Meeting your legal duty to refer

Meeting your legal duty to refer Aims for today To introduce the implications of the Protection of Freedoms Act 2012 To clarify the referral process To allow you to identify who and when to refer to the Disclosure & Barring Service To improve your confidence in referring an individual to the Disclosure & Barring Service 2

Meeting your legal duty to refer The Disclosure & Barring Service Operational on 01 December 2012 –Functions of the CRB and the ISA Primary Role –To help employers in England and Wales make safer recruitment decisions and to prevent unsuitable people working with vulnerable groups including children Statutory responsibilities –Processing requests for criminal records checks –Deciding whether it is appropriate for a person to be placed in, or removed from, a barred list –Maintaining the DBS Children’s Barred List and the DBS Adults’ Barred List 3

Meeting your legal duty to refer Background Bichard Inquiry Safeguarding Vulnerable Groups Act 2006 Protection of Freedoms Act 2012 –10 September 2012 Repeal of controlled activity and continuous monitoring New definitions of regulated activity New police disclosure test ‘reasonably believes to be relevant’ Minimum age of 16 for a criminal records check Introduction of a barring test Enhanced information sharing duties and responsibilities Individuals can challenge disclosure certificates to an independent monitor 4

Meeting your legal duty to refer Background continued Protection of Freedoms Act December 2012, Disclosure and Barring Service commenced its operations –17 June 2013 Introduction of the Update Service Single DBS certificate issued only to individuals –2013 to 2014 New barred list check and notification service Legal requirement for employers to check whether a person is barred prior to engaging them in Regulated Activity Filtering 29 May

Meeting your legal duty to refer DBS Checks 6 Standard DBS check PNC Enhanced DBS check PNC Police Information Enhanced DBS with barred list check PNC Police Information DBS Children’s DBS Adults’ Basic Check – Future, currently offered by Disclosure Scotland

Meeting your legal duty to refer Regulated Activity Adults Healthcare –Regulated Health Care Professionals, e.g. Doctors Personal Care –Eating or drinking, toileting, washing or bathing, dressing, oral care, or the care of skin, hair or nails Social Work –Social work required in connection with health or social services provided by a social care worker (section 55 Care Standards Act 2000) Refer to legislation for exemptions 7

Meeting your legal duty to refer Regulated Activity Adults Assistance with Household Affairs –Cash, Bills or Shopping Assistance with conduct of a person’s own affairs –Power of Attorney, Mental Capacity Advocates and receiving payments under the Social Security Administration Act 1992 Conveying an Adult –To or from places where they will receive health care, personal care or social work Refer to legislation for exemptions 8

Meeting your legal duty to refer Regulated Activity Children Working in a limited range of establishments - Specified Places –Educational institution providing full time education to children –Establishment providing Nursery Education –Institution for the detention of children –Children’s Home –Children’s Centre – Sure Start –Child Care Premises, providing other forms of childcare –Children’s Hospital in Northern Ireland Refer to legislation for exemptions. Consider frequency test. Supervision exemption applies to volunteers only 9

Meeting your legal duty to refer Regulated Activity Children Unsupervised teaching, training or instruction, or care for or supervision of children Advice or guidance relating to a child’s physical, emotional or educational well-being Moderating a public electronic interactive communication service Driving a vehicle Refer to legislation for exemptions. Consider frequency test and if supervision applies 10

Meeting your legal duty to refer Regulated Activity Children Healthcare –Physical or mental healthcare provided, or directed or supervised by a health care professional Personal Care –Eating or drinking, toileting, washing or bathing, dressing Registered Childminding –Domestic premises for reward Foster-Carers –Local authority, agency or private fostering Refer to legislation for exclusions, No frequency or supervision exemptions

