Meeting your legal duty to refer
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
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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
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Meeting your legal duty to refer
Background
• Bichard Inquiry
• Safeguarding Vulnerable Groups Act 2006
• Protection of Freedoms Act 2012
– 10 September 2012
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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
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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
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Meeting your legal duty to refer
DBS Checks
Standard DBS
check
Enhanced DBS
check
Enhanced DBS
with barred list
check
PNC
PNC
Police
Information
PNC
DBS Children’s
Police
Information
DBS Adults’
Basic Check – Future, currently offered by Disclosure Scotland
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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
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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 work
Refer to legislation for exemptions
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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
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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
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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
Break
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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
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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
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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
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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.
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?
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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.
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
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Meeting your legal duty to refer
Referral Form
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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)
Meeting your legal duty to refer
Recent updates
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Disclosure & Barring Service
Update Service
• Background
• Process
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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
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Disclosure & Barring Service
Filtering convictions and cautions
• Filtering of old and minor convictions and cautions
– Background
– Filtering rules
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Adult conviction
Adult caution
Child conviction
Child caution
Specified offences – ‘listed offences’
Multiple offences
Certain positions
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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?
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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: customerservices@dbs.gsi.gov.uk
• Matters relating to Barring:
– Address: DBS, PO Box 181, Darlington, DL1 9FA
– Telephone: Help Line 01325 953795
– Email: dbsdispatch@dbs.gsi.gov.uk
dbspartnerships@dbs.gsi.gov.uk
• Website:
– Address: GOV.UK/DBS
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