FAQ's
General Questions
Application Processing Questions
Finance Questions
PVG Scheme membership
How does the PVG Scheme differ from the previous disclosure system?
The Scheme offers the following improvements over the previous disclosure system:
Continuous updating
Continuing to collect vetting information about an individual after the initial disclosure check has been made will ensure that new information indicating that they might have become unsuitable can be acted upon promptly.
Since Disclosure Scotland was established, a great deal has been learned about what works well and what could work better. The previous Enhanced disclosure provided a point in time snapshot of an individual's criminal history. An employer would not find out if - say - a week after the disclosure, the individual committed a crime. For this reason, many employers choose to re-check employees/volunteers on a regular basis. Also if a person has more than one job (either paid or unpaid) they may be asked to complete a disclosure for each post. This is very time consuming, frustrating and inefficient.
The PVG Act introduced a membership scheme for people undertaking regulated work with children and/or protected adults to join. The previous enhanced disclosure will no longer be available for people undertaking regulated work with children and protected adults. The Scheme will have a 'memory' and individual records held by the Scheme will be updated automatically when a person's circumstances change. This means that when a disclosure is required because the Scheme member is changing posts or taking on an additional role it will be quicker and easier for prospective employers to check whether he/she is a member of the Scheme and whether there is any information held about them.
Strengthened protection for adults
The Bichard Inquiry recommended that new registration arrangements should be introduced for those working with vulnerable adults as well as with children. The PVG Act delivered the power to create, for the first time in Scotland, a list of those who are barred from working with protected adults
Effective barring
The Scheme doesn't just collect and disclose vetting information. It also assesses it so that individuals who are considered unsuitable on the basis of vetting information are prevented from entering, or removed from the workforce.
Under the PVG Scheme, the adults' list and the list of those who are barred from working with children are managed by Disclosure Scotland as an Executive Agency of the Scottish Government. We will continue to deliver disclosure services along with PVG Scheme membership service and barring function. The Protection Services Team within Disclosure Scotland will collect and assess information to enable fair and consistent decisions about unsuitability to be made, on behalf of Scottish Ministers, in respect of one or both workforces.
Under previous arrangements, an enhanced disclosure revealed an individual's convictions and other relevant information from the police. It also revealed whether the individual is disqualified from working with children in Scotland, England, Wales or Northern Ireland or on the list of those disqualified from working with vulnerable adults in England, Wales or Northern Ireland, where that is relevant to the post. However, no assessment is made of the convictions and police information to see whether this indicates that the individual is unsuitable to do that type of work. Unless the disclosure reveals that the individual is already disqualified from working with children, this means that the assessment of the disclosure information is left entirely to the employer.
Under the PVG Scheme, broadly the same conviction and police information will appear on a Scheme Record Disclosure as appears on an enhanced disclosure. When someone seeks to join the scheme, any conviction information will be assessed by Disclosure Scotland and if they are not unsuitable, they will become a scheme member.
If the individual is already barred from working with children or/and adults, the individual will not be eligible to join the scheme and no scheme disclosure will be issued (and the individual may be prosecuted for seeking to undertake a post in regulated work while listed).
Once someone becomes a Scheme member, any new vetting information will be added to their records and assessed by Disclosure Scotland, on behalf of Scottish Ministers. If an individual becomes unsuitable while a Scheme member, they will be removed from the Scheme and listed on one or both lists.
Therefore, a Scheme Record Disclosure will give employers the reassurance that the individual is not unsuitable for that type of work, even if the disclosure contains convictions and other police information.
However, employers will still need to assess the information to see whether the individual is suitable for the particular post for which they have applied.
Safer Recruitment Through Better Recruitment Guidance
Safer Pre and Post Employment Checks - NHS Scotland
Access to disclosure for personal employers
The Statement of Scheme Membership will improve protection for vulnerable groups in instances where people are directly employed to do regulated work. Personal employers, such as a parent employing a sports coach for their child or a person employing a personal carer can ask to see an up to date Statement of Scheme Membership to confirm that the person is not barred. Please note: there is only one copy of this type of certificate and it contains no 'vetting' information, but it does confirm that the individual is a member of the PVG Scheme, and not barred.
