Protecting Vulnerable Groups Scheme Briefing for CCPS members September 2010 The Protecting Vulnerable Groups Scheme goes live in February 2011. The scheme introduces a list of those barred from working with adults, and replaces the Protection of Children Scotland Act (POCSA) in relation to the list of those barred from working with children. It is an offence for an organisation to offer regulated work to or continue to employ someone who is barred from working with adults in regulated work with adults, or who is barred from working with children in regulated work with children. This briefing provides information to organisations providing social care and support services in the voluntary sector about: How to find out whether or not someone is barred (pp.1-2) Who should be asked to apply to join the scheme (what is regulated work) (pp.3-7) When staff should be checked (retrospective checking) (p.8) Employers obligations to make referrals to the lists (p.8) Where to find further information about the PVG Scheme (p.9) Frequently asked questions (pp.9-13) How to find out whether or not someone is barred To find out whether someone is barred from working with adults and/or children, organisations should engage with the Protecting Vulnerable Groups Scheme by asking the individual to apply for Scheme membership. Only those in regulated work or intending to do regulated work in future can apply for Scheme membership (see below for a definition of regulated work). It will no longer be possible to apply for an Enhanced Disclosure for staff in regulated work; staff who are not in regulated work, and therefore not eligible for Scheme membership, can apply for Basic Disclosures. If a person who is barred applies for a Scheme Record, the employer will be sent a letter to say that the person is barred. The individual will also receive a letter to say that they are barred, that they have committed an offence by applying for a position in regulated work, and that the police have been informed. Once the system has checked those applying for Scheme membership, assuming that the person is not barred, a Scheme Record is issued. A scheme record includes: Personal membership information (including Scheme membership number) Confirmation of the individual s membership of one or both workforces Whether or not the individual is under consideration for listing for the workforce(s) above (i.e. Disclosure Scotland is considering whether or not the person should be barred) Vetting information such as convictions and cautions, sex offender registration, certain civil orders and other relevant information, such as would be found on an Enhanced Disclosure. The organisation is then able to use this information to make a safer recruitment decision in assessing the individual s suitability for the post. A Scheme Record costs 59. If the person to be checked is already a Scheme member, they will already have a Scheme Record, containing the above information, which they can show the employer. CCPS, Norton Park, 57 Albion Road, Edinburgh, EH7 5QY t: 0131 475 2676 www.ccpscotland.org
The organisation can then apply for a Scheme Record Update, which includes: Personal membership information (including Scheme membership number) Confirmation of the individual s membership of one or both workforces Whether or not the individual is under consideration for listing for the workforce(s) above The date on which the Scheme Record was last disclosed (so that the organisation can be sure it is seeing the most recent Scheme Record), whether or not there was any vetting information on the last Scheme Record, and the dates of any vetting information added or removed from the Scheme Record since. The organisation can then either 1) use the information from the Scheme Record (shown to them by the potential employee) to make a safer recruitment decision in assessing the individual s suitability for the post (if there have been no changes since the Scheme Record was issued) or 2) apply for a Scheme Record to gain access to the new vetting information. A Scheme Record Update costs 18. If the Scheme Record Update shows that new information is available, and the request for the Scheme Record is made within 30 days, the cost of a Scheme Record is only 41. Once an organisation is noted as having an interest in an individual (by having applied for a Scheme Record or Scheme Record Update) they will be automatically notified by Disclosure Scotland if a person is placed under consideration for listing and the outcome of the process. If the outcome is that the person is barred, it will be an offence for that person to be employed in regulated work of the type to which the barring relates. Employers should notify Disclosure Scotland when a person leaves their employment, so Scheme Record Update Some organisations have indicated that they would not be satisfied with a Scheme Record Update, and would in all cases apply for Scheme Records. This is of course a matter for individual organisations to decide, but it is perhaps worth noting that: over 90% of Scheme Records will contain no vetting information Scheme Records are printed on noncopyable paper, with heat-sensitive spots, using fonts which are not commercially available. They are therefore protected against fraud. Scheme Record Updates will cross-refer with Scheme Records that their interest in that person can be removed from the system. For the first year of the Scheme, applications for Scheme membership will be paper-based. Disclosure Scotland will provide employers with information on new application forms in due course. In the year after it goes live, secure on line PVG Scheme accounts will become available for PVG Scheme members and registered bodies (organisations registered with Disclosure Scotland for the purpose of countersigning applications). These will operate to similar levels of security used for on line banking and will allow individuals to update personal details and make on line applications. For registered bodies, they will allow all disclosure application types to be made on line, PVG Scheme Record Updates to be received electronically in real time, electronic financial statements and invoices to be received and for the organisation to update account details. The Central Registered Body in Scotland will continue to process free checks for volunteers working in the qualifying voluntary sector and these will continue to be made and responded to on paper. Access to Scheme Records Scheme Records should be retained by individuals. Organisations should hold them only for as long as it takes to make a recruitment decision. Local authorities and the Care Commission have no right to ask to see Scheme Records for staff employed by social care voluntary organisations. Organisations should keep records which show that they have used Scheme Records in recruitment, for example by keeping a note of membership numbers.
