Royal College of Nursing seeks judicial review of the new vetting and barring scheme

14 June 2010

The Safeguarding Vulnerable Groups Act 2006 was created in response to recommendations made in the Bichard Inquiry arising from the Soham murders in 2002. The Act lays the foundation for the Vetting and Barring Scheme (“VBS”) which began being introduced on 12 October 2009. The VBS is designed to increase safeguards and prevent unsuitable people gaining access to vulnerable adults and children through work or volunteering, and extends pre and post employment checks.

Operation of VBS
The way in which the VBS operates is that those with sufficiently serious and relevant criminal offences are automatically barred from working or applying to work with children or vulnerable adults in a wide range of posts, including most NHS jobs. Trusts face criminal sanctions for knowingly employing a barred individual.

RCN concerns
The Royal College of Nursing (“RCN”) is reported to be seeking a judicial review of the VBS. The RCN argues the VBS could breach the European Convention on Human Rights and Fundamental Freedoms (“ECHR”) by denying individuals who are automatically barred because of their previous convictions, fair hearing to explain the context of the conviction or a right to appeal. The RCN argues that automatic barring should be limited to those guilty of the most serious crimes and that there should be a right of appeal. At present, there is a right to request permission to review a barring of a person, only.

The Daily Telegraph quoted the chief executive of the RCN explaining why the College was taking legal action:

“... we are concerned that the new scheme is already failing to provide our members with a fair hearing and can result in them being disproportionately barred for 10 years for less serious disciplinary offences ... the RCN firmly believes that the vetting and barring scheme is unfair. We also believe the scheme contravenes articles six and eight of the ECHR which forms part of the basis for our challenge.''

ISA response
The Independent Safeguarding Authority, which operates the VBS, state that the scheme does not automatically bar all individuals who may have a criminal conviction, only those with a conviction who pose an obvious risk. A newly barred person is allowed to request permission to seek a review at a set period after being barred or convicted/cautioned for a more serious offence.

Comment
From July 2010, all new entrants to regulated activity involving working or volunteering with vulnerable groups, and existing staff changing jobs, will be able to register with the scheme. NHS Employers state that from July 2010:

“… once registered, individuals will be subject to continuous monitoring and their status will be reassessed by the ISA against any new information which may come to light. Additionally, employers will be able to ‘register an interest’ or ‘subscribe’ to an individual's ISA-registration status. This on-line service will allow you to subscribe to one or many individuals. By registering an interest in the individual's ISA status, employers will be automatically notified if their status changes whilst they are in their employment.”

The RCN’s request for a judicial review of the VBS is therefore, timely. We do not believe that the VBS scheme will be suspended pending the judicial review and so NHS employers should continue with their preparations for further implementation of the VBS. We will keep you informed of developments in this matter.