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RCN launches legal action against safeguarding scheme

The Royal College of Nursing is launching a judicial review of a vetting scheme it fears will breach nurses’ human rights and have “catastrophic” consequences for their careers, Nursing Times can reveal.

The Royal College of Nursing is launching a judicial review of a vetting scheme it fears will breach nurses’ human rights and have “catastrophic” consequences for their careers, Nursing Times can reveal.

The RCN believes the scheme breaches nurses’ rights to a fair trial and to privacy

The move also follows concerns the controversial vetting and barring scheme would make nurses overly cautious about comforting or being left alone with patients.

The scheme, introduced last October, is aimed at protecting children and vulnerable adults and will eventually require all nurses to register with the Independent Safeguarding Authority.

The RCN is taking action to help members who face being struck off by the ISA for 10 years without a fair hearing or a right to appeal, after committing relatively minor offences.

RCN general secretary and chief executive Peter Carter said: “Of course, nursing staff recognise that the protection of children and vulnerable people is of the utmost importance.

“Having had exhaustive discussions with the previous government over the inclusion of appropriate procedural safeguards for our members and having taken extensive legal advice, the RCN firmly believes that the vetting and barring scheme is unfair.”

He has written to Home Secretary Theresa May giving her formal notice of their legal challenge. The Home Office is expected to respond on Wednesday.

The RCN believes the scheme breaches nurses’ rights to a fair trial and to privacy. For example, before barring decisions are taken, professionals can only make representations in writing.

After being cautioned or convicted, offenders are automatically barred, with appeals only possible if a decision is found to have relied on legal or factual errors, the college says.

RCN director of policy development and implementation Howard Catton said the scheme could have “ultimately catastrophic results” for nurses’ careers and could potentially change their relationships with patients.

He said: “Nurses might be scared something as simple as putting a hand on a patient’s arm will be misinterpreted. Or they could become more conscious about talking to patients on their own.

“If people are acting in a defensive way it might hold back their practice.”

The strict regime could also deter people from roles where they would be working with vulnerable people, he warned.

A university lecturer who teaches nurses about child protection told Nursing Times that safeguarding practices had already become more “defensive” since the Baby Peter scandal two years ago.

She did not want to be named due to the intense sensitivities around the issue but said:  “We can be too protective. There are people who are scared of doing anything just in case they get it wrong.”

The vetting and barring scheme is already under review after the government announced last month it wanted to “scale it back to common sense levels”.

This followed claims that nurses could be struck off for one-off mistakes or even after they had been cleared by the Nursing and Midwifery Council.

Staff could also potentially be removed from the register if they had lifestyles perceived as “unstable” or were felt to be suffering from “severe emotional loneliness”.

Unison head of nursing Gail Adams shared the RCN’s concerns but feared taking the issue to court at this stage risked increasing the costs of the scheme.

The Trades Union Congress is working with ISA and the Home Office to make improvements, she said.

A Home Office spokesman said: “Any review will need to ensure that vulnerable groups continue to be properly protected, but in a way that is proportionate and sensible, and does not infringe on civil liberties.”

An ISA spokesman said the organisation could not comment on policy matters.

Vetting and barring timeline*

October 2009: Employers have a duty to refer to the ISA anyone posing a risk to children or vulnerable adults

January 2010: Concerns over “punitive” referral guidelines revealed in Nursing Times

May 2010: Coalition agreement states: “We will review the criminal records and vetting and barring regime and scale it back to common sense levels”

July 2010: New staff or those changing roles may volunteer to register with the ISA. This becomes a legal requirement in November 2010

April 2011: Existing staff have until July 2015 to register with the ISA

*Future timescales subject to coalition government review

Readers' comments (47)

  • Oh my god, I can't believe the RCN are actually getting up off their backsides and doing something useful! I'm actually quite shocked!

    Saying that I am really glad they are, this draconian measure is extremely frightening, not simply for the fact that it treats every one of us as a potential criminal just for trying to do our jobs.

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  • yangqing

    I'm surprised that RCN finally decide to stand up for nurses.