Who should be asked to apply to join the scheme (what is regulated work) It is not possible to provide a definitive list of roles, positions or types of employment that constitute regulated work, not least because the structure and descriptions of peoples work is constantly changing. Organisations should not assume that all staff who were previously checked under the Enhanced Disclosure system should become scheme members. Although there will be a considerable amount of overlap, the criteria for scheme membership can be different to enhanced disclosure criteria. It is important that organisations consider each post individually in deciding whether or not it falls within regulated work and the post holder should become a Scheme member. A self-assessment guide will be available online soon at http://www. disclosurescotland.co.uk/pvg/training_ guid.htm which will help employers to ascertain whether or not a position is in regulated work. There are five steps to assessing whether an individual is doing regulated work. It is suggested that these five steps are always followed in making any assessment. These five steps are considered below. Is it work? Who are they working with? What do they do? Is it their normal duties? Are there any exceptions which apply? Unlawful checking Anecdotal evidence suggests that some organisations, often under pressure from local authorities or insurance companies, have been blanket checking all staff using enhanced disclosures. Applying for a Scheme Record for someone who is not in regulated work is unlawful, and organisations should not do so. Basic Disclosures can be accessed for staff not in regulated work. Is it work? Work is defined in the PVG Act and it has a very broad meaning as work of any kind. Work includes paid or unpaid work. Work does not come within the scope of the PVG Scheme if it is done for an individual in the course of a family relationship; work also does not come within the scope of the PVG Scheme if it is done for an individual in the course of a personal relationship for no commercial consideration. Workers and volunteers employed by social care providers will therefore almost always meet the criteria that the action they are undertaking is work. One exception may be involvement with self-help or support groups, where it is important to consider whether the individuals meet as friends to provide support and help to each other or whether it is a service provided by an organisation. A self-organised group of individuals getting together to support each other is not doing work. If the group asks an individual to lead it, the individual may be working (but the recipients will not be protected adults because the individual is not providing a care service of the type which would make the individuals protected adults see below). Who are they working with? Children are defined in the Act as anyone under the age of 18. A protected adult is defined as an individual aged 16 or over who is provided with (and thus receives) a type of care, support or welfare service. This definition of protected adult supersedes the definition of adult at risk used for the purposes of eligibility for Enhanced Disclosure. To be classified as an adult at risk, an individual had to meet three criteria: having a condition, in consequence of which they had a disability, and received a care service. The PVG Act replaces these three criteria with a test linked to the type of services
being received by the individual. Protected adult is therefore a service based definition and avoids labelling adults on the basis of their having a specific condition or disability. There are four categories of services, receipt of any one of which makes an individual a protected adult: Registered care services (support service, adult placement, care home, housing support); Health services (a service provided or secured by a public health body concerning the treatment, care and support of, and provision of advice and assistance to individuals in relation to health and well-being, or similar services provided by an independent health care service provider); Community care services (social work and mental health services provided or secured by a council, or self-directed support paid for by a council); or Welfare services (see below) One list or two? There are two separate lists, one for those barred from working with adults, and one for those barred from working with children. In many cases, though not all, individuals who are listed will be judged to be unsuitable to work with both groups, and placed on both lists. Organisations will only be able to check whether a person is barred from working with the group which is relevant to the position they have applied for/are working in, that is to say, if a person will be working with adults, organisations will only be able to check them against the adults list. Those who will be working with both adults and children can be checked against both lists. Those whose role is primarily with adults, but involves incidental contact with children, or vice versa, for example someone providing housing support services to an adult who happens to have children at home, should only be checked against the list for those with whom they work as part of their normal duties, in this case adults. In most cases, it will be clear that social care providers are working with protected adults as they are providing registered care services and/or community care services. Some providers may also provide services which are not registered or commissioned, and these may fall within the definition of a welfare service. A welfare service includes any service which provides support, assistance, advice or counselling to individuals with particular needs, meeting the following conditions. The service must be a service that: (a.) is provided in the course of work to one or more persons aged16 or over, and (b.) is delivered on behalf of an organisation, and (c.) requires training to be undertaken by the person delivering the service, and (d.) has a frequency and formality attached to