CARE STANDARDS TRIBUNAL — Appeal — Powers — Care worker dismissed for misconduct — Secretary of State deciding care worker unsuitable to work with vulnerable adults — Care worker appealing to Care Standards Tribunal — Whether tribunal restricted to considering allegation of misconduct raised by employer on which listing decision made — Whether entitled to rely on other evidence of misconduct — Care Standards Act 2000,s 86(3)

Joyce v Secretary of State for Health [2008] EWHC 1891(Admin); [2008] WLR (D) 290

Goldring J: 1 August 2008

Where a care worker challenged a finding of misconduct which had resulted in her being placed by the Secretary of State 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 at the initial decision-making stage, provided it acted fairly.

Goldring J so stated in the Administrative Court on a preliminary issue 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 19 February 2007. The President concluded that on an appeal under s 86(3) of the Care Standards Act 2000 against inclusion by the Secretary of State for Health on a list of individuals unsuitable to work with vulnerable adults following an allegation of misconduct by her employer, the tribunal was not restricted to considering only that allegation.

GOLDRING J said that the issue was the construction of “misconduct” in s 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 to protect vulnerable people and its application had very serious consequences for care workers. Proceedings must be fair. The wording of s 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. It may only be when an appeal was prepared that evidence of other misconduct came to light. It was desirable that the evidence be considered by the tribunal and at one hearing. It was necessary to have regard to the true nature of the appeal proceedings under s 86(3) when deciding the allegations of misconduct it may 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 the proceedings before it and had an overriding duty to act fairly. It could control proceedings so that allegations of misconduct could not unfairly be raised.

Appearances: Jamie Carpenter ( Director of Legal Services, Royal College of Nursing) for Mrs Joyce; Jonathan Moffet ( Solicitor, Department of Health) for the Secretary of State.

Reported by: Alison Sylvester, barrister