Better safe than sorry?

Transcription

1 Better safe than sorry? Checking care workers: a scoping review of the international evidence Valerie Lipman and Jill Manthorpe Social Care Workforce Research Unit April 2016

2 About the Policy Institute at King s The Policy Institute at King s College London acts as a hub, linking insightful research with rapid, relevant policy analysis to stimulate debate, inform and shape policy agendas. Building on King s central London location at the heart of the global policy conversation, our vision is to enable the translation of academic research into policy and practice by facilitating engagement between academic, business and policy communities around current and future policy needs, both in the UK and globally. We combine the academic excellence of King s with the connectedness of a think tank and the professionalism of a consultancy. About the Social Care Workforce Research Unit The Social Care Workforce Research Unit (SCWRU) at King s College London is funded by the Department of Health Policy Research Programme and a range of other funders to undertake research on adult social care and its interfaces with housing and health sectors and complex challenges facing contemporary societies. Disclaimer and acknowledgements We are grateful to Elizabeth Beddoe - University of Auckland, Joyce Berk - Help at Home, Florida, Gaia Cetrano - University of Verona, Kjetel Lundberg - University of Oslo, Caroline O Nolan - Trinity College Dublin, Brian Taylor - Ulster University, and JoAnn Westbrook - Pines Education Institute, Florida, for supplying us with helpful information on this subject. The study was undertaken as part of the Social Care Workforce Research Unit s work for the Department of Health s (DH) Policy Research Programme. A member of the Unit s standing User and Carer group commented on a draft of this report and we are grateful to them and to other lay commentators (parent of a young adult with disabilities and a service user) for their assistance. We also thank our colleague Caroline Norrie for her help. The views expressed are the authors alone and should not be interpreted as those of the Department of Health.

3 Contents Summary 4 Introduction 6 Methods 9 Table 1: Summary of searches Findings 11 Evidence on the motives and practicalities of different approaches internationally Detailed findings Australia Canada New Zealand Northern Ireland Republic of Ireland Scotland United States Rest of the world Discussion 28 Conclusions 33 References Tables and appendices

4 Summary In England people working or volunteering with vulnerable adults in the health and social care sectors (private and public) are required to undergo pre-employment checks for a possible criminal record through the Disclosure and Barring Service (DBS). It is the duty of the employer to check if their staff or volunteers are barred from such work. If the individual is found to have a criminal record the employer must consider whether their offence(s) give rise to particular concern and whether the risks of employing an individual would be too high on balance. In the social care sector such members of staff are typically home care workers, residential care workers and professionals, for example, social workers and occupational therapists. The DBS is part of government efforts to prevent harm to vulnerable people, also termed adults at risk. However, concerns have been expressed that this system is either over or under protective. Such debates have not been greatly informed by experiences outside England, particularly beyond the United Kingdom (UK). This review was undertaken to explore what is known about pre-employment checks across the globe in social care work. It was undertaken in winter and mainly involved a search of internet based material and databases covering this subject. It was further informed by correspondence with experts and practitioners in different countries to clarify matters or to provide illustrations of systems in action. The review found a variety of practices, ranging from no apparent evidence of checks to more substantial checks involving evidentiary recordings, such as fingerprinting. The details of the processes included have not previously been collated to the best of our knowledge. and more positively to enhance user and public trust in care providers. In countries where police checks are part of the public administrative system these are viewed as important records of character and are used as evidence of this. A small number of countries place particular emphasis on the rights of individuals to privacy and rehabilitation and this moral imperative overrides other policy goals. This review focuses on care services for adults in particular, but in some countries the system is commonly shared across adults and children s services. In other countries there are special provisions for childcare, especially taking into account concerns about child sexual abuse, but no comparable provision for vulnerable adults care services. This present research did not identify many accounts of vulnerable adults perspectives on pre-employment checks, or much evidence from individuals who have been required to undergo checking. These omissions mean that evidence is restricted in nature. Finally, in many developed countries there is a great reliance upon recruitment of care workers from other countries or use of migrant workers. The practices and systems for checking such specific members of staff are not generally referred to in the policy and practice literature, although there is increasing literature on how to tackle undeclared work. There are varied requirements and opportunities for checking care workers employed directly by care users or their families which may be especially pertinent to the UK where such workers are a growing part of the social care workforce. The reasons for checks identified in different national contexts extend from efforts to stop fraudulent use of government subsidies to minimising the risk of harm to vulnerable adults, 4

