[2024] UKUT 286 (AAC)

are they no more than are necessary to accomplish it?

These four questions were later developed by Lord Sumption in Bank Mellat [2013] UKSC 39 at 20:

In assessing proportionality, the Upper Tribunal has ‘…to give appropriate weight to the decision of a body charged by statute with a task of expert evaluation’ (see Independent Safeguarding Authority v SB [2012] EWCA Civ 977 at [17] as set out above).

However, we must conduct our own assessment of proportionality afresh rather than simply review the DBS’s assessment.

We are satisfied that each of questions a)-d) should be answered in favour of the barring decision being proportionate based on the findings that the DBS made at the time (even though those findings are now disturbed because we have found they contained mistakes of fact).

On the basis of the findings that the DBS made in its final decision letter, we are satisfied that the DBS was entitled to conclude that it was proportionate and reasonably necessary to bar JLA in order to achieve its (important and) legitimate safeguarding aims.

There is no real question that the public interest and legislative objective of safeguarding vulnerable groups is sufficiently important to justify the interference with private life that barring constitutes and that barring is rationally connected to protecting those groups.

We are satisfied that when making the barring decision, the DBS correctly concluded that no other measures were in place sufficient to adequately safeguard vulnerable adults from JLA participating in regulated activity and committing further acts of neglect or the like such that it was the least intrusive measure necessary.

We are also satisfied that barring was necessary and struck a fair balance between JLA’s right to a private life and the interests of the community. The DBS expressly carried out the “balancing act” exercise required and we have done the same. We are satisfied that the DBS was entitled to consider that the Appellant presented a risk of harm to vulnerable adults at the time of the decision based upon Finding 1 as originally made. The decision that the Appellant posed a risk of repeating similar acts at the time of the barring decision was also rational – ie. based on her not reading care plans.

However, the assessment of proportionality of barring may be rather different in light of the findings we have now made.

As we have set out above, the barring decision will have to be remade on a different factual basis that the Appellant was careless, neglectful or negligent rather than wilful in her actions relating to the catheter incident.

It will have to be made on the basis of the substantial mitigation: that she did ask LS for advice – although she should not have followed her advice anyway but that of a District Nurse; that she was an honest witness who made damaging admissions against her own interest; that she was highly remorseful and had insight into her conduct; that she had a previously long and unblemished career; that she was working in very stressful conditions, with difficult and challenging service users, low numbers of staff and in times of COVID; that she had told the Employer did not want to be a manager and was doing her best; there had been a very significant impact upon her as a result of barring both psychologically, financially and professionally; and barring will prevent the Appellant progressing in her current pharmacy career. There is no doubt that the cumulative effect of dismissal in September 2022 and barring in June 2023 have acted as a significant punishment – even if barring is designed as a preventative rather than punitive measure.

When reconsidering the issue of proportionality, the DBS will need to look again at applying the third and fourth stages of Aguilar Quila / Bank Mellat to this case.

When looking at the third stage and the least intrusive measure necessary, the DBS will be mindful that barring is a blunt tool. Unlike professional regulators who have a range of sanctions they can impose for disciplinary misconduct the DBS cannot make suspension or conditions of practice orders that might impose training or supervision requirements. Barring is an all or nothing outcome as far as regulated activity is concerned. In an ideal world it might be that a condition could be imposed that the Appellant be trained on reading and applying care plans if working in the care sector or regulated activity generally, or that she could work in other forms of regulated activity without restriction. However, that type of order is not available under the legislation.

The fourth question is whether on the findings now made a fair balance would be struck between the seriousness of the findings of relevant conduct upheld, and any risk of further harm to vulnerable adults that can be rationally derived from it, as against the impact and effect of baring on the Appellant’s private life. The risk assessment (of the risk that the Appellant may now pose to vulnerable adults if working in regulated activity) will now need to be reconducted in light of our findings of fact in relation to the relevant conduct and its impact on the likelihood of repeat occurrences. It remains a matter for the DBS to decide whether our findings and its revised risk assessment in light of those findings means that the public interest in safeguarding vulnerable groups outweighs the impact of barring upon the Appellant.

When reconducting the risk assessment, the DBS should also take into account the following. While, it is concerning that the Appellant admitted that she did not read care plans and wanted training on how to do so, this is something that the DBS might ask the Appellant to address by way of evidence or representations (eg. on further training she has or would take). Therefore, the DBS’s further risk assessment may turn on further evidence than that which was before us during the hearing. We urge the Appellant to engage constructively with the DBS on the evidence of insight, remorse and retraining that she has undergone since the original barring decision in June 2023.

We accept that it will be for the DBS to re-decide whether barring is necessary and whether it strikes a fair balance has been the Tribunal’s finding of relevant conduct, and the DBS’s revised risk assessment. This will be balanced against the factual matrix now found as to the interference with / impact upon the Appellant’s private life and employment restrictions it imposes on her (not only preventing her from working in care but also progressing in her pharmacy career). If the DBS does decide that barring remains proportionate, that decision will be subject to a right of appeal and the Tribunal would then carry out its proportionality decision afresh.