RCN Test Case in ECHR

The Royal College of Nursing (RCN) is supporting a test case in the European Court of Human Rights, Strasbourg.  If upheld, thousands could sue Government over unlawful ‘child protection’ sackings. 

When ordering the three nurses to be reinstated, Mr Justice Wyn Williams ruled in the High Court that not giving them the chance to put their side of the story before they were sacked was a denial of their fundamental “right to be heard”.  Jonathan Green, senior solicitor for the Royal College of Nursing (RCN), which is backing the nurses, said: “It seems alien to our justice system that
we have an area where we mete out punishment without carrying out an investigation.”  Dr Peter Carter, the RCN’s chief executive, said: “The protection of children and vulnerable people is of the most critical importance but we have had long-standing concerns about the scheme’s procedural fairness.”

Tim Linehan of Nacro, who manages the criminal justice charity’s Change the Record campaign, said: “Many people are being provisionally barred on the basis of minor cautions, solely because the law requires this rather than because of any actual risk assessment of the individual.”

Background Statistics on ISA Autobarring

A 10-year ban is imposed automatically on anybody who receives a court conviction or a police caution for a specified range of offences under the system run by the Independent Safeguarding Authority (ISA),  This ‘autobar’ impacts those being cautioned as well as convicted.   Just under 1,000 people were punished by the ISA under the auto-bar rule in the seven weeks between the High Court case and the end of December 2010. One in three had been cautioned rather than convicted.

When the ISA was set up in January 2009, as part of the UK’s biggest overhaul of vetting arrangements, it inherited a list of 16,000 people barred from working. Since then the number has more than doubled, with a further 17,000 people added to the list – almost all of them under the auto-bar rule. Over a quarter had been cautioned, not convicted. At the same time, hundreds have appealed to the ISA against their bans and won their cases, raising questions over whether the punishment should ever have been imposed.

Just under 1,800 of the 13,150 people barred automatically last year have lodged a written appeal and so far 812 have been successful and removed from one or both of the barred lists.

Further details of the RCN case

One of the nurses taking his case to the European Court of Human Rights in Strasbourg, named only as “Mr O”, was sacked last year after being cautioned when his wife left their children alone for a short time while he was at work – even though he was unaware that his wife had done this.  In March last year, nine months after he accepted the caution, Mr O, a clinical nurse described as having “an exemplary record”, was informed that he had been automatically added to the Children’s and Adults’ Barred Lists for 10 years – the same period given to a murderer or a rapist.  He remained on the lists and was unable to work until July following representations by the RCN.

Another of the nurses, “Mrs W”, was barred for 10 years in June after accepting a caution for leaving her 11-year-old son at home on his own when she went shopping. Her case was referred to the Nursing and Midwifery Council which found that she had no case to answer. But Mrs W was unable to work as an agency nurse and, as  a single parent responsible for her son, struggled financially. She
was removed from the auto-bar list in August 2010, only after the RCN took up her case.

The third nurse, “Mr A”, accepted a caution for indecent assault after he kissed a colleague without their consent.  In another case which led to a ban, a mother was cautioned for child neglect
after leaving her three-year old son in the care of her responsible 14-year-old son while she popped to the shops.  Although only away from home briefly the authorities found out and the caution
led to her losing both her job as a health care assistant and a place on a nursing course.

Yet another mother was cautioned for child neglect after leaving her three children in the care of a seemingly responsible neighbour, a grandmother, while she took a relative to the airport. The neighbour left the children on their own for a while and the mother was barred from taking up a place on a nursing course.

And Rachael Parry, from Caerphilly, south Wales, was cautioned for leaving her daughter alone in the bath for a minute and a half when she went downstairs to get towels. She returned to find her daughter face-down in the bath. She gave mouth-to-mouth to revive her daughter and took her to hospital, where she made a full recovery, but although police and social services recognised
that she was a loving mother who had made a terrible mistake the CPS ordered that she be given a caution. This triggered an auto-bar which meant she could not do her degree course in criminology.

(source BBC news)