The Protection of Vulnerable Groups (Scotland) Act 2007: Section 35(2) and (3) The Protection of Vulnerable Groups (Scotland) Act 2007 (Removal of Barred Individuals from Regulated Work) Regulations 2010

Question 1: Do you think we should maintain the current provisions?

Analysis

• Of the 85 respondents, 49 believed that the current provisions were sufficient.
• The general consensus amongst those in favour of maintaining the current provisions was they are simple to understand and apply. It was felt that the current provisions provide robust enough checks and balances with the risks of an unsuitable person being in regulated work very low.
• A number of respondents felt that a change in the legislation would result in an increased burden and cost to employers with very little benefit.
• Volunteer Scotland Disclosure Services sought feedback from over 4000 organisations that are enrolled with them. Only one response they received favoured changing the current provisions for employer offences.
• Youth Link Scotland also agreed that the current provisions should be maintained. They stated: "that the current situation of organisations voluntarily carrying out retrospective checks on current employees/volunteers is adequate. That the burden of responsibility should continue, as is set out in the 2010 regulations, to be a shared responsibility between Disclosure Scotland and the organisation." A number of respondents also stated that with retrospective checking ending, everyone in regulated work should now have been PVG checked. A number also felt that the PVG Scheme post retrospective checking should be allowed to function for a time to allow a more mature assessment of how it is working and whether changes are required.
• The respondent from NHS Education for Scotland said: "Having consulted with other HR professionals across the NHS it is my opinion that the 2010 Regulations remain fit for purpose with specific regard to patient safety, and do not require any further changes to the law."
• North Ayrshire Council suggested maintaining current provisions but that: "these should be further supported by the employer signing a declaration confirming that all employees who were in post prior to the new regulations being introduced on the 28th February 2011 have now had a retrospective check carried out and if required barred employees contracts have been terminated."
• Aberdeen City Council also favoured the retention of the current provisions. The Council noted that greater clarity over whether or not some roles were covered by the PVG Scheme would assist the effective function of the current provisions. Two respondents, who favoured the current position and who wished to remain anonymous, said that the uncertainty over whether certain jobs were covered by PVG Scheme membership acted as a barrier to effective public protection. That uncertainty could lead to an offence being committed unintentionally if the organisation had reached the wrong conclusion about the role not being covered by the PVG Scheme.
• The 33 respondents that did not agree with maintaining the current provisions considered that new provisions would offer greater protection to vulnerable groups by encouraging all organisations offering regulated work to ensure their staff had been PVG checked. There was a concern that the current provisions may result in a barred individual continuing to work with vulnerable groups.
• One respondent who wanted to remain anonymous stated that the current provisions should not be maintained as the current requirement that Disclosure Scotland has notified an organisation that an individual has been barred is 'too restrictive'.
• The BMA also stated that "the scheme in its current form is often found to be hugely bureaucratic and onerous for both the employee and employer." They wanted to see a simpler more transparent system.