Working with the elderly and infirm: a delicate balance of rights

 R (on the application of J) v the Chief Constable of Devon and Cornwall [2012] EWHC 2996, 26 October 2012 – read judgment

Close on the heels of last week’s decision regarding disclosure of information from the Child Sex Offenders Register comes this ruling on the police decision to disclose certain information from a nurse’s enhanced criminal records certificates without affording her an opportunity to make representations before the information was released.

The Legal Framework

Section 113B of the Police Act 1997 provides for enhanced criminal record checks to be carried out in various specified circumstances, such as where people are applying to work with children or vulnerable adults. The check is enhanced in the sense that it will involve a check with local police records as well as the centralised computer records held by the Criminal Records Bureau. As well as information about minor convictions and cautions, it will reveal allegations held on local police records about the applicant’s criminal or other behaviour which have not been tested at trial or led to a conviction.If the information satisfies certain threshold tests in the relevant statute, it must be given to the Secretary of State  who must include it in the relevant individual’s Enhanced Criminal Record Certificate or “ECRC.”

The 1997 Act has the unexceptionable aim of protecting vulnerable people (for present purposes, vulnerable adults), from being harmed by those working with them. It does so by requiring relevant information available to the police, about an applicant for a post involving responsibility for such vulnerable people, to be vouchsafed in an ECRC to the prospective employer. It is then for that employer to decide whether the information is relevant, and, if so, whether it justifies refusing to employ the applicant. In the real world of course such information can have a devastating effect on an individual’s future in the employment market.

Factual background

The claimant is  a registered nurse from Zimbabwe who has been working in the UK since 2004. Earlier ECRCs contained details of a caution administered to the claimant in 2005 for “child cruelty” contrary to section 1 of the Children Act 1933, although the caution related to nothing more serious than leaving her son alone for longer than was acceptable. More serious allegations were made in 2007 and in 2011 of assault against elderly residents in the care homes where she worked. This information was added to the claimant’s ECRCs without her knowledge. In neither case was any further action taken. The Royal College of Nursing contended on the claimant’s behalf that it was not proportionate for the police to disclose this information to all future potential employers. But in 2012 the claimant received a letter from the Criminal Records Bureau informing her that the police had decided not to amend her ECRCs, and it was over this letter that the battle lines were drawn in this application for judicial review. There was not so much a question of law to be applied, but of proportionality.

The claimant argued that disclosure was a disproportionate interference with her rights under  Article 8 of the Convention. The failure to afford her an opportunity to make representations before the information was included on the certificates was also a significant error; there should be very few cases in which such an opportunity would not be given. The defendants maintained that if the claimant has a propensity for inappropriate and physically rough treatment of the very elderly this could put them at risk when in contact with her as nurse, and therefore the inclusion of the 2007 and 2011 incidents was justified. The Chief Constable considered that the information might be relevant to other registered institutions considering her application. Whilst he was “unfamiliar” with the residential care home environment and “not an expert” on residential care standards or the supervision and development of care workers, he concluded that

the respective registered bodies, were those which were best placed to make an assessment about whether the claimant posed a threat to the vulnerable and as such the information might be of relevance to them.

He had taken into account the fact that none of the police held information indicated there to be a threat to life or serious physical harm. But once it appeared that there had been a second incident, he took the view that

there might be a propensity for poor handling and care of vulnerable residents and my concern was that the alleged harm the Claimant inflicted on such residents resulting in two independent allegations may not be the result of an inadequate technique but rather uncaring attitude and behaviour.

Foskett J granted a declaration that the disclosure given breached the claimant’s Article 8 rights and that the further decisions taken up to and including the decision to persist with disclosure, reflected in the Chief Constable’s 2012 letter, should be quashed.

The Court’s reasoning

The defendant should have given the claimant an opportunity to make representations before disclosure was given.  The CRB Disclosure Officer who prepared the initial report on the claimant had  said that, but for the 2011 matters, she would not have recommended disclosing the 2007 matters. Whilst the CRB Disclosure Officer took the view that the emergence of the 2011 allegations permitted the re-emergence of the 2007 material as a potential candidate for disclosure, there must be strong evidence to review such a positive decision about non-disclosure of certain material which has been in place for over 4 years.

..it is, in my view, important that decision-makers are reminded in any guidance that they do need to be very confident that, when something in the past is thought later to be made relevant and disclosable by virtue of some new evidence that has emerged, the decision to disclose truly is clear cut before proceeding without affording the opportunity for representations to be made.[46]

As far as the facts of this and any other similar case are concerned, it is important to bear in mind the following factors when determining the veracity of an allegation of assault:

… it does not require much imagination to believe that being accused of rough handling is a daily occupational hazard for a nurse dealing with very elderly patients, particularly those who have certain physical frailties and diminishing mental faculties. If a nurse (perhaps as is the case with the claimant) has an apparently rather severe demeanour, it is not difficult to see how even a relatively minor mishandling incident could be perceived by such a patient to have been a piece of deliberate castigation or retaliation for the difficulties the patient was presenting. [64]

Foskett J did not accept the defendants’ contention that these two sets of allegations together gained a weight that tilted the balance in favour of disclosure. Whilst he could understand the concerns that were felt by the officers, those concerns could only arise on the basis of a suspicion of” occasional heavy-handedness” and that seemed to him “not a sufficiently weighty factor” to outweigh the claimant’s Article 8 rights. The claimant must have handled very many elderly and infirm patients many times on a daily basis throughout that period and yet complaints had arisen from a handful of people on two occasions separated by over four years. Notwithstanding these specific complaints, there was no evidence of  consistent heavy-handedness over the years in any of the institutions in which she had worked.  Foskett J did not believe that this consideration was weighed sufficiently, or at all, by the Detective Superintendent. The recitation of those allegations raised against her would of itself cause her “irredeemable harm” in seeking further employment. 

