Protection of Vulnerable Adults Scheme and Protection of Children Act. A UNISON guide to understanding POVA/PoCA

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1 Protection of Vulnerable Adults Scheme and Protection of Children Act A UNISON guide to understanding POVA/PoCA

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3 A UNISON GUIDE TO UNDERSTANDING POVA/POCA Contents Page Introduction 4 UNISON s response 4 England and Wales Background 5 POVA/PoCA coverage 5 Definitions within the Act 6 Registered care homes coverage 6 Domiciliary care agencies coverage 6 Registration of those who have contact with a care home 7 Pre-employment checks 7 Training and supervision 7 Referral to the list 8 How is my name referred to the list? 8 Power of certain authorities to refer 9 Definition of misconduct 9 Action following provisional listing of an individual 9 Rights of the person referred 10 Care Standards Act 10 List Northern Ireland Background 12 POCVA coverage 12 Definitions within the Act 12 Grounds for referral 12 Legal requirements to check new offences 13 A right of appeal 13 Scotland Background 14 POCSA coverage 14 The Disqualified from Working with Children/Adults List (DWCL) 14 Responding to the evidence 14 A right of appeal 15 Frequently Asked Questions 16 Annex 1 Procedure for referrals to the POVA/PoCA flow chart 21 Annex 2 Definition of terms 22 Annex 3 Useful addresses/websites 28 3

4 Introduction The Protection of Vulnerable Adults (POVA) and the Protection of Children Act (PoCA) (Protection of Children [Scotland] Act) (Protection of Children and Vulnerable Adults in Northern Ireland) legislation has been established with the aim of improving existing safeguards for vulnerable adults and children by preventing unsuitable people obtaining work, in any capacity, whether paid or unpaid. It complements the protection measures each provider is required to have. All care organisations entrusted with the care of children and vulnerable adults need to adhere to the relevant legislation in each country. UNISON s response While UNISON welcomes such protection we are also concerned that the processes within the POVA/PoCA (England and Wales), POCSA (Scotland) and PoCVA (Northern Ireland) system are inherently unfair and against natural justice.this is because: n in our opinion, the process assumes anyone reported under the scheme is guilty until proven innocent n the timescales for appeals against being placed on the POVA register are too long and cause unnecessary stress and anxiety to members who are provisionally listed n the lack of a right to appear before those making the decision to interim suspend or to fully suspend is an affront to common justice n the appeals process takes too long to implement and affected individuals cannot practise whilst they are on the list the process takes no account of the principle of double jeopardy, so professional staff can be subjected to a POVA/PoCA England and Wales, PoCVA Northern Ireland, POCSA Scotland referral even when they have been found to have no case to answer by their registration body and/or the employer. This guidance does not aim to provide detailed or authoritative legal advice on every situation that may arise from implementation of the POVA scheme and members should seek advice from their branch or region should they have difficulties with the POVA/PoCA/PoCVA/POCSA process. It is not a guide to the process, a separate guide will follow that will also include advice on the Bishard Recommendations. 4

5 A UNISON GUIDE TO UNDERSTANDING POVA/POCA England and Wales Background The Protection of Vulnerable Adults (POVA) scheme, as set out in the Care Standards Act 2000, was implemented on a phased basis from 26 July 2004.At the heart of the scheme is the POVA list. Through referrals to, and checks against the list, care workers who have harmed a vulnerable adult, or placed a vulnerable adult at risk of harm, (whether or not in the course of their employment) will be banned from working in a care position with vulnerable adults. The intention of the POVA scheme is to significantly enhance the level of protection for vulnerable adults. It creates a list of people, held by the Secretary of State, or relevant minister, who are considered unsuitable to work with vulnerable adults in England and Wales. From 26 July 2004, in certain circumstances, registered providers of care, in relation to care homes and domiciliary care agencies, employment agencies and businesses who supply workers to these providers of care, may refer individuals, described below for inclusion on the POVA list. From this same date, in certain circumstances, providers of care and employment agencies and businesses will be able to request checks against the POVA list as part of an application for a Criminal Records Bureau (CRB) Disclosure with respect to individuals being considered for care positions. In this way, as is explained later in this guidance, providers of care will be able to use these checks (together with other robust pre-employment procedures) to prevent unsuitable individuals from working with vulnerable adults. In the Protection of Children Act (PoCA), Section 1 of the Act imposes a duty on the Secretary of State to maintain a list of people considered unsuitable to work with children.this List is known as the Protection of Children Act (PoCA) List.The Secretary of State has the discretion to remove an individual from the list if he/she is satisfied that they should not have been included in it. There are a number of very important principles embodied in the Children Act: the welfare of the child is the paramount consideration wherever possible, children should be brought up and cared for within their own families parents with children in need should be helped to bring up their children themselves, this help would be provided as a service to the child and his/her family and should: n be provided in partnership with the parents n meet each child s identified needs n be appropriate to the child s race, culture, religion and language n be open to effective independent representations and complaints procedures n draw upon effective partnership between the local authority and other agencies, including voluntary agencies children should be safe and be protected by effective intervention if they are in danger; when dealing with children, courts should ensure that delay is avoided, and may only make an order if to do so is better than making no order at all children should be kept informed about what happens to them, and should participate when decisions are made about their future parents will continue to have parental responsibility for their children (see below), even when their children are no longer living with them.they should be kept informed about their children and participate when decisions are made about their children s future. The procedures for referrals to the POVA/PoCA lists are in a flow chart as Annex 1. POVA/PoCA coverage This guidance sets out, in summary, what is required of providers of care, employment agencies and businesses and other stakeholders affected by implementation. It covers both England and Wales, and refers to the care of vulnerable adults aged 18 years or over. The POVA scheme is currently implemented with regard to: a) care workers employed by registered providers of care homes, including workers supplied by employment agencies and businesses to such providers, who are employed in care positions that enable them to have regular contact in the course 5

