Protection of Vulnerable Groups (Scotland) Act 2007: Scottish Vetting and Barring Scheme: Analysis of Consultation on Policy Proposals for Secondary Legislation

Chapter 4: New types of vetting information

Chapter 4 Key Points Summary

No need for further Regulatory Body information beyond that laid out in the consultation document.
Generally in favour of sharing Regulatory Body information, however situations where it would be suitable to withhold such information is if disclosing it would compromise an ongoing police investigation or place someone at risk.
Councils were seen to hold relevant information as a service provider with information relating to people's domestic lives - information relating to Child Protection issues was the most commonly cited example of relevant Council Information
There was support for gathering Council data as set out in paragraph 175 of the consultation document.
Other suggestions for gathering Council data were through a central point in the organisation, and through a panel.
More support for disclosing Council and Regulatory Body information than for withholding it.
Support for the civil orders mentioned in the consultation to be included on scheme record disclosures and standard and enhanced disclosures.
Some support for other civil orders to be included - ASBOs were the most commonly cited example.
Opinion evenly split between whether or not details of previous competent referrals should be included on scheme records.
No need for further vetting information beyond that laid out in the consultation document.

Introduction

Chapter 4 of the consultation document asked consultees about possible sources of vetting information. Vetting information from councils and regulatory bodies was discussed, as was the routine inclusion of certain civil orders and the possibility of including previous competent referrals that did not lead to listing. Consultees were also asked if there was any additional information that should be regarded as vetting information.

4.2 Regulatory Bodies and Councils

Q12a: Is there any regulatory body information other than that set out in 4.2 that should be regarded as relevant vetting information?

Yes
No
Don't know

There was a feeling that no further regulatory body information beyond what was set out was required (43%), only 7% felt that more information was required and half of consultees either did not respond or said that they didn't know. No consultees in Early Years, Education, Health or Police responded yes. Those most likely to feel more information was required were Child Protection Committees and Councils, where approximately one fifth responded yes.

This question was not asked as an electronic polling question at events, however attendees at events were asked the more general questions of "Should relevant information from Regulatory Bodies be prescribed as vetting information?" and "Should relevant information from Local Authorities be prescribed as vetting information?" There was strong support at events for Regulatory Body information to be included (80%), and slightly less so for Local Authority information to be included (67%).

Yes, there is other Regulatory Body that should be regarded as vetting information

Within Social Work there was a feeling that more information may be required, but it was not specified as to what this information may be.

"Vetting is designed to comprise 'intelligence' and it seems likely that regulatory bodies may hold a range of information which they have not judged sufficient to take a formal decision about, but which would give a potential employer concerns. Such information is unlikely to be provided via references and employers would want to consider all sources of information when making recruitment decisions."
Social Work

Councils reiterated this point of view, adding that they would want to know about allegations which had not been followed through due to insufficient evidence, but which may prove a cause for concern.

Voluntary Organisations, Councils, Child Protection Committees, Regulatory Bodies and Other provided specific suggestions for additional regulatory body information that they felt should be included as vetting information.

Within Councils and Child Protection Committees there was a desire to know about behaviours that may indicate that a person poses a risk to children or protected adults, although it was felt that there needed to be safeguards around the reliability of this information. Councils also wanted to be informed of what decisions had been reached and the reasons that led to the decision.

"Information on complaints of low-level concerning behaviour on more than one occasion and relevant and verified intelligence should also be regarded as relevant to vetting."
Child Protection Committee

Within Regulatory Bodies it was felt that if someone was found guilty of misconduct and met the harm test this could be relevant vetting information.

"X considers that any finding of guilt in terms of misconduct where the harm test is also met could be relevant vetting information regardless of the sanction imposed by the regulatory body. Therefore this could be information which could be shared at the discretion of the regulatory body."
Regulatory Body

Q12a asked people who said yes, other information should be included, to specify what it was, however some consultees took the opportunity to write here why they were opposed to additional information being supplied or why they did not know.

No there isn't other Regulatory Body that should be regarded as vetting information

Consultees from within Voluntary Organisations were concerned about the accuracy of vetting information and noted opposition to the use of soft information. They also raised concerns over data protection and Human Rights Issues of gathering new types of vetting information.

"We agree with X that 'the area of collecting new types of vetting information is a sensitive one and requires further consultation. This area highlights a range of concerns around Data Protection and Human Rights Legislation as well as the holding of ad-hoc information e.g. about individuals who are not scheme members.' Also that there is no other regulatory body information other than that set out in the consultation."
Voluntary Organisation

Regulatory Bodies who said no felt that the provisions for information already set out in the consultation document were sufficient and wanted clarification over what the Central Barring Unit wanted to know in terms of removing someone from a register purely for fitness to practice reasons and also on historic decisions not to register where an individual subsequently goes on to make a successful application. Clarification was also sought on what to share and how to share it in order to avoid delays in referrals during lengthy fitness to practice cases.

Don't Know

Lack of information was a recurring reasons for saying don't know and ranged from a lack of information being provided in the consultation document (Voluntary Organisations, Child Protection Committees), not being aware of the full range of Regulatory Bodies relevant to their area (Education) and an uncertainty about what information would be held by Regulatory Bodies (Social Work), with Voluntary Organisations asking for clear guidance on what would be considered relevant vetting information.

Early Years, Education and Other all noted concerns that each council and Regulatory Body may hold and assess information in different ways, which may lead to confusion.

"This section actually raises a lot of questions - also covered below in terms of council held information. The most basic point is that every regulatory body and indeed council will use different methods and criteria in reaching their decisions to hold information and provide vetting information. This suggests a need for a common code of practice which they all would need to follow in terms of, for example, employment law and data protection, it must be important that decisions made by councils or regulatory bodies are based on fact, meet legal standards and are not open to legal challenges"
Early Years

Voluntary Organisations were uncertain about which Regulatory Bodies were included, but suggested that certain professional bodies could also be included in providing vetting information. Consultees from Other would like to see the charge that led to the deregistration included as well as the fact that someone was deregistered.

Q12b: Would there be any circumstances where sharing this type of information would not be appropriate? If so, please describe those circumstances.

Q12b asked consutees whether there were circumstances where it would be inappropriate to share information from Regulatory Bodies. It was an open text question as opposed to multiple choice and consultees were invited to fill in circumstances under which it would not be appropriate to share this information. Of those who opted to fill this question in, 19 consultees said yes, there would be times when it would not be appropriate to share information, compared to 41 saying no and 7 saying they don't know. So overall more people were in favour of sharing information and could not think of circumstances where it would not be appropriate to do so.

Yes, there are circumstances where it would not be appropriate to share information.

It is possible to compile a list of circumstances under which consultees felt that vetting information from Regulatory Bodies should not be shared (starting with the most commonly mentioned). Child Protection Committees, Other, Voluntary Organisations, Councils, Regulatory Bodies and Health all cited circumstances under which it would be inappropriate to share information:

If it would harm an ongoing police investigation ( Voluntary Organisations, Councils, Child Protection Committees and Other, 7 mentions)
If it would place a child or protected adult at risk (Council, Child Protection Committee, Other, 4 mentions)
If under consideration, wait until process complete before referring (Voluntary Organisation, Regulatory Body, Other, 3 mentions)
If there is a risk the person getting the information could not judge it objectively and in context (Council, Child Protection Committee, 2 mentions)
If a child (in care) had a record, but is now over 18 and has had nothing since, they deserve to be given a chance (Voluntary Organisation, 1 mention)
If a person committed an offense whilst suffering from mental illness (Health, 1 mention)
If found not guilty (Voluntary Organisation, 1 mention)
Not all qualifications of registration with Regulatory Body should be shared (Regulatory Body, 1 mention)
National Security (Child Protection Committee. 1 mention)
If there are doubts about credibility of the information passed on (Child Protection Committee, 1mention)
Breach of data protection act (Other, 1 mention)
Where the sharing of information doesn't affect their ability to work in regulated workforce (Other, 1 mention)

"Yes, potentially - safeguards need to be build into the process that allows information to be withheld if sharing the information was likely to place an individual (whether a protected child/adult or not) at risk, or where sharing such information might compromise a police investigation."
Other

"Where there is a risk that the person receiving the information would not be able to judge it objectively and in context."
Council

No, there are not circumstances where it would not be appropriate to share information

Some of those who said no, expanded on their reasons for feeling that information should be shared in all circumstances. A view was put forward by Social Work and Councils that the protection of vulnerable groups should take priority.