5 Conclusion The DBS in England is but one example of checks on care workers in different countries across the globe. This review has highlighted a lack of clarity in publicly available documents about the potentially multiple policy goals of such schemes and suggests that there may be advantages to clarifying the options available. When considering criminal record checks questions arise as to what is regarded as a pertinent criminal offence and the threshold for inclusion in an excluded or prohibited category, and whether the type of penalty implemented (custodial sentence or community service order for example) should be considered important in what is covered by questions about a person s background. All of this must be set in the context of having little evidence of what works as an intervention to protect vulnerable adults from abuse and neglect. In England the options for accessing fingerprint checking or police checks by parties other than the police or security services would appear very limited, and professional regulation does not apply to the majority of care workers. The DBS therefore is one way of implementing policy goals such as safer recruitment of those working in regulated care services with vulnerable adults. Other countries examples are either very similar or their different approaches relate to other significant policy commitments to matters such as personal privacy. As one method of reducing the risks of harm to vulnerable adults such checks are widely used in many developed countries and the English system is not distinctive in its structure or aims. 5

6 Introduction The purpose of this review is to identify the potential value for English policy and practice of learning more about international approaches to pre-employment checks of suitability for employment in care work with vulnerable people, particularly adults. The aims of the review were to describe the purpose and procedures of pre-employment checking activity in countries other than England (including other UK countries); and identify evidence on the effectiveness of different approaches taken. The review draws on systematic searches of the evidence from social care employment outside England but from English language sources. The English context The system currently (as of 2015) operating in England is described in Box 1. Readers are referred to the Disclosure and Barring Service (DBS) website 1 and to the House of Commons Library Note on the retention and disclosure of criminal records written by Lipscombe and Beard (2014) for specific information. Box 1 contains a summary of the relevant legislation in England. Almost four million (3,948,733) DBS checks were carried out in England and Wales on people working with children and vulnerable adults in , of which about one-fifth (843,498, 21 per cent) were on volunteers (DBS, 2015). Statistics are not disaggregated for children and vulnerable adults. In , the cost of such checks was million, a sum which is more than that estimated when the government announced its reforms in 2010 to scale back criminal checks 1 to common sense proportions (Appleton, 2014). According to Appleton, Director of the Manifesto Club civil liberties group: There is no other country which has a system on this scale, with the objective of checking all those who have a certain kind of contact with children in the public sphere (Appleton, 2014: 37). This report considers the evidence for this claim by exploring what is known about such processes internationally, although the focus of this report is on systems covering vulnerable adults. In England the current system of preemployment checks (including soft information about concerns of involvement in activity thought to raise questions about a person s fitness to work with children or vulnerable adults) operates through the DBS (see Box 1). The term vetting is often used to describe this process. Many of the policy goals behind the DBS and its former systems have their origins in failures in the protection of children. In particular, the Bichard Report (Bichard, 2004) stemmed from concerns about the safe recruitment of those in contact with children, and this was extended to vulnerable adults with the passing of the Vulnerable Groups Act 2006 and the establishment of the Protection of Vulnerable Adults (POVA) system of referral, vetting and barring. While the term vulnerable people is hard to define and subject to change (there has recently been a shift in England from the term vulnerable adults to adults at risk under the Care Act 2014), it is used here to mean people with a need for health and/or care services or disabled people requiring long-term support, provided by paid or unpaid people (both may be referred to as carers but in this report the term carer is used to refer to family and friends as in UK legislation and policy). The notion of vulnerability as a trait or socially constructed concept has been reflected on by researchers (Dixon et al, 2013) who have argued that it is often a spectrum rather than an absolute. Definitions of vulnerable adult may also vary between countries. This review concentrates 6