6 of their duties with care home residents b) care workers employed by registered providers who carry on domiciliary care agencies, including workers supplied by employment agencies and businesses to such providers, who are employed in care positions concerned with the provision of personal care in their own homes for persons who, by reason of illness, infirmity or disability, are unable to provide it for themselves without assistance c) adult placement carers.although all such carers were not covered when POVA was first introduced (on 26 July 2004) the government extended the POVA scheme to adult placement schemes from 31 August Phased implementation means that, until further notice, the POVA scheme will not apply to care workers outside the scope of points a to c above.this means that those who work with vulnerable adults in NHS or independent hospitals, clinics and other facilities, or through an independent medical agency, are excluded from the ambit of the POVA scheme for the time being. However, through pre-employment checks, fair and thorough recruitment practice and applications for Criminal Records Bureau (CRB) Disclosures, patients can be afforded high levels of protection from known abusers entering the health care workforce. Definitions within the Act Section 80 of the Care Standards Act 2000 (the Act) is the relevant section for defining those covered by the POVA process.the Act contains definitions of care worker (see section 80(2)), care position (section 80(3)), employment (section 80(4)), supply worker (section 80(5)), vulnerable adult (section 80(6)), care provider (section 80(7)) and other terms. Further reference can also be made to the definition of employment in paragraph 32, as this is a critical aspect of the POVA scheme. For example, the definition of employment in the Act is intentionally wide and includes both paid and unpaid work, including voluntary work. Please note that the key to deciding whether a person qualifies as a care worker is the amount of contact they have with vulnerable adults in performing their duties (whatever they might be) rather than their job title or their formal job description. It should also be noted that the definition of employment used in the Act is very wide and is intended to ensure that even the most informal of connections and voluntary work are covered by the provisions of the Act. More definitions within the Act have been attached as Annex 2. Registered care homes coverage The individuals listed below work in care homes.there will be a legal duty to check such individuals only if they have regular contact in the course of their duties with residents. Otherwise they should not be checked. n Deputy and assistant managers (Note that registered managers will already have been POVA checked as part of the registration process with the Commission for Social Care Inspection/Care Standards Inspectorate for Wales after the coming into force of the POVA scheme.) n Administrative, finance, clerical and reception staff n Care assistants n Nurses in care homes with nursing on the premises n Cooks n Cleaners n Maintenance workers, gardeners, handy-persons and so on n Volunteers (such as Friends of the Care Home ) n Persons coming into the home to provide services under arrangements made with the home, such as chiropodists, hairdressers, priests or other religious leaders, persons providing library services and so on. Domiciliary care agencies coverage There is a legal duty to check such individuals only if they provide personal care in the homes of individuals who, by reason of illness, infirmity or disability, are unable to provide it for themselves without assistance. Otherwise they should not be checked. n Deputy and assistant managers, including home 6

