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R (on the application of Wright and others) v Secretary of State for Health and another [2007] EWCA Civ 99; [2008] 1 All ER 886 CA

The Care Standards Act 2000 introduced a list for the protection of vulnerable adults known as 'the POVA list' which listed care workers who were considered unsuitable to work with vulnerable adults. Section 82(1) of the Act provides that a person who provided care for vulnerable adults must refer a care worker to the Secretary of State if the provider had dismissed a care worker on the grounds of misconduct which harmed or placed at risk of harm a vulnerable adult.

Held: A decision to include a worker in the POVA list engages art 6 of the ECHR in all cases since it is potentially one of a drastic character which may cause irreversible prejudice to the worker. (Dyson and Jacobs LJJ, May LJ dissenting.)

‘It does not follow that a worker should be given the right to make representations in all cases. The parliamentary intention of protecting vulnerable adults from the risk of harm from care workers must be respected. The right to a fair determination of a worker's civil rights does not require that the worker be accorded the right to make representations in all cases. Fairness requires a proportionate approach. A balance must be struck between the need to protect vulnerable adults from the risk of physical and psychological harm and the art 6 rights of care workers. There will be cases where the allegations of misconduct are so serious that, if they are true, the care worker is potentially a serious danger to vulnerable adults. In such circumstances, the paramount need to protect vulnerable adults from real danger may require the care worker to be included in the list provisionally without being given an opportunity to meet the case against him or her before that step is taken. It will be a matter for the judgment of the Secretary of State to decide whether it is necessary to include a worker in the POVA list without giving him or her an opportunity to make representations. In making this judgment, the Secretary of State must take into account all the circumstances of the case, but in particular the gravity of the allegations.’


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