In its judgment in the case of Wright v Secretary of State for Health handed down on 21 January, the House of Lords has declared that section 82 Care Standards Act 2000, is incompatible with article 6 (fair and public hearing) and article 8 (respect for private and family life) of the European Convention on Human Rights.

The case relates to the Secretary of State’s Protection of Vulnerable Adults ”POVA” list. This is a list of those people deemed to be unsuitable to work with vulnerable adults. If qualifying conditions are met a care worker can be provisionally listed before the care worker has an opportunity to make representations on the allegations that have been made. Care workers can be provisionally listed but removed at a later stage after further investigations had been completed. These further investigations can take a number of months during which time the care worker could have lost their employment and been otherwise personally affected by inclusion on the list. If the care worker is subsequently removed from the list this could have been without cause.

The House of Lords has decided that the procedure for provisional listing does not meet the requirements of article 6 or 8 but has accepted that there is a careful balance to strike between protecting rights of care workers and protecting the welfare of vulnerable people. No alternative systems of safeguarding have been suggested by the House of Lords.

The Government will now need to carefully consider if the scheme proposed in the Safeguarding Vulnerable Groups Act 2006 (planned to come into force in October 2009) will be similarly affected by this decision as the Care Standards Act 2000 has been. It will also be interesting to see what approach is now adopted with the provisional POVA list, before the new legislation becomes effective.