Breaking news

15 June 2010

The Home Secretary Theresa May announced today that some of the child protection measures covered by the Vetting & Barring Scheme discussed in the article below are to be reviewed and scaled back to “common sense” proportions. This decision has been taken on the basis that the scheme was disproportionate, burdensome and arguably infringed civil liberties. The aspects of the scheme that are already in place are to remain as such, but effectively the further elements not yet in place are “on hold” The new safeguarding regulations that came into force in October 2009 and April 2010 discussed below therefore continue to apply and employers should continue to carry out CRB pre-recruitment checks on those involved in Regulated Activities. The criminal offences discussed below also still apply.

Hill Dickinson will release a further e-shot once the details of future arrangements become clear.

The Independent Safeguarding Authority
The Independent Safeguarding Authority (‘ISA’) has now been established. It applies to a wide range of organisations, including the health and social care sector.

This eshot follows on from our earlier piece of 27 January 2009 “House of Lords ruling on POVA list”, which discussed the effects of the introduction of the ISA. Since then detailed joint guidance – The Vetting and Barring Scheme March 2010 has been published by the Criminal Records Bureau and the ISA, setting out the scope of the scheme.

In this article, we provide a brief overview of the new scheme, particularly how it affects the health and social care sector and highlight the introduction of new criminal offences in this area of law.

Background
The Bichard Inquiry was commissioned following the murders of Jessica Chapman and Holly Wells by Ian Huntley, a school caretaker. One of the issues this Inquiry considered was how employers recruit those working with children and vulnerable adults. The Inquiry’s recommendations led to the Safeguarding Vulnerable Groups Act 2006, which implemented the recommendation that a single agency be established to “vet” all individuals who want to work or volunteer with vulnerable people. The ISA was created as this agency in England, Wales and Northern Ireland. The objective of the new scheme is to prevent unsuitable people from working with children and vulnerable adults wherever possible.

The Vetting and Barring Scheme
Under the 2006 Act and subsequent related 2007 Order, the ISA was created as part of the Government’s Vetting and Barring Scheme (the ‘Scheme’). The ISA works in partnership with the Criminal Records Bureau to protect children and vulnerable adults from individuals about whom there is real concern that this may place those children or vulnerable adults at risk.

The ISA’s role within the Scheme is to make independent barring decisions, place or remove individuals on/from the ISA’s Children’s Barred List and/or the ISA’s Vulnerable Adult’s Barred List.

The Scheme aims to prevent unsuitable people from undertaking certain paid or volunteer work with children or vulnerable adults. The Scheme covers anyone who wants to work or volunteer with children or vulnerable adults in a regulated or controlled activity on a frequent, intensive or overnight basis. In certain settings such as schools and care homes, everyone who works or volunteers there frequently or intensively is carrying out a regulated activity, if they have the opportunity to have contact with children or vulnerable adults. Barred people may be able to work in some ancillary roles in other settings, regarded as controlled activity.

Examples of regulated activities that are relevant to the health and social care sector include:

• providing advice or guidance for children;
• providing advice, guidance or assistance wholly or mainly to vulnerable adults;
• any form of healthcare treatment or therapy provided to children or vulnerable adults;
• driving a vehicle that is being used for the specific purpose of conveying children or vulnerable adults;
• working in a “specified place”, which includes children’s hospitals.

The Scheme also vets those who wish to carry out certain other types of work defined as “controlled activities”. Employers will be able to employ someone barred from a regulated activity to carry out a controlled activity, provided they put in place specific safeguards. Controlled activities of relevance to the health and social care sector include:

• activities that are ancillary to healthcare in hospitals or to the provision of primary care,
• people working for specified organisations with access to health or social services records.

From 12 October 2009, the following increased safeguards were introduced under the Scheme:

• Two new criminal offences of working in a regulated activity while barred and of knowingly allowing someone to work in a regulated activity while barred came into force. It should be noted that a regulated activity includes many health and social care sector posts, particularly those involving contact with vulnerable adults and/or children.
• Employers also face criminal sanctions for knowingly employing a barred individual across a wider range of work;
• The three previous barred lists (POCA, POVA and List 99) are to be phased out and replaced by two new lists - the ISA Adults’ Barred List and the ISA Children’s Barred List.
• From this date Regulated Activity Providers (such as employers, local authorities, and professional regulators) became eligible to ask for enhanced disclosures with barred list checks on anyone they take on in a regulated activity. (In Northern Ireland this extends to a controlled activity).
• From this date Regulated Activity Providers that remove anyone from a regulated activity have a duty to refer information to the ISA in certain circumstances. A similar duty applies to the responsible person in relation to a controlled activity. Failure to refer in some circumstances can result in a fine of up to £5000.

Dates for your Diary

• In April 2010, interim arrangements for controlled activity came into force; responsible persons who do not know whether a new entrant or mover into controlled activity is barred from regulated activity may ask the CRB to carry out a check of the barred lists on their behalf
• New employees or volunteers in a regulated activity will be able to register from July 2010. Those already employed in a regulated activity cannot apply until April 2011
• From 1 November 2010, registration with the Scheme becomes mandatory for new workers or for those moving position within establishments. From this date onwards, it will be a criminal offence to work in or for a Regulated Activity provider to hire a person to work (paid or voluntary) in a new regulated activity role without first being ISA-registered. Regulated activity providers such as the health and social care sector will have a legal duty to check that potential new employees/volunteers are ISA-registered before allowing them to engage in regulated activity. Regulated activity providers that are registered bodies, such as the NHS, may facilitate ISA registration at the recruitment stage as part of their checks on potential new staff; this is something that NHS bodies may look to do as part of their current ‘NHS Employment Check Standards’ procedure. The regulated activity provider can pay the registration fee for an individual applicant but does not have to do so.
• From 1 April 2011 individuals who were already working in a regulated activity on 26 July 2010 and have not moved into a new role with a new Regulated Activity Provider may apply for ISA registration. This will happen in phases according to the guidance.
• 31 July 2015 is the final cut-off date by which everyone working in both regulated activity and controlled activity must be ISA-registered.

In summary what this means for Regulated Activity employers is that those employees or volunteers already in post cannot apply for registration until April 2011, but thereafter all such post holders must be registered by 31 July 2015. If after 1 November 2010, and before the 2015 date an employee or volunteer is recruited to or moves to a new post, they cannot take up that post for a new regulated activity unless they are first ISA registered.

Conclusion
It is estimated that 11.3 million people in England, Wales and Northern Ireland will need to sign up by the time the Scheme is fully operational in five years’ time; the Government admits that this will be the biggest such project in the world. Whilst this is a major task for the ISA and employers alike, it is hoped that this will go some way to minimising the risk of future tragedies such as the Soham murders.

Reference can be made to the ISA’s guidance on the Scheme, and the ISA can also be contacted directly in order to provide advice on safeguarding issues, particularly with regard to any referrals that may need to be made.

It is essential that health and social care bodies affected ensure their recruitment, employment and child/vulnerable adult protection procedures are fully compliant with the Scheme, in order to avoid the possibility of future litigation claims, associated negative publicity, possible criminal prosecutions or criticism for example within the remit of the Coroner’s Court in cases of non-compliance.

This is a complex area of law which may cause significant employment and healthcare law issues to arise. The guidance in places is difficult to follow, whilst the implications of getting it wrong can be very serious for an organisation.

Should you have any queries or require any advice in relation to the ISA or any other related issues, please do not hesitate to contact one of our team.