21 January 2009
The House of Lords (HL) has ruled that the PoVA scheme is incompatible with Article 6 and Article 8 of the European Convention of Human Rights and has overturned an appeal brought by the Secretary of State for Health arguing the opposite.
Under the Protection of Vulnerable Adults (PoVA) scheme nurses can be placed on a provisional list if a complaint has been made against them, and are unable to work until an appeal against the listing has been heard. This process can take up to nine months leaving nurses who have been listed on the provisional list suffering financial hardship as they cannot work in their profession whilst on the list. In extreme cases nurses have had to sell their homes, or leave the UK, as they are unable to work in the country anymore.
Head of the Human Rights Department Partner Frances Swaine instructed Jeremy Hyam of 1 Crown Office Row to work alongside Martin Spencer QC and Jamie Carpenter of Hailsham Chambers, to argue that the PoVA scheme is incompatible with the European Convention of Human Rights. She welcomes today’s judgment from the House of Lords that agrees with a 2006 High Court ruling (Wright and Others v Secretary of State for Health
) that found that the legislation governing how care workers came to be listed on the Protection of Vulnerable Adults (POVA) register was incompatible with Articles 6 and 8 of the European Convention on Human rights (ECHR).
Hale LJ said in her judgment that “The care worker suffers possibly irreparable damage without being heard whatever the nature of the allegations made against her” and also added that “the procedures were unfair and did not ensure due respect for the care workers’ article 8 rights.”
Leigh Day & Co is representing about 100 clients in this matter and will now be able to proceed with their application to the European Court of Human Rights. The care workers are seeking compensation from the government for having been suspended from work without being able to defend themselves, and the consequential losses that flow from that situation. In some cases their family lives have been severely disrupted, for example, one family has had to be repatriated because the mother was placed on the PoVA provisional list. Leigh Day would like the Secretary of State to address the matter of compensation for their clients as quickly as possible to bring that matter to a swift and satisfactory conclusion.
The scheme will be succeeded by the Independent Safeguarding Authority scheme next year that will allow nurses to make their cases before they are suspended.
If you are a nurse or a care worker who has been affected by these issues please contact Frances Swaine
or Merry Varney
on 020 7650 1249.
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