the service, and (e.) either (i.) requires a contract to be agreed between the service provider and the recipient of the service prior to the service being carried out, or (ii.) is personalised to an individual adult s needs. Particular needs are those over and above the general needs that any individual might have. For example, the need for regular meals is a general need (everyone needs this) but the need for assistance in preparing meals is a particular need (only some people with, for example, a disability need that assistance). Similar arguments apply to: (for example) personal care, washing, cleaning, access to shops, services and social contact. Everybody shares the need for these things, but some individuals (with particular needs) require specific assistance with them. Most adults are likely to be a protected adult at some time in their lives, for example when receiving treatment in hospital or receiving care in later life. But an individual is only a protected adult at the time they receive the service. For example, care home residents are protected adults at all times when they
are in their care home, but other adults will only be protected for limited periods, for example, while receiving dental treatment. This means that any services which are provided at times other than when the worker is present are not relevant to determining whether that worker is doing regulated work with adults. For example, a person with a learning disability who helps out in a charity shop is not protected at this time, as they are working, not receiving any of the categories of service which would make them protected; the manager of the charity shop, who may at times have unsupervised contact with the person, therefore does not need to be checked. It is possible for 16 and 17 year-olds to be both children and protected adults under the definitions given. What do they do? The definitions of regulated work are complicated, and organisations are advised to refer to the Scottish Government guidance on regulated work for further details and definitions; this is available at http://www. disclosurescotland.co.uk/guidance/ infofororg/chap2_regulatedwork/2_4_ step_3_regwork.html and http://www. disclosurescotland.co.uk/guidance/ infofororg/chap2_regulatedwork/2_5_ step_3_regworkadults.html. Regulated work with children By no means all individuals who come into contact with children through their work are doing regulated work with children. Work may be within scope of regulated work with children as: a position whose normal duties include carrying out particular activities a full list of activities is given in the guidance, of interest to voluntary sector social care providers may be: caring for children; teaching, instructing, training or supervising children; being in sole charge of children; unsupervised contact with children under arrangements made by a responsible person; providing advice or guidance to a child or to particular children which relates to physical or emotional well-being, education or training; moderating a public electronic interactive communication service which is intended for use wholly or mainly by children; providing, or working for an organisation which provides, a care home service which is provided exclusively or mainly for children; work on any part of day care premises at times when children are being looked after in that part; a position whose normal duties include work in particular establishments a full list of establishments is given in the guidance, of particular interest to voluntary sector social care providers may be: an institution which is exclusively or mainly for the detention of children; a school; a home which is exclusively or mainly for children and is provided by a council under social work or mental health legislation note that, in all these establishments, positions are not in regulated work unless doing anything permitted or required in connection with the position gives the person the opportunity to have unsupervised contact with children; or a position whose normal duties include the day to day supervision or management of an individual doing regulated work with children by virtue of the activities the individual carries out or work the individual does in establishments. The Act also defines particular positions of trust or responsibility which fall within regulated work. A full list of positions of responsibility is given in the guidance, but of particular interest to voluntary sector social care providers may be that charity trustee of a children s charity is one such position. This is defined as a charity whose main purpose is to provide benefits for children and whose principal means of delivery of those benefits is by its workers
doing regulated work with children will have to ensure that their trustees are not barred from working with children (a similar requirement, relating to adult charities, is explained below). Regulated work with adults By no means all individuals who come into contact with adults through their work are doing regulated work with adults. Work may be within scope of regulated work with adults as: a position whose normal duties include carrying out particular activities a full list of activities is given in the guidance, of interest to voluntary sector social care providers may be: caring for protected adults; teaching, instructing, training or supervising protected adults; being in sole charge of protected adults; providing assistance, advice or guidance to a protected adult or to particular protected adults which relates to physical or emotional well-being, education or training. Remembering that for an individual to be a protected adult, they must be in receipt of a health, care or welfare service, there are only limited circumstances where an individual is likely to be doing regulated work with adults only by virtue of being in sole charge of protected adults. These circumstances are most likely to be community bus or contract taxi services delivered as part of a health, care or welfare service. The drivers of such vehicles, if