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Chapter 2: Scope of regulated work and access to disclosures
Chapter 2 Key Points Summary
- Consultees were in favour of further guidance around the definition of regulated work with both children and adults
- There was more support for the use of broad definitions of welfare services that define whether an adult is protected than explicit lists
- However, there were mixed views towards the 'blanket' proposal that an individual should be a protected adult if they are in receipt of any health service with some preferring the option of identifying more specific health services where this would be the case.
- There was concern over the extent in which disclosure information could be shared with third parties, with consultees accepting that in certain circumstances this would be necessary, however disagreeing that it should be open to all.
- Consultees were generally opposed to bringing a minimum threshold as to the number of disclosure applications as being a condition of maintaining the status of being a registered body.
This chapter focuses on the scope of regulated work with both children and protected adults, as well as limited circumstances where disclosures might be shared with third parties (i.e. parties other than the individual who is the subject of the disclosure). It also considers possible new registration requirements for registered bodies.
2.2 Regulated work with children
The Protection of Vulnerable Groups (Scotland) Act 2007 replaces the current definition of child care position in the Protection of Children (Scotland) Act 2003 with a new definition of regulated work with children. The definition of regulated work with children in the Act is designed to be easier to follow as well as adding new areas of regulated work (for example, moderating certain interactive communication services) and removing others (for example, the administrative assistant working for the HQ of the local authority that provides a care home service).
Q1 Do you have any comments on content and structure of guidance on the scope of regulated work with children as discussed in Section 2.2?
There was general agreement with the underpinning statement in the consultation documentation that states: 'The spirit of the legislation is to ensure that children are protected from unsuitable individuals working with them whilst ensuring that individuals are not brought within the scope of regulated work unnecessarily or disproportionately'.
Guidance Development
There was willingness from stakeholder organisations to participate and contribute to the development of the guidance on regulated work before the PVG Scheme goes live.
As outlined in the consultation documentation, the proposal for guidance being developed in a form of a series of questions or a flowchart was favoured.
"Moreover, we consider that the development of a robust 'decision making tool' such as flowchart or a decision making tree that utilises a series of questions would be extremely beneficial to employers / organisations who might be required to engage in a decision making process about whether or not a post comes within the scope of regulated work. Consideration could be given to ensuring that all relevant legislative requirements are embedded within any such tool."
Education
However, some felt that questions and flowcharts should be used in addition to formal written guidance.
"Regarding structure of the guidance, while it may be useful to develop a series of questions or a flowchart to assist in determining whether a post is within the scope of regulated work with children, this should be in addition to formal written guidance on the subject and should not be the only form of guidance provided to organisations."
Education
Suggestions around the content of the guidance included requests for actual wording of Acts to be Annexed and for the guidance to clearly state that it is a guide to interpreting the law and not definitive.
"The information in Schedule 2 of the Act can be confusing with references to other Parts and sub-paragraphs. It would be helpful to have some guidance explaining this in 'Plain English' without having so many cross references. A flowchart or series of questions might be helpful."
Voluntary Organisation
Scope of what is defined as 'regulated work' with children
Consultation respondents favoured the proposal for further guidance to be developed around how to interpret what covers a 'child care post/position' and 'regulated work'.
"It is positive that in paragraph 53, the Government proposes to examine what is meant by sole charge, normal duties, unsupervised contact etc. This guidance needs to be clear and unambiguous. This affords the opportunity to ensure that the legislation is proportionate and addresses issues raised by such as the Commissioner for Children about our society becoming overly protective and about directing resources inappropriately."
Police
"The list in Schedule 2 defining regulated work is helpful. We note from the consultation document that Scottish Government intends to issue more detailed guidance on the matter. It would be helpful if approved foster carers and approved foster carer support persons (e.g. nominated babysitters) could be considered explicitly in the guidance for the avoidance of doubt within fostering services."
Voluntary Organisation
There was also agreement that it is not desirable to list every single position or job that comes within the scope of regulated work, however some would find the inclusion of practical examples helpful.
"X would want to be involved in developing the proposed guidance on what would be considered regulated work with children. We agree it would not be helpful or possible to provide lists of job titles, as they may change over time. Within out of school care, for example, we would consider child care and play workers, staff involved in escorting or transporting children, specialist tutors, and students on placement or researchers working directly with children to fall within the scope of regulated work with children, but how would parent committee members who are part of the management structures but who never work directly with children be classified? We believe these issues should be explored in depth."
Early Years
Respondents from voluntary organisations specifically requested providing further guidance and clarity around the 16-18 year old age group as to when they become an 'adult'.
