How well do you know your staff?

The vetting and barring scheme for people who work with children or vulnerable adults was introduced in England, Wales and Northern Ireland on 12 October 2009 with considerable impact on the health sector. From the outset, the scheme suffered widespread adverse publicity which resulted in some significant changes to it as originally conceived. However, those changes were not far reaching enough for the new government, who in their coalition agreement stated their intention to “review the criminal records and vetting and barring regime and scale it back to common sense levels”. Subsequently, on 15 June, it announced that the scheme was to be halted pending review.
    
Controversial scheme
The government’s decision was welcomed by the Royal College of Nursing, which had only just announced that it would seek a judicial review to delay implementation of the scheme. However, there remains some disappointment that the controversial scheme has not been withdrawn in its entirety, not least because of fears that it could lead to nurses being struck off for ten years for relatively minor disciplinary issues.

The first phase of registration was to have begun on 26 July 2010 when it was planned that workers, or volunteers, who began a new job or who switched jobs to work in “regulated” activity were to be able, but not obliged, to register with the Independent Safeguarding Authority (ISA). Regulated activity includes many, if not most, roles in the health sector as it covers specific activities and certain situations where individuals have the opportunity to have contact with children or vulnerable adults where work is carried out on a frequent, intensive or
overnight basis.

The government’s announcement made it clear that not only would the first phase of registration not go ahead, but also that no further elements of it would be introduced until the scheme has been remodelled. Consequently, the legal requirements for any individuals engaging in regulated activity to be registered by 1 November 2010 and for employers to check the status of individuals before they commence work in relevant roles by carrying out an ISA check will not go ahead for the time being.

Barred lists
There are, however, aspects of the vetting and barring scheme which had been brought into force prior to the review and which remain. Consequently, the ISA, which was created to vet and register all individuals wanting to work or volunteer with children or vulnerable adults, will continue to maintain the two barred lists, which have replaced the previous statutory lists (POCA and POVA). Those barred from regulated activity with either children or vulnerable adults must not work, or seek work, in regulated activity with that group. For those who employ people or use volunteers in regulated activity, there is a duty not to knowingly employ, or use as a volunteer, a barred person in regulated activity and a duty to refer individuals to the ISA for consideration for barring in relevant circumstances and to provide information to the ISA on request. The duty to refer applies if an employer dismisses a worker or a volunteer because they have harmed a child or vulnerable adult, or if the employer would have been dismissed had the worker or volunteer not left.

For the time being, an employer who employs, or engages as a volunteer, a person to work with children or vulnerable adults must check to see whether the person’s name appears on the appropriate barred list. There must also be a CRB check. Since 12 October 2009, there has been a right to ask for an enhanced disclosure in respect of anyone who works in a “regulated” or “controlled” activity. Controlled activity applies to certain work which gives the worker the opportunity to have contact with children or vulnerable adults in health, social care or further education or where workers have access to records of children or vulnerable adults kept by specific bodies.

The terms of reference for the review will become available imminently, and further details are likely to be known by the end of November. Given that the legal framework remains in place, one might guess that the scope of the scheme (and therefore the definitions of regulated and controlled activity) will be the most obvious candidate
for review.

Finally, it is worth noting that the Protecting Vulnerable Groups Scheme in Scotland, which is similar to the vetting and barring scheme, is still due to go ahead on 30 November with an estimated four year period before it is
fully operational.

For more information
Web: www.eversheds.com