the protected adult is unaccompanied by a relative or carer, are likely to be in sole charge of protected adults; a position whose normal duties include work in particular establishments a full list of establishments is given in the guidance, of particular interest to voluntary sector social care providers may be: a care home - meaning accommodation occupied mainly or exclusively by individuals aged 16 or over which is provided by an organisation carrying on a care home service; a residential establishment or accommodation occupied exclusively or mainly by individuals aged 16 or over which is provided by, or the provision of which is secured by a council under social work or mental health legislation. One exception applies to positions in all these establishments, namely that such positions are not regulated work unless: doing anything permitted or required in connection with the position gives the person the opportunity to have unsupervised contact with protected adults; and any contact with protected adults, when the holder of the position is doing anything permitted or required in connection with the position, is more than incidental; or a position whose normal duties include the day to day supervision or management of an individual doing regulated work with children by virtue of the activities the individual carries out or work the individual does in establishments. The Act also defines particular positions of trust or responsibility which fall within regulated work. A full list of positions of responsibility is given in the guidance, but of particular interest to voluntary sector social care providers may be that charity trustees of a charity whose main purpose is to provide benefits for protected adults and whose principal means of delivery of those benefits is by its workers doing regulated work with adults fall within the definition of regulated work and should be checked. Is it their normal duties? The concept of normal duties is extremely important in limiting the scope of regulated work. For an activity or work in an establishment to be regulated work, the carrying out of the activity or the work in the establishment must be part of the individual s normal duties. Normal duties are something the individual might be expected to do as part of their post on an ongoing basis, for example appearing in a job description. Normal duties exclude oneoff occurrences and unforeseeable events.
No particular frequency for undertaking the work or duration of work are specified in the Act as these will depend on the context. An activity or work is likely to be normal duties when: it appears in an individual s job description, task description or contract (but these should not be manipulated to stretch the boundary of the PVG Scheme) it can reasonably be anticipated; or it occurs regularly. An activity or work is unlikely to be normal duties when: done in response to an emergency (unless by an emergency worker); arranged at the last minute to stand in for sickness or other unexpected absence of another worker; or done as a one-off activity of short duration which is not part of the individual s normal routine or occupation. Are there any exceptions which apply? Section 2.7 of the guidance lists exceptions which may apply. These have been referred to in the text above, and are noted here for reference. Further details can be found at http://www. disclosurescotland.co.uk/guidance/ infofororg/chap2_regulatedwork/2_7_ step_5_exceptions.html The scope of regulated work is narrowed by the incidental test. Some, but not all, activities with children or protected adults are excluded from being regulated work if the activity is occurring incidentally to working with individuals who are not children or protected adults. For example, a teacher in a school is doing regulated work with children, but a college lecturer running woodwork classes in the evening aimed at adults is outside the scope of regulated work, even if one or two children attend his class. This is because the presence of children (and the teaching of children) is incidental to the main activity and purpose of the class which is to teach adults. Some activities are only regulated work with children if doing anything permitted or required in connection with the position gives the holder of the position the opportunity to have contact with children. A cleaner, for example, in the head office of an organisation providing care home services would not be regarded as doing regulated work with children. Work in an establishment is not regulated work with children unless doing anything permitted or required in connection with the position gives the person the opportunity to have unsupervised contact with children. Work in an establishment is not regulated work with adults unless: doing anything permitted or required in connection with the position gives the person the opportunity to have unsupervised contact with protected adults; and the contact with protected adults, when the holder of the position is doing anything permitted or required in connection with the position, is more than incidental. It should also be noted that some activities are excluded from regulated work with children if they are carried out in relation to children aged 16 or 17 in the course of the children s work. This means, for example, that a shop manager recruiting or supervising children aged 16 or 17 as assistants (whether as employees or volunteers) is not within the scope of regulated work with children. Some activities are excluded from regulated work with children if they are carried out in relation to children under the age of 16 in the course of the children s employment. Employment means paid employment whether under a contract of service or apprenticeship or under a contract for services. Work is much wider than employment in the PVG Act. A shopkeeper employing a 14 year-old to do a paper round is outside the scope of regulated work but a scout leader supervising 14-year-olds calling door-to-door to do odd jobs for money is within the scope of regulated work.