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  • I think RCN is doing the right thing So there is no need for the surprise element. The RCN duty to members need to be acknowledged. There is need for a more Proactive approach than reactive as it is in this case in my own opinion.

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  • unstable” or were felt to be suffering from “severe emotional loneliness”.?????????????????????

    Please define. I live alone, nearest family is 80 miles, currently off work with LTC and awaiting MRI's and seeing other Consultants as a result have been very low and am having counselling. Am I therefore, included in these groups or deemed a risk after 37 years in public service. If they want to retire me they can. Their loss for not caring for me the way I have cared for my patients.

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  • God help you if you get a caution from the Uniformed revenue collectors(police) or if your on demo for something you passionately believe in. or are in the wrong place at the wrong time. The onus will be on you to prove your innocence. Dont talk of 'if you've done nothing wrong etc etc'

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  • This sort of legislation is undermining not only the way that nurses work day to day, but is also having a profound effect in the voluntary sector. Who in all good conscience would put themselves in harms way by coaching a kids football team, or get involved with organisations like the Scouts or Cadet forces? One allegation - proven or not - will see you on the way to losing your livelihood. I hate to say it, but it just isn't worth it.

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  • Before we get too dismissive of the scheme it's worth understanding the problem it is designed to solve. It's part of the Safeguarding Vulnerable Groups Act 2006 and is a direct response to situations such as the Soham murders in Cambridgeshire and Miss X in Scotland.

    The scheme is vital to close the gap and is very similar to registration anyway. The beauty of it is that it follows the individual like a passport and is continually updated rather than the old, inefficient POVA check system that was full of loopholes.

    The scheme works on 'balance of probability' rather than 'beyond reasonable doubt' hence the disparity between it and NMC hearings. But this is a false objection. The old POVA list also has worked on balance of probabilities for years anyway.

    Changing legislation because people are frightened of it is the wrong approach. Rather we should educate staff to understand the scheme better.

    Or we could keep the abusers' loopholes open instead of bothering to understand.

    Cheers,

    Stuart

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  • To get a sense of why this is necessary have a look here:

    http://stuartsorensen.wordpress.com/2010/03/25/safeguarding-2-a-little-history/

    and here:

    http://stuartsorensen.wordpress.com/2010/05/11/safeguarding-16-the-safeguarding-vulnerable-groups-act-2006/

    Cheers,

    Stuart

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  • Stuart, I see your point mate I really do, but Anonymous | 8-Jun-2010 1:48 pm has it right.

    This system will essentially treat all Nurses as potential criminals, it will assume you are guilty and ask you to prove you are innocent. Nursing in general as well as the universities, are already well known for witch hunting good and valued staff, this will make the situation 10 times worse.

    Just to give you one example of where I am coming from outside of the profession, I used to run and teach a Martial Arts club with a childrens class. It was a volunteer, not for profit club and was very successful and we had 30 kids every single lesson to look after ranging from 6 through to 15. Now when we started we were fully insured and licensed to teach, and we always encouraged one or more of the childrens parents to stay and watch. Over the years we were forced to undergo advanced CRBs to work with kids, and legislation, paperwork and so on got so ridiculous it was almost punitive. It even got to the point where we would not teach unless one or more of the parents were there to watch just to cover our own backs. We eventually stopped doing it, much to my regret, because of things like this.

    This scheme for professionals will be a lot worse than that. It will become almost punitive to want to work in a caring, public service profession.

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  • Hi Mike,

    there's no witch hunt here. This is my argument anyway:

    The Royal College of Nursing (RCN) has written to the Home Secretary, Theresa May, formally protesting about the new ‘vetting and barring’ scheme. The scheme came into being as part of the Safeguarding Vulnerable Groups Act 2006 and is designed to prevent abusers from working in health and social care. It also provides for the criminal prosecution of employers who do not report suspected abusers to the appropriate authorities.

    It’s perhaps not too surprising that the RCN, which represents many NHS nurses, objects to this given the appalling record of NHS nurses in failure to report abuse.