More sources of vetting information
In time, it is proposed to expand sources of vetting information to include regulatory organisations and councils. The PVG Act introduced the provisions for this and the consultation on policy proposals for secondary legislation explored how this could be achieved. The Scottish Government is currently engaging with stakeholders on the processes required to ensure that information shared is proportionate, appropriate and relevant.
What types of disclosure services does the PVG Scheme offer?
Disclosures through the PVG Scheme replaces enhanced disclosure for those who work with vulnerable groups. The PVG Act creates several types of disclosure, tailor-made for different situations.
PVG Scheme Record
A PVG Scheme Record will be requested by an employer who is employing an individual to do regulated work if the individual is joining the PVG Scheme for the first time. In addition, an employer will also be able to ask for a PVG Scheme Record when a PVG Scheme Record Update (see below) highlights that new vetting information about an individual has become available.
A PVG Scheme Record will:
confirm that the person is a PVG Scheme member and therefore, not barred from that type of regulated work;
include vetting information;
indicate whether the person is under consideration for listing.
A PVG Scheme Record will be sent to both the individual and the employer.
PVG Scheme Record Update
A PVG Scheme Record Update will be requested by an employer who is employing a PVG Scheme member for the first time or as part of a regular review of existing employees.
The PVG Scheme Record Update will:
confirm that the person is a Scheme member, and therefore not barred from that type of regulated work;
specify the date of the last PVG Scheme Record;
state whether any existing vetting information is included in the member's Scheme Record;
indicate whether any new vetting information has been added to the member's Scheme Record and the date it was added (without detailing the substance of any such vetting information);
indicate whether any vetting information has been removed and the date it was removed (without detailing the substance of any such vetting information).
The PVG Scheme Record Update will ultimately be available online to the individual and the employer, supported by suitable security measures. Hard copies, if requested will be sent to both the individual and the employer.
The purpose of the PVG Scheme Record Update is to enable employers to check quickly, easily and cheaply that employees or potential employees are scheme members. The PVG Scheme Record Update will also state whether the scheme holds any new vetting information that has been gathered since the date of the last PVG Scheme Record. It will not provide the detail of any new information but it will indicate whether a scheme member is under consideration for listing.
Over 90 per cent of enhanced disclosures currently show no relevant information; therefore in the vast majority of cases there would be no need for an employer to see the PVG Scheme Record. This should make the whole transaction immediate and therefore, help to speed up recruitment decisions.
In instances where there is new information, the employer will be able to request the PVG Scheme Record to enable them to see the detail of any new vetting information and therefore consider whether it is relevant to the post. The total cost of this will add up to no more that the cost of the PVG Scheme Record, which means that there will be an incentive for employers to make use of the PVG Scheme Record Update as this will be cheaper.
PVG Scheme Membership Statement
A PVG Scheme Membership Statement will be available to people in anticipation of taking up regulated work, either with an employer or on a self employed basis and to personal employers wishing to confirm that an individual is a scheme member and so is not barred.
The PVG Scheme Membership Statement will:
confirm that the individual is a Scheme member and therefore, not barred from that type of regulated work;
indicate whether the individual is under consideration for listing.
The PVG Scheme Membership Statement will be provided to the individual and to the personal employer where one is identified. For example, A PVG Scheme Membership Statement could be requested by a personal employer such as a parent wishing to employ a sports coach for their child or a person with disabilities wishing to employ a personal carer. A PVG Scheme Membership Statement can be provided either when the person first joins the Scheme or when requested by any personal employer.
Who will get to see individual Scheme record disclosure information?
An individual Scheme Record Disclosure is available to the person it concerns and the employer or potential employer. Where relevant, duplicate copies of Scheme Record Disclosures can be provided to regulatory bodies, cutting down on duplication for those roles where an individual needs to provide a disclosure to both employer and regulatory body.
It was previously an offence for disclosures to be shared with a third party. In response to the findings of the consultation on policy proposals for secondary legislation, the Scottish Government introduced secondary legislation that allows information to be shared between local authorities or heath boards and contractors providing transport services to children and/or protected adults.
There are no immediate plans to allow the sharing of disclosure information with commissioners in any of the other circumstances that were outlined in the consultation on policy proposals for secondary legislation. This was seen by consultation respondents as disproportionate and intrusive, particularly in relation to direct payments and the letting of premises.
What sort of information will the Scheme hold about people and where will information come from?
