MR v Disclosure and Barring Service

On 26 August 2011, the Respondent’s predecessor, the Independent Safeguarding Authority, included the Appellant in the Adults’ Barred List maintained under the Safeguarding Vulnerable Groups Act 2006, having previously indicated on 12 April 2011 that it was minded to do so as a result of which the Appellant had made detailed submissions. It found as a fact that the Appellant had been cautioned on 12 February 2007 in respect of an assault occasioning actual bodily harm to his then wife and that, while practising as a general medical practitioner, he had conducted two separate sexual relationships with vulnerable patients (“Patient A” and “Patient B”). There had also been an allegation that he had engaged in unwanted sexual contact with a member of staff at the surgery (“Miss C”). The Appellant appealed to the Upper Tribunal and, on 26 June 2012, the Upper Tribunal allowed his appeal by consent on the ground that the Authority had not had proper regard to statutory guidance and there had therefore been a breach of paragraph 10(6) of Schedule 3 to the 2006 Act. The case was remitted to the Authority to be considered in the light of the guidance (MR vIndependent Safeguarding Authority [2012] UKUT 234 (AAC)).

On 1 December 2012, the Respondent took over the Authority’s functions under the 2006 Act. On 31 July 2013, having obtained further representations from the Appellant, it again included the Appellant in the Adults’ Barred List. The caution in respect of the assault on his wife played no part in the reasoning in the decision letter but the Respondent relied on each of the other matters in deciding that inclusion in the List was appropriate. The Appellant again appealed, alleging both errors of law and an error of fact.

As regards the law, he submitted (a) that the Respondent had erred in still not having had proper regard to the statutory policy, (b) that the barring scheme was discriminatory on the grounds of age because those aged under 25 are entitled to apply for a review sooner than those of or over that age, (c) that the scheme was unfair because the effect of having won his previous appeal was that the new barring lasted for longer, (d) that the decision of the Respondent was disproportionate, (e) that the Respondent had appeared to acknowledge that he had taken steps to change his life but failed to take that into account and (f) that the Respondent’s decision breached Article 7 of the European Convention on Human Rights because it punished him for action committed before its formation.

As regards the facts, he denied ever having had a sexual relationship with Patient B. The question whether the Appellant had had a sexual relationship with Patient B was of considerable significance because, on any view, Patient B, who had serious mental health difficulties, was more vulnerable than Patient A and the Appellant did not argue that barring him had he had an affair with Patient B would have been contrary to the statutory policy or disproportionate.

We held an oral hearing. The Respondent, for good reason, had concluded that it could not rely on Patient B’s evidence in isolation but called Patient A to give evidence because she had made statements that appeared to be to the effect that the Appellant had told her that he had had an affair with Patient B. However, at the hearing, she made it clear that the Appellant had told her that he had been accused of having an affair with Patient B, rather than that he had actually done so. In the light of that evidence, the Respondent conceded that the appeal should be allowed.

The Respondent submitted that the case should be remitted for it to make a decision as to whether the Appellant should be included on the List on the basis that he had not had an affair with Patient B. The Appellant asked us to substitute our own decision directing that he be removed from the List. This disagreement requires us to consider the points of law raised by the Appellant and also to consider the extent of the Upper Tribunal’s powers.

As to the Upper Tribunal’s powers, section 4 of the 2006 Act provides –

“4.–(1) An individual who is included in a barred list may appeal to the Upper Tribunal against—

(a)

[repealed];

(b)

a decision under paragraph 2, 3, 5, 8, 9 or 11 of Schedule 3 to include him in the list;

(c)

a decision under paragraph 17, 18 or 18A of that Schedule not to remove him from the list.

(2)

An appeal under subsection (1) may be made only on the grounds that DBS has made a mistake—

(a)

on any point of law;

(b)

in any finding of fact which it has made and on which the decision mentioned in that subsection was based.

(3)

For the purposes of subsection (2), the decision whether or not it is appropriate for an individual to be included in a barred list is not a question of law or fact.

(4)

An appeal under subsection (1) may be made only with the permission of the Upper Tribunal.

(5)

Unless the Upper Tribunal finds that DBS has made a mistake of law or fact, it must confirm the decision of DBS.

(6)

If the Upper Tribunal finds that DBS has made such a mistake it must—

(a)

direct DBS to remove the person from the list, or

(b)

remit the matter to DBS for a new decision.

(7)

If the Upper Tribunal remits a matter to DBS under subsection (6)(b)—

(a)

the Upper Tribunal may set out any findings of fact which it has made (on which DBS must base its new decision); and

(b)

the person must be removed from the list until DBS makes its new decision, unless the Upper Tribunal directs otherwise.”