"There is a lack of consistency in the use of definitions, a child is under 18 where as a "protected adult" is over 16. This will cause confusion and uncertainty, in the protection system. It should be noted that the equivalent legislation in Westminster defines "protected adults" as 18 or over. There seems very little justification for having a lower standard of protection for children and protected adults in employment. The proposals must provide consistency on this issue otherwise it will cause great confusion for advocacy organisations who work with young people between the ages of 16-17."
Voluntary Organisation
There were also requests for the guidance to be clear about what happens to those who do not have direct interaction with children but who work in a building or environment accessed by children.
"The definition of work as "child care" if it occurs in an Educational Establishment (institution) is problematic if it does not specifically exclude work that occurs wholly at a time when there are no children present. (For example cleaners who arrive and leave the building before children arrive or contractors working during school holidays.) Clarity is also required on workers who do work at the building but where there is no possibility of them forming a relationship with a child (e.g. the regular window cleaner.) The term "contact" also needs to be better defined as it has in the past been interpreted by some over-zealous or over-cautious managers to mean "to be in the same place as"."
Council
"Guidance on the level of volunteering with children where scheme membership is appropriate would also be helpful. How infrequently would an adult (parent) helper have to be in a classroom for scheme membership to be unnecessary? What kinds of activities could an adult (parent) helper undertake for scheme membership to be unnecessary It would also be useful to have explicit guidance making clear that roles such as public librarian, museum attendant, or theatre technician (if the theatre hosts productions by children) where there may be regular contact with groups of children using these establishments are not expected to be scheme members as such groups would be expected to be under the control of an adult (scheme member) with responsibility for the group."
Council
"It should be ensured that the guidance covers how to deal with people who have incidental contact with children whilst potentially unsupervised. The example considered was a cleaner at a sports centre who might well enter a changing room whilst a child or young person was changing. The guidance should also deal adequately with people who, although they don't have unsupervised access to children, are dealing with sensitive information. The Guidance should also deal with the need for proper vetting of individuals who have worked outwith the United Kingdom and who may have a relevant conviction or intelligence history within a foreign jurisdiction. It is felt that responsibility for this should rest with the CBU to ensure a consistency of approach."
Child Protection Committee
Respondents from Higher Education institutions highlighted areas for further clarification around the types of work that would mean regulation in their area.
"Schedule 2 of the Act provides that regulated work with children shall include work in a position whose normal duties include work in a further education institution. This definition is broader than the previous definition of a child care position, and indicates that all full-time post holders within further education institutions would fall within this definition. However, further clarity would be appreciated regarding what shall constitute "normal duties" for this purpose (for example, when determining whether the work of part-time staff, volunteers or independent contractors for further education institutions would constitute part of their "normal duties" for the purposes of being considered regulated work with children)."
Education
Respondents from Councils highlighted the need for the guidance to explicitly cover those who may have access to confidential records.
"There was a clear view that Guidance was required and this should take into account any work where an individual is in a position of trust or who may have unrestricted or unsupervised access to children whether or not that contact is incidental. It should include people who have access to confidential records relating to children."
Council
There was also a request for clarification around how the PVG Scheme would link up with international vetting and barring procedures.
"A scheme which offers cross-border consistency for the workforces across the UK would be welcomed. However, as one of the local authorities with a relatively high number of migrant workers, clarification is required concerning which checks the scheme would undertake to access information from countries of origin, particularly East European countries."
Child Protection
Employers Decision
There was agreement that decisions as to whether a post is within the scope of regulated work must be taken by employers and that this decision-making should be seen as part of the organisation's overall approach to child protection.
However, there were some suggestions for further support for employers, such as introducing a 'mandatory tool for employers' or a 'helpline'.
"It states in para 51 that employers decide what is within the scope of regulated work. If this is the case there needs to be some point of contact that employers can approach to validate their reasoning. This would be helpful in providing a degree of protection for employers who are challenged and by building in some consistency into decision making processes. Although guidance is being made available it is clear from past experience with the interpretation of the Protection of Children Act that guidance can be interpreted differently and even the compliance officers at Disclosure Scotland had problems interpreting the information and giving advice on who should be checked at enhanced level and who should not."
Other
"Any guidance needs to be clear and unambiguous; we agreed that flowcharts could be helpful; there needs to be access to a Helpline to clarify points if required; we need guidance on whether we will be allowed to disclosure check staff who have unsupervised access to information on vulnerable adults and children (e.g. administrators) and telephone contact."
Voluntary Organisation
Awareness of new Processes
Some organisations highlighted the need to publicise the new procedures widely so that organisations outwith Local Authority networks were aware of regulations, especially small, community organisations.
"Some organisations such as voluntary run youth groups for children in a local community may have no link to the local authority and may be unsure unaware of the new process."
