Wright & Ors, R (on the application of) v Secretary of State for Health & Anor

Part VII of the Care Standards Act 2000 permits a care provider to refer a worker for pre-commencement misconduct, although section 82(10) removes the duty to make such a reference. Provisional listing engages Article 6 because it can directly terminate employment. Judicial review cannot determine the underlying facts, while access to the Care Standards Tribunal is delayed for nine months. The procedure is therefore incompatible with Article 6. It is also unfair and disproportionate under Article 8 because it fails to respect the affected worker’s interests. The court left the A1P1 issue unresolved.

Four conjoined judicial review applications concerned provisional inclusion of care workers on the Protection of Vulnerable Adults List under Part VII of the Care Standards Act 2000. One claimant was listed on the basis of alleged misconduct predating Part VII; the other claimants were provisionally listed but were not ultimately confirmed. The central issues were whether section 82 permitted references based on pre-commencement events and whether provisional listing complied with Articles 6 and 8 and Article 1 of the First Protocol.

1. Retrospectivity. A provider reference based on a pre-commencement event is a reference under section 82(1). Section 82(10) removes the duty to make such a reference but does not remove the underlying power. The wording copied from section 2 of the Protection of Children Act 1999 supported that construction.
2. Article 6. Provisional listing directly affects civil rights and obligations. Where a listed worker is employed in a care position, employment ends unless the employer chooses to suspend or transfer the worker. The Secretary of State is not an independent tribunal. Judicial review cannot determine whether the worker committed the alleged misconduct, and section 86(2) prevents Tribunal access for nine months. The procedure therefore infringes Article 6.
3. Fairness and proportionality. Protective action may be justified in urgent cases, but urgency varies with the facts. The procedure gives no opportunity to be heard before listing, imposes an inflexible nine-month delay, and lacks the independent scrutiny available in comparable professional schemes. Its effects are disproportionate.
4. Article 8. Although Article 8 generally confers no right to work in a chosen profession, provisional listing based on serious suspected misconduct may affect professional relationships and reputation. Article 8 was engaged, but the unfair procedure failed to ensure due respect for the protected interests.
5. The court declared the relevant provisions incompatible with Articles 6 and 8. It did not determine the A1P1 issue.