Protection of vulnerable groups and disclosure of criminal information: consultation

Section 4 - Removing unsuitable people from work with vulnerable groups

The special attributes of the PVG Scheme that make it innovative both within the UK and indeed internationally are twofold:

• It connects the act of applying for PVG scheme membership to a function of the state to scrutinise the vetting information about that applicant to identify if the applicant may be unsuitable for work with children or protected adults
• It monitors every PVG scheme member so that the state can scrutinise all new vetting information arising about the member and decide whether the member has become unsuitable, advising employers and regulatory bodies if it decides that the individual should be considered for barring.

The PVG Scheme also provides for referrals to be made to Disclosure Scotland in circumstances where an employer or similar party has dismissed (or would or might have dismissed) an individual from regulated work for conduct of a type specified in section 2 of the 2007 Act. That includes conduct where a child or a protected adult has been harmed or has been at risk of harm, or where there has been inappropriate sexual conduct. The conduct does not need to occur in the course of regulated work. In addition to this, section 8 of the 2007 Act confers a power on regulatory bodies to make referrals to Disclosure Scotland. These types of referrals can be made about any person who was doing regulated work; it is not necessary that they are or were a PVG Scheme member.

Similarly, when someone is convicted in court of offences specified in schedule 1 of the 2007 Act, the court must refer the person under section 7 of the 2007 Act to Disclosure Scotland, which must then consider the referred person for listing with children, whether or not the referred person has ever done regulated work. The court is also able under the same section to make a discretionary referral of a person convicted of any other offence where it considers that appropriate, but Disclosure Scotland must apply statutory tests to ensure that persons referred by the court this way have a history of doing, or the prospect of doing, regulated work.

The feedback we have received to date about PVG referrals falls into two main groups; one primarily concerned with making the referral process more accessible and a second that is concerned with the fitness of the current referral process against a background of increased personalisation of care and the use of personal employees. We are addressing both of these areas in the PVG Review.

The policy rationale for current referral routes to Disclosure Scotland flow from the non-mandatory nature of the Scheme. With a non-mandatory scheme it is possible that those dismissed by employers for serious and harmful conduct, or convicted of crimes against children, might again do regulated work without ever having to join the PVG Scheme and consequently having their past conduct scrutinised. The referral process therefore anticipates that those in regulated work, or convicted of serious offences against children, but who are not scheme members, can be referred to Disclosure Scotland in order that they be considered for listing and pre-emptively barred if necessary.

You will read elsewhere in this document that Scottish Ministers are considering making PVG Scheme membership mandatory for those working or volunteering in specific roles. In those circumstances, it would be an offence for a non-member to do work for which PVG Scheme membership is mandatory. It would also be an offence for an organisation to offer such work to non-scheme members. This change of approach offers an opportunity to reform the referral process.

If those previously convicted of offences which suggest a capacity for harm want to work with children or protected adults, they will need to join the PVG Scheme, at which point their previous conduct would become known to Disclosure Scotland and their prospective employer. If the past conduct was such that it may be appropriate to list the individual Disclosure Scotland would commence the process to consider them for listing. If they were subsequently listed, it would be impossible to do work for which PVG Scheme membership is required without committing a criminal offence which would be punishable by law.

Ending the necessity for court referrals to Disclosure Scotland

It is our proposal that we dispense with the current duty upon convicting courts to refer those convicted of offences specified in schedule 1 of the 2007 Act. We also consider that it is appropriate to remove the provision made in section 7 of the 2007 Act for courts to make a discretionary referral.

Removal of these court referrals is a simplification of the PVG Scheme that improves proportionality whilst maintaining safeguarding. Since the commencement of the 2007 Act more than 2,200 people have been listed on the children's list as a result of a section 7 court referral who were not PVG scheme members. It is surely preferable that the PVG Scheme impacts only those (except those convicted of the most serious offences ^[5] indicating unequivocal unsuitability) who are actually doing or seeking to do work with children or protected adults and does not require the consideration for barring of those who never have nor ever will seek such work. If an individual who is already a scheme member is convicted in court for an offence against a child, this will be picked up by the ongoing monitoring of their PVG Scheme membership without the need for a court referral. As a consequence of this proposal, we would give those people who were included in the barred lists as a result of a section 7 court referral the ability to apply for removal from the list, subject to rules about them not previously having done regulated work with children or adults.