Early Years
Need for Further Resources
There was a recognition that if the new PVG Scheme is to go ahead and retrospective checking is to take place then further resources may be required:
"There is a need for proportionality in application of this Act to universities, not least to address the efficient use of both human and financial resources, which will have to be devoted to implementing compliance with the Scheme for new and eventually, if retrospective checking is introduced, all staff. In 2005/06 there were 37,845 staff employed at higher education institutions in Scotland, of which 16,020 are described as 'academic professionals' (source: HEIDI 2005/06). Although it is recognised that not all may be involved in 'regulated work', it is argued that proportionality is justified on the basis of perceived risk, to ensure that the response is appropriate, within resources and deliverable."
Education
2.3 Regulated Work with adults
The Protection of Vulnerable Groups (Scotland) Act 2007 replaces the current definition of adult at risk with a new concept of protected adult.
Health Services
In order to define a protected adult, certain types of work need to be identified, as do the circumstances in which an adult needs protection. A protected adult is defined by the act as an individual age 16 or over who receives certain types of health and welfare services. It is proposed in the consultation document that receipt of any NHS service should make an individual a protected adult. However, the consultation recognises that not all activities within these health services would fall under the category of regulated work with adults and therefore proposes that only those who undertake regulated work with adults would be required to be PVG Scheme members.
This section of the consultation document specifically asks for views on whether or not an individual should be a protected adult if they are in receipt of any health service and if there are any health services that should not be included.
Q2a: Do you believe an individual should be a protected adult if they are in receipt of any health service ( NHS or private)?
There were mixed views as to whether an individual should be a protected adult if they are in receipt of any health service. Of those who responded to the question in the consultation (i.e. re-percentaging the base on 159 responses), more than half favoured the proposal (51%), however, more than a third (37%) disagreed with the proposal and a further one in five (19%) did not express an opinion.
However, the findings from the workshop discussions and polling questions highlight that just over half did not support this proposal. There was more support for automatic protection if an individual was in receipt of certain services and for making the GP practice, GP's and nurses (and other service providers or providers of care) regulated instead.
Basing the findings on all consultees that responded to the consultation (i.e. based on 187 responses), the consultation responses reflect the workshop findings, with the majority of consultation responses (57%) not actively supporting the proposal (either by stating 'no', or don't know or not responding) and only around two in five (43%) actively supporting the proposal for individuals being automatically protected if they are in receipt of any health service.
Respondents from Councils, Regulatory Bodies and Health were most likely to support the proposal by stating 'yes' to Q2a. In contrast, respondents from Social Work were least likely to actively support the proposal and state 'no'.
Reasons for supporting proposal - Believing an individual should be a protected adult if they are in receipt of any health service.
Some agreed that if an individual is in receipt of a health service then it means that they are in a potentially vulnerable position and therefore should be deemed as 'protected'.
"Health professionals are in a position of trust and power with adults using health services, therefore an adult is potentially in a vulnerable position, even, for example, a routine dental check up, creates a situation of dependency, therefore vulnerability."
Early Years
"My opinion changed after attending the consultation process in Edinburgh. I believe that we are all vulnerable whilst in receipt of a health service and this should be taken into consideration. All health professionals should be part of the scheme and others e.g. receptionists should be given the option to be part of the scheme."
Sport and Leisure
Others favoured the use of a broad definition because they felt that it then reduced the risk of stigmatism.
"As suggested in the consultation document, this provides the most straightforward way in which adults engaging with health services can be defined as protected, thus ensuring that those who may be most vulnerable are both captured within the definition but not stigmatised in any way. The definitions of regulated work will allow proper decision-making in relation to who then needs to become a scheme member."
Police
There was also a feeling that the broad definition would also lessen the risk of 'loopholes'.
For the purposes of public protection it is important that all workers providing health services are required to be scheme members to avoid individuals choosing to work in the private sector to avoid scrutiny.
Regulatory Body
Keeping Scottish legislation in line with other UK policies was also supported. There was mention that the existing definition of a vulnerable adult under the Safeguarding Vulnerable Groups Act 2006 ( SVG Act) which will be implemented across England, Wales and Northern Ireland uses a similar definition.
As they are in direct receipt of such services they should be protected under these regulations. This would also bring the scheme in line with England & Wales.
Other
However, even with the broad definition there were comments that some service providers would not be included, such as, practitioner psychologists and complementary health service providers.
"If a "protected adult" continues to be defined in terms of services received, people in receipt of health services should be designated protected adults. However, difficulties may arise in respect of some complementary therapies since there may be dispute as to whether they are legitimate private health services. There should be an expectation that registration with a central regulatory body implies that the regulatory body has viewed, and is satisfied with, the practitioner's scheme record. Any individual using a complementary health service that does not have a central regulatory body should be regarded as a personal employer, and should therefore be permitted to view the practitioner's statement of scheme membership."