When should staff be checked (retrospective checking) During the first year of the Scheme, only new staff entering regulated work, or existing staff moving to a new regulated work position need to be asked to apply to join the PVG scheme. Organisations which have previously Disclosure checked existing staff on a rolling basis and have a regulatory, legislative or operational requirement to continue to do so, should discuss their requirements with Disclosure Scoland, who will consider teh requirements on a case by case basis, but organisations which have not previously checked existing staff should not start to do so now, to avoid overloading the system. The online system is expected to go live in mid 2011. Retrospective checking will commence after this. Regulations need to be laid in the Scottish Parliament to determine how and when this will be phased in, so it is not possible to provide further information at this stage. Disclosure Scotland will be writing to all registered bodies to set out their proposals and seek their views. Employers obligations to make referrals to the lists A variety of information is used in assessing whether or not an individual should be barred from working with children and/or protected adults. Further information on this can be found at http://www.scotland.gov. uk/topics/people/young-people/ children-families/pvglegislation/faqs/ ConsiderationforListing. One of these sources of information will be referrals made by employers. Employers have a duty to make a referral to Disclosure Scotland where 1. the individual is or has been doing regulated work 2. the individual has, whether or not in the course of their work harmed a child/protected adult, or placed a child/protected adult at risk of harm, or engaged in inappropriate conduct involving pornography, or engaged in inappropriate behaviour of a sexual nature involving a child/protected adult, or given inappropriate medical treatment to a child/protected adult, and 3. the individual has been permanently removed from regulated work within the organisation, or would have been if they had not otherwise stopped doing regulated work or been working for a fixed term. Referrals should be made within three months of dismissal. Where referrals are made in good faith, and organisations reasonably believe that the grounds for referral have been met, the PVG Act provides organisations with protection against actions for defamation. The duty to refer overrides organisations duties under the Data Protection Act. It is possible for organisations to make retrospective referrals, in relation to incidents which took place before the Scheme went live, but they are not under a duty to do so. Once a referral has been made, Disclosure Scotland will assess whether or not an individual should be considered for listing, i.e. making a referral is NOT the same as having an individual placed on the barred list. For further information on the process of consideration for listing, please see http://www.scotland. gov.uk/topics/people/young-people/ children-families/pvglegislation/faqs/ ConsiderationforListing.
