SAFEGUARDING POLICY,
PROCEDURES AND GUIDANCE
Protecting those at risk, the adults who work with
them and inspection / review team members
Supplement, to be read in conjunction with the HMIE Safeguarding
Policy, Procedures and Guidance issued in March 2008. This
ensures guidance is compliant with the Protection of Vulnerable
Groups (Scotland) Act 2007, operational from 28 February 2011.
HMIE SAFEGUARDING POLICY, PROCEDURES AND GUIDANCE:
SUPPLEMENT
Introduction
This document details procedures in Scotland in relation to disclosure and is
intended to be read in conjunction with the HMIE Safeguarding Policy,
Procedures and Guidance issued in March 2008.
The HMIE Safeguarding Policy, Procedures and Guidance publication of
March 2008, issued to all current and new staff, remains entirely relevant to
underpin practice and how we deal with any allegations or concerns raised in the
course of our work. It also provides guidance where advice is sought from a third
party related to Safeguarding matters. In particular, the 'Raising Concerns'
proforma has ensured that we capture for the record any issues of concern arising
from our contacts with others in establishments or services. These records are
held securely within HMIE for future reference.
Although the HMIE March 2008 publication remains the definitive document in
relation to protection of children, young people and protected adults with
whom we work, the introduction of the PVG Scheme on 28 February 2011
under the Protection of Vulnerable Groups (Scotland) Act 2007 (PVG
Scheme), however, has meant that there are now some significant updates
that require to be communicated to all who work for HMIE. It is important that
this supplement provides everyone who works for and with HMIE with the key
facts about the PVG Scheme and its implications for them. This supplement
also provides clear guidance on how those we engage with are expected to
operate within and apply the principles and regulations of the PVG Scheme.
This supplement forms an integral part of the March 2008 Policy, Procedures
and Guidance publication. The supplement should be retained within the
2008 publication for ready reference. The Safeguarding Aide-Memoire Card
issued to all who work with and for HMIE remains absolutely valid and should
be carried by employees when visiting establishments/services or be readily
accessible at the workplace. Replacement copies of the card can be obtained
from the HMIE Business Management and Communications Team.
Please note that there are also now significant divergences in procedures and
definitions between England and Wales and Scotland which require to be
dealt with separately. This situation has been exacerbated by the withdrawal
for review of proposed legislation in England and Wales which was broadly
similar to that being introduced in Scotland.
May 2011
Principles of the Act and Scheme

To ensure that those who have regular contact with vulnerable groups
through the workplace do not have a history of harmful behaviour.

To deliver a fair and consistent system that will be quick and easy for
people to use, simplifying the process.1
Lists
The PVG Scheme legislation provides for the protection of two vulnerable
groups: children and protected adults and refers to regulated work with these
groups. It provides two lists, one for each group.
The effect of being included in either of these lists is that an individual is
barred from undertaking regulated work (paid or unpaid) with children or
protected adults or both and commits an offence if he or she does.
An individual can be barred from one type of regulated work and not the other.
Membership of Scheme
The following may apply to join the PVG Scheme:

People who work or volunteer with children and/or who work with
protected adults in regulated positions.
Child
Section 97 of the Protection of Vulnerable Groups (Scotland) Act 2007 defines
a child as an individual under 18 years.
Protected Adult
Section 98 defines a protected adult as an individual aged 16 or over who is
provided with (and thus receives) a type of care, support or welfare services.
This definition supersedes the definition of “adult at risk”.
There are four types of services receipt of which makes an individual a
protected adult:




1
registered care services;
health services;
community care services; and
welfare services.
Existing members of the PVG scheme will still need to complete an application form and
provide identification documents each time they apply for a new role.
Regulated Work
What is work?
Work is any activity carried out on behalf of an organisation, establishment or
service, in a paid or unpaid capacity. This includes volunteers, but excludes
work as part of a personal relationship.
While it is not possible to give a definitive list of roles, positions or types of
work, or types of employment that constitute regulated work, the PVG Act
defines work by reference to the activities that a person does; the
establishments in which a person works; the position they hold; or the people
for whom he or she has day-to-day supervision or management responsibility.
To define regulated work it is necessary to look at:



who an individual is working with;
what they are doing; and
where they are doing it.
There are two types of regulated work:
a)
Regulated Work with Children
Regulated work with children is outlined in Schedule 2 of the legislation.
An individual may be doing regulated work with children if his or her work
involves any of the following activities as part of his or her normal duties:










