Practitioners and adult protection groups are split over a High Court ruling that temporary work bans on people accused of abuse without a hearing were at odds with human rights law.
While the British Association of Social Workers backed last week’s ruling in a judicial review brought by four nurses, charity Action on Elder Abuse labelled it a “victory for abusers”.
Mr Justice Stanley Burnton said the health secretary’s powers to provisionally place care staff on the Protection of Vulnerable Adults list, preventing them from working, without a hearing was incompatible with the Human Rights Act 1998.
Specifically, it violated the rights to a fair trial and to “respect for private and family life” by affecting a person’s ability to earn a living and their professional standing.
BASW director Ian Johnston said its “first concern” was for service users’ safety but added: “In all cases there should be a hearing before someone is barred from working.”
However, Action on Elder Abuse chief executive Gary FitzGerald said: “Most people listed are provisional because of the length of time it takes to bring evidence.”
He called for resources to cut the duration of provisional listings. Mandatory hearings before workbans would “undermine a process with extremely vulnerable people involved.”
The Department of Health said it was considering the judgement, though the government is not obliged to change legislation deemed incompatible with human rights law.
However, the vetting and barring scheme, which will be introduced from autumn 2008 under the Safeguarding Vulnerable Groups Act 2006 and will absorb Pova, may prove more resistant to challenge. Individuals will have the right to challenge all decisions to bar them from the workforce unless they are facing the most serious allegations.
Provisional Pova listing
Under the Care Standards Act 2000, the health secretary can provisionally list social care staff on the basis of evidence of abuse produced by employers, preventing them from working. They can challenge the decision while the health secretary decides whether to confirm them or remove them from the list. However, this can take several months and staff only have the right to an independent hearing before the Care Standards Tribunal after nine months.
Between July 2004 and September 2006, 1,552 people were provisionally listed; of these, 623 have been removed, 498 confirmed, with the rest pending.
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