Further information This is a complex area, and it is expected that organisations will wish to seek further information. The following are useful sources of information. www.infoscotland.com/pvgscheme/ provides background information on the scheme, and may be useful for those not familiar with it. More detailed information, including a range of FAQs, can be found on the Scottish Government website at http://www.scotland.gov.uk/topics/people/young-people/ children-families/pvglegislation Guidance, training materials and an information booklet are available on the Disclosure Scotland website at http://www.disclosurescotland.co.uk/pvg_index.html. The training section includes e-learning modules to help familiarise and test yourself on PVG, and will shortly contain a self-assessment tool to help decide whether a post is in regulated work. Disclosure Scotland has set up a PVG helpline: 0870 609 6006 Providers questions The following questions and answers are taken from the CCPS/Scottish Government PVG training session, August 2010 Scheme records and updates Under the current Enhanced Disclosure system, some police forces provide information to the employer but not to the prospective employee, for example if they are under surveillance (known as the brown envelope scheme). Will this continue under the PVG scheme? No. All information disclosed to employers under the PVG scheme will also be disclosed to prospective employees. How will the scheme validate that a person has left a particular employer, if they report that they have? An organisation s interest in an individual will not be removed from the system until the organisation has confirmed that the person has left their employment. If someone applies for employment in regulated work, and they turn out to be barred, does the employing organisation have to inform Disclosure Scotland? No, the system will pick this up. If an individual who is barred applies for scheme membership, the organisation will be sent a letter saying that the person is barred, and the individual will be sent a letter saying that they are barred, have committed an offence by applying for regulated work, and that the police have been informed. Does the Care Commission have the right to see scheme records, either in hard copy or online? No. The Care Commission will be able to ask organisations to prove that they have carried out the relevant recruitment checks; as with Disclosures, organisations should note that they have seen scheme record information, for example making a note of the individual s membership number, but should not be retaining scheme records. r
How much is the annual subscription for those registering as counter signatories to applications, and what does this cover? The annual subscription will be 75 per organisation for up to five signatories, with an additional cost of 15 for any extra signatories. One of the reasons for moving to an annual subscription is to ensure that organisations keep their list of signatories up to date (e.g. removing those who have left the organisation) Is there a charge for application forms? No, application forms are free. Charges are incurred where applications are made. Can we use our stock of old Disclosure forms to apply for scheme membership? No, new forms will be issued, as there are some additional questions in relation to scheme membership. Information will be circulated by Disclosure Scotland about the new forms. What is likely to be the turnaround time for scheme membership applications? For initial membership applications, where no evidence is found and no consideration takes place, turnaround will be similar to current Enhanced Disclosures at around 14 days. The turnaround time for a scheme record update is likely to be around 2-3 days, and once this information can be accessed online (around one year after go-live) Scheme Record Update information will be available within minutes. Retrospective checking The Care Commission recommends that we re-check staff every three years; will we be able to continue to do this before retrospective checking is introduced at a later date. Yes. Organisations who currently check staff on a rolling basis should continue to do so, but organisations who have not previously re-checked staff should wait for retrospective checking to come in, to avoid overloading the system (estimates of how many people will apply to join the scheme are based on current checking figures). Regulated work If an employee currently works with adults, and changes post to work with children, will they have to be checked again? Yes. If a person regularly moves between adult/children s services, they should be checked against both lists, but where this move occurs at a later date, they will need to be checked again. Are those who come into telephone contact with children/protected adults in regulated work? This will depend on the nature of work. Where they are providing support and guidance (for example on a helpline) they are likely to fall within the description of regulated work, but if they simply take information and pass it on to someone else (for example those answering an emergency alarm service, if they simply pass the information to another person, who then attends to provide support) they may not. In relation to children, moderating communication is also listed in the Act as a service incorporated in regulated work, so this should be taken into account in assessing whether or not this is regulated work. 10
Should the managers of charity shops be checked, where they might have unsupervised contact with vulnerable adults? No. The PVG scheme adopts a service based definition of protected adults, not one based on individual characteristics (for example, a person with a learning disability is not defined as protected unless they are receiving one of the types of service listed in the Act). Where that adult is volunteering in a charity shop, the manager will be supervising their work, not providing support, healthcare etc, and therefore does not fall within the definition of regulated work. Should admin staff who come into contact with service users be checked? This will depend on the duties of individual staff, and each individual should be considered using the five stages. If unsupervised contact is incidental, and not part of someone s normal duties, they will probably not fall within the definition of regulated work. Handling data about individuals is not part of regulated work. Whose responsibility is it to check subcontractors, for example maintenance workers going into the homes of vulnerable adults? In this example, where maintenance workers go into the homes of vulnerable people as part of their regular duties, it is the responsibility of the organisation they work for (the maintenance company) to check their suitability for regulated work. The contracting organisation can ask the employing organisation to confirm that it has done this, but cannot ask to see the scheme records (the only exception to this is the provision of transport services, where contracting organisations may ask to see scheme records). Do senior managers and board members have to be checked? There is a legislative requirement to check the trustees of charities that work for the benefit of children and/ or vulnerable adults, and who do this primarily through the provision of services that constitute regulated work. This is because these trustee positions are thought to bring with them a trust from the wider community. Senior management posts should be checked against the five criteria, as it will depend on their level of involvement and location whether or not they should be checked. For example, some senior managers will be in regulated work as their normal duties involve working directly with children or protected adults, others will fall into the category of supervising those who work directly with children or protected adults, while others may fall outwith the criteria. Local authorities often require us to Enhanced Disclosure check all staff how will this work under the new scheme? Local authorities have no right to say that everyone should be checked, or to ask to see Disclosures (currently) or scheme records (in future). The Scottish Government are working with local authorities to try to eradicate this practice. Organisations which apply for scheme membership for someone who is not in regulated work will be acting illegally. What about people who are selfemployed? Individuals who are self-employed can apply for a short scheme record, confirming that they are not barred from regulated work.
