By David Harrison
Nurses who were banned from working under a controversial vetting scheme are to launch a major test case against the Government.
The move will embarrass ministers and could lead to hundreds more workers taking legal action, at a cost of millions of pounds to the public purse.
The three nurses bringing the case all lost their jobs following minor offences which were not deemed serious enough to go to court, but which resulted in them being handed police cautions.
One of the nurses broke the law by leaving her 11-year-old son at home alone while she went shopping. Another was cautioned because while he was at work, his wife left the couple’s children alone for a short period. The third kissed a colleague without permission.
Under the rules of the vetting scheme – introduced in 2009 with the intention of protecting children from paedophiles – the cautions meant they were automatically barred for 10 years from working with under-18s or vulnerable adults.
The nurses, who have not been named, took their case to the High Court, which ruled that their treatment had been unlawful because they were not given the opportunity to put their side of the story before being barred. They are now suing for loss of earnings and other damages.
The court case comes amid growing concern over the number of people being caught by the vetting and barring scheme, which was drawn up under Labour and is currently under review.
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 scheme run by the Independent Safeguarding Authority (ISA), a government quango.
But The Sunday Telegraph has disclosed that even after the High Court ruling in November, the automatic ban or “auto-bar” is still being applied.
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, according to the latest figures. 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.
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.”
One of the nurses 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.
The RCN said being placed on the “barred” list had caused them to suffer “emotional and financial hardship”. Mr Green said that the court ruling would open the way for other people who had barred automatically to lodge claims for compensation.
“Their human rights have been found to be infringed by the auto-barring process and so they are, prima facie, entitled to compensation,” he said.
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.
Josie Appleton, director of the Manifesto Club, which campaigns against excessive regulation in everyday life, called the vetting and barring scheme “a gigantic exercise in blame avoidance”.
She said: “Politicians have passed the buck to the ISA whose caseworkers apply largely automated procedures to make decisions about risk. These gross miscarriages of justice show how wrong-headed this policy is.
“It is important to protect children and patients, but this cause is not helped one jot by barring innocent people.”
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.”