Information will be gathered from a variety of sources. The information gathered is known collectively as 'vetting information'. Where relevant, this information will be used to decide whether a person is unsuitable for regulated work. This information will be held on an individual's scheme record and will be disclosed whenever a scheme record disclosure is requested.
The core of the vetting information is conviction information retrieved from criminal justice systems and non-conviction information held by the police that they consider to be relevant to regulated work.
In addition, the PVG Act allows for vetting information to be drawn from regulatory bodies and councils. Discussions are underway with organisations about how this might work and this will not be a feature of the Scheme at the point of go live.
The Scottish Government plans to introduce secondary legislation to allow the four civil orders identified in the consultation paper (namely the Risk of Sexual Harm Order, Sexual Offences Prevention Order, Notification Order and Foreign Travel Orders) to always appear on scheme record disclosures and on the residual enhanced disclosures for specific positions in respect of children or protected adults (eg adoption and Adults with Incapacity guardianship).
What measures are being delivered to ensure data about individuals is protected?
Disclosure Scotland already adheres to strict information security protocols set by CESG, the National Technical Authority for Information Assurance. In addition, Disclosure Scotland is working towards ISO27001 accreditation.
None of the information that Disclosure Scotland holds can be stored or transmitted by CD, memory stick or any removable storage device and no information can ever be transferred to, or held on, a laptop. Information is always handled within a secure environment and transferred between areas by secure, electronic links.
The security of the PVG Scheme system is being designed in from the very beginning. It will be subject to regular IT check testing (as prescribed by CESG).
How will data held by the Scheme be quality assured to avoid problems arising from alias names, near matches and false identities?
Currently, part of the role of a counter-signatory in a registered organisation is to check the identity of the person who is subject to the disclosure check using relevant documentation such as a passport, driving licence and birth certificate. This will continue under the PVG Scheme.
PVG checks will only be progressed by Disclosure Scotland if there is a definite Identity Confirmation Match on all four of its application criteria:
· Name
· Date of birth
· Place of birth
· Address history
In addition, an online, third party identification service will be used to enable Disclosure Scotland to confirm the validity of the identification details provided to further ensure that they belong to the same person.
If discrepancies do arise, applications for PVG Scheme membership will be forwarded to Disclosure Scotland's Exceptions Handling Unit for further investigation. As well as contacting applicants or counter-signatories to seek more information, this could also involve seeking information from the Register of Births, Deaths and Marriages. It is also possible, if necessary, to use fingerprinting to confirm the identity of an applicant. Alias names are recorded on police information systems and shared with Disclosure Scotland.
Will there be a telephone helpline and will online help be available for people if they are unsure about any aspects of the PVG Scheme?
Disclosure Scotland will continue to provide a helpline for all users of its services, including those who will use the PVG Scheme.
How will the PVG scheme be equality proofed, for example when people with limited cognitive abilities or a visual impairment need to interact with the PVG Scheme?
An Equality Impact Assessment was undertaken for the PVG Scheme during the period of implementation and the Scottish Government is working with partner organisations to ensure that it is as accessible as possible.
Will the Scheme put people off volunteering if they have not had to undertake disclosure checks before?
The Scottish Government does not expect the PVG Scheme to deter volunteers. The Scheme will be quicker and easier for people to use - a particular benefit being that it ends the need for multiple written disclosure applications so people will no longer need to spend time completing a written disclosure form for each post or activity.
The Scottish Government knows that the vast majority of people who work with vulnerable groups do so with their best interests at heart and pose no risk to the people they work with. However, history has proven that this is not always the case so all reasonable steps must be taken to stop the small number of people who would seek to do harm. Vetting and robust recruitment procedures are necessary if we are to be sure that the services and amenities that vulnerable groups use are not delivered by those who would do harm.
How long will it take to check the whole vulnerable groups workforce?
Scheme membership was phased in for the existing workforce using a managed process of retrospective checking - this process is due to be comlpeted by October 2015.
REGISTRATION
What will be the process for checking that those who countersign checks are suitable to take on this role?
This process will be the same as it is under the current disclosure system. To register with the scheme, organisations are required to provide information to prove that they are legitimate and that they do have the legal right to access the type of disclosure they are applying for. In addition, each individual counter-signatory is checked against police records to determine suitability. These checks are reviewed regularly and anyone who becomes unsuitable will have their power to request disclosures withdrawn.