7 A UNISON GUIDE TO UNDERSTANDING POVA/POCA care organisers (Note that registered managers will already have been POVA checked as part of the registration process with the Commission for Social Care Inspection/Care Standards Inspectorate for Wales after the coming into force of the POVA scheme.) n Administrative, finance and clerical staff n Home care workers/domiciliary care workers (Note that the term domiciliary care worker is defined in the Domiciliary Care Agencies Regulations 2002, in summary, as a person employed in a position which is concerned with the provision of personal care to individuals in their own homes.) n Home helps/home support workers/domiciliary care assistants n Volunteers (including those recruited by agencies such as Crossroads or the Red Cross to visit vulnerable adults in their homes). Registration of those who have contact with a care home In a care home, individuals and services, which include: n social workers or care managers n community or district nurses n chiropodists n hairdressers and other professionals (some of whom may be self-employed, or may be volunteers) n volunteers from local community organisations or places of worship and the like should be considered for a POVA check. These checks should only be carried out if, for example, the registered provider of a care home has a contract with them to provide a service, or has some other arrangement that comes within the wider definition of employment set out in the Act and described in this guidance, and which involves these individuals and services in regular contact with the residents. Where other professionals, volunteers or other services come into the care home as part of their statutory duties, or on the express invitation of the resident, POVA checks should not be considered. Hence, council-based social workers or care managers, who, in the normal course of their statutory duties with regard to assessment, visit care home residents, should not be checked against the POVA list. Community nurses who visit patients registered with the practices or health centres that employ them, as part of their regular duties to such patients, should not be checked. Similar logic applies to services users in receipt of services from domiciliary care agencies in their own homes.the key is that those professionals, volunteers and other services who visit people in their own homes to provide personal care, and who are under a contract to do so with the provider of domiciliary care or under some other arrangement that constitutes employment as set out in the Act, should be checked against the POVA list. Pre-employment checks For care homes and domiciliary care agencies, from 26 July 2004, the regulations require: Details of any criminal offences: n of which the person has been convicted, including details of any convictions which are spent or, n in respect of which she/he has been cautioned by a constable and which, at the time the caution was given, she/he admitted. n Two written references, including, where applicable, a reference relating to the person s last period of employment of not less than three month s duration which involved work with children or vulnerable adults n where a person has previously worked in a position which involved contact with children or vulnerable adults, written verification (so far as reasonably practicable) of the reason why she/he ceased to work in that position n documentary evidence of any relevant qualifications and training n a full employment history, together with a satisfactory written explanation of any gaps in employment n a statement by the person as to her/his physical and mental health n details and evidence of registration with, or membership of, any professional body. Training and supervision The training and supervisory requirements for new staff have been strengthened by the amendments to 7

8 the Care Home Regulations 2001 and the Domiciliary Care Agencies Regulations 2002 that come into force on 26 July Where providers of care wish to appoint individuals ahead of the full CRB disclosure being issued, and subject to the requirements, they must appoint a named person, appropriately qualified and experienced, to supervise new members of staff until they have completed induction training and until the full CRB disclosure has been completed satisfactorily. The named person, so far as is possible, must be on duty at the same time as the new member of staff. Referral to the list The Criminal Records Bureau aims to help employers and voluntary organisations make safer recruitment decisions by providing information on candidates who may be unsuitable for certain work, especially work which involves children or vulnerable adults, through a service called disclosure. Checks against the PoCA List are obtained by asking a prospective employee or trainee to apply to the Criminal Records Bureau (CRB) for a disclosure that will contain information about their criminal record. The bureau currently issues two types of disclosure depending on the duties of the particular position or job involved: Standard disclosures show spent and unspent convictions and cautions.these disclosures are only available to applicants seeking paid or voluntary work or training in an occupation that is exempt from the Rehabilitation of Offenders Act 1974.This includes paid or voluntary work with children less than 18 years of age, and will also be relevant to people entering certain occupations such as the legal profession and accountants. Enhanced disclosures show spent and unspent convictions and cautions.the police may also provide details of acquittals or other non-conviction information from data held on local police records (which are relevant to the job or voluntary position being sought). Enhanced disclosures are only available to people seeking paid or voluntary work or training in a position whose normal duties include regularly caring for, training, supervising, or being in sole charge of children under 18 years of age or vulnerable adults, and are also relevant for people entering the medical profession, seeking judicial appointments and for certain statutory licensing purposes. In addition to information about a person s criminal record standard and enhanced disclosures, supplied in connection with work with children will contain information about whether a person is: n subject to a direction under section 142 of the 2002 Education Act (i.e. included on List 99) n included on the PoCA list n subject to a disqualification order from the court, disqualifying them from working with children under section 35 of the Criminal Justice and Court Services Act If an individual has regular contact with vulnerable adults the disclosure will also contain information about whether a person is included on the Protection of Vulnerable Adults (POVA) list. How is my name referred to the list? The Act sets out the circumstances where a childcare organisation must, and other organisations may, refer names to the Secretary for State for consideration of inclusion in the PoCA list.these are: n that the organisation has dismissed the individual on the grounds of misconduct (whether or not in the course of his/her employment) which harmed a child or placed a child at risk of harm n that the individual has resigned or retired in circumstances such that the organisation would have dismissed him/her, or would have considered dismissing him/her, on such grounds if he had not resigned or retired n that the organisation has, on such grounds, transferred the individual to a position within the organisation which is not a childcare position n that the organisation has, on such grounds, suspended the individual or provisionally transferred him/her (to a position) as in (c) above, but has not yet decided whether to dismiss him/her or to confirm the transfer (e.g. the organisation may have suspended or transferred on a neutral basis whilst an investigation is undertaken). 8

