Protection lists in disarray

Professionals are divided over the legal ruling which some argue has placed workers’ rights above adult protection. Now, doubts hang over the future of the systems that are intended to deal with abuse by staff, writes Amy Taylor

Tensions between professionals’ employment rights and the protection of vulnerable people came to a head earlier this month in a High Court ruling that has divided opinion in social care.

Mr Justice Stanley Burnton made the ruling in a judicial review brought by four nurses. He found the health secretary’s power to temporarily place those accused of abuse on the Protection of Vulnerable Adults list without a hearing, thereby preventing them from working, breached their human rights.

While campaign groups argue that client protection should be paramount, professionals’ representatives say it is wrong to condemn people without letting them put their side.

Those placed on the Pova list provisionally can challenge their status but this can take several months and it takes nine months before they have a right to an independent hearing before the Care Standards Tribunal. Public sector union Unison had seen the case coming.

Head of professional services Stewart Rouse says Unison has raised concerns with the government about Pova and the Protection of Children Act list, under which people can be provisionally barred from working with children without a hearing.

He says when the judge asked government  lawyers why the system set up under Pova was different from the conduct systems managed by health and social care’s regulators (see Changes Afoot) they pointed to logistical problems stemming from the large number of care staff. But Rouse points out there are more health workers than care staff, making the argument invalid.

Rouse says that even if people accused of abuse are found not guilty their reputations are tarnished for a long time after their names have been cleared: “This is more damaging to a person’s career than being sacked from their job,” he says.

Nick Johnson, chief executive of the Social Care Association, which represents social care staff, says he is not opposed to people being provisionally banned from working straight away due to the need to stop abuse. But he says this should be kept private due to the potential for stigma (see Changes Afoot).

“Only [Pova] should know of the fact of the suspension; that shouldn’t be in the public domain,” he says.

Jonathan Ellis, senior policy manager at Help the Aged, says, although the rights of staff have to be considered, protecting vulnerable adults has to be the main priority: “The most important thing is that the Pova system is there to protect the most vulnerable older people.”

Carol Herrity, campaigns manager at learning difficulties charity Mencap, agrees that protection has to come first. “[Workers’ rights] is important but the key point is about people who may be vulnerable to abuse and you can’t be too careful in terms of the protection they are entitled to,” she says.

The implications of the ruling for Pova, until it is replaced in 2008 (see Changes Afoot), are unclear. The Department of Health has said it is considering the judgement but it is not bound to change laws deemed incompatible with the Human Rights Act 1998.

Ellis says Help the Aged is “worried” about what the ruling may mean and wants the government to provide clarification.

For Rouse the repercussions are clear: “It means Pova and Poca are shot dead,” he concludes. 

Changes Afoot
Unlike Pova, the nine health professional bodies and the General Social Care Council operate independent tribunal systems under which hearings take place before people are provisionally barred from working.

Social care workers can also decide whether their hearing is held in public or private.

From autumn 2008 Pova, Poca and List 99, which prevents people from working in education, will be absorbed into the vetting and barring scheme introduced under the Safeguarding and Vulnerable Groups Act 2006. This allows a hearing before a ban.

The GSCC will have a new duty to refer to the scheme unsuitable people identified under its conduct process.

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 Amy Taylor