"No circumstances that would supersede the principle of protection of children and vulnerable adults' welfare."
Social Work

Other groups said that yes information should be shared, but placed certain caveats on this, that the information had to be held securely (Child Protection Committees), that the information had been adequately tested (Social Work), that the information passed on was proportionate and relevant (Other), and that there may be circumstances where it would be wise to wait until any disciplinary process has been completed before referring (Education). Councils asked for clear guidance on what information the CBU would class as relevant. Guidance was also requested by Voluntary Organisations who said that they didn't know whether or not there were circumstances where it would not be appropriate to share information.

"No reasons not to share given information has already been tested and verified"
Social Work

There were also some more general comments supplied on this topic. The importance of good quality accurate information and following strict procedures to provide it was stressed by Police and Voluntary Organisations.

"There is concern on the accuracy of the vetting information and the need to ensure that full formal procedures are followed and concluded before it is made available to the CBU [Central Barring Unit]."
Voluntary Organisation

Consultees from Education said that Regulatory Bodies needed to be clear how they would apply the information set out in 4.2 of the document and Regulatory Body consultees felt that the sharing of such information should be at the discretion of the Regulatory Bodies.

Within Social Work it was felt that it was important to develop close links with the Central Barring Unit ( CBU) and allow information sharing in both directions, from the Regulatory Bodies to the CBU, but also from the CBU to the Regulatory Bodies.

"It would seem important that the regulatory bodies and the CBU work closely together and are able to share all relevant information as it is just as likely that the CBU may come to be in possession of information that is of interest to these bodies, as well as vice versa."
Social Work

Q13a: What information do councils hold that might be relevant to an individual's suitability to do regulated work with children and adults?

Information from Councils about their employees will be dealt with through the referral route, in the same way as information provided by any other employer about their employees. This section of the consultation is asking about additional vetting information from Councils, in their role as a service provider, rather than their role as an employer. However some consultees answered this question in relation to the dual role that Councils provide as an employer and a service provider.

Work related information that Councils could provide is listed below (starting with the most commonly mentioned).

Information from the Council as an employer, work -related

Subject of disciplinary hearings (Police, Social Work, Voluntary Organisations, Councils, Child Protection Committees, Other, 11 mentions)
HR records/job history (Health, Social Work, Voluntary Organisations, Council, Other 7 mentions)
Where council employees are recorded as having caused harm to children/vulnerable groups (Education, Child Protection Committees, 2 mentions)
Complaints against staff members (Social Work, Council, 2 mentions)
Existing lists of excluded from working with children (Other 1 mention)
List 99 of sexual offenders (people disqualified from teaching in England and Wales) (Other 1 mention)
Whistle blowing (Councils 1 mention)
Conduct at work (Child Protection Committees1 mention)

Some consultees did not give specific examples of the type of information that they felt councils may hold, but gave more general suggestions instead, such as: any relevant information should be shared (Early Years, Other), information from various Council departments (Council) and situations where there was cause for concern but not enough information for a conviction (Health, Other), with Other going on to say that in order to adequately protect vulnerable groups it was not appropriate to use the same high standard of proof required in a court of law, and that information meeting lower standards of proof should be passed on.

All of the background groups who responded had suggestions for the type of information that councils hold that might be relevant to an individual's suitability to do regulated work. This information could broadly be split into two categories, the information that the council may hold as an employer relating to an individual's working life and information that the council holds as a service provider, which relates to someone's domestic personal life, in particular relating to information about children at risk. Consultees also took this opportunity to note concerns about Councils providing such information and there were some who said what information from the council should not be considered.

Below are lists of the information that consultees believe Councils to hold which they feel is relevant to an individual's suitability to do regulated work in terms of the council as a service provider (listed in order of the most commonly mentioned).

Information from the Council as a service provider - Non-work related, domestic information.

Child Protection Information (Education, Police, Social Work, Voluntary Organisations, Councils, Child Protection Committees, Other, 30 mentions)
Information from social work (Education, Voluntary Organisations, Councils, Other, 12 mentions)
Adult Protection information (Social Work, Voluntary Organisations, Child Protection Committees, Other, 12 mentions)
Their children are on at risk register (Early Years, Sport and Leisure, Voluntary Organisations, Councils, 6 mentions)
Housing - information on tenants (Councils, Other, 6 mentions)
Education - Schools information (Councils, Other, 6 mentions)
Children taken into care (Health, Sport and Leisure, Councils, Other, 5 mentions)
Information where an adult has harmed a child (Early Years, Police, Voluntary Organisations, Child Protection Committees, 4 mentions)
Behaviour that is cause for concern eg substance misuse or domestic violence (Police, Voluntary Organisations, Regulatory Bodies, Other, 4 mentions)
Risk Management ( Social Work, Councils, Child Protection Committees, Other, 4 mentions)
Anti-social behaviour/ ASBOs (Health, Voluntary Organisations, 3 mentions)
Children's hearings (Voluntary Organisations, Child Protection Committees, Other, 3 mentions)
Criminal Justice functions (Social Work, Child Protection Committees, 2 mentions)
Mental health information (Child Protection Committee, Other, 2 mentions)
Adults with incapacity case files/minutes (Councils, Other, 2 mentions)
Children Act 1989 (Early Years, 1 mention)
Involvement with Voluntary groups (Health, 1 mention)
Hearing arrangements (Social Work 1 mention)
Serious debts (Voluntary Organisations 1 mention)
Abuse suffered as child (Voluntary Organisations 1 mention)
Family abused vulnerable adult (Voluntary Organisations 1 mention)
Medical Information (Child Protection Committee 1 mention)
Direct Payment Scheme info (Other 1 mention)
Information held on persons at risk to themselves (Other 1 mention)
Family Law (Other 1 mention)
Application files for guardianship, (Other 1 mention)

Councils were seen to hold information from their dual role as employers and service providers. As employers the information they could provide would not differ much from that provided by other employers. In terms of the Council as a service provider, councils were seen to hold information through the various functions they perform. In particular, Councils may hold non-conviction information relating to behaviour that causes concern. As this behaviour has not resulted in a conviction it may not be available from other sources, such as the police. The suggestions provided by consultees show that there is some acceptance that it is appropriate for Councils to pass on certain information relating to an individual's personal/domestic life, particularly when the information relates to a child or protected adult being placed at risk, provided that there are appropriate safe guards and guidance attached to the sharing of this information.

"Council social work departments may hold non-conviction information that may be relevant to an individual's vetting information, for example if their child is on the 'at risk' register. It is vital that these only be used when the context of this information would suggest that the person in question is considered a threat to young people, despite no relevant conviction information being present."
Voluntary Organisation

"X considers that Councils hold relevant information about persons who have acted in a premeditated manner or in a manner outwith their control that caused harm to a child and/or a protected adult and suggests there is a risk they will behave in a similar manner again. However, X agrees that more work is required on the implications of asking Councils to share information about service users. In relation to regulatory bodies it should be noted that the statement at paragraph 178 that "regulatory body information relates to the working life of the individual concerned whereas council information may be primarily domestic" is not accurate as although regulatory bodies are making judgements about an individual's suitability to be in a particular workforce they do take into consideration and will act on behaviour that has occurred in an applicant/registrant's domestic/private life. We were concerned to read at paragraph 177 that there could be the potential for sensitive vetting information to be withheld from employers and in our view children and protected adults will only receive necessary protection if employers and regulatory bodies can make informed decisions on the basis of all available relevant information."
Regulatory Body

Information suggested by Council Consultees

The information suggested covers a wide range of topics. It is interesting to see what relevant information Council consultees came up with compared to suggestions overall. Council consultees mentioned: children on the at risk register, child protection information, children taken into care, risk management, adults with incapacity minutes, information from various council departments - housing, education and social work, and in terms of the council as an employer: HR records and job history, if employees have been subject to disciplinary hearings and whistle blowing. This list may be indicative of the type of information that Councils would be willing to share. Councils were keen to stress the need for any information provided by Councils to be taken in context, and also the importance of guidance being provided.

