Wright & Ors v Secretary of State for Health & Anor  UKHL 3 (21 January 2009) The House of Lords has recently issued a declaration of incompatibly under the Human Rights Act 1998 (UK) ('HR Act') in relation to the Care Standards Act 2000 (UK) ('Act'). The House of Lords held that the Act may irreparably damage the employment or employment prospects of persons suspected of posing a risk of harm to vulnerable adults. It is therefore incompatible with the right to a fair hearing and the right to respect for private and family life.
The Act aims to protect vulnerable adults requiring special care from care workers who pose a risk to vulnerable adults. Under the Act, care workers can be placed on a list of people considered unsuitable to work with vulnerable adults (the 'POVA list'), effectively preventing such persons from working as care workers.
The Act enables a lengthy administrative review process to take place before a person is permanently placed on the POVA list, but does not provide an opportunity for judicial hearing. During the administrative review process, the person is provisionally placed on the list. The House of Lords considered whether the provisional listing of workers is compatible with the rights to a fair hearing and to respect for private and family life under arts 6 and 8 of the European Convention on Human Rights.
High Court of England and Wales
The High Court of England and Wales ('EWHC') held that the automatic provisional listing of a care worker breached the right to a fair hearing (art 6). Stanley Burnton J held that the effect of provisionally listing a worker on the POVA list is to terminate the worker's employment on the ground of alleged misconduct without providing them any opportunity to be heard. While there is a process in place for judicial review of the Secretary of State's decision to place a care worker on the POVA list, this process does not cure the breach because the Secretary of State is not required to decide whether the alleged misconduct took place. The Act simply requires the Secretary of State to be of the opinion 'that the provider reasonably considered the worker to be guilty of misconduct...which harmed or placed at risk of harm a vulnerable adult and that the worker is unsuitable to work with vulnerable adults' (emphasis added).
Stanley Burnton J further concluded that, for the above reasons, the Act disproportionately interferes with the personal relationships that care workers have with their colleagues, individual clients and others, in breach of art 8.
The EWHC accepted that it is necessary to protect vulnerable adults while cases are investigated, but held that the scheme disproportionately limits the rights of care workers. As a result, the EWHC found that the section of the Act that required the provisional listing of a care worker pending final determination is incompatible with the rights afforded by arts 6 and 8 of the Convention.
Court of Appeal
The Court of Appeal accepted that the Act engaged art 6 of the Convention, but considered that a breach could be avoided by interpreting the relevant section in a human rights compatible way in accordance with s 3(1) of the Human Rights Act 1998 (UK). The Court of Appeal considered this to be possible by reading in a requirement that a worker be given an opportunity to make representations before being provisionally placed on the POVA list, 'unless the Secretary of State reasonably considers that the delay resulting from affording such an opportunity would place the vulnerable adult at risk of harm'. The Court considered it unnecessary to determine whether there had been a breach of art 8.
House of Lords
In a unanimous decision, the House of Lords concluded that the procedure for provisional listing breaches the right to a fair hearing under art 6 and has the potential to breach the right to respect for private and family life under art 8. The House of Lords therefore declared the offending section of the Act to be incompatible with the Convention rights.
A civil right?
The House of Lords held that the fact that the Act deals with a civil right is uncontroversial. Baroness Hale held that civil rights include 'the right to practise one's profession', 'the right to remain in the employment one currently holds' and 'the right to engage in a wide variety of jobs in the care sector even if one does not currently have one'.
A more controversial question was whether provisional listing amounts to a 'determination' of a civil right for the purpose of art 6(1), particularly given that the person affected could eventually be heard by the Care Standards Tribunal. The European Court of Human Rights has held that:
Article 6 does not apply to proceedings relating to interim orders or other provisional measures adopted prior to the proceedings on the merits, as such measures cannot, as a general rule, be regarded as involving the determination of civil rights and obligations.
However, Baroness Hale held that the often irreversible and incurable detrimental effect of provisional listing placed it within the exception to that general rule. Provisional listing is an interim measure that has 'such a clear and decisive impact upon the exercise of a civil right that art 6(1) does apply'.
Baroness Hale concluded that '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'.
The House of Lords considered the solution proposed by the Court of Appeal to be insufficient because it still failed to ensure the urgent determination of allegations against care workers and thereby protect workers against irreparable damage.
Relevance to the Victorian Charter
This case sheds light on the potential interaction between the Charter and similar schemes in Victoria which restrict the ability of certain persons to work with children. In particular, it emphasises the relevance of the Charter rights to privacy and reputation (s 13) and a fair hearing (s 24).
The Working with Children Act 2005 (Vic) ('WWC Act') requires a person who works or volunteers in connection with certain types of 'child-related work' to pass a working with children check. If the Secretary to the Department of Justice proposes to issue a negative notice, the Secretary must notify the applicant why and invite the applicant to make submissions before the Secretary finally decides the application. However, the Secretary must issue the applicant an interim negative notice. Both the applicant and the Secretary are obliged to notify the applicant's employer of the interim negative notice.
While it is not an offence under the Act to employ a person subject to an interim negative notice, such a notice may irreversibly damage an applicant's employment. This may result in similar circumstances to those discussed in Wright, indicating a potential breach of ss 13 and 24 of the Charter.
Similarly, applying the reasoning in Wright, the Sex Offenders Registration Act 2004 (Vic) (SOR Act') may also breach ss 13 and 24 of the Charter. The SOR Act imposes strict reporting and monitoring obligations on persons found guilty of certain sex offences and prevents those persons from working in child-related employment. Under the SOR Act, sex offenders are automatically listed on the registry following conviction of a relevant offence. So, for example, a 19 year old who is found guilty of the statutory rape of a 15 year old will be automatically listed on the sex offenders' registry for a minimum period of 15 years, without any possibility of review. The lack of judicial discretion and the failure to give the offender an opportunity to be heard in this process may be considered a breach of the right to a fair hearing and the right to privacy and reputation.
The decision is available at http://www.bailii.org/uk/cases/UKHL/2009/3.html.
Melanie Schleiger is a lawyer with Lander & Rogers and a Board member of the Human Rights Law Resource Centre