Where an appeal is allowed, subsection (6) appears at first sight to confer on the Upper Tribunal a broad discretionary power either to remove a person from the list or to remit the matter to the Respondent. However, it is noteworthy that it does not confer a power to confirm the person’s inclusion on the list on grounds other than those relied upon by the Respondent and it is important to read subsection (6) in the context of subsections (3) and (5), which make it clear that the Upper Tribunal is not entitled to substitute its own view as to whether or not it is appropriate for an individual to be included in a barred list for that of the Respondent. In those circumstances, it seems to us that the Upper Tribunal is entitled to remove a person from a barred list under subsection (6)(a) only either if the Respondent accepts that that is the decision that should be made in the light of the error of fact or law found by the Upper Tribunal or if the Upper Tribunal is satisfied that that is the only decision that the Respondent could lawfully make if the case were remitted to it.

The Appellant’s grounds (b), (c) and (f) identified in paragraph 3 above are arguments that any decision taken to include him in a barred list would be unlawful, but we are not satisfied that any of those grounds is seriously arguable.

It is true that, for the purposes of applying for a review under paragraph 18 of Schedule 3, the minimum barred period prescribed under regulation 9 of the Safeguarding Vulnerable Groups Act 2006 (Barring Procedure) Regulations 2008 (SI 2008/474) for a person under the age of 25 is shorter than that of for a person who has attained that age. However, that unequal treatment was not held unlawful in R.(Royal College of Nursing) v Secretary of State for the Home Department [2010] EWHC 2761 (Admin), where Wyn Williams J said –

“118.

If a minimum barring period is justified, and no one has suggested that it is not, then, in my judgment its length must be proportionate to and commensurate with the mischief which it aims to defeat. Further, given that there is no formal challenge or even criticism of the barring periods applicable to persons under the age of 25 it seems to me to be clear that the issue is, in reality, whether a barring period as long as 10 years is justifiable.

119.

I have a paucity of evidence to deal with this central issue. Mr Green's statements do not deal with it. Ms Hunter's statement does not deal with it and the explanatory memoranda which accompany the Regulations contain very little information which is relevant to the point now under consideration. I do, of course, have the responses to consultation.

120.

I also face the difficulty that I have been provided with no information about the circumstances which have led the Interested Party to include persons on barred lists on account of their conduct or potential risk or to refuse to remove persons from the lists who have been convicted of or cautioned for specified offences.

121.

As it seems to me the essential rationale for the 10 year period is that it "kicks in" when a person has become an adult, on any view, and, therefore, is less likely to be amenable to a rapid change in behaviour. Further, a longer period upon a barred list is justified for a person who is an adult than it is for a person who is emerging from adolescence into adulthood. On that basis a minimum barring period of more than 5 years is justified.

122.

I am not prepared to hold that this analysis, albeit somewhat simplistic, is wrong. On that basis I am persuaded, just, that the period of 10 years, although on any view a long one, is not unjustified. I am conscious, however, that my judgment has been reached on very little factual material. Since the scheme as a whole is under review I express the hope that the issue of minimum barring periods will be looked at anxiously in the light of all the information available which bears upon this topic.

123.

I appreciate, of course, that the Interested Party, of its own motion, is prepared to review a person's listing in what it regards as exceptional circumstances. It does not seem to me that this safeguard would be sufficient to remedy the situation if I had concluded that the minimum barring period of 10 years was disproportionate. Since I have not reached that conclusion, however, I do not intend to address this aspect of the case in any further detail.”

We respectfully agree that the points identified at paragraph 121 justify the unequal treatment.

Wyn Williams J was clearly troubled by the length of the minimum barred period but we accept the Respondent’s submissions that the insertion of paragraph 18A into Schedule 3 to the 2006 Act by section 71 of the Protection of Freedoms Act 2012 has gone some way to mitigate the lack of flexibility in the minimum barred period.

We reject the Appellant’s argument that it is unfair that the effect of winning an appeal and the case being remitted is that, if the person is again included in a list under paragraph 3, 5, 9 or 11 of Schedule 3 to the 2006 Act, a new minimum barred period will start under regulation 10(2) of the 2008 Regulations and so will necessarily end later than the barring that was set aside on the successful appeal. In making a new decision, the Respondent must have regard to the lapse of time since the person engaged in the relevant conduct, to changes of circumstances since then and to the minimum barring period there would be if the person were to be included in the list. If nonetheless it is appropriate for the person to be included in the list at the time that the new decision is made, it is not unreasonable for the minimum barring period to run from the date of the new decision, particularly now that paragraph 18A has been inserted into the Schedule. There is no presumption that a person should be removed from the list at the end of the minimum barred period. In any event, even if there were unfairness such that he minimum barring period was unlawful, the remedy would be to read down regulation 10(2) of the 2008 Regulations, which provides that “the minimum barred period starts when [DBS] includes the person in a barred list”, so that the minimum barring period commenced from the first inclusion in the list, rather than holding it unlawful to make a new decision following the successful appeal.