7 Box 1: The system of criminal records checks in England relevant to care work as at 2016 The Criminal Records Bureau (CRB) was established under the Police Act 1997 (Part V); from March 2002 it provided a mandatory criminal records checking service for employers in specified sectors in the UK. The Safeguarding Vulnerable Groups Act 2006 set out the scope and operation of a wider vetting and barring scheme and set up the Independent Safeguarding Authority (ISA) for England, Wales and Northern Ireland. The Disclosure and Barring Service (DBS) was established under the Protection of Freedoms Act 2012 to carry out some of the functions previously undertaken by the CRB and ISA (the DBS reduced the scope of the definition of regulated activity, added new services, and disregards convictions and cautions for consensual gay sex and some historic offences). In addition to these schemes, some professional registration bodies also undertake enquiries about suitability and good character. In England, apart from professions such as social work and occupational therapy, the social care workforce is not currently professionally regulated but regulated employers are required to conduct DBS checks as part of safe employment practice. Depending on their roles in social care, some of these checks apply to some volunteers and to students; and some individuals seeking legal authority to manage other people s social care related money (e.g. when acting as a suitable person for a person lacking mental capacity and receiving Direct Payments). In a recent update to the statutory Guidance to the Care Act 2014, the Department of Health (2016, para ) notes that referral to the DBS should be made in circumstances of either dismissal or redeployment to a non-regulated activity, from their role providing regulated activity following a safeguarding incident, or a person leaves their role (resignation, retirement) to avoid a disciplinary hearing following a safeguarding incident and the employer/volunteer organisation feels they would have dismissed the person based on the information held. It outlines that if an agency or personnel supplier has provided the staff, then the legal duty sits with that agency. Should these actions not occur then the local authority can make the referral. on social care services (generally care homes and home care) although in some countries the distinction between health and care services is not as marked as in the UK. As Box 1 outlines, the system of disclosure, checking and possibly barring of paid employees and volunteers in England, has changed over the past decade. It is described variously as draconian (Appleton 2014) or, in contrast, as one recent newspaper article reported (Lyons, 2014), overly permissive: Thousands of people considered potential abusers are escaping bans on working with vulnerable adults after the Home Secretary eased rules deemed excessive. In 2009, 3,582 people were barred from working in care homes, hospitals and other jobs but bans fell to 1,293, last year, official figures show. Under the old system bans were issued regardless of the job someone was doing when caught committing a crime or the subject of a complaint. Now only those working directly with vulnerable people at the time can be barred (Lyons, 2014). In England extensive attention is given by the DBS system to consideration of the small numbers of individuals who have been barred from work with vulnerable adults and children (see Johnson, 2012), most recently by the Independent Monitor in England (Independent Monitor for the Disclosure and Barring Service, 2013). Barring decisions are made on the grounds of harm that has occurred, as well as the risk of harm posed. This continues a debate about thresholds and whether they are too high or too lax. In England discussions have taken place about who makes the assessment of which types of offences are categorised as serious, and where a bar from regulated activity is automatically imposed. Diana Johnson MP (Johnson, 2012) noted that the two-tier system which automatically bars some people (a situation that has been applicable since 2000 for vulnerable adults and since 2002 for those working with children) and enables a second group to be placed on a b list who can appeal against their inclusion on this list, and carry on working while they are being investigated, may not even provide the minimal protection necessary. Statistical or case study evidence for this view was not however cited. Another MP, Lynne Featherstone (subsequently a 7