"There will be information held by Social Work, Housing and Education Services which might indicate a person's unsuitability. Some of the information will be factual, for instance, that a person being considered by the central barring unit has a child whose name is on the Child Protection register or their child has been taken into care, or where it has been established through a proof hearing that an individual has ill-treated or neglected a child. It would be unsafe, however, to make any automatic assumptions based on even factual information that a person is unsuitable for regulated work. It is important that any information held by councils should not be considered without its context; it is the context of the information that signifies its relevance. Whilst there may be information of relevance how is it to be scored for relevancy? It is important that all councils are assessing the relevance of information in the same manner and therefore there is a need for a framework from which to "score" against. It is also vital that data protection and human rights issues are considered."
Council

Need for guidance and consistency

Consultees also noted that in order for Council information to fulfil a useful function there would need to be consistency across all 32 Councils, and that guidance was required as was a secure IT system to cope with this information.

"Councils hold a wide range of information on individuals in differing roles both as employer and provider of services to vulnerable people. The inherent tension in this is recognised and clear Guidance / Procedures will be required giving a minimum framework / national standards for grounds for referral or the sharing of information. The need to be fair and proportionate was widely expressed as was concern about the capacity for error of judgement. There was a clear view that for DPA purposes information and decision about what is relevant vetting information needs to be screened and quality assured through a central point with a few people at sufficiently senior level before passing to CBU with whom the final decision about listing rests."
Councils

"There will be information held by Social Work, Housing and Education Services which might indicate a person's unsuitability potentially on a variety of different management information systems (there may be issues re current capacity storage and retrieval - a central secure IT system for Scottish Local Government would be of benefit). It is also vital that data protection and human rights issues are considered. … An agreed procedure for local authorities is essential and clear guidance needs to be developed timeously with key stakeholders involvement re thresholds, standards of evidence and data sharing protocols. Other issues need clarification re ownership and protection/security of information. Is the individual advised of the fact information is passed on - what is their right of appeal in this respect? Needs to be Quality Assured. Training and awareness raising required to ensure consistency."
Other

Concerns about Sharing Council Information

Consultees from within Education, Voluntary Organisations, Councils, Regulatory Bodies, Child Protection Committees and Other identified areas of concern relating to the sharing of council information.

The information that Councils hold is sensitive and the importance of respecting Human Rights, Data Protection and an individual's right to work were highlighted by Councils and Voluntary Organisations. Concerns were also raised about the gathering and storing of information on individuals who had not applied to be PVG scheme members. Linking in to this is the need for secure IT systems to support any information sharing process (Child Protection Committees, Other).

"X appreciates that there could be other sources of relevant vetting information but is aware that there could be issues around an individual's right to privacy, to work, to data protection and to human rights legislation. Vetting information must be accurate and not based on ill-informed judgements. Therefore, before information is passed to the CBU it is essential that regulatory bodies/councils ensure that full formal procedures are robustly followed and that the need for interpretation is minimized….X is concerned that vetting information about individuals who are not part of the scheme may be collected and stored by the CBU. It appears inappropriate to us and may breach an individual's right to privacy."
Voluntary Organisation

Questions were also raised in terms of how this information is produced by Councils (Child Protection Committees), and that attempting to share information could be an ineffective and time consuming process (Council, Child Protection Committee, Other). That the CBU interpret such information in context is also important (Councils, Other).

Council Information shouldn't be used

Within Voluntary Organisations a feeling was expressed that council information should not be used. Specific examples relating to domestic abuse, child protection cases and mental health issues were cited by Voluntary Organisations and Other to illustrate where it would be inappropriate to share Council information. Regulatory Bodies and Councils mentioned that there was no need for any Council information beyond that stated in the consultation document to be shared.

"We do not agree that vetting information from Councils should be used. Simply taking a matter of fact as bald, "straightforward", evidence that an individual has harmed a child, without the consideration of further, exculpatory information on that person's role, if any in the situation, or a clear indication as to how the matter was finally resolved, which is, of course, dependant upon all parties to the matter being responsible and timeously completing paperwork and updating records, is completely reckless. For example, a woman who has experienced domestic abuse may have had her children subject to a child protection order, been placed on the child protection register or have been referred to the local Children's Reporter as a consequence of her partner's abusive behaviour, not her own. However, under the proposals outlined here, such action would automatically result in the woman being referred to the CBU, which is likely to be a breach of her Article 8 and also, possibly Article 7, rights, if the woman is judged culpable in the absence of any further information or formal proceedings."
Voluntary Organisation

"Children are on the child protection register or taken into care for a whole variety of reasons, some of which are to do with abuse but others may be around issues such as substance misuse or mental health problems that mean that the child's home environment is not safe for them. A formal consideration process has indeed been undertaken but one which is rightly focused on the child's wellbeing, and not on the risk posed by the adults. It is therefore not appropriate and is potentially harmful for these categories to be automatically used to define vetting information. Clearly there are some people who have harmed children in their home who are also unsuitable to work with them, for example where they have sexually abused their child. However, we struggle to think of scenarios where the Council would not have passed relevant information about these individuals to the police, and seek working examples to illustrate this issue."
Voluntary Organisation

These concerns at sharing Council information are reflective of the findings of discussion session 3 at the PVG events. This session presented a scenario where a Local Authority suspects that 2 children are being physically abused and removes them from their parents on a temporary basis, to review the case in a months time; they refer the vetting information to the Central Barring Unit ( CBU). The mother is barred and loses her job at a children's hospital. The Local Authority then decide to return the children to their parents' care. This scenario demonstrated the complex nature of Council vetting information and the implications of passing it on. When presented with a specific example, attendees were able to debate the pros and cons of passing on or withholding information. Around half (49%) of attendees felt that it was not the correct decision to refer the case to the CBU.

Within the written consultation there was an instance where a consultee had referred back to one of the scenarios discussed at the Consultation Events and used this to back-up why Council information should not be shared in certain circumstances.

"We discussed Scenario Three: children taken into care, parent loses job, subsequent investigation returns children to mother. A balance has to be made where protected individuals are protected, but also individuals under investigation but cleared are not subsequently identified unnecessarily. It may be appropriate in cases where information is provided by regulatory bodies on an individual who has been suspended from their work and under consideration of listing to be initially held on an interim list until the investigation process has been completed. This would be noted as such on their record. This would protect the individual as well as potential victims. Consideration of listing decisions need to be taken by professionals who have been safely recruited and also checked."
Voluntary Organisation

Don't Know

There were some who commented that they did not know what types of information councils held, and so could not comment on this question (Health, Police, Social Work, Voluntary Organisations, Regulatory Bodies.

Q13b Do you have any suggestions on how Council vetting information could be gathered?

This question elicited suggestions for how to gather Council data from all of the background groups. The need for consistency across all 32 councils was highlighted as important, and there were requests for guidance to be provided. Comments were made about the post Councils should use as the central point to gather information, the IT storage facilities that would be required and some gave specific examples of how information could be gathered.

Agreement with process suggested in consultation document

A number of different groups took the opportunity to say that they agreed with the suggestion laid out in paragraph 175 of the consultation document, which was for information to be passed on to the PVG Scheme at the time that it is generated, regardless of whether or not the individual is a PVG Scheme member, and the information would be stored centrally and could be added to by the council where appropriate (Early Years, Police, Sport and Leisure, Voluntary Organisations, Councils, Regulatory Bodies and Other).

"I think the idea of relevant information being passed on at the time of consideration and stored centrally is the best one. Then the Council's will have fulfilled their role and the info will be easy to access once it is required. This would be dependent on the Council's updating this information if necessary."
Voluntary Organisation

The need for consistency

The need for consistency and uniform systems to be put in place across the country was mentioned by Early Years, Sport and Leisure, Voluntary Organisations, Councils, and Child Protection Committees. To this end it was suggested that a template could be developed for Councils to follow (Social Work, Councils, Child Protection Committees, Other) or that a national framework be implemented (Councils).