Other
Reasons for opposing proposal - Not believing an individual should be a protected adult if they are in receipt of any health service.
One of the main criticisms coming out of the consultation responses to the proposal that a individual should be a protected adult if they are in receipt of any health service is that it is too broad a definition and is perhaps 'over regulation'.
"All Individuals in receipt of a health service should not be protected adults. Defining all individuals who receive a health service as protected is thought to be too broad. The guidance would benefit from further clarification on why an individual should be protected. Our view is that the general public would assume that employees working within health services are within a position of trust and they would therefore have undergone some vetting procedure prior to appointment."
Child Protection Committee
There were also concerns and suggestions for further clarity around whether the definition would make an adult in receipt of a health service 'protected' all of the time or just for the duration of being in receipt of the health service.
"If an individual in receipt of any health service ( NHS or private) constituted a 'protected adult', this would make complying with the Act's obligations extremely difficult for the management of universities as all or most of the student population (and indeed Scotland's population) would thus be 'protected adults'. Perhaps the question is intended to be 'when' and not 'if' they are in receipt of any health service and also relates only to interaction of 'protected adults' with the staff when providing the health service. This would imply that those providing health services should be members of the Scheme but not necessarily that all those in receipt of health services are 'protected adults'."
Education
As highlighted in the workshops, there was support for service providers to be regulated rather than all service users.
"Contact with health services is both proactive and treatment and a fit, healthy adult should not be considered vulnerable when attending routine/health improving services (e.g. Dentist). However, the health professionals providing services to adults may see people who are vulnerable so should be vetted and services monitored as required."
Health
There was also recognition and support for clarification around who within a service provider needs to be regulated.
"It would be difficult to define the limits of when and where a "service started and stopped. Should an adult be considered a protected adult simply when attending their GP to receive a routine prescription or visiting their dentist for an annual check up? A distinction needs to be made between designating an individual as a protected adult and ensuring adults are protected. (To some extent this is provided by other legislation [Duty of Care, Health & Safety] and would in the majority of cases be protected by virtue of the fact that the health professional providing the service would be a member of the scheme). There needs to be a consistent approach between arrangements for NHS and Private Health Care employees."
Council
"Not all health services should be regarded as regulated work, for example, hospital catering and sanitation services result in no unsupervised contact. Only those services that require isolated, unsupervised or intimate treatment or consultation should be regulated."
Other
"This is not an easy question to answer. Again there are concerns over the 'incidental' exception. A protected adult should be 'protected' even if he/she is the only one attending any of the activities listed in part 2 of Schedule 3 of the Act. All agreed that front line medical staff should be part of regulated workforce both NHS and private. It may be necessary to define what is meant by a health/welfare service; does this include health clubs, spas, tanning and tattoo parlours? We feel more guidance is required. If a protected adult is defined as an individual aged 16 and over who receives certain types of health, care or welfare services which is then linked to regulated work we feel it is important the definition of regulated work is clear. Again, clear guidance is required."
Voluntary Organisation
Within the workshops at consultation events, delegates were asked who within a doctor's surgery should be classed as doing regulated work. Whilst there was nearly unanimous support for the GP and the nurse in the scenario provided to be regulated, delegates were less certain about the status of the GP's receptionist, and a representative from a private gym who was in the practice promoting healthy living classes. Less than a third (31%) of groups felt that the receptionist should be regulated and 29% thought that the gym rep should be. The regulation of these two, who are present in a medical practice, but do not provide a medical service, was not seen as being as straightforward as regulating the GP or the nurse who do provide a health care service. Access to confidential data, and the fact that the receptionist has contact, but does not provide care were mentioned as was the issue of proportionality and a concern that it would be excessive for receptionists to be members.
Q2b: Are there any health services that should not be included? If so, please specify them as precisely as you can and why they should not be included.
There were a range of comments re-stating responses to Q2a about who should be included and the need for further clarity around whether or not all health service users should be automatically classified as 'protected'.
"Only those adults truly vulnerable through mental physical incapacity should be included."
Health
"Nursing care in the home may be privately funded by the individual and some will be commissioned on behalf of NHS Scotland to provide support. There is an issue of duplication with the proposal to define everyone in receipt of healthcare services as a protected adult since nursing agency services are governed by Regulation of Care (Scotland) Act 2001, and anyone using these defined regulated services are, as we understand it, already a protected adult as defined under the Protecting Vulnerable Groups (Scotland) Act."