Question 46: Do you agree with our proposals to dispense with the current court referral procedure under section 7 of the 2007 Act?
Yes
No

Section 14 of the 2007 Act requires Scottish Ministers automatically to list an individual of any age, who is convicted on indictment of an offence specified in the Protection of Vulnerable Groups (Scotland) Act 2007 (Automatic Listing) (Specified Criteria) Order 2010. Since the coming into force of the 2007 Act we have included more than 900 people in the children's and adults' lists through this route. The offences set out in the Automatic Listing Order are regarded as behaviour so reprehensible that the individual would be unable to provide an explanation or mitigation for his or her actions such as to cause the Scottish Ministers not to list them. While we are proposing to dispense with referrals under section 7 of the 2007 Act, we believe the automatic listing procedure should remain to prevent the most dangerous criminals from entering the PVG Scheme. For this reason, this consultation seeks to ask if the correct offences appear in Schedules 1 to 4 in the Order.

Question 47: Are there offences missing from the Automatic Listing Order that you think should be included? You can access the order here
Yes
No

Question 47a: if you answered yes to question 47, please list the offences you believe are missing?

Police forces

In terms of major policy changes we believe that a mandatory scheme has a profound impact on the question of who must be able to refer under the PVG Scheme. At present UK police forces have certain functions with regard to the 2007 Act. Under Part 1, the police are required to respond to a request from Disclosure Scotland under section 18 for information to assist them in their consideration about whether to list someone. Under Part 2, the police are required to respond to a request from Disclosure Scotland under section 47(1) for vetting information about new scheme members. Additionally, under section 47(2) police forces can, of their own choice, provide vetting information to Disclosure Scotland about existing scheme members for inclusion in the scheme member's scheme record. This latter provision of vetting information is one aspect of the continuous updating arrangements that apply to scheme members.

UK police forces do not have a power under Part 1 of the 2007 Act to make a referral in the way that regulatory bodies can. Forces must rely on the continuous updating provision if they have a concern. But as that possibility only arises when the individual is a scheme member, there is currently a potential gap in protection.

For example, information about a recent arrest and pending prosecution of a scheme member can be provided to Disclosure Scotland by the police if they considered it relevant to disclose. In turn, Protection Services in Disclosure Scotland will review that information and decide whether it may be appropriate to list the individual. If they consider that it is, they will place the scheme member under consideration for listing and write under section 30 of the 2007 Act to all known parties for whom the individual is doing regulated work (of the type of work concerned) to advise of the new consideration for listing status. However, if the Police were to detect someone who had, for example, been accused of a type of conduct described in section 2 of the 2007 Act and that accused person was not a scheme member - in other words, unlawfully doing a protected role - the police would have no powers to provide information to Disclosure Scotland.

This gap creates particular risks in the area of self-directed support and personal employment. For example, if an adult with a disability engages a personal employee then that personal employee may well be doing regulated work. The law does not provide for the personal employer to see a disclosure of their new employee's criminal record nor does it provide a power for the employer to refer the employee to Disclosure Scotland even if they consider that one of the grounds in section 2 of the 2007 Act has been met. That power is reserved for organisations engaging people in regulated work or regulatory bodies. There were good policy reasons behind this; referrals initiate a process that can have very serious consequences for those referred. It is important that coherent investigations of allegations must take place before a process as serious as consideration for listing can begin; it is not within the capability of Protection Services to conduct disciplinary or similar investigations from scratch. For this reason we do not propose that personal employers should have a duty or a power to refer an individual to Disclosure Scotland.

Instead, bearing in mind the proposal for a mandatory membership scheme and the ability of UK police forces to provide information about scheme members, we believe the correct approach is to strengthen the powers of police to pass information to Disclosure Scotland in relation to people who are not but should be scheme members. We propose the creation of a new referral power for the police which can be used to make a referral where they have charged someone with the offence of working in a protected role whilst not a scheme member or where a referral has not been made by a relevant organisation. We would make provision for Disclosure Scotland to be able to consider it for barring purposes.