"Any gathering of vetting information from local authorities must be done in a consistent and robust manner across all thirty-two areas and adhere to Data Protection Legislation. The CBU [Central Barring Unit] will have to ensure that it is only relevant and up to date information that is being collected on scheme members."
Voluntary Organisation

"Consistency across all Local Authorities was felt to be imperative, and to this end a prescribed template would be helpful."
Council

The need for guidance

Social Work and Child Protection Committees requested guidance and clarity on the type of information that would be gathered from Councils.

"Guidance is required/would be desirable to determine what information should be collated and considered through current disciplinary procedures by Local Authority. This could then be referred to the CBU as vetting information for considering a listing."
Social Work

"In the first instance there needs to be clarity regarding the information which Councils are expected to gather and the timescales for doing so."
Child Protection Committee

Collating information through specific posts at the Council and storing the information centrally

It was felt that it would be sensible for Councils to have a central point for gathering information and passing it on to the Central Barring Unit (Council, Child Protection, Committees, Other). Various suggestions were put forward as to who should provide this central point within the Council, these included the Child and Family Protection Unit (Voluntary Organisation), the Chief Social Worker (Councils), HR (Councils), senior staff (Councils) and lead workers (Regulatory Bodies). It was also felt that there needed to be a central point for storing and accessing the information (Early Years, Voluntary Organisations, Councils, Other).

"It is clearly more efficient to search a single directory than 32 individual sets of council records, and we therefore recommend that councils should investigate the possibility of collating child and adult protection information centrally."
Other

Specific examples of how to gather Council vetting information

Some specific examples of how to gather council vetting information were provided. It was suggested that information could be passed on following disciplinary proceedings (Education), or that Councils should provide an annual list of cases to consider (Voluntary Organisation).

"Councils should be required annually to submit a list of cases which the council considers should be considered for listing purposes."
Voluntary Organisation

Routine questions could be added into Protection Case Conferences to assess whether information is passed on the Central Barring Unit (Councils), a notification system could be used, as is currently the case with some Regulatory Bodies (Regulatory Bodies), case reviews could be used (Child Protection Committees) or existing social work practices could be amended (Other).

"There was a suggestion that: Questions could be routinely included in all protection case conferences ( AP [Adult Protection] / CP [Child Protection] / MAPP/[ Multi-Agency Public Protection Arrangements]), AWI [Adults with Incapacity] / MHC&T(S) [Mental Health (Care and Treatment) (Scotland) Act 2003] and at all disciplinary hearings. e.g - Is there anyone who meets the criteria for referral to CBU? Advice on the specific detail of the information required should be provided by the CBU."
Council

Panels or information management groups could be set up to assess the relevancy of the information and decide whether or not to pass it on (Police Councils, Child Protection Committees, Other).

"Suggest that a panel consisting of relevant directors or the lead counter signatory consider the relevancy of vetting information and take the decision as to when information should be passed on to the CBU as soon as possible to be held centrally and used only in the event of an individual seeking to become a scheme member."
Council

"Given the comments in the consultation regarding the need for all 32 Councils to apply a similar standard to information provided, an appropriate first step might be to support Council's in establishing a vetting information management group. This Council group would receive information from all departments of the Council in relation to employees or non-employees about information was obtained and decide whether it met a criteria for passing to the CBU. This could be, for example, a monthly forum at which appropriate Council officers scrutinised information passed to them. Such a forum would require dedicated administrative support, which would be an extra resource demand on Councils. It would also be necessary for government to sponsor a training programme for members of these forums to ensure a consistent approach to decision-making was promoted... The governing processes to be used across Council that would ensure consistency in approach and standards may require to be the subject of regulation or national agreement with, for example, COSLA."
Police

Although this view was countered by Regulatory Bodies who felt that such decisions should not be made by panels as this could be time consuming.

"We think that more consideration needs to be given to councils providing vetting information but would say that requiring panels to take decisions about the passing on of such information could cause unnecessary delays and thereby create risks to children and/or protected adults. It may be more appropriate for the lead counter signatory for the Scheme of the relevant co-ordinating organisation e.g. social work department, to provide the information which could be added to /amended/ endorsed as a result of the further considerations of a relevant panel."
Regulatory Body

Concerns with gathering Council vetting information

Some took the opportunity to say that Council vetting information should not be gathered (Education), whilst others reiterated concerns about information being gathered on non- PVG Scheme members (Voluntary Organisations), the importance of data protection was also mentioned (Voluntary Organisations, Other).

"It is very worrying that second hand vetting information from one source is featuring in this consultation in this way. It is not acceptable that information about an individual is passed around between agencies without that individual knowing or giving their permission."
Education

"We feel that it would be inappropriate to collect information on individuals who are not part of the scheme, and see no reason why such information should be held by the CBU [Central Barring Unit]. Handling of vetting information is a sensitive issue and we look forward to further consultation with voluntary organisations on this area before final policy decisions are made."
Voluntary Organisation

Councils' responses to this question

As with Q13a, it is interesting to look at the responses that Councils gave to this question, as Council suggestions on how to gather Council information may well provide a useful starting point to tackling this task.

Councils showed support for the process of gathering information as set out in the consultation document, paragraph 175. Councils supported the need for consistency in procedures and suggested a template and a national framework as options to ensure this. Councils felt that one central point of contact with the Central Barring Unit was a good idea and put forward suggestions for this coming through the Chief Social Worker or through HR, and involving senior staff in the process. In terms of suggestions for specific means of gathering data, Councils suggested setting up panels to assess information and the inclusion of specific routine questions in Protection Case Conferences.

"This should be gathered from councils on the basis of an agreed national framework to ensure consistency; a central contact point within councils for scheme communications should be considered; senior staff should be involved; and the entire process should be quality assured."
Council

4.3 Handling Sensitive Information from regulatory bodies and councils

Q14a Should it be possible for vetting information from regulatory bodies and councils to be withheld from disclosure certificates?

Q14b If you answered yes above, in which circumstances should such information be withheld?

40% felt that information from regulatory bodies and councils should NOT be withheld from disclosure certificates, under a quarter, 24% felt that it should be possible to withhold information, 15% didn't know and just over one fifth (21%) didn't answer the question. This is roughly in line with findings from electronic polling at events, where half of respondents felt that information from Councils and Regulatory Bodies shouldn't be withheld.

75% of Council consultees and 50% of regulatory body consultees felt that information from regulatory bodies and councils should not be withheld.

Yes it should be withheld

Although only just under a quarter of consultees felt that Council or Regulatory Body information should be withheld, a wide range of circumstances and reasons under which it would be appropriate to withhold information were supplied by consultees. The main themes under which it was seen to be appropriate to withhold information were: relevance, risk, fairness, an organisation's ability to deal with the information, an individuals' right to privacy, the information indicating that they don't pose a threat to others and councils' discretion.

Relevance

Information not being relevant to an employer was a key reason for consultees stating that information should be withheld, this was seen to be particularly true in the case of domestic information (Early Years, Education, Health, Voluntary Organisations, Regulatory Bodies, councils, Other). If the information has not affected the individual's ability to join the PVG Scheme or be regulated in their profession, or if it's old information then it should not be passed on (Voluntary Organisation). Voluntary Organisations also expressed a view that it depends on the type of work that the individual is applying for what type of information it's relevant to share, and requested guidance on what's relevant to share.

"There might be information which is entirely domestic-related that is totally irrelevant to work."
Education

"X would accept that there may be circumstances where information from regulatory bodies and councils should be withheld from disclosure certificates, but not as a general rule. Information which is not relevant to a decision to register or employ a person may be withheld."
Regulatory Body

Risk

If providing the information would impact negatively on a third party (Voluntary Organisations, Councils), place another individual at risk (Voluntary Organisations, Other, Social Work, Councils, Child Protection Committees), particularly in relation to domestic or child abuse cases, or jeopardise an ongoing investigation (Voluntary Organisations, Councils, Other, Child Protection Committees) were all put forward as legitimate reasons for withholding information.

"It must not compromise any ongoing police or social work investigation or place the individual(s) at risk in any way."
Council

Fairness

Fairness to the applicant was seen to be important, therefore cases which have not been tested through a fair process (Health, Police, Child Protection Committees, Voluntary Organisations, Other) or where the investigation is still ongoing and has not yet concluded (Voluntary Organisations, Child Protection Committees) should be withheld from disclosure forms, as should information relating to child abuse, where it is clear that it is the other partner, not the PVG Scheme member that the concerns relate to (Other).