Social Work
However, a few identified particular health services that they felt should not be included. These highlighted areas where there was limited contact with service users or where the nature of the health problem was not deemed as 'sensitive' or putting the individual in a 'vulnerable' position.
"Dental services or basic services via GP."
Early Years
"Cosmetic surgery and other 'vanity' treatments - but not e.g. cleft palate operations."
Voluntary Organisation
"There are some individuals carrying out activities in a pharmacy setting that are an integral part of the provision of pharmacy services but do not have the same level of interaction with members of the public, e.g. a medicines counter assistant or a dispenser interacting with a member of the public purchasing an over-the-counter medicine (i.e. a cold and flu remedy). This should be seen in contrast to a pharmacist that has a consultation in a private room with a member of the public and may prescribe a prescription-only medicine (i.e. antibiotics)."
Regulatory Body
"Health services such as chiropody, physiotherapy, maternity, dentistry are examples of services the receipt of which may not make an adult vulnerable. Whereas receipt of mental health services and geriatric services would suggest a short or long term vulnerability."
Child Protection Committee
"Where a protected adult has a care need then there should exist a presumption that all services provided by the NHS could in theory mean that the patient becomes a protected adult for the duration of that treatment. However, that presumption should be capable of being overcome where the provision of the medical service is indirect. Such activities performed by administrative, laboratory, technical staff or staff who only incidentally or rarely if ever come into direct patient contact should not require scheme membership. Again that is and unless, on cause shown, why the particular posts requirements make it eligible for scheme membership, the onus being placed on the employer to justify a specific need for scheme membership for the post concerned."
Other
Welfare Services
The Act includes a power to identify welfare services, receipt of which would make an individual a protected adult. The consultation therefore asked respondents to comment on how welfare services could be identified.
Q3a: Should the definition of welfare services be based upon:
(i) The nature of service provided?
(ii) An explicit list of prescribed services?
(iii) The personal characteristics of the individual receiving care?
(iv) An alternative proposal?
Please explain the reasons for your preferred option.
The most favoured approach to defining welfare was based on the nature of the service provided (40%). This approach was particularly favoured by Early Years and Other organisations.
However, 25% of consultees favoured the option of defining welfare services that may include regulated work by the personal characteristics of the individual receiving care. This approach was particularly favoured by Health and Regulatory Bodies organisations.
(i) The nature of the service provided
This option was favoured because it was seen as being the most inclusive due to the definition being generic and broad rather than using specific definitions, characteristics or lists.
"A definition that a service is "welfare" must relate to what that service is established to provide. Providing an explicit list would be very difficult and would need constant revision. As is pointed out in the consultation, some people may object to being defined by the label of their personal characteristics."
Voluntary Organisation
"It will be for the service provider organisations to ensure that every area of their service delivery has been reviewed and decisions made on the status of staff providing that service. It is more flexible and more encompassing than the other options."
Other
"The Committee favours the definition being based on the nature of service provided as this option is likely to provide the easiest means to determine whether a particular post is within the scope of regulated work. The Committee considers that there would be difficulty in compiling an exhaustive and specific list of services and agrees that this could lead to "gaps". The Committee would regard the provision of pastoral support provided to members of a congregation, whether by the Minister or others trained to do so as being an example of a service which should come within the definition of a welfare service."
Other
However, there were suggestions to use this definition but also provide an 'example' list of services as guidance.
"Defining welfare services based upon the nature of the service provided would appear to be the most appropriate proposal offered. Although it may still be useful to provide an illustrated list of services that should be covered by the Act, it is agreed that it would be too difficult to provide a comprehensive list. It may also be seen as potentially unfair to individuals to base the definition of welfare services on a subjective assessment of the individual's personal characteristics and the types of disability they might have."
Education
Consultees commented that the breadth of approach would ensure that a wide range of services would be included and vetted for potential regulated work, therefore reducing the risk of loopholes.
"Our preference is for welfare services to be defined in relation to the nature of the service provided. We think it would be difficult to create a comprehensive list of "prescribed services" and keep this up to date. We are not sure that it would be helpful to define services in relation to the personal characteristics of the individual receiving care. It would be confusing to introduce another definition of those adults covered by the Act. In addition, many "protected adults" receive mainstream services that are not defined in terms of client group. Therefore, using the option of personal characteristics means only services specifically designed to serve certain client groups are covered. This might be confusing and has the potential to create loopholes."
Voluntary Organisation
Some also chose this option because of other areas defining 'protected adults' by service type and service delivery.
"The consultation document acknowledges that it is difficult to prescribe all services that will be relevant, however, with children it is the nature of the service provided that defines the regulated workforce and it would be consistent to take a similar approach with protected adults."
