08 July 2010
Theresa May announces a review of the current scheme is to be undertaken and the process of implementing the new scheme is to be stopped whilst a full evaluation takes place.
Implementing the new Vetting and Barring Scheme (VBS) was due to start in July of this year with the scheme to be rolled out over a five year period. Individuals who work within ‘regulated activities’ and who were changing jobs were to be the first to have to register with the scheme. Registering was to cost a one off fee of £68 and would mean the individual was registered with the Independent Safeguarding Authority (ISA), who would then carry out checks on a regular basis for updates in criminal records or ‘soft information’. Those interested in an individual, such as their employer, could then register and interest at no cost and check the status of the individual using an ISA run website.
However, the new coalition government has now decided to review the process and Theresa May (MP) made an announcement on 15 June to confirm that the introduction of the VBS has been halted whilst a full review takes place. The present government aims to ‘review the criminal records and vetting and barring scheme and scale it back to common sense levels’. As yet there is no indication of when this review will take place or what it will encompass. As the previous scheme had been declared incompatible with The Human Rights Act 1998 the results of this review will be eagerly anticipated.
Although the scheme has been halted, the safeguarding regulations introduced in October 2009 will continue to apply.
From October 2009:
There has been a wider definition of ‘regulated activities’, further enhancing protection of children and adults.
- Regulated activity includes:
- An activity of a specified nature, for example teaching, training, guidance or therapy (also included on this list of professions are those you may not necessarily expect, such as school bus drivers, contractors at schools and school governors)
- An activity in a specified place eg schools, nurseries or children’s detention centres) that provides the opportunity for contact with children or vulnerable adults on a frequent, intensive or overnight basis.
The three previous barring lists (POVA, POCA and List 99) were replaced by two new barring lists administered by the ISA. Checks of the new lists can be made as part of an enhanced criminal records check (ECRC).
- It is a criminal offence for individuals barred by the ISA to work or apply to work with children or vulnerable adults.
- Employers also face criminal sanctions for knowingly employing a barred individual across a wider range of work.
- Employers, local authorities, professional regulators and other bodies have a duty to refer to the ISA information about individuals working with children or vulnerable adults where they consider them to have caused harm or pose a risk or harm.
Referrals can be made to the ISA by a ‘regulated activity provider’, such as an employer or volunteer coordinator. Referrals are made when ‘relevant conduct’ has occurred or an individual has received a caution or conviction for a ‘relevant offence’ and the regulated activity provider withdraws permission for an individual to engage in regulated or controlled activity (or would have done so had that individual not resigned, retired, been made redundant or been transferred to a position which is not regulated or controlled activity).
Relevant conduct can include emotional, physical, sexual, neglect or financial – all of which are broad heads encompassing a wide range of incidents. The threshold for referral is often lower than you may first consider.
If an individual is referred to the ISA by their employer, often the first thing they know is when the ISA write to say that they are conducting initial investigations into the individual. The ISA will have received a completed referral form from the employer, along with evidence to support the allegations. At this point, they will not ask the individual for representations.
The ISA will then assess the information and evidence sent by the employer and decide whether they are ‘minded to bar’ the individual. This may be from working with children, or vulnerable adults, or both. If the ISA are ‘minded to bar’ the individual, they will write to them again, this time asking for written representations on why they should not be barred; the burden of proof is on the individual to show the ISA why they should not be barred.
If the individual is subsequently barred they will be place on either the Children’s List, or the Vulnerable Adults’ List, or both. This means that they can no longer work in regulated activity. The ISA’s decision therefore has a huge impact on an individual’s future employability.
If placed on a Barred List, the individual can only be taken off a List following a review. The individual must demonstrate that they are no longer a risk to children or vulnerable adults; the burden is therefore again on the individual to discharge and it may prove extremely difficult to prove that they are no longer a risk.
If the ISA do not Bar the individual, and allegations are unproved, the ISA may hold ‘soft information’ on file about them. This may have repercussions later, if the individual needs an Enhanced Criminal Records Check for a new job.
Soft information is ‘Relevant police information’: intelligence which has not necessarily led to conviction or caution. It could be in the form of allegations from colleagues or patients or previous disciplinary matters, whether the individual has been found guilty or not. There is a great deal of controversy surrounding soft information as, essentially, it goes against the principle of ‘innocent until proven guilty’. Untested allegations may of course be right, but they may be completely wrong. The individual may be a wholly innocent suspect, the subject of malicious allegation, or the victim of mistaken identity.
When an Enhanced Criminal Records Check is carried out, as well as previous convictions, the person requesting the check (generally an employer) will also be provided with soft information. Once the employer has the soft information, the emphasis is on them to decide whether or not to employ the individual. In this risk-averse age employers may be inclined to assume the disclosure of soft information is proof of its veracity, or of a person’s unsuitability.
The ISA and the Regulators
If you are working in the healthcare profession you will be well aware that you are also regulated by your own professional body. The current position as to how the ISA will work with the regulators is unclear. It appears that the ISA will be able to override decisions made by regulatory bodies. Being simultaneous investigated by the ISA and a regulatory body may add to an already distressing experience as well as duplication of process.
For more information on the ISA please visit www.isa-gov.org.uk
If you have been written to by the ISA saying that they are minded to Bar you and you are entitled to make representations then it is important to seek legal advice. The reasons for referral are often unclear and the potential impact on your employability immense. Being referred to the ISA may be a highly stressful experience, as being barred by the ISA as a healthcare professional can make you unemployable. Even whilst the ISA are conducting their investigations you may find that CRB checks are delayed, meaning that obtaining new employment during this time is virtually impossible. We have provided guidance to individuals being investigated by the ISA, and can assist you with making representations.