Why do people need to join the PVG Scheme if they are already a member of a professional regulatory organisation?
The PVG Scheme serves a different purpose to regulatory organisations. The role of regulatory organisations includes improving practice standards, providing guidance and training, upholding the values of the profession and advocating on behalf of members as well as regulating the relevant workforce. The purpose of the PVG Scheme is to prevent unsuitable people from working with vulnerable groups and while regulatory organisations have access to professional conduct information, they do not have access to criminal history information held by the police.
REGULATED WORK
Will there be circumstances where people who work with children or protected adults are not required to be PVG Scheme members?
All those who work with children and protected adults should become PVG Scheme members. However, there are a number of examples where joining the Scheme will not be appropriate as people may have significant contact with vulnerable groups but not through work.
For example, subject to the will of the Scottish Parliament, with regard to children, the Scottish Government proposes that individuals wishing to adopt a child and those who live in the same house as foster carers and childminders should not join the Scheme.
Likewise, for protected adults, the Scottish Government proposes that people applying for a number of specific guardianship orders under the Adults with Incapacity (Scotland) Act 2000 should not join the PVG Scheme. In those cases, it will be suggested that an enhanced disclosure with a check of the relevant lists should be carried out instead.
Who is a Protected Adult?
Section 94 of the PVG Act defines a "protected adult" as an individual aged 16 or over who is in receipt of one or more type of care, health or welfare service. The term "protected adult" is a service based definition and therefore avoids labelling adults on the basis of having a specific condition or disability. A person will only be a protected adult for the duration that they are receiving the service, therefore some adults will be protected most of the time (e.g. residents in a care home whilst in the care home) whereas others will only be protected for short periods (e.g. whilst receiving dental treatment at the dentist).
A protected adult is an individual aged 16 or above who is receiving certain types of services. In summary they are:
· A support service, an adult placement service, a care home service, or a housing support service;
· Healthcare services, provided or secured by the NHS or provided by independent operators;
· Community care services, provided or secured by a council or services for which the council has made a direct payment;
· Welfare services, encompassing the provision of support, assistance, advice or counselling to individuals with particular needs by the voluntary or private sector.
In order to assist voluntary, charitable and private sector organisations that provide a range of non-statutory services to individuals, regulations will clarify what constitutes a welfare service. This will enable organisations to determine which of their services make an adult protected.
As all adults are likely to be protected adults at some time in their lives, section 94, which defines the exact nature of the services that make an adult protected, must be read in tandem with Schedule 3, which outlines what constitutes regulated work. Only for the period of time when an adult is in receipt of one of these services, and where one of these activities is being carried out, is it deemed to be regulated work.
What constitutes regulated work with adults?
Schedule 3 of the PVG Act specifies particular positions as being within scope of regulated work. This is because the holder has a particular position of responsibility, performs certain activities as part of their normal duties (or supervises the performance of such activities) or because the work is being undertaken within certain establishments where it can be assumed that people who are protected under the PVG Act will be present.
With positions other than those specified as holding certain responsibility or performed within an establishment, as a first step an employer must identify the type of service that makes an adult "protected". An adult does not have protected status because they are receiving a service from someone else - it is the type of service that the group or organisation is providing, or contracted to provide, to the adult that matters. This means that there will be no need to ask intrusive questions about an adult's personal circumstances.
The second step will be to assess which posts are undertaking regulated work by looking at the range of activities in Schedule 3 of the PVG Act. The employer must then consider if the activity constitutes part of the position's normal duties and whether contact with protected adults is merely "incidental" in the course of the activity. (Broadly speaking, incidental contact is where the contact is fleeting or protected adults are not the target audience or client base).
Scottish Ministers have signalled that the catch-all or blanket approach common within the current system is disproportionate as it includes some incidental contact between adults and individuals working in certain establishments. It is therefore intended to make the PVG Act more proportionate by narrowing the type of positions within certain establishments that will be classed as undertaking regulated work.
Why is the Scottish Government reviewing the scope of regulated work?
Scottish Ministers wish to ensure that the scope of regulated work includes those positions where unsuitable people could pose a risk to vulnerable groups. However, the Scheme needs to be proportionate and not include those positions where an unsuitable person would pose no real risk to children or protected adults.