Voluntary Organisation
(ii) An explicit list of prescribed services
Those who favour an explicit list felt that it would be easy to understand and clear. However, there was recognition that a list could not always cover every service and that it should be 'illustrative' or used 'as guidance'. Comments on this option also included suggested areas that could either be added to the list or areas that consultees felt should not be included.
"We believe that there should be an explicit list of prescribed services, which will make it easier to clarify the scope of the legislation."
Other
"It is sometimes difficult to distinguish between someone formally helping as a volunteer representing e.g. a church, and the same person spontaneously helping e.g. as a neighbour. Being on some kind of list required for a specific service would help to clarify."
Voluntary Sector
"This would not be an exhaustive list and would need to include service or assistance to an adult that considers age, disability (mental or physical), illness or social circumstances where the individual is vulnerable e.g. homeless, substance misuse, in determining protected adult."
Other
Some also favoured an explicit list because they felt it limited the number of services that may require regulation.
"The breadth of the definition of welfare services should take into account the nature of the provision in the university sector, which is primarily teaching and research. The support activities may encompass an element of prescribed services, which are secondary in nature. It is worth pursuing this distinction otherwise the number of staff who might fall within the Scheme requirement could become extensive and disproportionate to the risk and numbers of 'protected adults' with limited benefit arising. A significant problem for universities will arise if the work of other staff, notably teaching staff, is defined as 'regulated work' for the purposes of the Act because of a small number of students, whom universities may not be able to identify and who may be defined as 'protected' due to their receipt of some health or 'prescribed welfare service'. "
Education
(iii) The personal characteristics of the individual receiving care
Consultees favoured this option over others because it could then cover an individual accessing a variety of services and still being protected if they had characteristics that made them higher risk.
"It would seem very difficult to define the range or nature of services which are welfare, given the variety of different services available and the lack of one overall institution providing them, such as NHS. It would seem possible to define welfare services as those being used by a person because of certain characteristics, with the service being designed to aid them because of those characteristic needs, although we understand the concerns of stakeholders if this was interpreted as defining adults as protected purely based on characteristics or disability."
Social Work
"This allows all appropriate services received by a vulnerable person to be covered by the act and avoids the difficulty of a list of prescribed services not having every service covered or when new services are developed that differ from an explicit list."
Voluntary Organisation
"Options 1 and 2 are very subjective, open to interpretation and Part 77 clearly identifies some of the business risks. Option 3 preferred option. Defines vulnerability better, more holistic and takes account of personal characteristics and needs - but still subject to a service being accessed and provided."
Child Protection Committee
Other consultees favoured the 'individual' approach rather than relying on service lists.
"This ensures that the service is person centred and is therefore by definition focussed on the individual's particular needs, rather than the individual having to fit into a prescribed, anonymous service."
Voluntary Organisation
Some consultees felt that this option ensures that only those adults who are 'vulnerable' and accessing a services are protected, whereas, those who are not necessarily 'vulnerable' and accessing a service are not required to be protected.
"Vulnerability should be about the individual and the current circumstances not an automatic list of services which people who are not vulnerable may wish to access e.g. money advice; being in need of advice does not make a person vulnerable."
Voluntary Organisation
Some also preferred this approach because they felt it would be 'future proof', lessening the perceived risk of changes in services and out of date lists.
Q3b: Should the definition of welfare services be expanded to include commercial (i.e. for profit) organisations who provide services similar to those provided by the statutory and voluntary sector?
The vast majority of consultee respondents agreed with the proposal to include commercial organisations under the definition of welfare services if they provide services similar to those provided by the statutory and voluntary sector.
Consultees tended to see this proposal as 'common sense', in that all service provision that provides a welfare service is covered.
"We can see no argument of excluding an organisation merely because it provides services on a commercial basis. The basis of the legislation is the need to protect people, not whether for profit or not for profit organisations should be regulated in different ways."
Police
"It is important that all vulnerable adults and children are protected and if they are to receive a service from a private sector organisation they need to be confident similar standards apply."
Social Work
Those who disagreed did so because they were unsure that the Act would cover their services and that it was not relevant to them.
"I work with a Shopmobility group that hires out wheelchairs and scooters. It is still unclear from the guidance whether all the volunteers there should have a disclosure, as it is a shop setting and open to the public, but is providing a service to vulnerable people."
Voluntary Organisation
2.4 Contractors and disclosure
The consultation explored the option for allowing a third party to view disclosure documents if deemed necessary. Advantages and disadvantages of this option were discussed and opinions as to the circumstances where sharing disclosure information with a third party would be necessary were asked for.
Q4a: Do you believe that disclosure information should be shared with third parties?