    In 2005 Kings College London produced a report analysing the first 100 referrals to the old POVA list. Their findings were significant and in parts very worrying. The document can be viewed online at the address below:

    http://www.dh.gov.uk/dr_consum_dh/groups/dh_digitalassets/@dh/@en/documents/digitalasset/dh_4116574.pdf

    Firstly it was clear that the vast majority of referrals came from the independent sector with only around 5% of referrals generated by the NHS. This is unlikely to be because the NHS does not have any abuse issues – in fact it is more likely to demonstrate a culture of neglect and ‘turning a blind eye’ that needs to be addressed as a matter of urgency. When abuse in the NHS does come to light it is often extreme and systemic as was demonstrated in the North Cornwall scandal of 2006

    http://news.bbc.co.uk/1/hi/england/5148154.stm

    The report also noted that in many cases abusive practice had been tolerated and left to continue for long periods. This was especially true in smaller establishments. The vast majority of abuse involved front line workers.

    Perhaps most worryingly several workers had actually been convicted of relevant offences and yet continued to work in health or social care. However we look at it there is a major issue to be addressed and the RCN does the reputation of nurses no favours by opposing legislation designed to deal with it.

    The RCN argues that many nurses will be frightened to deliver basic care such as touching patients. They seem to believe that if a nurse does not understand the reality of what constitutes abuse then we should change the law to accommodate that nurse’s ignorance rather than require them to learn the truth. This seems to me to be entirely inappropriate. It’s like saying that we’ll stop trying to catch abusers because non-abusive staff haven’t bothered to understand what good practice means.

    Many care providers seem to believe that every slight misdemeanour will result in them being prevented from working with vulnerable groups. This media-driven view is inaccurate and more than a little melodramatic.

    The reality is that in order for someone to be barred from working with vulnerable groups there must be reasonable evidence on balance of probabilities. This represents no change from the system that has operated in England & Wales for several years already. In order to make sense of the reality we need to look at what the courts call the ‘burden of proof’.

    Before the CPS (PF in Scotland) can secure a criminal conviction there must be evidence of guilt ‘beyond reasonable doubt’. This is a high burden of proof. I’m going to call this (not a legal definition – just a way to describe it) 95% probability of guilt.

    This means that it is notoriously difficult to get a conviction, not least because abuses of vulnerable people tend to happen ‘behind closed doors’ and the victims themselves may not be the most reliable witnesses to appear before the courts. Very often the victims are targeted precisely because they are psychologically vulnerable and so unlikely to cope well with the discrediting onslaught from a defending barrister.

    All of this has meant that many, many abusers have managed to carry on for years without ever being brought to book because there was too little evidence to bring them to court in the first place, let alone secure a conviction. As a result countless vulnerable people of all ages have been victimised by the very people who were supposed to be caring for them.

    Clearly this loophole in the system needed to be closed.

    There is another type of burden of proof that is used by the courts. This is the civil burden of proof and it does not rely upon establishing guilt beyond reasonable doubt. Rather it is based upon ‘balance of probabilities’. I want to describe this as 51% probability (again not a legal definition). In other words it has to be ‘more likely than not’ that the person is liable. This is the burden of proof used in civil lawsuits where one individual sues another for damages.

    The difference between the civil and criminal burdens of proof (51 – 95% probability) is what the Scottish courts call ‘not proven’. This is the area that raises so many objections throughout UK because people not convicted of crime can be barred from working with vulnerable people so long as ‘on balance of probabilities’ they are deemed most likely to have abused their charges.

    Let’s put this into context.

    When delivering training on adult protection and safeguarding I almost always come across objections when I make this point. This is understandable because it appears to fly in the face of the long-standing legal principle of the presumption of innocence: the idea that we are innocent until proven guilty.

    My response to this is always to put forward the following hypothetical scenario from the world of child protection:

    Imagine that I’m not really Stuart the nurse or Stuart the trainer. Actually I’m Stuart the teacher – and I’m a good teacher. I’ve been in the job for many years and get great academic results for most of the children I teach. I specialise in the 7 – 11 year old age bracket.

    Some of the children I teach tend to do very badly academically though. They tend to be little boys with blonde hair and they often become withdrawn and emotionally needy shortly after joining my classes. I don’t think I need to be too specific here – the results of paedophilia are well known and the above scenario illustrates the point well enough.