9 A UNISON GUIDE TO UNDERSTANDING POVA/POCA Power of certain authorities to refer The Commission for Social Care Inspection, National Assembly for Wales and Her Majesty s Chief Inspector of Schools in England all have the statutory power to refer individuals to the Secretary of State for inclusion on the PoCA list.they may make referrals to the PoCA list when they come across evidence of misconduct that has not been referred to the Secretary of State by the employer. Additionally, and very importantly, childcare organisations and other organisations may refer names to the Secretary of State in other circumstances.this would be where an individual has resigned, retired or transferred to a position within the organisation that is not a childcare position where information not available to the organisation at the time has since become available. On the basis of that new information the organisation has formed the opinion that had the information been available at the time and the individual had not resigned, retired or transferred the organisation would have dismissed, or would have considered dismissing him/her on the grounds of misconduct which harmed a child or placed a child at risk of harm. It is important for all employers to note that referrals are not required when dismissal of the individual was not a serious option. For example, when it would only have been a passing consideration within the range of possible options but not a real possibility. If a referral is made in such circumstances the Secretary of State would take the matter no further on the basis that it would not be appropriate for the individual to be included on the list. A misconduct committed after the individual has resigned, retired or been dismissed from his/her position is never relevant for this purpose, because once he/she had left the post he/her could not have been dismissed. Definition of misconduct During the passage of the Act members of Parliament were anxious to ensure that situations where incompetence (whether or not attributable to inadequate training and/or supervision) and youthful indiscretions, did not result in automatic referrals to the Secretary of State. Misconduct is not defined within the Act.The determination of misconduct must be a matter for the employer to decide. Keeping in mind the criteria for referrals, the types of circumstance where the Secretary of State would expect a referral to be made would be where any action or inaction on the part of the individual harmed a child or put a child at risk of harm.acts of omission and commission should both be considered. However, in the circumstances of this Act misconduct would range from serious sexual abuse through to physical abuse which may include intentional inappropriate restraint and/or consistently poor childcare practices in contravention of organisational codes of conduct which resulted in harm or risk of harm to children. Action following provisional listing of an individual If a name is included on the PoCA list, provisionally, the Secretary of State will confirm this with the organisation (the person who made the referral) and will immediately inform the individual by letter sent by recorded delivery.the individual will then have the opportunity to make written representations direct to the Secretary of State as to why their name should not be retained on the PoCA list.the Secretary of State will provide the individual with a copy of the information submitted by the referring organisation. The individual will be given 28 days in which to make written representations, or to indicate that he/she intends to make representations within a reasonable period. Persons provisionally included in the PoCA list may not be employed in a childcare post within a childcare organisation. Other organisations should also pay particular regard to the fact that the person is provisionally included in the list when considering their appointment to a post which involves contact with children. Before a name may be retained on the PoCA list the Secretary of State will need to be of the opinion that: n the referring organisation reasonably considered the person to be guilty of misconduct which harmed a child or placed a child at risk of harm, 9

10 (whether or not in the course of employment), and n that the individual is unsuitable to work with children. Thus, all representations made by the individual will be passed to the referring organisation for comment. Similarly the Secretary of State would expect to be able to copy to the individual all responses submitted to him/her from the referring organisation.this process of information gathering and exchange will continue for as long as it takes for the Secretary of State to be satisfied that he/she has sufficient information to enable him/her to come to the opinion he/she is required to reach. It should be noted that some people may be included on the PoCA list, even though the facts which the Secretary of State takes into account do not lead to conviction for an offence. Where a person has been provisionally included in the PoCA list whilst suspended or provisionally transferred to a position within the organisation which is not a childcare position, the Secretary of State will not form his/her opinion about confirming the name on the list until the organisation has dismissed the individual, or has confirmed their transfer. However, even if the Secretary of State has been unable to reach a conclusion, the person provisionally on the PoCA list will have a right of appeal. Rights of the person referred Any individual provisionally included in the PoCA list will have the right to make representations to the Secretary of State as to why their name should not be retained in the list.the individual will be given 28 days in which to make written representations, or to indicate that he/she intends to make representations within a reasonable period. Persons who have been provisionally included in the PoCA list for more than nine months may, with leave of the Care Standards Tribunal, have the issue of their inclusion in the list determined by the tribunal instead of by the Secretary of State. However, if the person who is under consideration is the subject of any civil or criminal proceedings in connection with these allegations, he/she cannot apply to the tribunal until six months after those proceedings have been disposed of.this may mean that the nine month period before applying has to be extended. Individuals who are confirmed on the PoCA list, following provisional listing, will have the right of appeal to the tribunal if they do so within 3 months of the date of that decision.this is an independent tribunal and its decision about the facts of individual cases is binding and final. However, appeals may be made to the High Court on points of law. The Secretary of State has discretionary powers to remove names from the PoCA list in limited circumstances (for instance, where a conviction has been quashed on appeal or where a malicious referral is uncovered following the production of new evidence), without the need to go through the tribunal. It will still be possible for an individual to seek leave to appeal against a decision of the Secretary of State not to remove their name after consideration in such cases. Care Standards Act As a result of an individual s name being included on the POVA list they are now disqualified from working with vulnerable adults for the purposes of Section 89 of the Care Standards Act Care positions are as specified in Section 80(2)(a) and 80(2)(c) of the Care Standards Act In this context, work could include paid or unpaid activity (which includes volunteering) allowing you to have contact with vulnerable adults in a care home or through a domiciliary agency operated within the public, private or voluntary sectors. List 99 The Secretary of State for Education will refer individuals to List 99. If you have been reported onto List 99, your name, departmental reference number (where applicable), national insurance number and date of birth will be included in the list of persons who are subject to a direction made by the Secretary of State for Education under Section 142 of the Education Act 2002, which is known as List 99. Section 142 applies to the following work: 10

