Joyce v Secretary of State for Health

On an appeal concerning inclusion on the Protection of Vulnerable Adults list, Joyce v Secretary of State for Health held that the tribunal’s jurisdiction under section 86(3) of the Care Standards Act 2000 is not confined to misconduct considered by the Secretary of State or referred by the provider.

The tribunal may determine whether the individual was guilty of misconduct which harmed or placed a vulnerable adult at risk, including misconduct revealed after the Secretary of State’s decision. The tribunal must, however, conduct the proceedings fairly and may exclude evidence where consideration of it would be unfair. The appeal was therefore dismissed.

The appellant, a registered nurse, was dismissed after being found asleep on duty in a dementia unit. Her employer referred her to the Protection of Vulnerable Adults list. The Secretary of State confirmed her inclusion, relying on sleeping on duty and leaving vulnerable residents unsupervised.

On appeal, the Secretary of State relied on further matters arising from the employer’s documents, including tied lounge doors, medication left out, an unsecured door and poor hygiene. The Care Standards Tribunal held that section 86(3) permitted consideration of those matters. The issue before the High Court was whether the tribunal’s consideration of misconduct was limited to the misconduct forming the basis of the provider’s reference and the Secretary of State’s decision.

1. Appeal dismissed. The tribunal was entitled to consider allegations of misconduct beyond the misconduct expressly relied on by the provider and the Secretary of State.
2. Section 86(3) of the Care Standards Act 2000 uses the unqualified term “misconduct”. Its language does not limit the tribunal to matters considered by the Secretary of State under section 82(7). The statutory purpose is the protection of vulnerable people, and a narrow construction would allow serious misconduct to escape consideration merely because it was omitted from the original reference.
3. The statutory scheme has three stages: a provider’s reference, the Secretary of State’s review of the information, and a possible appeal to the tribunal. The tribunal performs a different function from the Secretary of State. It determines the merits and may hear evidence, make findings of fact and consider the circumstances as they emerge at the hearing.
4. The tribunal’s wider jurisdiction is subject to fairness. The proceedings have serious consequences for care workers. Under regulation 14 of the Protection of Children and Vulnerable Adults and Care Standards Tribunal Regulations 2002, the tribunal may exclude evidence where it would be unfair to consider it. It must also control its procedure so that new allegations cannot be raised unfairly. Any difficulty a worker has in responding to later allegations must be taken into account when assessing the evidence.
5. The same construction applies when the tribunal determines an individual’s inclusion under section 86(2), following more than nine months’ provisional inclusion. That jurisdiction is not merely a substitute for the Secretary of State’s function under section 82(7).
6. The statutory wording was not sufficiently ambiguous to justify reliance on Parliamentary material under Regina v Secretary of State for the Environment, Transport and the Regions, Ex parte Spath Holme Ltd. In any event, the ministerial statements relied on were themselves ambiguous. The Secretary of State had not implicitly rejected the additional matters by omitting them from the confirmation decision.

The appeal was brought to the High Court on a matter of law under section 9(6) of the Protection of Children Act 1999, from a preliminary decision of His Honour Judge Pearl, sitting as President of the Care Standards Tribunal. The tribunal had held that its jurisdiction under section 86(3) was not limited to the misconduct identified in the original reference.