Whose responsibility is it to ensure that students on work placements are scheme members? This is currently the responsibility of colleges and universities. Ministers have asked the Scottish Government to look into this, as it seems unfair that colleges and universities should pay the high scheme membership costs for all students, without receiving any of the benefits of accessing scheme record updates. Currently, lead signatories for Enhanced Disclosures are required to have an Enhanced Disclosure themselves will they need to become scheme members? No, registered persons and countersignatories will be checked by Disclosure Scotland under Part 5 of the Police Act 1997 and, as now, ongoing checks about their suitability to receive disclosure information will be carried out. Registered persons and countersignatories can apply to join the PVG scheme if their normal duties include duties that are within the meaning of regulated work. If a position is not in regulated work, will other types of Disclosure still be available? For most positions in social care voluntary organisations, if a member of staff is not doing regulated work, the organisation will only be able to request a basic Disclosure. Enhanced Disclosures will still exist, but will only be available in specific circumstances, which are unlikely to apply to social care organisations, for example for those applying for a gaming license or for prison officers. New forms for basic disclosures will be phased in over a three month period from PVG go-live. The new cost for a basic disclosure will be 25. Referrals Can/should organisations make retrospective referrals to the adults list? The legislation allows retrospective referrals to be made, but organisations are not under a duty to do so. Where an individual leaves before they have been through a disciplinary procedure, how can an organisation judge whether or not they would have terminated their employment? This is a judgement call for organisations, based on how likely it is that you would have dismissed the individual. Where a disciplinary procedure grants individuals a right of appeal, should a referral be made immediately on dismissal, or should the organisation wait until the result of the appeal is known? The organisation should make the referral within three months of dismissing the individual, but can include in their referral that this is now subject to appeal. The process of listing can be postponed until the results of the appeal are known, but until an individual is referred, and unless they are put under consideration for listing, there is no way to let other organisations who have an interest in the individual know that this is happening. When a referral is made, will Disclosure Scotland liaise with the Care Commission, SSSC etc? Applications for scheme membership will ask for an indication of membership of any professional body, and this body will be noted as having an interest in the individual, and notified if information comes to light. 12
How does referral relate to organisations data protection obligations? The PVG Act places a duty on organisations to make referrals under particular circumstances, and this overrides data protection. All correspondence with Disclosure Scotland will be in writing, so organisations will have a paper trail to prove that the referral is in line with their obligations under the Act. Might organisations be asked to provide information relating to someone who works for them, or has worked for them, if that person is under consideration for listing? How long should organisations therefore keep records for? Organisations should keep records for as long as their existing policies and procedures state. Organisations may be asked for information, but, in relation to historical information, can only provide what they hold, and should not hold information speculatively where this is not in line with existing procedures. If an existing member of staff is placed under consideration for listing, is it acceptable, after carrying out a risk assessment, to dismiss them before the outcome of the consideration for listing is known? This may be questionable. Organisations might want to think about ways to manage the risk, by putting safeguards, supervision etc in place, or moving the individual to a different type of work. It may be useful to include in employees terms and conditions what will happen if they are placed under consideration for listing. Other issues I would like someone to speak to my organisation or group about PVG who should I contact? Enquires should be directed to the Disclosure Scotland helpline or info mailbox. Please try to make questions as specific as possible. This briefing was prepared for CCPS members by Kirsten Gooday, Policy and Development Manager at CCPS. Content has been checked for factual accuracy by staff from the Scottish Government. CCPS, Norton Park, 57 Albion Road, Edinburgh, EH7 5QY t: 0131 475 2676 www.ccpscotland.org