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

Provisional inclusion on a vulnerable-adult protection list engages Article 6 where it has the potential to cause serious and irreversible employment prejudice. A blanket denial of any opportunity to make representations is incompatible with the right to a fair hearing. Later removal applications, judicial review and a delayed tribunal appeal do not cure that fundamental defect. However, under section 3(1) of the Human Rights Act 1998, section 82(4)(b) of the Care Standards Act 2000 must be read as requiring representations unless the Secretary of State reasonably considers that the resulting delay would expose a vulnerable adult to risk of harm. The statutory precautionary scheme remains legitimate, and pre-commencement misconduct may be referred.

Four care workers challenged the statutory scheme for provisional inclusion on the Protection of Vulnerable Adults list. Stanley Burnton J granted a declaration under section 4(2) of the Human Rights Act 1998 that section 82(4)(b) of the Care Standards Act 2000 was incompatible with Articles 6 and 8 of the Convention. He rejected the claimants’ argument that the Act did not permit references based on pre-commencement events. The Secretary of State appealed against the declaration, and the claimants appealed by Respondents’ Notice on retrospectivity. The central issues were whether provisional listing engaged Article 6, whether the available safeguards were sufficient, and whether section 82(10) barred references relating to earlier misconduct.

1. Disposition. The defendants’ appeal was allowed and the declaration of incompatibility was quashed. The claimants’ appeal on the Respondents’ Notice was dismissed. The majority directed that section 82(4)(b) of the Care Standards Act 2000 be read compatibly with Article 6 in the terms set out below.
2. Retrospectivity. The court agreed that section 82(1) embraces a power as well as a duty to refer. Section 82(10) restricts the duty, but not the power. A care worker may therefore be referred for relevant misconduct or employment action occurring before commencement, subject to the statutory safeguards and the requirement that provisional inclusion may appear appropriate.
3. Article 6 engagement. Dyson LJ, with Jacob LJ agreeing, held that provisional inclusion engages Article 6 in all cases. Its potential consequences are serious: a worker cannot obtain relevant care employment and existing employment is terminated rather than merely suspended. The question should not depend on examining the actual prejudice in each individual case.
4. Fair hearing and later remedies. A total denial of any opportunity to make representations is a denial of a fundamental element of a fair hearing. The availability of an application under section 81(3), judicial review, or a tribunal appeal after nine months cannot cure the defect, because those remedies cannot undo the immediate and potentially irreversible prejudice. The statutory threshold for provisional listing is a matter of substantive law and cannot itself establish a procedural breach.
5. Convention-compatible interpretation. Section 3(1) of the Human Rights Act 1998 requires section 82(4)(b) to be interpreted as requiring an opportunity to make representations unless the Secretary of State reasonably considers that delay would place a vulnerable adult at risk of harm. This interpretation respects Parliament’s protective purpose and does not amount to amendment.
6. Separate reasoning. May LJ considered that Article 6 might apply only in some cases and that judicial review could suffice where it applied. He nevertheless agreed that the declaration should be quashed. He considered it unnecessary to decide whether Article 8 applied, since any interference would in his view be justified under Article 8(2). Jacob LJ agreed entirely with Dyson LJ’s reasoning.

• Court of Appeal (Civil Division) Allowed the Secretary of State’s appeal, quashed the declaration of incompatibility and granted a declaration as to the compatible interpretation of section 82(4)(b). The claimants’ Respondents’ Notice on retrospectivity was dismissed.
• Administrative Court Stanley Burnton J granted a declaration under section 4(2) of the Human Rights Act 1998 that section 82(4)(b) of the Care Standards Act 2000 was incompatible with Articles 6 and 8, while deciding the retrospectivity issue in favour of the Secretary of State: [2006] ECHC 2886 (Admin).