11 A UNISON GUIDE TO UNDERSTANDING POVA/POCA n providing education at a school n providing education at a further education institution n providing education under a contact of employment, or for services where the other party to the contract is a local education authority, or a person exercising a function relating to the provision of education on behalf of a local education authority n taking part in the management of an independent school n work which brings a person regularly into contact with children and is carried out at the request of, or with the consent of, a relevant employer (whether or not under a contact). In this context a relevant employer is: n a local education authority n a person exercising a function relating to the provision of education on behalf of a local education authority n the proprietor of a school (which includes the governing body of a maintained school) n the governing body of a further education institution. The Protection of Vulnerable Adults list, Protection of Children Act list and List 99 are made available to the Criminal Records Bureau, and details of an individual s inclusion may be provided on a confidential basis to local education authorities and other bodies concerned with the employment of care workers, childcare workers or teachers if you apply to work for such bodies. 11

12 NORTHERN IRELAND Background The Pre-Employment Consultancy Service (PECS) has been replaced by two services, the Protection of Children (NI) Service (POC[NI]) and the Protection of Vulnerable Adults (NI) Service (POVA[NI]). Both are operated by the POCVA team based in the Childcare Policy Directorate at the Department of Health, Social Services and Public Safety (DHSSPS).The Protection of Children and Vulnerable Adults (NI) Order 2003 (POCVA) commenced on 1 April 2005 (with the exception of Article 46) and improved the arrangements for safeguarding vulnerable members of society by providing a legislative basis for maintaining two lists as follows: the Disqualification for Working with Children (DWC [NI]) list a list of those individuals who are considered not fit to work with children the Disqualification for Working with Vulnerable Adults (DWVA [NI]) list a list of those individuals who are considered unsuitable to work with vulnerable adults. POCVA also provides a legislative basis for preemployment checks against the above mentioned lists and whilst the requirement for childcare providers to check before appointing anyone into childcare positions which came into operation on 1 April Article 46, the requirement to check for care positions with vulnerable adults, will start at a later date. However, care providers are encouraged to familiarise themselves with the requirements and the Department of Health, Social Services and Public Safety will familiarise themselves with the requirements and the Department will facilitate checks for care positions in the interim. The procedures for referrals to the POCVA lists are in a flow chart as Annex 1 POCVA coverage Those staff who are covered by the POCVA Order are: n Staff Employed by Private contractors within Care Providers Premises such as cleaning, maintenance, building works and staff considered to be care position; n Services Provided Under Contract to a Care Provider; n Nursing and Allied Health Professionals Students undergoing professional training who are or are not formally employed; n College students of further and higher education; n Employment, nursing and employment agency staffs; n Child care positions; n Individuals providing child care services in their own homes; n Staff employed by private contractors within child care organisation premises; n Services provided under contract to a child care organisation; n Junior Leaders; n Applicants from abroad. Definitions within the Act In the handbook Choosing to Protect A guide to using the protection of Vulnerable Adults, Northern Ireland (POVA [NI]) Service, Section 2.2 lists the definition of terms for care positions, care provider, personal care, vulnerable adult. Section 2.2 lists the definition of terms of a child, childcare organisations, non-childcare organisations, accredited organisations and childcare positions. In broad terms it means a person under the age of 18 years. More definitions within the Act have been attached as Annex 2. Grounds for referral Under the Order, the grounds for referral under POVA/PoCA are as follows: n that the care provider/organisation has dismissed the individual on the grounds of misconduct (whether or not in the course of their employment) which harmed a vulnerable adult/child or placed a vulnerable adult/child at risk of harm n that the individual has resigned, retired or been made redundant in circumstances such that the care provider would have dismissed him/her, or would have considered dismissing him/her on such grounds if they had not resigned, retired or been made redundant n that the care provider/organisation has, on such grounds, transferred the individual to a position 12