Question 48: Do you agree with proposals to create new referral powers for the Police?
Yes
No

Question 49: Do you agree these powers should be limited to when police have charged a person with unlawfully doing a Protected Role whilst not a scheme member or where a referral has not been made by a relevant organisation?
Yes
No

Local Authorities / Health and Social Care Partnerships

Some of the Adult and Child Protection Committees that Disclosure Scotland have spoken with have said that giving local authorities/health and social care partnerships a power to refer would help close some safeguarding loopholes.

To address this we believe the powers of referral currently available to regulatory bodies under section 8 of the 2007 Act should be extended to local authorities/health and social care partnerships where a referral could not be made, or was negligently not made, in respect of a person doing a role where scheme membership was mandatory.

For example, a local authority/health and social care partnerships may have conducted a formal child protection or adult protection investigation and have found evidence during this that the conduct of an individual providing personal assistance via self-directed support mechanisms or care/support staff from organisations was of a type that met the referral grounds in section 2 of the 2007 Act. A carer may have pressured a protected adult into giving them money because they were made to feel sorry for them or obliged to help them, or concerns might have been reported by family members about improper moving and rough handling of their relative by a personal assistant employed through a self-directed mechanism. In either case a crime may not have been reported to the police either because the cared for person did not want to involve the police or they did not consider a crime had been committed. The local authority/health and social care partnership might consider a referral ground in section 2 of the 2007 Act is met on the basis of the these incidents or on the basis of aggregate information available to them in regards to a pattern of incidents of concern.

In these circumstances there is currently no basis for a local authority/health and social care partnership to make a referral to Disclosure Scotland. We consider the multi-agency nature of the child and adult protection investigation can highlight whether a referral has been made to Scottish Ministers already by the police or an employing organisation and, if not, these changes to the legislation are designed to enable local authorities/health and social care partnerships to make a referral and Disclosure Scotland will be able to act on that referral.

The central concern of Adult and Child Protection Committees' processes are rightly, about ensuring the immediate and longer term safety of known children or vulnerable adults. The power to refer would specifically ask local authorities/health and social care partnerships to consider potential future victims where a perpetrator has been a scheme member.

Question 50: Do you think this proposal closes the safeguarding gap in terms of self-directed support?
Yes
No

Power to make a referral - regulatory organisations

Under section 8(1) of the 2007 Act, certain regulatory organisations can make a referral to the Scottish Minsters about an individual who comes within the scope of their regulatory functions and who has met the referral grounds set out in section 2 of the 2007 Act. This power supports the policy of preventing unsuitable people from doing, or from continuing to do, regulated work.

The power to make such a referral extends to:

• Healthcare Improvement Scotland
• The Registrar of Chiropractors
• The registrar of dentists and dental care professionals
• The registrar of the General Medical Council
• The registrar of the General Optical Council
• The Registrar of health professionals
• The Registrar of nurses and midwives
• The Registrar of Osteopaths
• The registrar of pharmacists
• Social Care and Social Work Improvement Scotland (the Care Inspectorate)
• The General Teaching Council for Scotland
• The NHS Tribunal
• The Scottish Social Services Council

Question 51: Do you think that this list of regulatory organisations should be amended?
Yes
No

Question 52: If you think the list should be amended, please gives details of additions or removals.

Persons under consideration for listing - new restriction imposable by Scottish Ministers

At present, when an individual is placed under consideration for listing they are not barred from doing regulated work during the period of the consideration. This has no definite period, but Disclosure Scotland may only disclose the fact of the consideration for listing status for six months after the decision to place the individual under consideration, unless they apply to court to extend this period or legal or regulatory body proceedings commence against the individual, which allows the consideration clock to stop and be reset. The disclosure of the consideration status on a PVG scheme record is augmented by duties placed on Scottish Ministers under section 30 of the 2007 Act to notify any organisation for which the individual does regulated work (of the type concerned) of the fact of the consideration together with any information that Disclosure Scotland considers relevant. A mandatory scheme without the possibility of court referrals leaves open the possibility that someone previously convicted of a very serious offence, for example attempted rape, could undertake regulated work for many months before the final decision is made on whether to bar them or not.

