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