13 A UNISON GUIDE TO UNDERSTANDING POVA/POCA within the organisation which is not a care/childcare position n that the care provider/organisation has, on such grounds, suspended the individual or provisionally transferred him/her to a non-care/non-childcare position, but has not yet decided whether to dismiss him/her or to confirm the transfer. Legal requirements to check new offences POCVA introduces the following new offences following commencement of Article 46: n anyone who is disqualified from working with vulnerable adults will commit a criminal offence if they apply for, offer to do, accept or do any work either paid or unpaid in a care position n an individual who knowingly employs a disqualified individual to work in a care position, offers work to, or procures work for, a disqualified individual, or fails to remove a disqualified person from a care position will be guilty of a criminal offence. to the Care Tribunal.The individual will be able to appeal a decision by the Department to include his/her name on Disqualification for Working with Children (DWC [NI]) or the Disqualification for Working with Vulnerable Adults (DWVA [NI]) list or against the inclusion provisionally on the DWC (NI) or DWVA (NI) list for a period exceeding 9 months. There is also scope for a listed person to apply to the Care Standards Tribunal for removal of their name from the DWC (NI) and DWVA (NI) list.the Care Tribunal will only consider removal if and when certain conditions are met.actual removal from the lists will only be possible if the Care Tribunal deems the individual to be suitable to work with children. Individuals found guilty of any of these offences will be punishable by imprisonment or fines, or both.all responsible care providers will want to satisfy themselves that the potential employee does not have a criminal record for violence, abuse or neglect of vulnerable adults before offering a care position. Care providers who do not carry out the appropriate checks may find themselves without any adequate defence against a charge of knowingly employing someone who is disqualified from working with vulnerable adults.although the requirement to check will not begin until the commencement of Article 46, the Department will facilitate checking. It is the Department s recommendation that all care providers carry out checks on all prospective care workers as part of their recruitment and selection procedures. Notification that an individual is on the DWVA (NI) list is currently not a prohibition on employment in a care position, but it will be a prohibition once Article 46 commences. A right of appeal The individual has an opportunity to comment on the information that is submitted to the Department of Health, Social Services and Public Safety to support the referral and the individual will have the right to appeal 13

14 SCOTLAND Background At the time of publishing this booklet Scotland is conducting a consultation seeking views on the need for further protections for vulnerable adults that would be taken forward when a suitable legislative opportunity arises.the consultation paper is the third in a series about the protection of vulnerable adults. It will bring together several strands of policy thinking around vulnerability dating back to 1997 with a view to co-ordinating them into a coherent whole. If the outcome of this supports legislation then a bill (Vulnerable Adults Bill) would be introduced to the Scottish Parliament. The Protection of Children (Scotland) Act 2003 (POCSA) commenced on 10 January Section 11(3)(b) of the Act, which would trigger the need for retrospective checking has been deferred the commencement date will be fixed in due course. It established a list of adults who are the Disqualified from Working with Children List (DWCL). Individuals referred to this list will be via the courts or employers (past and current).this list can be checked by a disclosures check from Disclosures Scotland. The procedures for referrals to the POCSA List are in a flow chart as Annex 1. POCSA coverage Under the Protection of Children (Scotland) Act 2003 (2003 ASP 5) Schedule 2 it is defined that those who are working paid or unpaid in a childcare position in which: n whose normal duties include providing, or working for an organisation which provides a care home service or an independent healthcare service which is provided exclusively or mainly for children n whose normal duties include work on day care premises n whose normal duties include caring for, training, supervising or being in sole charge of children n whose normal duties involve unsupervised contact with children under arrangements made by a responsible person n whose normal duties include caring for children under the age of 16 in the course of the children s employment n a substantial part of whose normal duties include supervising or training children under the age of 16 in the course of the children s employment. When the Act refers to the establishment it will cover staff working in: n an institution which is exclusively or mainly for the detention of children n a hospital which is exclusively or mainly for the reception and treatment of children n an educational establishment n a home which is exclusively or mainly for children and is provided by a local authority under section 59 (provision by local authorities of residential and other establishments) of the Social Work (Scotland) Act 1968 (c.49) or section 7 (provision by local authorities of residential accommodation for persons with mental disorder) of the Mental Health (Scotland) Act 1984 (c.36). Staff working with vulnerable adults will abide under the current legislation until changes have been made. The DWCL Scottish ministers are responsible for keeping the Disqualification from Working with Children List (DWCL). If someone has been referred to the DWCL by the courts, the name is automatically added to the list. All other cases would be referred to a panel of senior officials authorised by Scottish ministers.they would decide to the merits of the case and the panel takes decisions on behalf of Scottish ministers.a case management team will also support the panel. This panel considers all information submitted by the referral, any observations and any further information submitted. Definitions within the Act have been attached as Annex 2. Responding to the evidence Information and evidence that the referring body has submitted in support of their referral will be copied to the accused when contacted with the knowledge that your name has been included on the DWCL provisionally.you will be invited to send your observations on that information and if you disagree with the referral and the reasons why.a submission 14

