Secretary of State for Health, R (on the application of) v M

In deciding whether a person is unsuitable to work with vulnerable adults or children, the tribunal must assess risk and public confidence on the evidence available at the hearing date. It must distinguish the seriousness of the misconduct from the present suitability question and give a coherent chain of reasoning leading to its conclusion. A material factual or legal error, such as assuming that removal from a statutory list automatically entails supervised employment, may invalidate the decision. The reviewing court should not itself determine suitability where the statutory assessment has not been properly undertaken; the appropriate course is ordinarily to quash the decision and remit the matter to a freshly constituted tribunal.

The Secretary of State appealed under section 9(6) of the Protection of Children Act 1999 against the Care Standards Tribunal’s decision of 7 November 2007 allowing M’s appeals against inclusion on the PoVA and PoCA Lists and List 99. M had been dismissed from nursing employment after serious misconduct which placed an elderly diabetic patient at risk, and had subsequently been struck off by the Nursing and Midwifery Council. The Tribunal accepted the misconduct and its seriousness but concluded that M remained suitable to work as a carer, partly on the assumption that such work would always be supervised. The central issue was whether the Tribunal had lawfully and rationally assessed M’s present suitability.

1. Appeal allowed and decision quashed. The Care Standards Tribunal’s decision was set aside and the matter was remitted to a freshly constituted Tribunal. The court did not itself decide whether M was suitable to work as a carer.
2. Section 86(3) of the Care Standards Act 2000 requires consideration of three questions: whether the individual was guilty of misconduct; whether the misconduct harmed or placed a vulnerable adult at risk of harm; and whether the individual is unsuitable to work with vulnerable adults. The same approach applied to the corresponding children’s regime.
3. The Tribunal had to assess suitability as at the hearing date. Relevant matters included the number and gravity of incidents, the time elapsed, recognition of wrongdoing, steps taken to prevent recurrence, and surrounding circumstances. It was also entitled to consider the protection of the public and the maintenance of public confidence. The court endorsed the importance of public confidence identified in Secretary of State for Children, Schools and Families v BP [2009] EWHC 866 (Admin).
4. The Tribunal’s reasoning was inadequate. Its reference to possible hostility between M and colleagues did not explain why that circumstance affected present suitability. Its assumption that M would always be supervised if removed from the list was legally incorrect: removal would leave her free to work as a carer, including without supervision. The decision therefore failed to disclose a logical chain of reasoning and a proper risk assessment.
5. The court rejected the submission that R (Wright) v Secretary of State for Health [2009] 2 WLR 267 established a right to a supervised third category of listing. Wright concerned procedural fairness and the engagement of Articles 6 and 8 by provisional listing. The proposed “binary” human-rights issue was hypothetical and was left for determination in an appropriate case.
6. The fresh Tribunal was not required to reconsider the conceded misconduct or risk of harm, although it could consider the seriousness of the incident. The Tribunal was to determine the procedure and any further evidence required. An order for assessment of costs was made, with no other order.

1. High Court (Administrative Court): allowed the Secretary of State’s appeal from the Care Standards Tribunal’s decision dated 7 November 2007, quashed that decision and remitted the matter to a freshly constituted Tribunal.