Care Workers - POVA List Unlawful

The House of Lords has, this morning, handed down a decision impacting on those advising or working in the care sector.

The case concerns care workers who look after vulnerable adults or children. Under current legislation, if the employer dismisses the employee because they have harmed (or placed at risk of harm) a vulnerable person, then their name must be included on a list held by the Secretary of State and they are banned from employment by any other care provider.

The problem is that people get placed on this list with little, if any, enquiry (and with no right to make representations). It takes many months for the appeal process to work, during which time the employee cannot work, and the majority of those who appeal succeed in their request to be removed from the list.

The House of Lords has held that the list is inconsistent with Article 6 of the European Convention on Human Rights, and has issued a Declaration of Incompatability. Of course, the consequence of such a declaration is that the legislation remains effective until amended by parliament (s4(6) of the Human Rights Act 1998), so it's all a bit meaningless, but it's a case that practitioners should be aware of.

R v Secretary of State ex p Wright & ors