15 A UNISON GUIDE TO UNDERSTANDING POVA/POCA can be made regarding further information including in order in support of your opposition to the referral that you wish to be taken into account in the decision on your case.you will be given 21 days to submit your comments and if you are unable to do this, an extension may be granted depending on the circumstances. If you fail to respond on time or make only a partial response, the regulations allow the Scottish ministers, or the panel on their behalf, to make their decision on the basis of observations and information already held. It is extremely important that the timescales are adhered to as set out in the formal notices. A right of appeal If you are fully listed on the DWCL as a result of a referral from a body or as a consequence of an inquiry, you may appeal to the Sheriff within 3 months of the determination.the Sheriff has discretion to allow an appeal lodged late if you can show a good reason for the late submission of your appeal.an appeal is made by means of a summary application and you may wish to seek assistance from the Sheriff Clerk. If your appeal is unsuccessful you have further right of appeal to the Sheriff Principal against the decision of the Sheriff.A further appeal to the Court of Session may then be made but only with leave of the Sheriff Principal.An appeal against a proposed referral by the criminal court to the DWCL following conviction for an offence against a child is made to the High Court. If you are fully listed as a result of a referral from the criminal court you will remain on the DWCL unless your circumstances change or the conviction, which resulted in your referral to the DWCL, is overturned then the court will notify Scottish ministers and your name will be removed. To be removed from the DWCL an application must be made with the Sheriff for a decision as to whether or not you should continue to be included on the DWCL. You will need the agreement of the Sheriff to make such an application. Normally applications will only be considered after 10 years on the DWCL for those over 18 years at the time they were included on the list and after 5 years for those under 18 years. However, the Sheriff may waive the time limits where he considers your circumstances have changed. 15

16 Frequently asked questions Protection of Vulnerable Adults (POVA) and Protection of Children Act (PoCA) Q What is PoCA? A - PoCA (Protection of Children Act) is a statutory scheme.where the criteria in the Act are satisfied, the employer is legally required to carry out a PoCA check before a person can be appointed.the Criminal Records Bureau (CRB) can, however, only carry out a PoCA check as part of a disclosure including a criminal record check. Guidance on the application of the Protection of Children Act (PoCA) is available on the Department of Health website at: Q Which posts will require a PoCA check? A - To require a PoCA check, the post must fit one of the criteria for a regulated position and can be requested with either a Standard or an Enhanced Disclosure, providing the precise definition of a regulated position is satisfied. The definition in the Act of a relevant post is: A position whose normal duties include caring for, training, supervising or being in sole charge of children (Section 36 1 c Criminal Justice and Court Services Act) Q Who can be reported to the DFES under the PoCA scheme? A - Employers have a duty, under the Education (Restriction of Employment) Regulations 2000, to make a report to the department when a person is dismissed from relevant employment on grounds of misconduct or resigns in circumstances which would have led to their dismissal, or consideration of their dismissal, on those grounds, if they had not resigned. Reports should be made promptly, preferably within a month of the person s dismissal or resignation. Q What is POVA? A - The Protection of Vulnerable Adults (POVA) scheme, as set out in the Care Standards Act 2000, is implemented on a phased basis from 26 July 2004.At the heart of the scheme is the POVA list. Through referrals to, and checks against the list, care workers who have harmed a vulnerable adult, or placed a vulnerable adult at risk of harm (whether or not in the course of their employment) will be banned from working in a care position with vulnerable adults. Q What information has to be provided under the POVA scheme? A - Employers are required by the regulations to report the facts of the case and provide all relevant information, relating to the circumstances of the dismissal or resignation to the Secretary of State. When a person has not been convicted of an offence, the Secretary of State can only act if the allegation of misconduct has been substantiated by other means. Q When is a check made against the POVA list? A - A check against the POVA list should be made for eligible applicants where the Commission for Social Care Inspection (CSCI) is counter signing the CRB disclosures as part of the registration process. This applies to registered managers and registered providers (whether individuals or partners) and responsible individuals in relation to care homes and domiciliary care agencies. 16

