West Law Report

Further allegations can be heard on appeal

Posted in Times Law Report by mrkooenglish on September 3, 2008

From The TimesAugust 29, 2008

Further allegations can be heard on appeal
Queen’s Bench Division
Published August 29, 2008

Joyce v Secretary of State for Health
Before Mr Justice Goldring
Judgment August 1, 2008

Where a care worker challenged a finding of misconduct which had resulted in her being placed by the Secretary of State for Health on a list of those considered unsuitable to work with vulnerable adults, the Care Standards Tribunal was entitled, on appeal, to consider allegations of misconduct not entertained by the secretary of state, provided it acted fairly.

Mr Justice Goldring so stated in the Queen’s Bench Division when dismissing an appeal by Mrs Sini Joyce, a registered general nurse who worked in a private nursing home for dementia patients, against a decision of Judge Pearl, President of the Care Standards Tribunal, on February 19, 2007.

The president decided that the tribunal was not limited to considering one allegation of misconduct referred to by her employer on her appeal under section 86(3) of the Care Standards Act 2000 against her inclusion by the secretary of state on the list of individuals unsuitable to work with vulnerable adults. Mr Jamie Carpenter for Mrs Joyce; Mr Jonathan Moffet for the secretary of state.

MR JUSTICE GOLDRING said that the issue was the construction of “misconduct” in section 86(3) of the 2000 Act and whether it was without any limitation once the case was on appeal before the tribunal.

The purpose of the legislation was clear: to protect vulnerable people. The application of the legislation had very serious consequences for care workers. Proceedings must be fair. The wording of section 86(3) was clear and on its face unequivocal. Misconduct was not said to be limited or qualified in any way.

The statutory scheme envisaged three stages: the reference by the provider/employer over which the secretary of state had no control; the secretary of state’s review of that reference; and any possible appeal against the listing.

As a matter of common sense, it might only be when an appeal was prepared that evidence of other misconduct came to light. It was desirable that the evidence was considered by the tribunal and at one hearing.

It was necessary to have regard to the true nature of the appeal proceedings under section 86(3) when deciding the allegations of misconduct it might hear.

The care worker was appealing the fact that she had been listed. The tribunal had to decide whether she had so conducted herself as to justify being listed. Its role was different from that of the provider and the secretary of state in reviewing the information sent by the provider.

For the first time, the facts said to justify listing were fully ventilated. Evidence was called and witnesses cross-examined. The tribunal had a wide discretion in its conduct of its proceedings and had an overriding duty to act fairly. It could control proceedings so that allegations of misconduct could not be raised unfairly.

Solicitors: Mr Richard Bernhard, Westminster; Solicitor, Department of Health.

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