"We agree that information from regulatory bodies will usually be relevant but that there should be some power to withhold. We also had some concern about council information always being disclosed as this may not always have been tested for accuracy or may involve some personal information, which should remain confidential."
Child Protection Committee

"Due to the sensitivity of the information it should not be passed onto the CBU until full internal procedures are fully followed through."
Voluntary Organisation

"Where information is held about child abuse or neglect concerns in the family setting and the information makes it clear that the concerns related to the other parent and did not concern the scheme applicant."
Other

An organisation's ability to deal with the information

There were concerns about providing information from Councils and Regulatory Bodies if there was a risk that organisations would not be able to judge it within context (Councils, Other). The point was made that, especially within Voluntary Organisations, those who make recruitment decisions may not have HR experience to deal with complex situations, which may lead to them erring on the side of caution and being unwilling to employ an individual with anything on their disclosure certificate. There was also a feeling amongst Voluntary Organisations that providing such information might overwhelm an organisation, and that a person is either barred or they aren't - the view was put forward that if the Central Barring Unit had not made a decision that the individual was unsuitable then it was unfair to pass information on to organisations and expect them to make a decision on the person's suitability.

The information doesn't indicate that the individual represents a threat to others (now)

There may be situations where information exists, but which doesn't indicate that the person poses a risk to others now, in which case it may be inappropriate to share that information. Examples given of this were: An incident from someone's childhood, which happened a number of years ago and nothing has happened since, which may indicate that the individual has turned their life around (Voluntary Organisation), if the context has changed and no longer has an impact (Social Work, Other), if the person has received treatment or accessed services that would mean that they are no longer a threat, for example in cases of substance abuse (Education).

"Yes, the facility should be available for consideration as is currently the case with disclosure intelligence. Taking into account the context of intelligence provided and the post being considered, as is currently the process. Examples might include domestic abuse situations, or mental health/disability issues which are judged to have no longer-term impact."
Social Work

Right to Privacy

The individual's right to privacy and the protection of their human rights also led consultees to say that certain types of information should not be shared, for example it was seen as inappropriate to share matters relating to an individual's health or mental health (Regulatory Bodies, Other)

"If this information is personal and has been deemed not to affect a person's registration with the scheme then it is important that their privacy is protected. This is especially the case for organisations working in small towns."
Voluntary Organisation

"Without examples, we found this difficult to explore but had some unease about over-regulation and human rights. In child protection matters there is always tension between the rights of the state, the family and the child and most CPC's are extremely aware of the complex judgements required in individual cases."
Other

At Councils' Discretion

Voluntary Organisations felt withholding information should be at the discretion of councils.

"Councils should exercise their discretion in providing this information. In exercising discretion, councils may withhold on: 1) where there are mitigating circumstances 2) likelihood of no repetition 3) time expiry from time of offence eg 3 or 5 years"
Voluntary Organisation

No it shouldn't be withheld

There was a strong recurring feeling amongst many of the background groups that it was important for employers to see all relevant information in order to enable them to make a decision and best ensure the protection of vulnerable groups (Sport and Leisure, Voluntary Organisation, Councils, Regulatory Bodies, Child Protection Committees, Other) and that to not include all information seems to go against the aim of the Act (Voluntary Organisation), and may reduce the integrity of the system (Social Work). The desire for guidance is apparent in some of the comments about not withholding information.

"Employers must have all the necessary information to hand in order to make a balanced decision. However support is the key in order that organisations are not left in isolation and are complying with legislation and good practice."
Voluntary Organisation

"A decision has already been taken to include the available vetting information so any variation would take away from the integrity of the system, unless the information concerned third parties."
Social Work

Consultees struggled to see what reasons would justify the withholding of such information from disclosure certificates (Sport and Leisure, Voluntary Organisations, Councils, Other). Even if an individual hasn't been barred from working with vulnerable groups, employers still want to see any relevant information to help them make a recruitment decision.

"We understand that one of the key principles underlying the Scheme is that where a decision has been made not to list an individual as unsuitable for all regulated work, employers will still have the vetting information in order to help them decide about the suitability of the individual for a particular position. If vetting information is always information directly relevant to deciding whether someone is unsuitable to work with children or vulnerable adults, and has always been the result of formal consideration specifically about that individual, then it is difficult to conceive of a situation where this information should not be included on the disclosure certificate for employers. We seek clarification on this point."
Voluntary Organisation

However even within those who said that no, vetting information from Councils and Regulatory Bodies shouldn't be withheld there were certain caveats included within this agreement. These included as long as care is taken if it involves third parties (Voluntary Organisations), as long as it doesn't place anyone at risk or jeopardise an ongoing investigation (Councils) and as long as the information is robust (Voluntary groups). There were comments that Regulatory Body Information should be robust and trustworthy (Voluntary Organisations) however there was a feeling that Council information may not meet those same standards. These concerns about when to share fed into calls for support and guidance with the process (Voluntary Organisations, Councils). Other options put forward in cases where the sharing of information may be questionable is to include information separately so that it's not seen by the individual in question (Councils), and the information could be treated in the same way as extra information supplied by police currently is (Voluntary Organisations).

"Since the determinations reached by regulatory bodies have been subject to a formal consideration and are shared with relevant employers and made public in relation to action against registered workers we see no difficulty in vetting information provided by regulatory bodies being included in disclosure forms. However, we think that more thought needs to be given to councils sharing information which may not have gone through a formal and appealable determination process, or one about which the person could or was able to make representations. However, in principle we consider that the interests of children and protected adults will be best protected if employers and regulatory bodies are provided with the fullest information available to enable them to make informed decisions."
Regulatory Body

"To assist the risk assessment process, all information needs to be supplied on the disclosure certificate. However, there may be a need to supply some information separately as currently happens with Enhanced Disclosure Certificates, information which the individual does not receive a copy of."
Councils

Don't know if information should be withheld

Some consultees were unable to definitely say one way or another whether vetting information from councils and regulatory bodies should be withheld. There was a feeling that decisions on such things should be made on a case by case basis (Police, Regulatory Bodies). It was felt that it was important to complete any investigative process before sharing information (Voluntary Organisations). Within Social Work there was a comment that they were uncertain as to what type of sensitive information Councils may hold, but felt that on the whole it was best to give employers as much information as possible. Within the Voluntary Sector there was agreement that in principle information should be shared, however there were concerns that this may conflict with employment law. Voluntary Organisations also sought clarity on why information would be gathered if it was not then going to be disclosed.

"X believes that regulations should provide the CBU with a discretion as to what to disclose to whom on a case-by-case basis depending on the information that is held and why and to what extent it may be relevant to third parties."
Regulatory Body

"Employers should be given the opportunity to consider all available, relevant, information to make a reasoned decision. If information is kept on an individual's scheme record, but not disclosed to employers, there would seem little point in collecting and keeping it. We do, however, have concerns about conflict with current employment law."
Voluntary Organisation

Responses from Councils and Regulatory Bodies

As with looking at Council responses to Q13, it is interesting to look at how Councils and Regulatory Bodies responded to Q14, as it is information provided by them that is being asked about. 75% of Council consultees and 50% of Regulatory Body Consultees felt that information from regulatory bodies and councils should not be withheld. Comments from different consultees within Councils and Regulatory Bodies show that there is not one consistent line of thought from Councils or Regulatory Bodies, but that a range of opinions exists within both groups.

Both Councils and Regulatory Bodies could list examples of occasions where it would be appropriate for Council and Regulatory Body information to be withheld. Council suggestions were: when the information is irrelevant to work, eg domestic information, where information relates to third parties, if disclosing the information would place someone at risk or jeopardise an ongoing investigation and if organisations will not be able to properly judge the information in context.

Regulatory Bodies also mentioned withholding information in cases where it isn't relevant to work, and if the information relates to an individual's health.

Council and Regulatory Body consultees also commented that information from Councils and Regulatory Bodies should not be withheld, as it is important for employers to have all the available information in order to make recruitment decisions.

Councils felt that information could be shared as long as it didn't jeopardise an ongoing investigation or place another person at risk. Councils found it hard to visualise circumstances under which information should be withheld, although they did also request guidance on what information to share, and Councils suggested that information could be provided separately so that it would not be viewed by the individual.