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
refers to physical or emotional well-being, education or training;
moderating a public electronic 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;
providing, or working for an organisation which provides, an
independent health care 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; and
being a host parent.
b)
Regulated Work with Protected Adults
Regulated work with protected adults is outlined in Schedule 3 of the
legislation.
An individual is doing regulated work with protected adults where that
individual is working in a position whose normal duties include carrying out
duties including:





caring for protected adults;
teaching, instructing, training and supervising protected adults;
being in sole charge of protected adults;
providing assistance, advice or guidance to a protected adult or
particular or protected adults which relates to physical or emotional
well-being, education training; and
inspecting adult care services (including inspecting any premises used
for providing such services).
Normal Duties
Normal duties can be considered as something HMIE staff or an individual
working for HMIE, staff member or volunteer in an establishment or service
under scrutiny might do as part of his or her post on an ongoing basis eg
duties appearing in a job description. Normal duties exclude one-off
occurrences and unforeseeable events.
No particular frequency of undertaking work or duration of work is specified in
the Act as these depend on context.
An activity is likely to be “normal duties” when:



it appears in an individual’s job description, task description or contract;
it can reasonably be anticipated; or
it occurs regularly.
An activity is unlikely to be “normal duties” when:



done in response to an emergency;
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 that is not part of the
individual’s routine or occupation.
Regulated Work - Incidental
The scope of regulated work is narrowed by the incidental test. Some, but not
all, activities are excluded from being regulated work if the activity is occurring
incidentally to working with individuals who are not children or protected
adults eg 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 the
class. This is because the presence of the children is incidental to the main
activity and purpose of the class which is to teach adults.
An activity is likely to be incidental when:

It is open to all (characterised by where the event is held, where it is
advertised, admission policy, etc).
Offences Under the PVG Scheme



It is an offence for any individual to do, or seek or agree to do any
regulated work for which the individual is barred.
It is an offence for any employer or voluntary organisation to offer
regulated work to an individual barred from that work.
It is an offence for any employer or voluntary organisation not to refer
an individual to Disclosure Scotland where the grounds for referral
have been met.
It is essential that organisations check with Disclosure Scotland as only
individuals who are not listed as barred from regulated work can be PVG
Scheme members.
Eligibility
Any individual doing regulated work in Scotland with children and/or protected
adults will be eligible to apply to join the PVG Scheme.
Disclosure Types
The types of disclosure are:



Scheme Membership Statement;
Scheme Record Disclosure; and
Scheme Record Update.
Scheme Membership Statement
Any eligible individual can apply to, even in anticipation of employment, to
become a Scheme member. This may also be done via a personal employer
(au pair, etc). This would not, however, be sufficient for Scottish Government
recruitment processes.
The Scheme membership record will show:




the type of regulated work the applicant has joined the scheme to do;
that the applicant is not barred from regulated work of that type;
if Scottish Ministers are considering listing the applicant for that type of
regulated work; and,
if the Independent Safeguarding Authority is considering listing the
applicant for that type of work.
If the applicant applied unilaterally the statement will only be sent to the
applicant. If the individual applied via a personal employer, a scheme
membership statement is issued to the personal employer and to the
individual.
HMIE inspection staff ie HMI, Health and Nutrition Inspectors, Assistant
Inspectors, Associate Assessors and Lay Members who have
opportunities to engage regularly with children and/or protected adults
in the course of their normal duties will require to be a member of one or
both parts of the PVG Scheme.
If an individual does not already have PVG registration then the
individual will require to become a Scheme member and costs incurred
met by HMIE. Where an individual is already a Scheme member, then
HMIE will arrange for a Scheme Record Update to be applied for and
meet the costs of this.
Scheme Record Disclosure
Any eligible individual doing regulated work with children or protected adults
as part of his or her normal duties may apply to become a PVG Scheme
member through an employer or voluntary organisation. On application for a
Scheme Record Disclosure the record will show:


the scheme member’s membership statement; and,
any vetting information gathered by Disclosure Scotland.
The disclosure will be sent to both the individual and the employer or
voluntary organisation.
There is no cost to voluntary organisations.
Scheme Record Update
On an individual applying for another position the prospective employer may
apply for a Scheme Member Update. This will show:




the scheme member’s membership statement;
when the scheme record was last disclosed;
if vetting information shows on the scheme record; and,
whether or not vetting information has been added or removed from the
scheme record since it was last disclosed.
The update does not show details of that change. The employer/voluntary
organisation will be able to request the PVG scheme record disclosure
detailing these changes within thirty days; and a new application will be
required.
The scheme record update or disclosure will be sent to both the applicant and
the voluntary organisation.
There is no cost to voluntary organisations.
HMIE inspection staff ie HMI, Health and Nutrition Inspectors, Assistant
Inspectors, Associate Assessors and Lay Members who have
opportunities to engage regularly with children and/or protected adults
in the course of their normal duties will require to be a member of one or
both parts of the PVG Scheme.
In all likelihood, such individuals will already have a PVG Scheme
registration through their normal everyday employment. In such cases,
HMIE will apply for a Scheme Record Update and meet costs incurred.
Information Included
Unlike the former system where the test for relevance of non-conviction
information was made against each post, there will only be two relevance
tests for the PVG Scheme, one for each type of regulated work. That is, one
for regulated work with children and one for regulated work with protected
adults.
Individual Responsibilities
If a scheme member leaves a position of regulated work then he or she must
update Disclosure Scotland. Disclosure Scotland will then contact the
employer / voluntary organisation for confirmation of the change.
A scheme member must give Scottish Ministers notice within three months of:



a change in the member’s name;
the issue of full gender recognition certificate to the member under
Section 4 of the Gender Recognition Act 2004; and
any other change in circumstances of a prescribed type.
Updating of Records
PVG Scheme membership will be updated automatically:



when a member's circumstances change, eg if or he or she moves to a
different job or is convicted of a crime;
if the individual commits an offence that is relevant to children and/or
protected adults his or her status may move to consideration for listing;
if an individual’s status moves to consideration for listing then, those
organisations he or she is currently engaged with and for which he or
she does regulated work will be informed.
It is important, therefore, that when an individual leaves an organisation that
Disclosure Scotland is informed in order that his or her PVG scheme
membership is updated.
If due to information received by Disclosure Scotland, a person’s status
changes from being a PVG Scheme member to being “barred”, then those
organisations that he or she does that type of regulated work for will be
informed.
Listing Referrals
An individual may become listed as “barred” from working with children or
protected adults or both as a result of a referral from:


an employer, voluntary organisations or regulatory body;
a Court; or as a result of vetting information becoming available.
The individual may be listed automatically, or automatically considered for
listing.
Automatic Listing
Convictions that would lead to an individual being listed automatically include:


Rape; and
Murder – where the act was committed against a child or protected
adult.
Stages of Consideration for Listing
Stage 1 – Initial Consideration


The information will be assessed by staff against criteria set out in
structured decision-making process. The assessment gives a score to
ensure that only cases that are likely to lead to an individual being
listed move onto Stage 2.
A key aim of Stage 1 is to weed out malicious or frivolous referrals as
well as irrelevant or minor convictions.
Stage 2 – Formal Consideration



An individual is considered to be under consideration for listing at this
stage and any organisation that individual is known to be doing
regulated work for will be notified.
The referral is passed to a Disclosure Scotland caseworker who will
examine the information it contains, request additional information if
appropriate, request information from the individual who has been
referred, and, if necessary, seek specialist advice.
Most cases will be concluded at Stage 2 with the individual either being
listed or notified that no further action is being taken.
Stage 3 – Panel Consideration





