Working with the elderly and infirm: a delicate balance of rights
30 October 2012
R (on the application of J) v the Chief Constable of Devon and Cornwall  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
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.
The claimant is arlier 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 thatlaimant 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.
The Court’s reasoning
The defendant should have given the claimant an opportunity to make representations before disclosure was given. The CRB 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
Foskett J did not accept the defendants’ contention that 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. here 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
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