Meeting your legal duty to refer 12 Break

Meeting your legal duty to refer Who has a legal duty to refer? Regulated Activity Providers –Employers or voluntary organisations who are responsible for the management or control of regulated activity and make arrangements for people to work in regulated activity Personnel suppliers –An employment business, employment agency or an educational institution that makes arrangements with a person with a view to supplying that person to employers to undertake regulated activity 13

Meeting your legal duty to refer Who has a power to refer? Local Authorities –As defined in section 1 of the Local Authorities (Goods and Services) Act 1970 (c.39) Keepers of Registers –Regulators as defined in our legislation, also known as competent bodies, e.g. the General Medical Council Supervisory Authorities –Generally inspectors, defined in our legislation, e.g. the Care Quality Commission or Ofsted 14

Meeting your legal duty to refer When must you refer? Permanent removal from regulated activity and the Referring Party thinks that the person has either –engaged in relevant conduct or –satisfied the harm test or –received a caution for, or been convicted of, a relevant offence For most cases, the DBS only has the power to bar a person who is, has been, or might in the future engage in regulated activity 15

Meeting your legal duty to refer Case Scenario One Mr A was employed as a nurse in a Primary Care Hospital. A 14 year old female made a complaint of sexual assault against Mr A. The Police were called and both Mr A and the female were interviewed. Mr A denied the offence and the case was referred to the CPS who chose not to prosecute. Following an investigation into this allegation Mr A was dismissed by his employer. 16 Is he in Regulated Activity? Has he been permanently removed from Regulated Activity? Has Relevant Conduct occurred or is the Harm Test satisfied? Is there a legal duty to refer? √ √ √ √

Meeting your legal duty to refer Case Scenario Two Miss B is a Dentist. She made her practice manager aware that she had received a conviction for drink driving. Miss B was not dismissed by her employer. 17 Is she in Regulated Activity? Has she been permanently removed from Regulated Activity? Has Relevant Conduct occurred or is the Harm Test satisfied? Is there a legal duty to refer? √ X X X

Meeting your legal duty to refer 18 Referral Form

Meeting your legal duty to refer What does a good quality referral look like? Timely –balance the need for a swift response with a need for sufficient documentary / supporting evidence Accurate and fully completed referral form –recognition of any gaps, if present Chronology –detail the sequence of events from initial notification to the final outcome Relevant information –To facilitate the DBS decision making process

Meeting your legal duty to refer What does a good quality referral look like? Training and supervision records –inclusion of accurate, dated training and supervision records Internal and external investigative and disciplinary processes –all elements, including interviews, police intervention and/or multi-agency meetings. NB include recruitment and additional employment information i.e. any previous misconduct or complaint Source: Safeguarding in the Workplace, Ecorys UK Ltd (2012)

21 Meeting your legal duty to refer Recent updates

Disclosure & Barring Service Update Service 22 Background Process –DBS application form, processed in the usual way –Individual subscribes to the Update Service – GOV.UK –DBS certificate linked to Update Service subscription –Individual receives DBS certificate –Individual allows an employer, or other interested parties, to check the status of the certificate –Employer performs a status check Relevant information; name, date of birth, certificate number Certificate check result Subscribe to our e-database – GOV.UK/DBS

23 Disclosure & Barring Service Filtering convictions and cautions Filtering of old and minor convictions and cautions –Background –Filtering rules Adult conviction Adult caution Child conviction Child caution Specified offences – ‘listed offences’ Multiple offences Certain positions

Meeting your legal duty to refer Review of aims Do you understand the implications as a result of the Protection of Freedoms Act 2012? Have we clarified the referral process? Do you know who to refer to the Disclosure & Barring Service and when? Have we improved your knowledge and confidence in the Disclosure & Barring Service? 24

Meeting your legal duty to refer How to contact us Matters relating to Disclosure: –Address: DBS, PO Box 110, Liverpool, L69 3EF –Telephone: Customer Services – Matters relating to Barring: –Address: DBS, PO Box 181, Darlington, DL1 9FA –Telephone: Help Line – Website: –Address: GOV.UK/DBS 25