Stage 3 exists for the small number of complex cases that demand
substantial input from specialists.
If a case passes to Stage 3 it will be considered by an expert panel that
is made up of specialists from a variety of fields.
The expert panel will make a recommendation on whether the
individual should be listed to the senior listing officer in Disclosure
Scotland who will make the final decision.
Cases that reach Stage 3 are always concluded at the end of this
stage.
At the conclusion the individual will be listed or no further action will be
taken.
Making a Referral
An employer or voluntary organisation that dismisses an individual or removes
an individual from regulated work with children or protected adults where the
following grounds under Section 2 of the PVG Act have been met are legally
obliged to make a referral to Disclosure Scotland and will be committing an
offence if they fail to do so. The subject for referral must have done one or
more of the following:

Caused harm
o A person’s actions causing physical harm to another.
o A persons actions causing psychological harm to another eg
by placing them in fear, alarm or distress.
o A person doing something illegal, which adversely affects
someone else’s property, rights or interests eg theft, fraud,
embezzlement or extortion.

Placed someone at risk of harm
o A person attempts to harm another in any of the ways
described above.
o A person tries to get someone else to harm another.
o A person does anything that might harm another or expose
another to the risk of harm.

Engaged in inappropriate conduct involving pornography.

Engaged in inappropriate sexual conduct, or,

Given inappropriate medical treatment.
When considering “harm” and “risk of harm” it is important that individuals and
employers/voluntary organisations develop an understanding of what sort of
actions might result in someone being harmed or place at risk of harm.
Within the scope of the PVG Act some of the things that might cause harm
are:






emotional abuse;
neglecting a person’s needs;
inappropriate physical restraint;
failing to attend to whatever health and safety requirements might be in
force;
using inappropriate language; and
sexual abuse, physical assault, supplying illegal or unauthorised drugs.
When to Refer
If, as a result of any of the grounds for referral, an employer or voluntary
organisation dismisses an individual doing regulated work or transfers him or
her to other duties that do not involve regulated work, then a referral must be
made within three months. Even if that individual has already left the position
for some other reason and even if that individual was not a member of the
PVG Scheme.
If an organisation becomes aware of an incident of harm or risk of harm
toward a child and/or protected adult after an individual has stopped doing
that regulated work and considers that, if it had known about it at the time, it
would have dismissed the individual, or even might have dismissed the
individual, then a referral must be made.
A referral should not be made whilst an investigation takes place during which
an individual is suspended or temporarily transferred to other duties until the
transfer is made permanent or the individual is dismissed.
All referrals must be made to Disclosure Scotland within three months of the
date on which the grounds for making the referral were met.
Appeals and Applications for Removal from Lists
There is a formal process of appeal and for removal from the lists.
HMIE Arrangements for Seeking Criminal Records Checks in Scotland
HMIE remains a registered body with Disclosure Scotland and several
members of the HMIE HR Team are registered counter-signatories. All
application forms for PVG Scheme membership must be sourced from HR
and returned to relevant HR staff.
Disclosure records must be sought through PVG Scheme membership for all
HMIE staff and those who work with us and are involved in regulated work
with children or protected adults as part of their normal duties.
The new PVG Scheme disclosure records will have the same place in
recruitment and selection of staff and those who work with us as the previous
disclosures and decisions as to suitability will be made on exactly the same
basis. The only significant difference is the addition of a list of individuals
barred from working with protected adults similar to that of individuals
barred from working with children.
It should be noted that for the first year, from commencement on
28 February 2011, only new applicants will be eligible to join the PVG
Scheme. Holders of previously issued Standard and Enhanced
Disclosures will thereafter be included in a rolling programme.
Accordingly, those who already work for and with HMIE are likely to be
required to become PVG Scheme members over the course of 2012 to
2013. Those coming to work in the future with HMIE or current relevant
HMIE employees who do not already hold PVG Scheme membership will
be required to register with the Scheme.
Important things about the PVG Scheme which staff and those who work
with us need to know
The following pages will act as a ready reference guide and provide points
which should be born in mind when engaging with any establishment,
organisation or service which is making provision for children, young people
and protected adults.
Managers of establishments and services can be advised to seek further
guidance from the following useful contacts:
Disclosure Scotland
Tel: 08701-609-6006
Website: www.disclosurescotland.co.uk
Central Registered Body in Scotland (CRBS)
Tel: 01786-849777
Website: www.crbs.org.uk
Service providers should know the following.






