the story heard before losing their livelihoods, often for more than a year … without the fundamental right to a hearing.”

Hospitals and care homes were obliged to refer allegations of abuse by staff to ministers, who decided whether to place an employee on a provisional blacklist without a hearing. Carter said there should be a mechanism to protect vulnerable people, but these mechanisms should be “simple, understandable and, above all, fair”.

The test case was brought by four registered nurses who were able to clear themselves of misconduct allegations only after an investigation that lasted for several months.

Lords Phillips, Hoffmann, Hope and Brown and Lady Hale unanimously declared the process of placing workers on the Pova or the Poca list without an early hearing was incompatible with articles 6 and 8 of the European convention on human rights, relating to the right to a fair hearing and to respect for private life.

Hale said the effect of provisional listing followed by a delay before the merits of the case were examined was “draconian”.

Although the lists were not made public, there were some people for whom the stigma attached to listing would amount to an interference with their private life.

The charity Action on Elder Abuse said the judgment would not help people who were at risk of abuse. “The blacklists were an effective component of a system to bar unsuitable staff from having access to vulnerable people,” it said.

The Department for Children, Schools and Families said responsibility for deciding whether to bar individuals from working with children or vulnerable adults switched on Tuesday to the Independent Safeguarding Authority, an executive agency sponsored by the Home Office.