|Judgments - R (On the application of Wright and others) (Appellants) v Secretary of State for Health and another (Respondents)
HOUSE OF LORDS
 UKHL 3
on appeal from:  EWCA Civ 999
OF THE LORDS OF APPEAL
FOR JUDGMENT IN THE CAUSE
R (on the application of Wright and others)(Appellants) v Secretary of State for Health and another (Respondents)
Lord Phillips of Worth Matravers
Lord Hope of Craighead
Baroness Hale of Richmond
Lord Brown of Eaton-under-Heywood
Martin Spencer QC
(Instructed by Director of Legal Services
Royal College of Nursing)
Nathalie Lieven QC
(Instructed by Department of Health )
19, 20 and 21 NOVEMBER 2008
WEDNESDAY 21 JANUARY 2009
HOUSE OF LORDS
OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT
IN THE CAUSE
R (on the application of Wright and others) (Appellants) v Secretary of State for Health and another (Respondents)
 UKHL 3
LORD PHILLIPS OF WORTH MATRAVERS
LORD HOPE OF CRAIGHEAD
BARONESS HALE OF RICHMOND
The statutory scheme
"(a) an individual who is or has been employed in a position which is such as to enable him to have regular contact in the course of his duties with adults to whom accommodation is provided at a care home;
This extremely wide definition covers not only professional carers, such as registered nurses, but also people employed in quite different capacities in care homes. Section 80(4) adopts the same wide definition of "employment" contained in section 12(1) of the 1999 Act, which covers paid or unpaid employment, under a contract of service, contract for services or no contract at all. On the face of it, both professionals such as doctors and voluntary workers who regularly visit a care home would be included. On the other hand, the definition only covers care homes and domiciliary services. Section 80(1)(b), dealing with people employed in independent hospitals, clinics, medical agencies or the National Health Service, has never been brought into force.
"If it appears from the information submitted with a reference under subsection (1) that it may be appropriate for the worker to be included in the list kept under section 81, the Secretary of State shall-(a) determine the reference in accordance with subsections (5) to (7); and
"This subsection applies if the Secretary of State is of the opinion-(a) that the provider reasonably considered the worker to be guilty of misconduct (whether or not in the course of his employment) which harmed or placed at risk of harm a vulnerable adult; and
Thus the test is not whether the misconduct actually took place, but whether the employer reasonably considered that it did. The Secretary of State must then make a judgment as to the suitability of the worker. If he is of the opinion that this test is met, section 82(6) provides that he must confirm the worker on the list (provided that a worker who was suspended or provisionally transferred has now been dismissed or her transfer confirmed). If he is not of that opinion, the worker must be removed from the list.
"If on an appeal or determination under this section the Tribunal is not satisfied of either of the following, namely-(a) that the individual was guilty of misconduct (whether or not in the course of his duties) which harmed or placed at risk of harm a vulnerable adult; and
"Where a person who provides care to vulnerable adults discovers that an individual employed by him in a care position is included in that list, he shall cease to employ him in a care position.
Section 89(5) makes it a criminal offence for anyone whose inclusion on the list has been confirmed knowingly to apply for, offer to do, accept or do any work in a care position. This does not apply to someone who is only provisionally listed, but the Royal College of Nursing very properly advises its members that they must inform their employers and stop work if they are employed in the care home sector.
The individual appellants
"it would be too restrictive to limit the notion to an 'inner circle' in which the individual may live his own personal life as he chooses and to exclude therefrom entirely the outside world not encompassed within that circle. Respect for private life must also comprise to a certain degree the right to establish and develop relationships with other human beings."
LORD BROWN OF EATON-UNDER-HEYWOOD