    Now imagine that I’ve been working in a particular school here in West Cumbria (my home county) for a few years when I notice that some of the parents have taken to ignoring me. I also notice that when they’re waiting for their children at the school gates they tend to bunch together and seem to become rather conspiratorial whenever they see me. I’m no fool and I know what’s about to happen. It won’t be very long before I’m formally reported to the local police.

    So I apply for jobs in other schools out of the area. My overall academic record is good and the head will give me a good reference (not least because she’s heard the rumours too and wants rid of me). I leave Cumbria and take up a post in a school in the neighbouring county of Lancashire. There’s no conviction and so no information follows me. I’m in a different education authority with a clean slate.

    A couple of years later, having continued my abuses with a fresh group of Lancastrian children, I move again, perhaps to Lincolnshire this time. And then a year or two later I move once more – this time to your home town. Now I’m teaching your children.

    That’s OK isn’t it?

    It doesn’t take a genius to understand that if we can only use convictions to identify abusers we will fail more often than we succeed. But this gives us a dilemma as a nation. Whatever we do we cannot have a perfect system – mistakes will be made. The choice we have had to make as a society is what the price of our mistakes will be.

    If we rely upon convictions only then the price will be countless abused children. Imagine how many youngsters a paedophile teacher will come across in the space of a career. How many vulnerable elderly residents might an abusive ’carer’ come into contact with too?

    If we use wider sources of information the price of our mistakes will be some people having to get a different job. Neither outcome is ideal but then it’s not an ideal world. Which price do you consider to be the lesser of two evils? I think – and the government thinks – that the lesser price is the fact that some people will need to get a different job.

    So child protection systems solved the problem, at least in part, by considering wider information and adult protection has followed suit – hence the familiar enhanced CRB check. The new registration scheme and the vetting and barring list is a more effective way of administering that familiar system.

    It seems to me that the RCN is arguing for a system that will make it much more difficult to prevent abuse.

    Only in the more extreme cases are people actually prevented from working with vulnerable adults and that was what the old POVA list was about. People whose names ended up on the POVA list were legally barred from working in social care. One of the objections from the RCN is that nurses who are convicted of or cautioned for ‘relevant offences’ (offences involving abuse of others) will be unable to work with vulnerable people. Maybe I’m being silly but I really don’t see the problem with that.

    There is a downside but then there is to everything. The downside to this, as I see it, is as follows…..

    I have no doubt that ‘good’ people will almost certainly end up on the vetting and barring list because balance of probability is not the same as criminal proof. However, the other side of this argument involves the obvious fact that not proven does not mean not true.

    Whatever system is used mistakes will be made. The Independent Safeguarding Authority, in conjunction with the local ‘Adult Protection Committees’ will get things wrong from time to time. The question a civilised society has to ask itself is this:

    What do we want the price of those mistakes to be?

    If we want the price of mistakes to be continued abuse of vulnerable people then we would go with the criminal (95%) burden of proof.

    If we want the price of our mistakes to be someone finding a different job then we will go with the civil (51%) burden of proof.

    The question we as individuals need to ask ourselves (and the RCN) is this:

    Since our society can’t have a perfect system do we want the government to opt for one that protects the vulnerable or one that allows abusers to slip through the net?

    Can we, in all conscience support what amounts to an abusers’ charter?

    Remember also that balance of probabilities is not easy to establish. There needs to be significantly more evidence than simply an allegation. There is also an appeals process and recourse to the courts too.

    Personally I think that this is the best system that society can achieve and although it’s not perfect it is definitely the lesser of two evils in my view. There are no easy answers in the safeguarding of vulnerable people but we all need to remember that this social decision is far bigger and more important than any individual. This is true however unfair it may seem to those who are included on the list in error.

    We can sympathise with those individuals. In fact I think it would be extremely callous of us not to. But that doesn’t change the fact that a less stringent system would result in far greater harm to many, many more people in our society.

    The greater good is a much bigger concept than the preciousness of a nursing union.

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