Regulatory Bodies were of the opinion that Regulatory Body information is likely to be more robust than Council information.

4.4 Civil Orders

Currently civil orders are only included on enhanced disclosures if the police consider them to be relevant. However the Act has the power to specify that certain civil orders would always be disclosed on scheme records, and could also be disclosed on standard and enhanced disclosures. The consultation document defined and asked about 4 orders, Risk of Sexual Harm Order, Sexual Offences Prevention Order, Notification Order and Foreign Travel Orders.

However due to an error, Notification Orders did not appear as an option to select on the online application form, which initially made it appear that Notification Orders received less support than the other Orders, so percentages for these questions (15a and 15b) have been recalculated based on the responses from the paper forms only as they contained all the options. Although 5 online respondents used their open text comments to say that they would have ticked Notification Order if it had been available. Analysing the online responses separately shows that they follow the same pattern as the paper responses.

Q15a: Which civil orders should be disclosed on scheme records?

(i) None
(ii) Risk of Sexual Harm Order (and any interim order)
(iii) Sexual Offences Prevention Order (and any interim order)
(iv) Notification Order (and any interim order)
(v) Foreign Travel Orders

There was strong support for the inclusion of civil orders on scheme records. There was most support for including Risk of Sexual Harm Orders and Sexual Offence Prevention Orders, with only marginally less support for Notification Orders and Foreign Travel Orders. This is based on the paper responses and the online responses show a similar picture for the options included in the online response form.

All available options selected

Consultees from amongst Early Years, Social Work, Sport and Leisure, Voluntary Organisations, Councils, Regulatory Bodies, Child Protection Committees and Other provided comments explaining why they had ticked all the available boxes. The comments mainly revolved around risk and a belief that such information was relevant to employers.

Within Early Years, Councils, Regulatory Bodies and Other there was a feeling that these orders were relevant. These orders were though to provide vital information for employers in terms of safe recruitment (Early Years, Voluntary Organisations).

Social Work, Voluntary Organisation Council and Child Protection Committee consultees commented that if a person held one of these orders then they clearly posed a risk, and should not be allowed to work with vulnerable groups.

Consultees from Other questioned whether or not having one of these civil orders should mean that the individual has been automatically listed already.

"It is difficult to conceive of circumstances where these would not be relevant to a decision about suitability for the types of work regulated by the scheme."
Council

"These orders invariably apply only to cases where the offenders are considered to be at high risk of reoffending sexually against a person or persons. In these cases this information is important and should be shared to protect children and vulnerable groups."
Child Protection Committee

Foreign Travel Orders not selected

Amongst those who had not selected Foreign Travel Orders, but had selected other options there were comments from Voluntary Organisations and Other that this should be left to the discretion of the police.

Q15b: Which civil orders should be disclosed on standard and enhanced disclosures?

There was strong support for the inclusion of civil orders on standard and enhanced disclosures, although it was slightly lower than for their inclusion on scheme record disclosures. There was most support for including Risk of Sexual Harm Orders and Sexual Offence Prevention Orders, with only marginally less support for Notification Orders and Foreign Travel Orders. This is based on the paper responses and the online responses show a similar picture for the options included in the online response form.

None of the Options Selected

It was very uncommon for consultees to say that none of the Orders should appear on standard and enhanced disclosures. However there were comments from Voluntary Organisations on this matter, as there was a feeling that if such information appeared on Scheme Records it didn't need to appear on standard and enhanced disclosures too, as it wasn't relevant for jobs not covered by the Protection of Vulnerable Groups Scheme.

" We don't believe that they should be included here as they would not be relevant to the types of job that would require standard or enhanced disclosures once the scheme is in place. Any jobs to which these may be relevant should be covered by the scheme."
Voluntary Organisation

All available options selected

The reasons consultees gave for selecting all available options were the same for standard and enhanced disclosures as they were for scheme record disclosures, relating to risk and relevance.

"The purpose of standard and enhanced disclosures is the same as that of scheme records - to provide protection to vulnerable groups. We believe it is important that those who will seek and receive disclosure certificates should be made aware of the information that is available in order to allow them make an informed decision as to a person's suitability."
Child Protection Committee

Foreign Travel Orders not selected

Once again it was commented that the inclusion of Foreign Travel Orders should be at the discretion of the police (Voluntary Organisations, Other).

Don't Know

There were some comments from consultees who said that they didn't know whether or not these orders should appear on standard and enhanced disclosures.

There was a concern expressed about information being used for a purpose other than what it had been gathered for, and that automatic systems were open to error.

"In general anything that becomes automatic is open to serious error. Considerable caution must be applied when using any information for a secondary purpose that it was totally accurate when it was used for its primary purpose."
Education

Within Voluntary Organisations there were comments that they did not have enough information about the orders to comment; and that orders should only be disclosed as felt appropriate by the police. There was also a concern about the inclusion of interim orders as that would be based on the evidence of one party, although there was a feeling that the same information should go on standard and enhanced disclosures as on scheme record disclosures.

Q15c (i) Should any other civil orders be routinely included on scheme record disclosures?

Yes
No
Don't Know

Q15c (ii) Should any other civil orders be routinely included on standard and enhanced disclosures?

Yes
No
Don't Know

Question 15c asked about whether any other civil orders should routinely be included on scheme record disclosures and standard and enhanced disclosures. Around a fifth (21%) wanted other civil orders routinely included on scheme records, and nearly a quarter (24%) on standard and enhanced disclosures, although in both cases the majority of consultees either said they did not know or did not answer the question. Child Protection Committees and Councils were the most likely to want to see other civil orders added.

Most groups, apart from Health, had suggestions on other civil orders to include, some did not list specific civil orders, but instead said that other civil orders should be included if they were relevant.

"This is about protecting people and therefore all information should be supplied in order for a Risk Assessment process to be undertaken. It's not about automatically disregarding individuals from the workplace but about taking an informed and balanced view in terms of suitability for the work required."
Council

The following list contains suggestions from consultees about civil orders they feel should be included (starting with the most commonly mentioned). If any of them are not civil orders, they are what consultees interpreted as being a civil order. Anti-Social Behaviour Orders and Exclusion Orders received the most support.

Anti-Social Behaviour Orders ( ASBO's) if relevant (Education, Social Work, Voluntary Organisations, Councils, Regulatory Bodies, Other, 11 mentions)
Exclusion Orders ( Council, Child Protection Committees, Other ,10 mentions)
Interdicts in relation to domestic abuse (Councils, Child Protection Committees, Other, 5 mentions)
Banning Orders under Adult Support and Protection Act (Police, Councils, Child Protection Committees, Other, 5 mentions)
Interdicts (in general, not specified) (Councils, Other, 3 mentions)
Child Protection Orders (Councils, Other, 3 mentions)
Legal Protection Orders ( Education, Councils, 2 mentions)
Matrimonial and family law (Child Protection Committees, Other, 2 mentions)
Adults with Incapacity Scotland Act (Councils, 2 mentions)
Child Assessment Order (Child Protection Committees,1mention)
Mental Health Act (Councils, 1mention)
Non- harassment order (Child Protection Committees, 1mention)

Don't Know/No

Of those who said don't know or no to this question, there was a feeling that guidance and further investigation was required (Voluntary Organisations), and that the inclusion of further civil orders should be at the discretion of the police (Other, Regulatory Bodies).

4.5 Other possible sources of vetting information

Q16a Should details of previous competent referrals be included on scheme record disclosures?

Yes
No
Don't Know

Referral is defined in the glossary at the back of the consultation document as "The mechanism by which organisational employers, regulatory bodies and the courts trigger the Central Barring Unit to consider listing an individual" (p105) The Consultation asked for consultees opinions on whether or not the fact of previous competent referrals should be included on scheme record disclosures and described how this would work as follows: "An option would be to include the fact of previous referrals on a disclosure certificate. This would mean that an individual who had been referred to the scheme by an organisational employer or regulatory body but, following formal consideration, had not been listed would have the fact of the referral disclosed. The detail of the referral would not be disclosed, but the source would. Where a referral was dismissed at the initial consideration stage because it was frivolous or vexatious, it would not be included." (p51 paragraph 187)

Opinion was fairly evenly split as to whether or not previous competent referrals should appear on scheme disclosures, slightly more 37% said yes, 32% said no and the remaining third didn't know or didn't answer the question. Early Years and Sport and Leisure were the most likely to say yes, with no respondents in these groups saying no. Health were the least likely to say yes (0%) and the most likely to say no (50%), Voluntary Organisations were the next most likely to say no (40%).

