Misconduct: Staff allowed to work until found guilty

Care workers suspected of misconduct will be entitled to a fair hearing before they are suspended from work and placed on the protection of vulnerable adults (Pova) provisional list, an appeal court has ruled.

Previously, under the Care Standards Act 2000, carers were suspended from work for up to nine months before the case was heard by the Care Standards Tribunal. Those on the list could challenge the decision but the health secretary habitually took several months to reach a decision, the court was told.

The judges ruled by a majority that the Pova process violated the human rights of care workers, who are employed in care homes and domiciliary care services, as individual’s livelihoods and reputations were damaged before a fair hearing.

Lord Justice Dyson said the process, which denies 900,000 care workers in England a voice, was “an unfair and disproportionate means of addressing the problem of provisional action”.

The Act will now be rewritten to include a requirement that care workers will be placed on the provisional list only after they have been given the chance to make representations to the health secretary.

This new requirement will apply to all cases except when the health secretary judges that the vulnerable adult is at risk if the care worker continues to practise.

Helga Pile, Unison national officer for social care, said: “There needs to be strong protections for vulnerable people in care and these currently exist, but care workers shouldn’t be banned from working and lose their livelihoods without the right to a fair disciplinary hearing based on examining evidence.”

Carol Herrity, campaigns manager of Mencap said: “In situations like this, Mencap believes that the priority should be the prevention of abuse or neglect of vulnerable people and it is imperative that accusations should be taken seriously. However, there is a need for a more streamlined and timely appeals process to deal with such cases.”

The test case, backed by the Royal College of Nursing, was brought by four nurses from Oxfordshire and Kent who were provisionally placed on the list for up to eight months.

Currently, three out of the four nurses have been taken off the list and one is appealing to the Care Standards Tribunal. The nurses’ law firm, Leigh Day & Co, welcomed the appeal court’s decision.

In November 2006, Mr Justice Stanley Burnton ruled in favour of the nurses but the government appealed against the High Court’s decision on the grounds that a “precautionary approach” was needed to protect vulnerable adults.

On and off the list

There were 5,224 referrals to the health secretary between July 2004 and September 2006. Of the 1,552 people placed on the provisional list:

● 623 had their names removed.
● 498 were confirmed.
● 421 cases were pending on the secretary of state’s decision.

Contact the author
Caroline Lovell



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