17 A UNISON GUIDE TO UNDERSTANDING POVA/POCA Q When could I be referred to the POVA list? A - Registered persons have a duty to refer care workers to the list where any action or inaction on the part of an individual harmed a vulnerable adult or placed a vulnerable adult at risk of harm. The registration authority may refer where they have evidence from their regulatory work that they consider that the care worker has been guilty of misconduct (whether or not in the course of his/her employment) that harmed or placed at risk of harm. Q Who else is likely to refer me to the list? A - The police have a responsibility to report registered professionals where they are cautioned or charged with appropriate offences. Registration bodies may report registrants who are the subject of a charge of misconduct relating to harm to a vulnerable adult. Employers may report registrants who are in the process of disciplinary action because of harmful behaviour to a vulnerable adult. Q What is the Commission for Social Care Inspection? A - Launched in April 2004, the Commission for Social Care Inspection is the single, independent inspectorate for all social care services in England.The remit of CSCI is greater than anything seen before in social care. It works on a local level, at a national level, and across all sectors. In each local council area CSCI: n registers the private and voluntary care services that are required to meet national standards n inspects, assesses and reviews all care services in that area.this includes private and voluntary care services and local council social services departments n inspects boarding schools, residential special schools and further education colleges with residential students aged under 18 n publishes an inspection report detailing its findings after each inspection n provides the local council with details of the number and quality of private and voluntary care services in their local area n deals with complaints about care service providers n from 2005 CSCI will review complaints about council social services departments. Q What happens if the Commission for Social Care Inspection (CSCI) is notified that a care worker is allegedly harming a vulnerable adult? A If a complaint relates to an allegation of abuse against children or adults then the commission will refer the complaint to the relevant social services authority in accordance with local procedures for the protection of vulnerable people. Where CSCI is notified under Regulation 37 of staff misconduct within a registered care home and the detail relates to misconduct which harmed a vulnerable adult or placed them at risk of harm, this would reasonably trigger further questioning about whether the provider has considered responsibilities under the POVA scheme. It is envisaged that CSCI will be most likely to exercise its power to refer in relation to registered providers and registered managers whose conduct warrants referral for inclusion on the POVA list. Q Under what circumstances are cases likely to be referred? A - It is likely that allegations that would lead a registered provider to suspend a staff member on grounds of harm, or risk of harm, will also trigger an adult protection referral under the local multi agency procedures.actions under such procedures typically include consideration of what measures are needed to safeguard the vulnerable adult(s). Q When will employers check the POVA register? A - For registered care homes there is a statutory responsibility to check the names of new staff against 17

18 the register.the Regulation 13(6) of the Care Homes Regulations 2003 and Regulation 14(9) of the Domiciliary Care Agencies Regulations 2002 say: New staff are confirmed in post only following completion of a satisfactory police check, satisfactory check of the Protection of Children and Vulnerable Adults and UKCC registers. Q How do POVA and PoCA fit with the National Minimum Standards of Domiciliary Care? A - POVA is not specifically referenced under standard 14 Protection of the person. Standard 14.8 stipulates referral of staff who may be unsuitable to work with children to the POCA list. POVA is not specifically referenced under standard 17 Recruitment and selection. Checks against the PoCA list are included under Q How do POVA and PoCA fit with the National Minimum Standards of Nurses Agencies? A - Nursing agencies fall within the scope of the POVA scheme as currently implemented to the extent that they act as employment agencies supplying staff to the regulated services currently covered by the POVA scheme. Q What is the local code on regulating care? A - In each local council area, local councils together with NHS partners, the police force, local providers of care and other stakeholders have set up codes of practice to protect vulnerable adults from abuse, based on recommendations in the reports No secrets and In safe hands. Where harm to vulnerable adults is suspected, alleged or proved, appropriate action should be taken in accordance with such local codes and associated disciplinary procedures.the provisions of the POVA scheme add an extra dimension not only to pre-employment checks but also to these local codes by requiring that care workers may be referred to the POVA list along with other appropriate actions. Q How long will I have to respond to an allegation reported to POVA? A - You will be given 28 days in which to make written observations, or to indicate that you intend to make observations within a reasonable period. If observations are not received, the Secretary of State will make his/her decision based on all available evidence. Q How does the POVA/PoCA list affect my professional registration? A - As soon as a care worker is provisionally included on the POVA list, prompt referral to appropriate regulatory bodies such as the General Social Care Council and the Nursing and Midwifery Council should be considered by the person who made the referral to the POVA list. Where a worker is removed from the POVA list, the person who made the referral, if she/he is aware of the removal, should inform the regulatory body of the removal. Q Does the existence of other civil or criminal cases affect this timetable? A - If the individual who is provisionally included on the POVA list is also the subject of any civil or criminal proceedings in connection with the allegations of misconduct she/he cannot apply to the tribunal until six months after those proceedings have been disposed of.this may mean that the nine-month delay before applying to the tribunal has to be extended. Q When can I appeal against being on the POVA list? A - An individual, who has been provisionally included in the POVA list for more than nine months, may seek leave of the Care Standards Tribunal (the tribunal) to have the issue of his inclusion on the list determined by the tribunal instead of by the Secretary of State. If the individual has also been provisionally included on the PoCA list she/he may, if they wish, only seek leave of the tribunal to determine her/his position on that list. 18