Yes, they should be included

The overarching theme for why previous competent referrals should be included on scheme record disclosures was to provide employers with as much information as possible when making recruitment decisions (Early Years, Education, Social Work, Voluntary Organisations, Councils, Regulatory Bodies, Child Protection Committees). Within this it was commented that employers cannot rely on references to provide all the appropriate information, as some employers only confirm employment dates and do not provide more information beyond that. Including information on previous competent referrals would show if there were patterns of offences (Early Years) and would make potential employers aware of concerns raised by previous employers (Education, Voluntary Organisations, Councils, Regulatory Bodies). Issue was also taken with the statement in paragraph 189 on page 52 that if the referral did not result in listing then the person is not unsuitable. Consultees felt that this may not be the case, that the decision may have been wrong, borderline or more information may have come to light since.

"Employers should be able to expect the maximum vetting information, including previous referral information as appropriate. P189 suggests that a decision not to list means that a person is not unsuitable and that may not be the case. Decisions will be made based on information and judgements at any point in time. Nor can references be relied upon by employers as these are provided voluntarily. Concerns that previous referrals may be unfairly used are noted. However, Risk Assessment processes should be provided as part of recruitment decision-making and these do not preclude employment. Potential employees will retain all the rights of Equal Opportunities. It would, in the context of Safer Recruitment, be important to explore with any candidate applying for a Social Work post why they would not voluntarily disclose any referrals subsequently confirmed via disclosure. Public protection should take precedence."
Social Work

"It is not always the offence, but the pattern of behaviour, that raises concern for the safety of a child. The number of competent referrals, as well as their content, may be appropriate information for any employer during the recruitment process."
Early Years

"Councils making a referral would have had significant concern regarding the individual's suitability for regulated work and although the referral has not resulted in a listing, the issues arising from the referral should be shared with other potential employers. While it is acknowledged that references will often provide this kind of information, there may be occasions where other relevant information is omitted, particularly if the author of the reference was not aware of any incident, the individual cites someone other than a line manager, or where, as is becoming increasingly common, the employer merely confirms employment dates but does not make comment regarding the individual's suitability to work."
Council

Other consultees, who responded that yes previous competent referrals should be included, added certain conditions to their agreement. Early Years felt that guidance should be provided to help employers who are faced with this information. Consultees from Other felt that this information should only be provided as long as anything that was later found to be false could be removed from the record. Voluntary Organisations raised concerns that the process should be monitored and that information should only be provided if it was sufficient information to help employers make a decision, and that the passing on of such information should be at the discretion of the Central Barring Unit.

"We do agree with this however believe that adequate guidance should be given to those receiving the disclosure to ensure they understand the information."
Early Years

"Only substantiated information from previous competent referrals should be included in scheme records. Information that led to a previous competent referral but that was subsequently found either to be untrue or else unverifiable should not be included, and should not be mentioned or referred to in any way. It is vital to establish a straightforward mechanism by which information can be permanently removed from an individual's scheme record so that he/she is not unjustly barred from regulated work with children and protected adults."
Other

No, it shouldn't be included

Around a third of consultees did not feel that details of previous competent referrals should be included on scheme record disclosures. There was a feeling that if the original referral did not lead to listing, then it should not be included on scheme record disclosures, and that to do so could lead to unfair suspicion and prejudice for the individual in question (Education, Health, Voluntary Organisations, Regulatory Bodies, Child Protection Committees), which in turn fed into concern about the violation of an individual's human rights (Voluntary Organisations, Regulatory Bodies). There were those who agreed with the counter arguments put forward in paragraph 189 of the consultation document, as to why this information should not be included (Voluntary Organisations, Councils, Child Protection Committees). These counter arguments are: that if the previous referral did not result in listing then the individual is not unsuitable, safe recruitment practices should mean that employers find out about unsatisfactory conduct through references, and risk averse employers may be unwilling to appoint people purely on the basis that they have been referred to the PVG Scheme. It was commented that employers need to have faith in the system and to believe that if a decision has been made that it is the correct decision and it should not be second guessed by employers (Voluntary Organisations, Councils, Regulatory Bodies, Other), and that to include details of referrals which did not lead to listing serves to undermine the PVG Scheme itself (Regulatory Body). Health commented on the need to be proportionate and the problem of dealing with vexatious referrals. Voluntary Organisations mentioned that organisations should have robust recruitment processes, and that this should be sufficient to highlight concerns with potential employees.

"No - X questions the need to include previous referrals being on the scheme record as it may disadvantage individuals in applying for posts. It was good to note that referrals which are considered frivolous or vexatious would not be mentioned. It is important to emphasise that the scheme record is just one element in assessing a person's suitability and fitness to work. Employers must be constantly reminded that they must also have in place robust safe recruitment practices which should be consistently followed. It could be said that if previous competent referrals were included on the scheme record that the individual concerned had less rights than a defendant in criminal proceedings where previous convictions, let alone investigations, are not disclosed until after a verdict has been reached."
Voluntary Organisation

"We recognise the importance of being able to take cognisance of previous competent referrals. However we also have some concern that this could be a legal infringement of Human Rights legislation. X feel that if a set of circumstances is insufficient to merit inclusion, then it seems inappropriate to include in a scheme disclosure. This may invite conclusions which are not justified under the statutory scheme which is being put in place. Significantly, this seems unfair, and arguably also undermines the scheme itself. We feel it requires further careful consideration"
Regulatory Body

"For the scheme to be effective the users have to be confident that decisions made are sound. To have previous referrals included suggests a lack of confidence in the decision made."
Voluntary Organisation

"The counter arguments presented are stronger than the advantages. For a decision to be made on the basis that a referral was previously made, but did not result in barring is potentially to bar the individual from work by association. It is doubtful if such a decision could be properly defended. If the scheme is to have credibility, then both employers and employees must be able to be confident about the reliability of the decisions being made by the Central Baring Unit."
Council

Some who said no, information from previous referrals should not appear on scheme record disclosures, could see the benefit of the Central Barring Unit holding on to this information for their consideration (Health, Social Work), and passing it on, if necessary, should further concerns arise (Regulatory Bodies). Councils felt that it was the responsibility of the CBU to deal with such information.

"The information should be retained by the CBU and this information may be reconsidered by the CBU should there be any further concerns raised about an individual in the future with regard to their status. However, the information should not routinely be made available to employers but may be made available to them if the CBU having considered all of the facts think that disclosure is appropriate and proportionate."
Regulatory Body

Don't Know if it should be included

Some consultees commented that they could see both sides of the arguments, the advantages and disadvantages of including information about previous referrals (Education, Voluntary Organisations, Child Protection Committees). Police and Child Protection Committee consultees felt that there needed to be robust processes in place to weed out frivolous or vexatious referrals. Consultees from Other felt that the information provided needed to be qualified by the fact that the referral had been investigated and dismissed; it shouldn't just be stated that there had been a previous referral. Consultees from Other also felt that decisions on sharing this type of information should be made on a case by case basis. Consultees from Voluntary Organisations made a number of comments. These were: that discretion was required in providing such information, that such information may be of limited value to employers, that it depends on the grounds of referral, the outcome and the time elapsed, whether it is still relevant, that information should be provided if it's competent, but not if the person has been exonerated, and that whilst employers should be provided with the maximum possible amount of information this may conflict with employment law.