Common questions on regulated work.
Are builders contracted to work in places such as schools in regulated work?
Are administrative staff that may have access to sensitive information in regulated work?
Are people such as swimming pool attendants or fair ground workers in regulated work?
Are people who are contracted to work in people's homes, for example plumbers in regulated work?
Are people who provide social housing in regulated work?
It will not be possible to provide a definitive list of positions or types of employment that constitute regulated work. The roles and functions that people undertake tend to be flexible and any list would become out of date very quickly.
It is employers that are best placed to understand their services and therefore, which posts constitute regulated work. The PVG Act, its explanatory notes and the PVG Scheme guidance will provide information to enable employers, self-employed persons, agencies and groups to establish which posts constitute regulated work and therefore fall within the scope of the PVG Scheme.
The PVG Scheme is intended to strike a balance between minimising any administrative burden and maximising protection. The Scottish Government is developing draft regulations that will clarify what areas of work constitute regulated work and these will be available for consultation in due course.
Will children be able to become PVG Scheme members - for example, in children's organisations, young people are facilitating participation events for other young people?
Yes a child will be able to become a PVG Scheme member if doing regulated work. Organisations requesting membership of the PVG Scheme for a child should first liaise with and seek consent from the parent or guardian of that child. This will ensure that the parent or guardian is aware of the request and can respond as appropriate.
The PVG Act defines a Child as an individual under the age of 18 and a Protected Adult as an individual aged 16 or over. Does this mean that a person who is aged 16 or 17 and in receipt of services is a Child or a Protected Adult?
The majority of people who are protected adults will be over the age of 18. However, there will be circumstances where a 16 or 17 year old is in receipt of care services and is therefore both a child and a protected adult. This does not create any particular difficulty. It means that an employee who works with a person who falls into both categories may need to be a member of the scheme in respect of both types of regulated work. It is intended that this can be achieved through a single application to join the scheme (the applicant will simply tick both boxes for work with children and protected adults) and it is not proposed to charge a higher fee for applications to join both workforces.
In some local community projects, adults with learning disabilities facilitate support groups and activities for other adults with learning disabilities. Should the adults who are facilitating these support groups and who are themselves protected adults, become PVG Scheme members?
Any person doing regulated work with protected adults should become a PVG Scheme member. This also applies to people who are themselves protected adults.
However, it should be noted that work done in the course of a personal (or family) relationship for no commercial consideration is specifically excluded from the scope of regulated work (section 95 of the PVG Act refers) so in such instances, people would not become PVG Scheme members.
The PVG Act should therefore not be perceived as a possible barrier to natural friendship or support between adults.
It will be important for the organisation to consider whether the support group meets as peers to help and advise one another or whether it is an organised, regulated service that invites other people to join and benefit from it. It is proposed that regulations will further define what constitutes a welfare service and draft secondary legislation on this was published for consultation in November 2009. This consultation closed on 2 February 2010.
What would happen in instances, for example, when a teacher is running an evening class for adults and say a 16 year old or an adult with a learning disability wish to attend? Does the teacher become a PVG Scheme member?
The definition of regulated work in the PVG Act work has a "normal duties" and "incidental" test for activities. This means, broadly speaking, that not all individuals who come into contact through their work with protected adults or children should be PVG Scheme members.
Assuming protected adults or children are not the target audience, then the contact will be deemed to be incidental. For example, a yoga teacher who advertises a local class for adults would not be expected to be a PVG Scheme member if, for example, an adult with a learning disability or a 16 year wish to join the class. Only where the work is part of the employee's normal duties, and where those duties are aimed at either protected adults or children, should the teacher become a PVG Scheme member.
How will people who are organising care services directly - say for a child with disabilities or an elderly relative ensure that the person they employ is a PVG Scheme member?
Personal employers, such as a person employing a personal carer or a parent employing, for example, a child minder, private tutor or sports coach for their child can ask to see an up to date PVG Scheme Membership Statement. The statement will confirm that their prospective employee is a member of the PVG Scheme and is therefore not barred from doing regulated work. A personal employer will be able to countersign an application for a PVG Scheme Membership Statement and would then receive a personal copy of the statement.