We have also listened to feedback from stakeholders who regularly look to Disclosure Scotland for guidance on whether to remove individuals from employment/volunteering while they are under consideration for listing. To address these issues Scottish Ministers propose to take powers to impose a strict supervision restriction on any person under consideration for listing where it is considered necessary to do so.

The parameters for imposing conditions would be set out in law and Scottish Ministers would be allowed to specify relevant temporary conditions which the individual and employer/volunteering body must adhere to avoid committing a serious criminal offence. The duration for which conditions last would be time limited and lapse if Disclosure Scotland does not apply for an extension from a sheriff.

We also consider that the ability to impose standard conditions should be extended to other situations where the conduct or alleged conduct is at a level that conditions ought to be imposed. For example, where a person is referred under sections 3 to 5 or 8 of the 2007 Act for serious misconduct involving a child or protected adult. Strict conditions are imposed on the individual by their professional regulatory body in relation only to their paid employment/profession. That person could still undertake another protected role, for example coaching a youth football team, without restriction while the consideration for listing process is ongoing. The new power would allow for Disclosure Scotland to impose conditions on the breadth of roles/opportunities requiring PVG Scheme membership. Another example may be that other relevant information ( ORI) is provided by the police in relation to a scheme member who has been reported to the Procurator Fiscal for alleged financial exploitation of his elderly neighbours. The conduct did not occur in the context of regulated work and the person does both paid and voluntary work requiring scheme membership, allowing them access to the finances and property of children and protected adults. The consideration could last many months while Disclosure Scotland monitors the legal proceedings being considered by the Procurator Fiscal. The power to impose conditions would afford greater protections for children and protected adults while information is gathered during the formal consideration period.

Question 53: Do you agree with the proposal to provide Disclosure Scotland with powers to impose standard conditions?
Yes
No

Question 54: If yes, how long should the conditions last before lapsing?
a) 3 months
b) 6 months

Question 55: Under what circumstances do you think Disclosure Scotland should be able to impose standard conditions and why?

Question 56: Do you agree that it should be a criminal offence if an individual and employer/voluntary body failed to comply with standard conditions?
Yes
No

Applications for Removal from the List

Under section 25 of the 2007 Act an individual may apply for removal from the list(s) at any time if they can demonstrate that their circumstances have changed. In addition, individuals may apply for removal after a certain prescribed time period has elapsed. The Protection of Vulnerable Groups (Scotland) Act 2007 (Applications for Removal from List and Late Representations) Regulations 2010 ^[6] set this period at 10 years from the date of inclusion in the list in question for those aged 18 or over and a period of 5 years for those listed under the age of 18 years. Since the commencement of the 2007 Act Disclosure Scotland has listed 5,295 individuals. Disclosure Scotland has listed just over 100 people who were under the age of 18 at the time of inclusion in the list(s), and almost 600 who were aged between 18 and 24 years at the time of inclusion in the list(s).

You will have read elsewhere in this document that adolescence and early adulthood is statistically the peak period for offending. Evidence shows that most young people who offend do not continue to do so in adulthood and research demonstrates developmental issues usually play a large part in the behaviour of young people that leads to them acquiring convictions. We are therefore proposing the age threshold for the shorter prescribed period of 5 years should be raised to 25 years.

It is important to note that the prescribed period only sets a date when the individual can apply for removal. That removal will not be automatic and formal consideration will be given to whether the individual is no longer unsuitable to work with children and/or protected adults.

Options

a) no change to the age threshold
b) raise the age threshold to under 21 years
c) raise the age threshold to under 25 years

Question 57: Do you agree the age threshold for the shorter prescribed period for a removal application to be made should be raised?
Yes
No

Question 58: Which option do you prefer?
Option A
Option B
Option C

Extending the PVG Scheme to protect children and adults who come into contact with PVG Scheme members working overseas

The current legislation allows employers, for example, aid agencies sending people abroad to work to have the individual PVG checked for some activities (including teaching and caring for children) which, if done in Scotland, would be regulated work.

