29.40Wright and others v Secretary of State for Health [2009] UKHL 3, (2009) 12 CCLR 181
The absence of any opportunity to make representations before being included in the POVA list breached the ECHR
Facts: when the Secretary of State invited provisionally included a person on the Protection of Vulnerable Adults list, maintained under the Care Standards Act 2000, provisional inclusion on the list immediately disqualified such persons from being employed in any caring capacity. It then took a considerable period of time to be able to challenge inclusion on the list.
Judgment: the House of Lords (Lords Phillips, Hoffman, Hope, Baroness Hale and Lord Brown) held that the scheme was incompatible with Articles 6 and 8 ECHR in that it did not begin fairly by entitling the person concerned to make representations before his provisional inclusion on the POVA list. Lady Hale said this:
28. However, in my view, Dyson LJ was entirely correct in his conclusion that the scheme as enacted in the Care Standards Act 2000 does not comply with Article 6(1), for the reasons he gave. 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.
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39. However, I would not make any attempt to suggest ways in which the scheme could be made compatible. There are two reasons for this. First, the incompatibility arises from the interaction between the three elements of the scheme – the procedure, the criterion and the consequences. It is not for us to attempt to rewrite the legislation. There is, as I have already said, a delicate balance to be struck between protecting the rights of the care workers and protecting the welfare, as well as the rights, of the vulnerable people with whom they work. It is right that that balance be struck in the first instance by the legislature. Secondly, both the Care Standards Act 2000 and the Protection of Children Act 1999 will in due course be replaced by a completely different scheme laid down by and under the Safeguarding Vulnerable Groups Act 2006. While we have been informed of its existence, we have not heard argument upon whether or not that scheme is compatible with the Convention rights as the question does not arise on these appeals. Nothing which I have said in this opinion is intended to cast any light upon that question.