It is an offence to recruit a person who is barred from working with
children and/or protected adults taking account of the services
provided.
It is an offence for a barred individual to put themselves forward for
regulated work.
It is not compulsory for an individual to join the PVG Scheme.
An establishment, organisation or service can make the decision
that a person does not need to be a member of the PVG Scheme.
It is an offence for an establishment, organisation or service to insist
on an individual being required to be registered with the PVG
Scheme where they do not come under the scope of regulated
work.
If an establishment, organisation or service is registered with the
CRBS and concerns come to light about one of its staff or voluntary
workers, then senior management are legally bound to make a
‘referral’. This may lead to the individual concerned being barred
from working with children or vulnerable adults. CRBS or
Disclosure Scotland should be contacted for advice in such
circumstances.
When is PVG Scheme Membership Necessary?
Registration with PVG Scheme is required if an individual is doing regulated
work.
The following questions should be asked to establish if the work being
undertaken is regulated.
Is it work?
Work includes:




paid work;
unpaid work;
work done under contract;
teaching, instructing, training or supervising children or protected
adults;
 caring for any children or protected adults;
 being in sole charge of children or protected adults; and
 providing advice or guidance to a child or vulnerable adult which refers
to physical or emotional wellbeing, education or training.
Who are they working with?
 Children – this means any individual under the age of 18?
 Protected adults – this is an individual receiving health/care and/or
welfare services? or
 Both?
What do they do?
Do their normal duties include:





Teaching, instructing or training children or protected adults?
caring for children or protected adults?
being in sole charge of children or protected adults?
unsupervised contact with children or protected adults? and/or
providing advice or guidance to children or protected adults?
Is it their normal duties?
It is likely to be their normal duties/work when:
 it appears in a person’s job description, task description or contract;
 it can be reasonably anticipated; and/or
 it occurs regularly.
IMPORTANT: it MUST be normal duties to be regulated work.
It is unlikely to be normal duties when:
 it is done in response to an emergency;
 it is arranged at the last minute to stand in for someone who is ill or
other unexpected absences; an
 is a one-off activity of short duration which is not part of the individual’s
normal routine or occupation.
If any of these circumstances are the reason for an individual working with
children, young people or protected adults then the individual is not engaging
in regulated work and does not need to be PVG Scheme registered. Where
an individual is on a stand-by rota to assist on a fairly regular basis in the
event of occasional absence of another worker then the circumstances alter
and the expectation is that such an individual will be a member of the PVG
Scheme.
Are there any Exceptions?
The scope of regulated work could be narrowed by a number of factors.
The incidental test
Some, but not all, activities with children and protected adults are excluded
from being regulated work if the activity is occurring incidentally.
An activity is likely to be incidental when:
 it is a public event;
 it attracts a wide cross-section of society; and
 the children’s or protected adults’ attendance is discretionary.
An activity is unlikely to be incidental when:
 it is targeted at children and/or protected adults;
 it is more attractive to children or protected adults; and
 the children’s and/or protected adults’ attendance at the event is
mandatory.
Children in work or employment
Any 16/17 year olds who are working are excluded.
Opportunity for contact
If the volunteer is supervised at all times.
Limitation on work in establishments (eg a school)
The volunteer worker is supervised at all times and/or there are no children
present, eg at an evening Parent Council Meeting or a Parent-Teacher
consultation afternoon where children are accompanied by their
parents/carers.
If one of these exceptions applies then the individual volunteer/worker is
not doing regulated work and membership of the PVG Scheme is not
required.
REMEMBER: The PVG Scheme is only a part of a safe recruitment process.
Every post should have a job description, interviews are carried out,
references followed up and ideally, paid staff and voluntary workers are
supervised. Supervision means that the standard of the person’s work is
monitored by an individual that they are responsible to or are line managed
by. Feedback and relevant training should feature. Together, these factors
help ensure safer recruitment and working practices.