We add that it is arguable that, if the Upper Tribunal were to direct under section 4(7)(b) of the 2006 Act that a successful appellant’s name was to remain on a list until the Respondent made its new decision, regulation 10(2) would in any event have the effect that the minimum barred period would start when the Respondent first included the person in the list. (We did not hear argument on this point but and merely draw attention to it.)

We reject the argument that the Respondent’s decision to include the Appellant in the Adults’ Barred List involved a breach of the European Convention on Human Rights. Article 7 applies only to criminal offences and the 2006 Act is in this respect concerned with the protection of children and vulnerable adults and not with punishment as such. Moreover, the 2006 Act does not amount to retrospective legislation because, as the Respondent argues, it is concerned with the assessment of current risk, albeit that that may be assessed by reference to a person having engaged in relevant conduct before the Act was passed.

On the basis of its finding that the Appellant had had an affair with Patient B, we are also satisfied that the Respondent did not fail to have regard to the statutory policy or the steps that the Appellant had made to change his life. As the Appellant accepts, the Respondent’s decision letter expressly acknowledged the steps he had taken to change his life and, although it did not mention the statutory policy, it is highly improbable that that policy was overlooked given the ground upon which the Respondent conceded the first appeal. The decision that the Respondent made was unsurprising in the light of its finding in respect of Patient B and there is no ground for supposing that, having had the relevant matters in mind, it failed to give them proper weight in considering whether it was appropriate to include the Appellant in the Adults’ Barred List. It was entitled to consider that its decision was entirely consistent with the policy and that the changes in the Appellant’s life were outweighed by the seriousness of the relevant conduct such that he still posed a significant risk to vulnerable adults. The Upper Tribunal is not entitled to interfere with that judgement.

However, if, as we have found, the Appellant did not have an affair with Patent B, he clearly has a much more arguable case that it would not be appropriate to include him in the Adults’ Barred List. Before the hearing, the Upper Tribunal issued a direction requiring the Respondent to state in writing whether, if it were to be found that he had not had a sexual relationship with Patient B, the Appellant’s name should be removed from the Adults’ Barred List and, if it considered that his name should not be removed from the list even if it were to be found that he had not had a sexual relationship with Patient B, to give reasons so that the Upper Tribunal would be able properly to consider whether or not to remit the case in the event of the appeal being allowed for mistake of fact.

The Respondent declined to make a decision on that issue on the ground that there were some serious and identified concerns that might make it appropriate to include the Appellant in the Adults’ Barred List and that while it was possible that a full evaluation of all of the circumstances would lead to the conclusion that it would not be appropriate now to include the Appellant in the list if the affair with Patient B did not take place, that was far from an inevitable outcome in this case and, as the assessment was one that the legislation required to be carried out in the first instance by the Respondent, the Upper Tribunal would still be asked to remit the case to it.

We acknowledge that the legislation gives rise to difficulties. However, the fact that the question of appropriateness is in the first instance to be considered by the Respondent does not, in our judgment, necessarily require that cases must always be remitted except where it is clear that it would be inappropriate to include the appellant in the list on the findings made by the Upper Tribunal. There are, of course, many cases where the facts only become clear when the Upper Tribunal hands down a decision and it would be unreasonable for the Upper Tribunal to expect the Respondent to makes submissions as to whether an appellant should be included on a list before the Upper Tribunal makes a decision as to what the facts are. In such cases, remitting a case to the Respondent under section 4(6)(b) would clearly be appropriate. However, in the present case, the hypothesis on which the Respondent was asked to express a view was a relatively straightforward one. The mere fact that the judgement required was a relatively complex one did not necessarily mean that it could not be made before the Upper Tribunal made its decision on the matters already before it. It obviously would have required some work to be done by the Respondent that would have proved not to have been necessary if the appeal had been dismissed but, on the other hand, it would have saved a great deal of delay and anxiety for the Appellant if the judgement had been favourable to him and the Upper Tribunal had been able to make a final decision when allowing the appeal.

Even if the judgement had been unfavourable and the case had to be remitted to the Respondent for a formal decision to be made because the Upper Tribunal could not make the decision to include the Appellant in the relevant list, most of the work involved in making the judgement would not have had to be repeated. More importantly, the Upper Tribunal would have been properly able to express a view as to whether a decision to include an appellant in a list would be proportionate and would have been able at once to make a decision to remove the Appellant from the list if satisfied that it would not be. It was for this reason that the Upper Tribunal asked the Respondent to give reasons for a judgement adverse to the Appellant. A decision that it would be lawful and not disproportionate to include an appellant in a list would require remittal but, although it would not require the Respondent to include the appellant on the list it would, if the Respondent adopted the same reasoning as previously suggested to the Upper Tribunal, make it unlikely that the appellant would be given permission to appeal against the new decision.