Overall, opinions are mixed, just under half (48%) of consultee respondents favoured the option to allow disclosure information to be shared with third parties. Around a third of consultee respondents disagreed (32%) with around one in five (20%) not stating an opinion either way.
Consultees from Councils are most likely to favour this option, whereas those from Police and Voluntary Organisations are least likely to favour this option.
Those who were in favour of disclosure information being shared mainly support the proposal because they felt that it ultimately reduces the risk and provides reassurance to those organising the provision of a service that those barred from working with protected adults and children are not being employed in a job where they have unsupervised access to these groups.
"To ensure consistency and reduce risk, sharing of information and decision making should occur in circumstances where mutual responsibility for offering the work exists and there is a reasonable expectation by the public that the commissioning body has some responsibility for ensuring that suitable workers are used, e.g. school transport arrangements."
Council
"This will enable the Council to be certain that staff employed by contractors are suitable to conduct work where they may come into contact with children and/or protected adults and provides reassurance that the contractor is implementing appropriate recruitment processes."
Council
However, some also made specific comments that they agreed with sharing disclosure information with third parties on the assumption that information would only be shared in certain circumstances and not in all instances.
"In certain circumstances it should be permissible for disclosure info to be shared with 3rd parties. This would have to be carefully protected however to ensure that there is justification for doing so. It should be limited to employers such as local authorities in the circumstances set out in 2.4 where the employer is contracting out services. This would allow for the employer to use the expertise available and also to fulfil its duty of care in such circumstances."
Regulatory Body
There was also some debate as to who had overall responsibility in requesting the sharing of information. Some felt that Councils or Local Authorities should be held accountable for ensuring that contractors and service providers are adequately vetted, while others felt that it was the responsibility of the service providers themselves.
"Councils contract services from others, for example bus or taxi transport contracts (Schools and Social Work), Facilities management services within some premises. The Councils, in awarding these contracts need to be sure that appropriate recruitment and selection standards are in operation by the Contractor and any risk assessment decisions on whether someone is suitable to work should be made jointly."
Council
"If a service provision is sub contracted then the same provisions and safeguards should apply. Sub contracting is common place and this responsibility should not be abdicated by the service provider who may well be using public funds to commission a sub contracted service provision."
Child Protection Committee
Those that did not believe that disclosure information should be shared with third parties, argued against the proposal because they perceived it would take the responsibility away from the employer. Some stated that it would 'disempower' employers and service providers on being trusted and respected to make their own decisions about the suitability of those that they employ.
"Disclosure is an aspect of employment and it should be for the employer alone to make judgements about whether someone is suitable for the post that they are being appointed to. Some authorities who contract services operate a zero tolerance policy on directly employing anyone who does not have a completely clear disclosure; they should not be able to impose this policy on those whom they subcontract to provide services for them."
Early Years
"It would be immensely complicated and time consuming if commissioners viewed the disclosures of contractor staff. The ensuing arguments over the suitability of an employee would disruptive and could lead to a breakdown in the contract. Commissioners should take the employees honestly into consideration when awarding the contract and if they believe the contractor cannot be trusted to carry out the relevant checks and make appropriate decisions then they should not award the contract to that contractor."
Social Work
Others had concerns about making the sharing of information mandatory or statutory and whether sharing disclosure information means contravening data protection rights.
"From that point on it is the organisational employer's responsibility to assess other vetting information and decide on suitability. Involving a third party such as local authority on assessing that same information is a recipe for confusion, delay and dispute. Although the Protection of Vulnerable Groups (Scotland) Act allows for circumstances where third parties should be able to request sight of disclosures, we are unclear how it fits into the Data Protection Act 1998 and its confidentiality requirements. Employers may be unwilling to share their risk assessment with the council for these reasons and are likely to need the employees' permission in doing so. It would be labour intensive for providers to provide this information and it adds a further burden of regulation even though the regime is designed to simplify recruitment decisions. In this respect the proposal is not in line with the Cabinet Office principles of better regulation in the UK. In homecare, service providers are also regulated by the Care Commission and are obliged to check the suitability of staff in their recruitment procedures. Contracting terms will usually also allow the local authority to monitor service standards."
Social Work
There were also concerns about the potential for confusion, increased workload and impact on recruitment exercises and timescales.
Q4b: If so, in which of the following circumstances should disclosure information be shared with a third party?
(i) Where a third party is contracting a transport provider for the purposes of transporting children or protected adults;
(ii) Where a third party is contracting a provider for the purposes of maintaining premises in which services are delivered predominantly to children and/or protected adults and where the maintenance will take place whilst these individuals are on the premises;
(iii) Where a council is offering direct payments in return for the delivery of care to a protected adult; and
(iv) Where a council is letting premises to individuals and the intended use of the premises involves regulated work.