If a person is provided with a community care service and a local authority has made a direct payment, commonly known as self directed support (Section 94(c)(ii) of the PVG Act), then they are a protected adult. If the protected adult then employs an individual to act as a personal assistant or to provide some other form of support, the employee should become a PVG Scheme member, as would any other person doing a caring role for commercial benefit, for example a home help or a social care assistant.
However there are exceptions. Section 95 of the PVG Act provides that a person employed within a family relationship is exempted from the meaning of 'work'. Neither is it work where it is done in the course of a family or personal relationship for no commercial consideration. In these circumstances, the person would not be undertaking regulated work.
It is important to note that personal employers, unlike organisational employers, will not be committing an offence by employing a barred person in regulated work, although the barred person would be committing an offence by seeking regulated work. There is no legislative requirement that a personal employer checks for PVG Scheme membership although funding organisations (such as local authorities funding self-directed support) may require it as a condition of the funding arrangement.
FEES
How much does it cost to join the PVG Scheme?
The higher tier fee level of £59 will be payable when an individual first joins the PVG Scheme and a lower fee of £18 will be payable for most PVG Scheme Record Updates on existing Scheme members.
After a person becomes a PVG Scheme member, the lower fee of £18 will apply for a PVG Scheme Record Update and in the vast majority of cases, this will be all that the employer will need to prove that a person is a PVG Scheme member and not unsuitable to work with vulnerable groups.
Over 90 per cent of PVG Scheme members will have no relevant vetting information on their record. This means that, in the vast majority of instances. once a person becomes a member of the PVG Scheme, the whole disclosure transaction should be more immediate and cheaper that it is under the current system. This should help to speed up recruitment decisions and ease employee and employer frustration with the current system of having to complete and process a detailed application form every time a check is required.
Who is liable to pay the PVG Scheme membership fee - the member or the employer?
The PVG Act legislates that the correct fee is paid by somebody and it does not legislate who should pay. It will be for each organisation to decide who should pay. In most instances, under the current arrangements, employers pay for the cost of disclosures. Applications for volunteers working in the voluntary sector will continue to be handled free of charge.
REFERRALS TO THE PVG SCHEME/ DISCLOSURE SCOTLAND
Will employers become overly risk averse? For example, what would happen if someone has a driving conviction on their Scheme record?
The purpose of the PVG Scheme is to keep those who might harm vulnerable groups out of the regulated workforce. It provides an enhanced tool to help employers make safe and balanced recruitment decisions and therefore, help them to minimise any risk to children or protected adults. Employers can have confidence that, if a person is a member of the scheme, they are not unsuitable to work in that workforce. Hopefully that will make them less risk averse in deciding whether the individual is suitable for a particular post. However, the final decision about suitability must sit with employers.
For example, a driving conviction on its own would be unlikely to lead to a person being considered unsuitable for regulated work. However it may make a person unsuitable for a particular post that involves driving.
What powers do the courts have to make referrals to the PVG Scheme?
After the PVG scheme went live there are three categories of court referral:
1. Automatic listing offences
An individual who is convicted of an automatic listing offence will be listed by Disclosure Scotland on either, or both, lists, without any further consideration of the case. Automatic listing will only apply to the most serious offences, conviction of which suggests unambiguous unsuitability to work with vulnerable groups.
2. Automatic consideration for listing offences (children's list only)
Courts must refer individuals convicted of an offence which is listed in Schedule 1 to the PVG Act. On receipt of the referral, Disclosure Scotland will place the individual under consideration for listing on the children's list. A full assessment will be carried out before a final decision is made and the individual will have the opportunity to make representations to the PVG Scheme. If there is information to suggest the individual does, has done, or is likely to do regulated work with adults, they may also be considered for the adults' list too. Disclosure Scotland will have powers to request additional information from the courts following a conviction.
3. Discretionary referrals
The courts also have a discretionary power to refer an individual convicted of any other offence where they consider it may be appropriate to list the individual on either, or both, lists. In these cases, it will be for Disclosure Scotland to decide whether it is appropriate to place the individual under consideration for listing and to gather information to inform a decision on listing, including the individual's representations.
Why do employers and employment businesses/agencies have a duty to make referrals to the PVG Scheme?
One of the key aims of the PVG Scheme is to help to ensure that those who have regular contact with children and protected adults through paid and unpaid work do not have a known history of harmful behaviour. It seeks to remove opportunities for those who may be unsuitable from moving undetected within, or across, the workforce.
