The House of Lords has held that the Protection of Vulnerable Adults ("POVA") list is incompatible with Article 6 of the European Convention on Human Rights.
This case will be of interest to those employers who work in the care sector. Whilst the POVA listing regime, at present, remains in force, Parliament will probably have to amend the law regulating POVA lists to make it compatible with the European Convention on Human Rights.
The House of Lords has given their Judgment in the case of R (on the application of Wright & Others) v The Secretary of State for Health which concerned registered nurses who were all provisionally included on the POVA list.
Under the Care Standards Act 2000, employers who dismiss or suspend an employee because they believe the employee has harmed or placed at risk of harm a vulnerable adult, must refer the employee to the Secretary of State for Health. The employee can then be provisionally included on POVA list. The effect of being placed on the list is that the employee is prohibited from being employed by any other care providers.
The House of Lords heard evidence that employees can be provisionally placed on the list without an opportunity to challenge that decision. It is only when their place on the list has been confirmed that they have a right of appeal to the Care Standards Tribunal. However, it can take many months for a provisional listing to be confirmed, during which time the employee is prevented from working. Around 80% of those employees referred are never confirmed on the list.
In the House of Lords view, this was an unfair process which imposed irreparable damage to the individual's employment or prospects of employment.