Around two in five (44%) consultees favour the option of sharing disclosure information with third parties and most agreed with all the exampled options that the consultation proposed. Consultee comments reflected opinions cited in the previous question, in that they favoured the sharing of disclosure information in only certain circumstances and did not favour making the sharing of information mandatory.
In line with the workshop polling question findings, consultees generally favoured the proposal to share disclosure information in circumstances where there would potentially be unsupervised contact with children or protected adults. Therefore, most respondents agreed with the proposal to allow the sharing of disclosure information when contracting a transport provider.
There was also comment, reflecting previous opinions, that it is the responsibility of the service provider to ensure that the relevant vetting has been put in place for the types of work employees are likely to do.
"In cases of contracting maintenance services, the Council would want to ensure that both the principal contractor and any sub-contractor follows safe recruitment practices, and we would include this requirement as part of the contract. In terms of groups using Council establishments, while X Council would expect a clause written into the letting agreement which requires groups to undertake safe recruitment and would require to put in place monitoring systems to ensure compliance, the Council would not wish to take responsibility for viewing this information and making decisions regarding suitability. Given the ongoing responsibilities of the Council, we would want to ensure the suitability of any worker providing care to a recipient of direct payments by having sight of the disclosure information. A number of regulatory bodies require checks undertaken as part of their registration process. If this information is able to be shared, this may reduce the number of disclosures that are required of an individual and therefore the cost to the employer/regulatory body."
Council
2.5 Changes to registration of registered bodies
This section considers whether organisations should be required to submit a minimum number of disclosure applications in order to maintain their registration status as a registered person or body.
Q5a: Should there be a minimum threshold number of applications per annum from a registered body as a condition of registration?
Q5b: If so, should the threshold be:
(i) 50 per annum?
(ii) 100 per annum?
(iii) 200 per annum?
(iv) a higher or lower level (please specify)?
Q5c: Approximately how many disclosure applications does your organisation make in a typical year (if applicable)?
Only two in five (21%) consultees favoured the proposal of having a minimum threshold number of applications from a registered body as a condition of registration. Around half opposed the proposal.
The main reasons for opposing the proposal were because of perceived additional bureaucracy, difficulties in accessing or contacting registered bodies and potential increase in costs for having to go through an 'umbrella' organisation to apply for disclosure.
"Any organisations who don't meet the threshold would still need to have robust procedures in place to ensure staff understand the scheme and can make informed decisions. An easily accessible umbrella body needs to be established for such organisations. If such a body is not established then there should not be a minimum threshold."
Council
However, if the proposal to introduce a threshold were to go ahead, most would favour a threshold of 50 per annum. This threshold would mean that around 25% of consultee respondents' organisations would not be able to become a registered body.
Chapter 2 Summary
Regulated work with children
Consultees were in favour of feeding into the guidance on the scope of regulated work with children in order to ensure that the guidance was clear and straightforward to understand. A specific request was for clarity and consistency in the guidance around the definition of children aged 16-18.
The use of flowcharts as proposed in the consultation document was favoured along with formal written guidance and links to actual wording of relevant Acts.
Regulated work with adults - Scope of the PVG Scheme
As with children, consultees welcomed any further guidance around what constitutes regulated work and the areas where employees would need to obtain enhanced disclosure.
Definition of a protected adult - Health Services
Respondents tend to oppose the 'blanket' proposal that an individual should be a protected adult if they are in receipt of any health service, preferring the option of identifying more specific health services where this would be the case.
Definition of a protected adult - Welfare Services
Consultees favoured a broad and wide ranging definition of welfare services rather than an explicit list and for this definition to include commercial organisations. Two in five (40%) backed the proposal to define welfare services, the receipt of which would make an individual a protected adult, by the nature of the service provided, while a further quarter (25%) backed the proposal to define a welfare service by the personal characteristics of the individual receiving care. The main reasons for favouring a broad definition were that it reduced the risk of loopholes and covered those who were likely to access a range of different services.
Contractors and disclosure - Sharing disclosure information with third parties
Views were mixed as to whether respondents favoured or opposed the proposal to allow disclosure information to be shared with a third party. Some respondents were more likely to favour the sharing of information in certain instances and circumstances rather than making the proposal open to all. There were concerns about taking the responsibility and trust away from employers, as well as, concerns around sharing data and whether it would comply with the Data Protection Act.
Changes to registration of registered bodies
Consultees were generally opposed to the proposal to bring in a minimum threshold number of applications per annum from a registered body as a condition of registration, even when most consultee organisations would still meet the requirements if the proposal of a minimum of 50 applications per annum were introduced.
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