Harmful behaviour is not restricted to unlawful criminal conduct. It includes other forms of conduct which may not be recognised as a criminal offence but nonetheless might result in harm, or risk of harm, to vulnerable groups such as the inappropriate use of restraint or inappropriate relationships with clients. Employers are often best place to spot harmful behaviour; in fact, the majority of referrals to the existing Disqualified from Working with Children List have been made directly by employers.
Where an employer takes disciplinary action to remove an individual from regulated work as a result of harmful behaviour towards a vulnerable person, then they have a duty to refer the individual to the PVG Scheme so that consideration can be given to whether that individual should be barred from any kind of regulated work with vulnerable groups. Without this duty, there would be no way of preventing individuals moving undetected to other organisations where they may continue to pose a risk. A full assessment will be undertaken on referrals before a listing decision is made. Both the individual and the referring organisation will have the opportunity to make representations to the PVG Scheme.
CONSIDERATION FOR LISTING
Who will make barring decisions, what will be the process, will decisions be fair and will information be handled sensitively?
The lists of those who are barred from working with children and protected adults will be managed by Disclosure Scotland as an agency of the Scottish Government. Disclosure Scotland will continue to deliver the other disclosure services and the range of PVG Scheme membership services and the barring function. Protection Services in Disclosure Scotland collect and assess information to enable expert, fair and consistent decisions about unsuitability to be made on behalf of Scottish Ministers.
The intention is that the decision making process as transparent as possible, while protecting the confidentiality of individual cases. Making decisions about unsuitability lies at the heart of the PVG Scheme and is hugely important. The Scottish Government is undertook a considerable amount of work on risk-assessment which included considering offence modelling, patterns of offending and evidence based research. Work also took place to define the knowledge, competencies and skills required of the people who are involved in the decision- making process. The roles of expert panel members and the contribution of external specialists in interpreting the most complex cases was also considered.
It is important to remember that this was not starting from scratch. The Scottish Government had considerable experience of operating the determination process for the Disqualified from Working with Children List under the Protection of Children (Scotland) Act 2003.
Are there certain offences and convictions that will lead to people being barred automatically?
The Scottish Government has defined, limited, lists of offences that will lead to automatic listing on each of the children's and adults' lists where the individual is aged 18 or over at the time of conviction. There is a high degree of overlap between the two lists, recognising that the seriousness of the crimes will indicate unsuitability to work with both vulnerable groups.
A tightly drawn list of offences based on those outlined in the consultation on policy proposals for secondary legislation, but refined further to reflect responses and further policy considerations (for example, to include murder of a child) has been set out.
Will there be a right of appeal for someone who is listed?
If a person is subject to automatic listing, there is no right of appeal against listing. This is because automatic listing only applies in circumstances where there is no conceivable reason why the individual should not be listed.
Anyone who is listed, following consideration for listing, will have three months to appeal the decision, although a Sheriff can take the decision to extend this deadline. Appeals will be heard in the Sheriff Courts. Information on the appeals process will be made available as part of guidance on the operation of the scheme.
In addition, any listed individuals will be able to apply to be removed from the list(s) if they can demonstrate a change in their circumstances (for example, a successful appeal against a conviction and a completed sentence or rehabilitation programme). In addition, they will be able to apply to Scottish Ministers for removal from the list(s) after a prescribed period of time even if their circumstances have not changed. The time limits and procedures will be set out in regulations. When a listed person applies for removal from the list, a full re-consideration of their case will be carried out, including consideration of any new information that has come to light since the original listing and any representations the individual wishes to make. They will only be removed from the list if, on the balance of probabilities, it is considered that they are no longer unsuitable to do that type of work. The same thresholds apply for removal from the list as apply for inclusion on the list in the first place.
Will decisions about listing undermine regulatory organisations' disciplinary procedures?
Listing decisions, which will be made by Disclosure Scotland, on behalf of Scottish Ministers, are concerned exclusively with whether the individual is unsuitable to carry out regulated work with vulnerable groups. An individual who is barred cannot carry out any type of regulated work with either children, and/or, protected adults.
