The Royal College of Nursing has won its judicial review against the barring scheme run by the Independent Safeguarding Authority.

The college went to the High Court to challenge four parts of the ISA’s new vetting and barring scheme for working with children and vulnerable adults, which had affected 72 of its members.

I am really pleased that we had the guts to do this. You never know how a case is going to go but I just felt this was so unfair

High court judge Mr Justice Wyn Williams this morning ruled the civil rights of the four nurses in the test case had been denied because of the automatic barring element of the scheme. This meant they were unable to make representations until after they were put on the barred list for 10 years.

In the case of the RCN members, they were placed on the barred list because they had accepted a police caution for a minor offence (see below).

This morning’s win opens the door for possible compensation claims in Europe as some RCN members lost wages while on the list and unable to work.

RCN chief executive and general secretary Peter Carter said: “We are clear that we want to have arrangements to protect children and vulnerable people. But these arrangements were rushed through and were a denial of the fundamental principles of natural justice. We are very pleased with this morning’s judgement.

“We are delighted that the four clients we supported have now been removed from the barred list and that other members of the RCN will not have to face the emotional and financial hardship caused by the auto-barring scheme.”

He added: “I am really pleased that we had the guts to do this. You never know how a case is going to go but I just felt this was so unfair.”

Three of the other grounds of challenge - that having no right to oral representation, no right to appeal on the appropriateness of the decision and a minimum barring period – were unlawful, were not supported by the judge.

The vetting and barring scheme was suspended and a review announced on 22 October. The review is due to report at the beginning of 2011.

A spokesman for the Home Office said the judge’s comments would be taken into account in the review and it had not decided yet whether to appeal.

A Home Office spokesman said: “The government will consider the judgement carefully. We recently announced a review and remodelling of the vetting and barring scheme to re-examine whether it is the most appropriate mechanism to protect children and vulnerable adults.

“We note the court found in favour of the government in three of the four areas of challenge to the scheme. However, we will take account of all aspects of the vetting and barring scheme in the remodelling process.”

 

The grounds for the RCN judicial review were as follows:
Listing without representation – any person convicted or cautioned for one of a long list of offences is automatically placed on the Adults’ Barred List without the right to make representations beforehand. The RCN believes that automatic barring with no right to make representations should only be for the most serious offences, but that a right to be heard should apply for all other cases. The judge upheld the RCN’s view.
No right to oral representation – currently, before being barred, individuals are only allowed to make representations in writing, but not in person. The RCN believes that Article 6 of the European Convention on Human Rights requires an individual who may be barred to have an oral hearing before the barring decision. The Home Office accepted as part of the defence to this case that individuals can request an oral hearing as part of the process.
Right to appeal– the RCN believes that individuals should be able to appeal a barring decision based on whether or not it was an appropriate decision, not just on the application of the law or a mistake as to the facts of the case. During the course of the case, the Home Office representatives have accepted that the reasonableness or proportionality of a decision can be challenged on appeal as a mistake of law.
Minimum barring periods - The RCN believes that it is disproportionate for an individual to be unable to have their case reviewed until 10 years have passed. The court accepted that the ISA have a system in place for reviewing the proportionality of the length of a barring period but the judge said: “Since the scheme as a whole is under review, I express the hope that the issue of minimum barring periods will be looked at anxiously in the light of all the information available.”

 

Claimants’ backgrounds

First claimant – Royal College of Nursing

The RCN has approximately 400,000 members in nursing and allied professions, including healthcare assistants. The RCN has had long-standing concerns about the treatment of its members under both the present scheme and its predecessor scheme, a central element of which was declared to be incompatible with the European Convention on Human Rights by the House of Lords in R (Wright) v Secretary of State for Health and another [2009]. Both the Wright case and this action have been brought by the RCN’s in-house legal team. With the exception of the RCN, the remaining claimants in the case have been anonymised under an order made by the High Court.

Second Claimant – Mr O

Mr O is a nurse with an exemplary record.  Mr O’s wife left their children alone for a short time while Mr O was at work. Mr O’s wife was arrested and detained overnight and subsequently cautioned. Mr O attended the police station the following day voluntarily and was also cautioned. There is no suggestion that Mr O was aware that his wife intended to leave the children alone. However, on 2 March 2010, over nine months since Mr O accepted the caution, the ISA wrote to inform him that it had automatically included his name on the Children’s and Adults’ Barred Lists for a full 10 years. Mr O remained on the Barred Lists until 24 July 2010 until his name was removed after representations were made by the RCN. During this time he was unable to work as a clinical nurse.

Third Claimant – Mrs W

Mrs W is a nurse who was automatically included on the Barred Lists for 10 years by ISA on 7 June 2010 after she had accepted a caution for leaving her 11-year-old son at home on his own when she went shopping. Mrs W’s case was referred to the Nursing and Midwifery Council which made a finding after an investigation that she had no case to answer. Mrs W was unable to work as an agency nurse as she was prior to being placed on the Barred Lists and remained on unpaid leave. This placed her under significant financial pressures as a single parent responsible for her son. Mrs W was removed from the auto bar list on 18 August 2010 after the RCN made representations on her behalf.