A further advantage in the Respondent having addressed its mind to the question whether the Appellant should be included in the Adults’ Barred List even if he had not had the affair with Patient B would have been that it would have been possible for any material disputes of fact relating to the claimant’s affair with Patient A to have been put to Patient A while she was giving evidence to us so as to make it unnecessary for her to be called to give evidence for a second time if there were a third appeal. We were not minded to ask her intrusive questions when we had no way of telling whether the answers might be of any significance.

Nor were we minded to attempt to make any judgement as to the proportionality of including the Appellant in the Adults’ Barred List when the Respondent had not indicated the grounds upon which it would do so, rather than might do so. It seems to us that it would be unfair to the Appellant to have that issue decided in the abstract, without the Respondent being required first to set out the detailed findings of fact on which it would make its judgement and its reasoning.

Had the Upper Tribunal issued its direction earlier and received the Respondent’s response to it earlier, it would have considered whether it should insist on compliance with its direction or whether it should set the direction aside. As it was, this had become academic by the time of the hearing and we content ourselves with pointing out that, although the Upper Tribunal’s powers under section 4 of the 2006 Act are more limited than they are under section 12 of the Tribunals, Courts and Enforcement Act 2007 when allowing an appeal against a decision of the First-tier Tribunal, they are not as limited as they are in judicial review proceedings (see section 17 of the 2007 Act, which aligns the Upper Tribunal’s powers in such proceedings with those of the Administrative Court) and the Respondent may need to adopt a more flexible approach in future to avoid the prospect of three or four successive appeals being brought to the Upper Tribunal in one case.

In the circumstances of this case, we decline to rule on whether it might be disproportionate to include the Appellant in the Adults’ Barred List on the basis that he did not have an affair with Patient B. The Respondent has an arguable case, but whether, if it were made, a decision to include the Appellant in the Adults’ Barred List would be upheld must now await the making of such a decision and, presumably, a third appeal by the Appellant.

In making its decision, the Respondent must consider the points raised by the Appellant and, if not minded to accept them, will need to explain why. The Appellant has made several points in his written and oral arguments. There are, perhaps, three main themes to his arguments.

First, although any patient is technically a vulnerable person within the definition in section 59(1)(d) of the 2006 Act, the Appellant argues that his conduct towards Patient A should be seen more as professional misconduct than as relevant conduct for the purposes of paragraph 9 of Schedule 3 to the 2006 Act. In this regard, we would point out that paragraph 10(1)(b) of Schedule 3 is drawn so widely that any sexual conduct towards anyone could be regarded as relevant conduct because it is conduct which “if repeated against or in relation to a vulnerable adult, would endanger that adult or would be likely to endanger him”. Realistically, the statutory guidance suggests that regard should be had to whether the patient actually concerned was in fact harmed or placed at risk of harm.

“The question for the ISA is whether the conduct of a sexual nature has ‘endangered’ the vulnerable adult concerned or demonstrated a risk of harm; it should not look to become involved in matters which are solely instances of professional misconduct. For example, a patient having an informed, consensual relationship with a doctor in the doctor‘s surgery may be a matter of misconduct only; however a doctor performing inappropriate examinations on a patient for sexual gratification would have endangered that patient and therefore should be treated as having engaged in inappropriate conduct of a sexual nature.”

The Appellant argues that Patient A was not harmed, that the relationship was consensual and Patient A’s ability to consent was not limited and that she was not dependent on him and he did not use his position as her doctor to gain any advantage over her. The Respondent’s reasons for not having conceded that the Appellant should be removed from the list if he had not had an affair with Patient B indicate that it does not entirely accept all these arguments.

Secondly, even if there was some risk of harm to Patient A, the affair with Patient A took place eight years ago and his affair with Miss C and any subsequent unwanted sexual contact with her took place even earlier. This was at a time of the breakdown of the Appellant’s first marriage. He has subsequently remarried and so is once again in a settled relationship and therefore, he argues, the risk of an inappropriate relationship with a patient or any other vulnerable person is much diminished.

Thirdly, the Appellant has been removed from the medical register by the General Medical Council due to his professional misconduct – by virtue of a decision in which it was in fact recognised that Patient A was a “vulnerable patient” – and he argues that, particularly after this length of time, there is no need for him additionally to be included in the Adults’ Barred List with its inflexible minimum barred period. His conduct, he argues, is not such as to suggest a risk to vulnerable adults other than patients and, in this context, he argues, the public is adequately protected by the General Medical Council. If the General Medical Council were to decide to allow him to practise again, he submits that there is no sufficient public interest to justify the inconvenience to both him and the Respondent in him having to ask the Respondent to remove him from the Adults’ Barred List under paragraph 18A(3)(b) of Schedule 3 to the 2006 Act.

As the Respondent has said, all the circumstances need to be evaluated and weighed in the balance.