MR v Disclosure and Barring Service

On an appeal from inclusion in a barred list, the Upper Tribunal may intervene only for a mistake of law or a material mistake of fact. It cannot substitute its own assessment of whether inclusion is appropriate.

Where such a mistake is established, removal is available only if the respondent accepts that course or it is the only lawful decision on remittal. Otherwise the matter should be remitted for a fresh decision on the Tribunal’s factual findings. A barred-list regime concerned with present risk and protection, rather than punishment, does not engage Article 7 merely because earlier conduct informs the risk assessment.

The Disclosure and Barring Service again included the appellant, formerly a general medical practitioner, in the Adults’ Barred List. It relied principally on alleged sexual relationships with two vulnerable patients and an allegation of unwanted sexual contact with a surgery employee.

The appellant denied a sexual relationship with Patient B. At the Upper Tribunal hearing, Patient A’s evidence showed that the appellant had said only that he had been accused of such a relationship. The respondent consequently conceded that the appeal should be allowed for a mistake of fact.

The appellant sought immediate removal from the list. The respondent sought remittal for a new assessment on the basis that there had been no relationship with Patient B. The Tribunal also considered challenges concerning the statutory policy, age-related review periods, the effect of a remitted decision, proportionality and Article 7.

1. Appeal allowed and remitted. The respondent’s finding that the appellant had had a sexual relationship with Patient B was mistaken. The new decision had to proceed on the basis that he had not had such a relationship.

2. Under section 4 of the Safeguarding Vulnerable Groups Act 2006, the Tribunal may not substitute its own view on whether listing is appropriate. It may direct removal following an established error only where the respondent accepts that removal follows, or where removal is the only decision the respondent could lawfully make. Otherwise, remittal is appropriate.

3. The Tribunal declined to decide proportionality in the abstract. The respondent had not identified the factual findings and reasoning on which it would rely to retain the appellant on the list without the Patient B allegation. Its proposed assessment remained arguable and had to be made in the first instance by the respondent.

4. The challenges to the age-related minimum barred period, the fresh period following remittal, and Article 7 failed. The differing periods for persons below and above 25 were justified. A fresh decision may start a new minimum period, subject to consideration of elapsed time and changed circumstances. The scheme assesses current risk to vulnerable adults and is not punitive criminal legislation.

5. The respondent must address the appellant’s submissions on the nature and age of the conduct, the risk posed by the relationship with Patient A, subsequent changes in his circumstances, and the protection afforded by General Medical Council action.

• Upper Tribunal (Administrative Appeals Chamber): appeal allowed by consent in MR v Independent Safeguarding Authority [2012] UKUT 234 (AAC), because the Authority had not properly considered statutory guidance. The matter was remitted.
• Upper Tribunal (Administrative Appeals Chamber): the respondent’s subsequent decision to include the appellant in the Adults’ Barred List was set aside for a factual mistake and remitted for a new decision.