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9 thoughts on “Working with the elderly and infirm: a delicate balance of rights

  1. 30 October 2012

    Dear Ms English

    Thank you very much for your excellent thought-provoking article.

    1] “Vulnerable” – what is the precise legal definition? By my reckoning this is a very wide canvas as it could potentially include someone who is in a coma and in a life-threatening condition or be someone who is a child who by this very nature is therefore in need of adult protection. And there are many other interpretations of what “vulnerable” may mean.

    2] “child cruelty” – what is the precise legal definition? Is there a question of degree and what is it precisely?

    3] “privacy” – what is the precise legal definition? Whose rights override those or another? Here it is about police records and enhanced Criminal Record Bureau checks, but what happens if, say, a person has been the subject of an unfounded allegation or an allegation that never came to court because charges were not brought?

    4] “public interest” – what is the precise legal definition?

    I believe that these are often vague and subject to wide interpretation.

    Human Rights are there to protect everyone – weak as well as the strong – but it must also protect people from undue investigation into allegations which are hearsay and potentially malicious.

    That is my dilemma.

    With best wishes

    Rosemary Cantwell

    • These are all good questions, and I will follow up this piece with some considerations of the points you raise (so, thank you). We need particularly to think about the word “vulnerable”, which may as you suggest, cover too wide a canvas.

      • A distinction is often drawn between children and vulnerable adults. The latter are essentially those who are particularly reliant on others for their everyday needs. Quite clearly, the elderly in “care” environments are covered.

        Like many words and phrases used in law, the interpretation has often got to be along the lines of what is the usual everyday meaning.

  2. Whether a certificate contains “allegations” becomes a matter of opinion of the decision-maker – in this case, the judge. On reading this case, I wondered whether the judge had given too much weight to X’s Art 8 right. I am not sure and could well understand some other decision-maker reaching a different conclusion since the overall picture is of a person who did not sometimes treat patients very well. If a strong protective regime is required then there was much to be said for resolving any doubts in favour of the patients.

    The case also illustrates the need for employers to obtain references since material might be missing from even an enhanced certificate.

  3. Thanks for an interesting and well written post.

    What is interesting about this case is that if the proper processes had been followed, then the claimant may not have had a case or would not have been in this situation. First, the allegations were provided to the police without her knowledge. Why were they serious enough to warrant telling the police, but not creating a disciplinary outcome from any of the employers?

    Second, why did the police not follow their procedures to allow them to make representations or consider, indirectly, why the investigations did not lead to disciplinary outcomes ie not enough for the police but enough for the organisation to be concerned? Third, if the care worker had been given the opportunity to explain their side, then they may have avoided the issue. (measure twice, cut once).

    I also wonder if the police are more likely to consider or give due weight to allegations that led to a disciplinary investigation and outcome rather than those which did not lead to anything. A key issue, that sits beneath the surface, is why the employers never proceeded to a disciplinary investigation and why due weight was not given to the fact that the institutions closest to the issue did not pursue disciplinary investigations.

    A fascinating case and one that helps to clarify the issues around proportionality as well as decision making processes.

  4. In 2002 the department of Health defined vulnerable adult as:

    a person aged 18 or over, “who is or may be in need of community care services by reason of mental or other disability, age or illness

    and

    who is, or maybe unable to take care of him or herself or unable to protect him or herself against significant harm or exploitation “

  5. 31 October 2012

    Dear Ms English and Obiter J

    Thank you both for your illuminating analysis.

    The word “vulnerable” does need clarification because although the Department of Health has a definition in 2002, Social Services in 2011 have now referred not to “vulnerable adult” but person at risk.

    This, I believe, muddies the waters incredibly.

    Because at risk of what?

    And is there automatically a perpetrator of wrong?

    When a peson is in a care home, it does not automatically mean that a person is vulnerable to everything. A person may, for example, be “vulnerable” because they are partially-sighted or hard of hearing, but has excellent powers of communication nonetheless and can make their views known.

    And it is this “vulnerability” that could mean that anyone with any disability of whatever description – eg a person who wears glasses without their glasses becomes “vulnerable” as they cannot see properly, but with glasses has “corrected sight” and is not vulnerable at that point. So, vulnerability can alter according to time and place as well as capacity.

    Similarly, a person who is hard of hearing may wear a “hearing aid” in order to be able to communicate, and then is not vulnerable because they can hear and communicate.

    This is one reason why I believe that the word “vulnerable” needs to be clarified and maybe the DH could investigate this, along with the courts.

    I would be very grateful for your views on this, and everyone else’s opinions, as there are many people in the country who have disabilities of one type or another and therefore are all potentially “vulnerable” in one degree or another, but does that mean they are all “at risk”? And at risk of what?

    And what is “exploitation” specifically? This has not been clarified.

    Thank you so much.

    Best wishes

    Rosemary Cantwell

  6. With regards to Rosemary’s comment, whether ‘public interest’ can be defined clearly by the government itself is difficult to tell. We know that it refers to the rights to information being either held or broadcasted. But is there actually a way to generalise the term? When does information become of ‘public interest’?

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