"There are pros and cons. In principle, all relevant information may be shared. In smaller communities in particular, there is a danger of an unfounded and indeed unfair allegation being made and remaining on the record for ever. In the event of an investigation clearing someone - rather than just not proceeding further for lack of evidence at that stage - then the disclosure record should clearly state this. It may be enough that the information is retained within the scheme for reconsideration of listing if further information comes in."
Child Protection Committee

"This question still remains regarding when does a competent referral become vetting information? Unless there are robust processes in place to identify all frivolous and/or erroneous referrals, then it would be inappropriate to include previous referrals on the scheme record disclosure. The question is one of how robust those processes are. Whilst all reasonable steps are being taken in the Act and in this proposed secondary legislation to ensure the robustness of processes that will lead to a referral, it still remains open to an employer to wrongly refer a person. It is noted that the question asks about competent referrals. However, the inclusion of all competent referrals still leaves a door open through which information that is irrelevant could pass. Although it may be that other processes adequately address this matter."
Police

"Merely including the FACT of previous referrals initiates suspicion. It would need to be qualified by stating that the referral had been investigated and dismissed. Otherwise the individual would be at a disadvantage in his/her application."
Other

"X believes that including previous unsuccessful referrals in disclosures may impact adversely on the individual's potential for employment. As such, X would recommend that disclosure is considered on a case-by-case basis."
Other

There was little support (8%) for further information to be included, with 30% saying no and the majority saying don't know or not answering the question. Those most likely to want additional information were Councils and "Other".

Yes there is other vetting information

Suggestions for "other" vetting information that consultees would like included on disclosures came from Education, Police, Sport and Leisure, Voluntary Organisations, Councils and Other. These suggestions were: all relevant information (Councils), information from any source as long as it can be proved and verified (Police) overseas vetting information on foreign workers (Education, Voluntary Organisations, Other), information on medical or mental health treatment that might be relevant (Sport and Leisure), military and transport police records (Voluntary Organisations), Information relating to family law or domestic violence (Other), and information from the Children's' Panel/Children's Reporter (Voluntary Organisations, Other).

No, there is no other vetting information

Around a third of consultees felt that there was no other vetting information that should be included on disclosures. Regulatory Bodies commented that there was nothing else of relevance to them, whilst Voluntary Organisations stressed the importance of any information provided being robust. Health consultees said that there was no additional information; however they wanted information held in England and Wales to be taken into account during a referral in Scotland. Regulatory Bodies mentioned continuing with the current practice where the Chief Constable makes decisions about what goes onto a disclosure and felt that this, in conjunction with checking references, should suffice

"There is no other vetting information that should be included beyond the police, regulatory bodies, councils and civil orders. It is important to ensure that any vetting information that is collected from these bodies is robust, relevant, accurate and demonstrate clear channels of accountability."
Voluntary Organisation

"The current practice where the Chief Constable makes decisions on what is included in enhanced disclosures, including decisions made if insufficient evidence is a factor should be continued for inclusion to the list. Safer recruitment practices including ensuring references are taken up from most recent employers are still important and must be recognised."
Regulatory Body

Don't know if there is other information

Within Education there was a reticence to suggest what other information might be appropriate as there was a lack of awareness of the full range of regulatory bodies that cover the professions dealing with children and protected adults. Health, Regulatory Bodies and Other felt that additional information should only be provided if is was appropriate, necessary and proportionate to do so. Voluntary Organisations felt that there was a need for more guidance on the matter.

"Any relevant vetting information, derived from any other source, should be disclosed only if it is appropriate, necessary and proportionate to do so."
Health

Chapter 4 Summary

Regulatory Bodies and Councils

There was a feeling that no further Regulatory Body information, beyond that set out in the consultation document was required, with only 7% saying that yes it was. Suggestions for additional information included, behaviour or allegations that indicate a person may pose a risk, if an individual is guilty of misconduct and meets the harm test, immigration information, and social services information. Amongst those who said no further information was required, concerns were noted about the accuracy of the information provided, data protection and human rights legislation.

Consultees were generally in favour of sharing Regulatory Body information, and it was mentioned that the protection of vulnerable groups should be the priority. However a list of situations where it would not be appropriate to share information emerged, with the most common being if it would compromise an ongoing police investigation or put a child or protected adult at risk of harm.

All background groups could think of relevant information held by Councils. In terms of the domestic sphere, Child Protection information was the most commonly mentioned. The suggestions provided by consultees show that there is some acceptance that it is appropriate for Councils to pass on certain information relating to an individual's personal/domestic life, particularly when the information relates to a child or protected adult being placed at risk.

Council consultees mentioned: children on the at risk register, child protection information, children taken into care, risk management, adults with incapacity minutes, information from various council departments - housing, education and social work, and in also mentioned information they would hold as an employer. Councils wanted any information they provided to be looked at in context and stressed the importance of guidance.

Concerns about Council information were raised in terms of human rights, data protection and holding information on non- PVG Scheme members. Within Voluntary Organisations it was mentioned that Council information should not be used for vetting purposes.

In terms of how Council data could be gathered, there was some support for the suggestion laid out in paragraph 175 of the consultation document, which was for information to be passed on to the PVG Scheme at the time that it's generated, regardless of whether or not the individual is a PVG Scheme member, and the information would be stored centrally and could be added to by the council where appropriate. The need for consistency and guidance was once again highlighted. It was suggested that Councils should have a central point in the organisation to pass information on to the Central Barring Unit, and that the data be stored in a central point. Suggestions for gathering the data included the addition of routine questions at Protection Case Conferences, or having panels to assess information, although there was a concern that it might take a long time to gather information this way.

Councils showed support for the process of gathering information as set out in the consultation document, paragraph 175. Councils supported the need for consistency in procedures and suggested a template and a national framework as options to ensure this. Councils felt that one central point of contact with the Central Barring Unit was a good idea and put forward suggestions for this coming through the Chief Social Worker or through HR, and involving senior staff in the process. In terms of suggestions for specific means of gathering data Councils suggested setting up panels to assess information and the inclusion of specific routine questions in Protection Case Conferences.

Handling sensitive information from Regulatory Bodies and Councils

40% felt that information from regulatory bodies and councils should NOT be withheld from disclosure certificates; under a quarter, 24% felt that it should be possible to withhold information. 75% of Council consultees and 50% of Regulatory Body consultees felt that information from regulatory bodies and councils should not be withheld. Reasons provided for withholding information were: relevance, risk, fairness, an organisation's ability to deal with the information, an individual's right to privacy, the information indicating that they don't pose a threat to others and councils' discretion. The main reason given not to withhold information was to provide employers with all relevant information in order to enable them to make a decision and best ensure the protection of vulnerable groups. It was felt that guidance was needed on what it may be appropriate to withhold. Some did not know whether or not information should be withheld and suggested that such decisions be made on a case by case basis.

There is not one consistent line of thought from Councils or Regulatory Bodies, but a range of opinions exists within both groups. Council suggestions of when it would be appropriate to withhold information were: when the information is irrelevant to work, eg domestic information, where information relates to third parties, if disclosing the information would place someone at risk or jeopardise an ongoing investigation and if organisations will not be able to properly judge the information in context.

Regulatory Bodies also mentioned withholding information in cases where it isn't relevant to work, and if the information relates to an individual's health.

The counter argument was that employers needed all the available information in order to make recruitment decisions. Regulatory Bodies were of the opinion that Regulatory Body information is likely to be more robust than Council information.

Civil Orders

There was support for all the Civil Orders mentioned to be included on both scheme record disclosures and standard and enhanced disclosure certificates. They were felt to be relevant and indicate when an individual posed a risk.

Around a fifth of consultees wanted other civil orders disclosed on scheme record disclosures and a quarter wanted them to appear on standard and enhanced disclosures. Anti-social behaviour orders ( ASBOs) were the most commonly mentioned.

Other Sources of Vetting Information

Opinion was fairly evenly split between including details of previous competent referrals on scheme disclosures (37%) and not (32%). Amongst those who said yes there was a feeling that it was important to provide employers with as much information as possible when making recruitment decisions. Amongst those who said no, there was a feeling that the referral had not led to the individual being barred and including this information could lead to prejudice against the individual. There was also a feeling that employers needed to have faith in the decisions that had already been made by the Central Barring Unit.

There was very little support (8%) for any other vetting information beyond that from police, Regulatory Bodies, Councils and civil orders outlined in the consultation.

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The Scottish Government

Publications

On this page:

Protection of Vulnerable Groups (Scotland) Act 2007: Scottish Vetting and Barring Scheme: Analysis of Consultation on Policy Proposals for Secondary Legislation

Chapter 4: New types of vetting information