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(House of Lords; Lord Phillips of Worth Matravers, Lord Hoffmann, Lord Hope of Craighead, Baroness Hale of Richmond; 21 January 2009)
Four registered nurses sought judicial review of the scheme under Care Standards Act 2000, by which care workers could be placed on a list of those unsuitable to work with vulnerable adults, the 'POVA list'. Placement on the list deprived the individual of any employment as a care worker, and meant that he or she would be unable to obtain such work with another employer. One of the key complaints was that a care worker was entitled to a judicial hearing of any challenge to his or her placement on the list only after a lengthy administrative process, but that until a final decision on the issue, the care worker remained on the list provisionally. All four nurses had been placed on the list provisionally; only one had subsequently been confirmed, and she had subsequently appealed successfully to the Care Standards Tribunal. The High Court granted a declaration of incompatibility with care workers' rights under European Convention on Human Rights, Arts 6 and 8. The Court of Appeal reversed that ruling, holding that giving a care worker the right to make representations before placing the worker on the list cured the various human rights breaches identified. The nurses appealed to the House of Lords.
The appeal was allowed and the declaration of incompatibility granted. The scheme could not assume that European Convention on Human Rights, Art 6(1) would never apply to provisional listing on the basis that the individual care worker could obtain work in some other capacity or would retire in any event; the question whether it was engaged should not be decided by examining on a case by case basis the actual effect of the provisional listing on the individual worker. There would be some people for whom the impact of being listed upon their personal relationships was so great as to constitute an interference with the respect for private life. The scheme must therefore be devised in such a way as to prevent possible breaches of Art 8 rights. The procedure for provisional listing did not meet Art 6(1) requirements; the problem stemmed from the draconian effect of provisional listing, coupled with the inevitable delay before a full merits hearing could be obtained.
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