This was achieved by making provision in the Protection of Vulnerable Groups (Scotland) Act 2007 (Prescribed Purposes for the Consideration of Suitability) Regulations 2010 ( SSI 2010 No. 381). Regulation 2(b) provides that consideration of suitability to do regulated work in Scotland includes consideration an individual's suitability -
(b) to do, or to be offered or supplied to do, work out with the United Kingdom that would, if done in Scotland, be-
  (i) regulated work with children by virtue of paragraph 1(a) of part 1 of schedule 2 to the 2007 Act [ie any of the activities listed in part 1 of schedule 2 such as teaching etc];
  (ii) regulated work with adults by virtue of paragraph 1(a) of part 1 of schedule 3 to the 2007 Act [ ie again any of the activities listed in part 1 of schedule 3 such as teaching etc].

However, this only allows access to disclosures for organisations recruiting staff for work abroad. Going forward we propose that overseas work which would be a protected role, if done in Scotland, should be a specified protected role.

A related issue that arises now is that the offence provisions of the 2007 Act do not apply because the regulated work is not being done in Scotland. So a person could be barred in Scotland and do the equivalent regulated work abroad and the organisation would not be committing an offence if they decide to continue to employ that individual.

The barred individual would not be able to join the PVG Scheme and the organisation would be notified of their non-member status, however, information that they are barred would not be provided. This is the case now for organisations even if they are offering the regulated work in Scotland. It is our proposal to allow organisations to be informed that the person has been barred from doing regulated work, that is working with children or a protected adult.

Question 59: Do you think it's appropriate that organisations, irrespective of where the regulated work is to be carried out, should be informed of a listed individual's barred status?
Yes
No

We propose to take the policy further, there are significant limitations to the implementation of policy in this area. The criminal justice systems of many countries in the world vary considerably from that of Scotland and the rest of the United Kingdom, both in terms of the range and content of criminal offences and the manner in which prosecution and sentencing operates.

There is no method by which the criminal history of a person living and working in most countries in the world can become automatically known to UK authorities. Of course, measures exist between law enforcement organisations across the world to share information and resources to prevent and detect serious crime and these can result in information being passed to UK authorities about the conduct of UK nationals abroad. But the current information sharing arrangements could not support the ongoing monitoring of PVG Scheme members working abroad in the same way that the UK criminal records databases support the ongoing monitoring of PVG scheme members who live and work in Scotland.

In these circumstances, our policy idea is to build upon the existing provisions in the PVG legislation that give access to PVG scheme records to organisations employing people to work overseas in what would be regulated work in Scotland. We recognise that the existing duties on employers to refer inappropriate conduct of PVG Scheme members to Disclosure Scotland do not extend an organisation which has PVG Scheme members working abroad. Rather than rely on the criminal justice system in the host country to provide information to Disclosure Scotland when inappropriate conduct occurs, we believe that this should be the responsibility of the organisation employing the PVG Scheme member.

We propose to do this in the following way:

• Require any employing organisation registered in Scotland to obtain a PVG check on any individual whom they intend to place overseas in a position that would be a protected role were it in Scotland.
• To make it a criminal offence for any Scottish based organisation to knowingly offer a barred individual for work overseas that would be a protected role were it in Scotland.
• To make it a criminal offence, prosecutable in Scotland, for any Scottish based organisation to fail to submit an organisational referral to Disclosure Scotland when they move or dismiss an individual from a protected role for conduct that would have necessitated in an organisational referral to Disclosure Scotland had it taken place in the course of work in a protected role in Scotland.

Question 60: Do you agree with our approach for PVG Scheme Members in a protected role overseas or organisations employing PVG members to do a protected role, such as providing aid services?
Yes
No

Question 61: We are proposing that there should be criminal offences in relation to organisations who employ barred persons overseas. Do you think that we should also consider introducing criminal offences in relation to barred individuals offering to undertake a protected role overseas?
Yes
No