The Care Standards Act 2000 regulates the conduct of about 900,000 care workers. Most care workers are dedicated professionals, but a small minority may actually pose a threat to the vulnerable adults entrusted to their care. Part IV of the Care Standards Act 2000 therefore provides for such workers to be placed on a list of persons considered unsuitable to work with vulnerable adults (the “POVA list”). Inclusion in the POVA list deprives a person of his employment as a carer and prevents him from obtaining any other care jobs. The question for the House of Lords in R (Wright) v. Health Secretary [2009] UKHL 3, [2009] 2 W.L.R. 267 was whether it was compatible with Articles 6 and 8 ECHR for a care worker to be provisionally included in the POVA list without first being given a hearing. The case illustrates the importance of the right to be heard and it also establishes limits to the interpretative duty in section 3 of the Human Rights Act 1998.

Under section 82(4) of the 2000 Act if, based on information submitted in a reference made to him, the Secretary of State considered it might be appropriate for a worker to be included on the POVA list, he had to include the worker on the list provisionally pending determination of the reference. Care workers were given a hearing before determination of the reference, but not before provisional listing. The four applicants had been provisionally placed on the POVA list. After more than six months, three of them were informed that the Secretary of State had determined their references and decided not to confirm their names on the list. The fourth applicant's name was confirmed, but she successfully appealed to the Care Standards Tribunal and her name was removed. The applicants contended that the failure to hear them before including their names provisionally in the POVA list breached their Article 6 and Article 8 rights.

Article 6 ECHR is only engaged when there is a “determination” of an applicant's “civil rights and obligations”. The scope of the concept “civil rights” has expanded considerably since the Convention was drafted. Baroness Hale, giving the only substantive judgment, recognised this trend and held that the applicants' civil rights were at stake: since the right to practice one's profession was a civil right (Le Compte, Van Leuven and De Meyere v. Belgium (1981) 4 E.H.R.R.), so too should be the right to remain in the employment one currently holds and the right to engage in a wide variety of jobs in the care sector even if one does not currently have one. The more difficult question was whether provisional listing could be said to amount to a “determination” of those rights given that interim measures generally do not fall within Article 6. Baroness Hale held that provisional listing could amount to a “determination” of the applicants' civil rights because of the clear and decisive impact such listing could have on those rights: in many cases provisional listing would lead to the permanent separation of a person from his or her current employment.

Turning to the compatibility of the 2000 Act with Article 6, it is a well-established principle that decisions which determine civil rights and obligations may be made by an administrative authority, provided that there is then access to an independent and impartial tribunal which exercises “full jurisdiction”. Did this mean that the denial of a hearing before provisional listing could be cured by the availability of judicial review or an application to the Care Standards Tribunal? Baroness Hale held not for two reasons. First, denying care workers the right to make representations was not a technical breach, but rather a violation of one of the fundamental features of a fair determination. Secondly, provisional listing may well cause irreversible and incurable damage to a care worker's employment or prospects of employment. Accordingly, the 2000 Act was incompatible with Article 6.

A majority of the Court of Appeal (Dyson and Jacob L.JJ., May L.J. dissenting) had held that the 2000 Act could be interpreted compatibly pursuant to section 3(1) of the Human Rights Act: [2007] EWCA Civ 999, [2008] Q.B. 422. They had qualified the power to list provisionally by reading in the words “and after giving the worker an opportunity to make representations (unless the Secretary of State reasonably considers that the delay resulting from affording such an opportunity would place a vulnerable adult at risk of harm)”. The House of Lords unanimously rejected this approach. As Baroness Hale explained, the problem with the Court of Appeal's solution lay in absolving the Secretary of State of the need to hear representations in urgent cases. The allegations in such cases may be spurious or malicious and the care worker may have a good answer to them. Therefore, the full incompatibility of the 2000 Act could not be removed by offering some care workers the opportunity to make representations, while denying the right to others.

Finally, the House of Lords considered Article 8 ECHR which protects a person's “right to respect for his private and family life, his home and his correspondence”. Following the Strasbourg jurisprudence, the House of Lords held that this right includes the right to establish and develop relationships with other human beings. Accordingly, Article 8 was held to be engaged by the provisional listing system because, at least in some cases, it was capable of impacting on care workers' personal relationships with their colleagues and the vulnerable people for whom they worked. Such interferences were in principle capable of justification, but the procedure for interfering with Article 8 rights had to be fair. Baroness Hale held that the procedure was not fair because of the low threshold for provisional listing created by section 82(4) viz “that it may be appropriate for the worker to be included on the list”. She held that this low threshold added to the risk of arbitrary and unjustified interferences and thus contributed to the overall unfairness of the statutory scheme.

This is an important decision which shows that the curative principle under Article 6 will only cure procedural deficiencies if the initial decision-making body gave the individual a proper opportunity to be heard. The decision also corrects a rather cavalier use of section 3 by the Court of Appeal and confirms that section 3 can be used to render legislation fully compatible with the ECHR, but not merely to make it less incompatible.