Registration with a professional or regulatory body is about more than unsuitability to work with vulnerable groups. It is also about the individual's competency to practice and their ability to uphold the standards and values of the profession. It is therefore entirely possible that an individual might be considered not unsuitable for regulated work and so able to join the PVG scheme, but not be considered a suitable person to be registered in a particular field of practice.
In some cases, barring will preclude individuals becoming members of a professional or regulatory body. For example someone barred from working with children could not be a teacher. However there may be circumstances where an individual barred from one type of regulated work could continue to practice in the other type of regulated work but possibly have practice conditions imposed. That will be a decision for the regulatory body. However, that decision will always be made exclusively by the regulatory body which is responsible for determining applications for registration.
THE LISTS
Why two lists? - One for those who are barred from working with children and one for those who are barred from working with protected adults?
The issue of whether or not there should be one or two lists was discussed during the passage of the PVG Bill and, after debate, the Scottish Parliament decided in favour of having two lists.
Clearly, some people will, by the nature of their behaviour, be unsuitable to work with any vulnerable groups and it is likely that there will be some cross-over between the lists. However, in many instances, the judgement will be much more finely drawn and a decision will need to be taken about whether the risk transfers between client groups.
Having two separate lists allows for greater flexibility to respond to cases where exclusion from both workforces would be unnecessary and disproportionate.
Experience from England and Wales (where the Protection of Children Act List and the Protection of Vulnerable Adults List operate now) has proven this. Having two separate lists, where the thresholds can be tailored for each area of regulated work, will allow for a high level of protection, while ensuring there is flexibility for proportionate decision making on the precise details of each case.
What will be the penalty for employers if they employ someone who is on a barred list?
Sections 35, 36 and 37 of the PVG Act make in an offence to employ someone who is barred and the maximum sentence is five years in prison and/or a fine.
CROSS BORDER AND FOREIGN WORKERS
Listing and barred status
If listed in one jurisdiction in respect of one type of regulated work/activity, the individual will be barred in all jurisdictions in respect of that type of regulated work/activity.
The criteria for listing will be broadly similar in all jurisdictions and the information revealed through PVG Scheme record certificates and through the English, Welsh and Northern Irish certificates will also be broadly similar.
What help will be available to enable organisations that work in others parts of the UK as well as Scotland to comply?
The Scottish Government developed guidance in June 2010 which includes some information about what to do if a person or organisation work across borders.
Will a person who is listed in England, Wales and Northern Ireland also be listed in Scotland?
Yes, if listed in one jurisdiction in respect of one type of regulated work/activity, the individual will be barred in all jurisdictions in respect of that type of regulated work/activity.
If someone works in regulated work in Scotland and regulated activity south of the border will they need to be a member of the PVG Scheme and also have a disclosure check carried out by the Disclosure and Barring Service for their work in England and Wales? Do they need to pay both fees?
If someone works in regulated work across borders they would need to comply with the law in each administration. If this is the case, both fees would need to be paid. The Scottish Government is currently liaising with the UK Government on the most efficient way to handle short term cross border working issues (for example, a teacher taking a weekend school trip from Scotland to the Lake District or NHS workers responding to a 999 call or escorting a patient).
It is important to make the distinction that anyone who is barred in one part of the UK will automatically be barred throughout the UK.
Will the PVG Scheme check foreign workers who wish to work with children or protected adults?
The PVG Act is Scottish legislation. Part V of the Police Act 1997 is UK legislation that had been amended by both the UK and the Scottish Parliaments to create a distinct Scottish version within which the disclosure system operates. Neither the Scottish nor UK Parliaments have the legislative powers to require foreign police forces to provide information to the scheme. Foreign workers will be checked to discover whether they are known to UK information sources and membership of the scheme will ensure that any new information about them is picked up and dealt with quickly.
Employers will remain responsible for safe recruitment practice, including checking identity, references, background and verifying documentation prior to appointment. Good recruitment practice guidance is available from various sources.
Safer Recruitment through Better Recruitment Guidance
Safer Pre and Post Employment Checks - NHS Scotland
The Scottish Government is working with the UK Government to improve the exchange of conviction information with other European countries and non EU countries that provide significant numbers of overseas workers to the UK. However, many countries have different justice systems and policies on retaining conviction information and there are significant challenges in translating and interpreting any information that could be provided. This work is therefore complex and will take some time to bring to fruition.
