Meeting your legal duty to refer
Dec 15, 2015
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 2012• 01 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 2013
5
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 workRefer 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 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 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)
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 0870 90 90 811– Email: [email protected]
• Matters relating to Barring:– Address: DBS, PO Box 181, Darlington, DL1 9FA– Telephone: Help Line 01325 953795– Email: [email protected]
• Website: – Address: GOV.UK/DBS
25