8 member of the House of Lords), when responding to a question raised in a Parliamentary General Committee debate about who should be on the automatic barred list, argued that the threshold for inclusion on the sections of the barred list - where people do not have the right to representation - should be kept as low as possible so as to avoid barring too many people inappropriately (Featherstone, 2012). In contrast, the Care Quality Commission (CQC), the independent regulator of health and social care in England, recently recommended greater inclusivity. It argued that providers of services should consider whether contracted staff, temporary staff, bank staff, volunteers, students and learners (CQC, 2014) should also be eligible for DBS checks and not just people undertaking regulated activity. Debates taking account of prior (and subsequent) criminal convictions are also taking place in relation to entry to the health and care professions. The Nursing and Midwifery Council (NMC), for example, requires all applicants to inform the NMC if they have been the subject of a police charge, caution or conviction. All criminal records have to be declared (NMC, 2014). The social care workforce however, as noted earlier, is mostly not professionally regulated and the DBS requirements are the only criminal record check of this large workforce. Other checks are in place in this and other labour market sectors but these relate to immigration status and are not the subject of this review. In some circumstances DBS checks are not deemed to be essential. Guidance issued by the Department of Work and Pensions (DWP) notes it may not be practical or proportionate in some circumstances to seek a DBS check if the job is for a very short time or needs to be arranged quickly. Examples include situations where unemployed people are being placed with adult social care providers via the DWP, for work experience, placement and pre-employment training, for anything up to eight weeks. The guidance states that in these circumstances no personal care must take place, the trainee must receive adequate supervision, and they should not be left alone with the vulnerable person: While many providers report that waiting for clearance is a barrier to recruitment, many have adopted effective strategies to train and develop staff in supervised or shadowing form while their criminal records check is pending. (Skills for Care, 2013a:23) Finally, evidence is not definitive in whether the process of disclosure and barring in the UK prevents harm directly or indirectly. In relation to vulnerable adults in England, these debates were outlined in the POVA and ISA studies conducted between 2005 and 2009 (Manthorpe and Stevens, 2006; Stevens and Manthorpe, 2007; Hussein et al, 2009) where care sector support for the schemes was reported. For policy guidance to be effective, consideration must also be given to how it is translated into other parts of day-today practice. Northway et al s (2007) findings from a study which examined the development and implementation of such policies in services for people with learning disabilities within Wales Positive, showed that developments included a commitment to multi-disciplinary working, increased clarity and consistency, and greater awareness of abuse risks (Northway et al, 2007). Appleton (2014) argued that the scale of investment in the new systems introduced in 2012 within the vetting and barring system in England and Wales was out of proportion to its positive effects. She proposed further debate about whether more time is spent on vetting than on investigating and stopping abuse, suggesting that there is a disproportionate focus on processing and monitoring a very large low-risk group the general social care workforce than on the much smaller high-risk group of known or suspected offenders. (In the current system monitoring generally applies to the pre-employment checks via the DBS in care settings and services.) In contrast others, such as the employer-led sector skills council, have suggested that such checks form an integral part of safe recruitment practices (Skills for Care 2013b). This report presents the findings of a desk-based review of literature investigating the processes in place internationally for checking staff and volunteers working with adults who are vulnerable or at risk (or similarly defined) in the context of the DBS in England (as outlined above). In respect of the countries where such processes operate, it reports the matters that are taken into consideration and by whom, and the practicalities of undertaking such schemes as well as their broader goals and justifications. 8

9 Methods We primarily explored two categories of country. The first was Anglophone countries, in recognition that access to government and policy papers would be relatively straightforward. The second grouping comprised countries which have known well-developed social welfare systems, such as in Northern Europe, where one might expect consideration to have been given to vetting-type policies and procedures. The two categories of country were not necessarily mutually exclusive. Data were also examined from International and European bodies: including the European Platform on Ageing (EPA), the European Social Network (ESN), the International Labour Organisation (ILO), and the International Network for the Prevention of Elder Abuse (INPEA). These were selected as bodies having experience and knowledge of good practice in employment (ILO) or in promoting best practice in the protection of vulnerable adults in Europe and globally (EPA, ESN, INPEA). Desk research exploring web-based material in the fields of social care, international recruitment practice and legal advice on vetting procedures, supplemented by rapid review of the published literature and the grey literature, was carried out during winter 2014/15 (see Table 1) (for further details see Manthorpe and Lipman 2015). The research areas fell into broad two themes: the purpose and aims of vetting paid staff and volunteers and job/volunteer applicants; and the procedures and practicalities of applying vetting schemes. Only literature written in English was included and, as regulations frequently change, only material produced in the last five to ten years was reviewed. Because many of the key terms (such as vulnerable, vetting and monitoring) are defined slightly differently by different countries, terms definitions are given at the relevant point in the text. A key word approach was taken. The inclusion criteria covered terms relating to checking processes and to the groups of people affected. Specifically they included adult vetting, criminal checks, disclosures, employment screening, police checks, pre-employment checks, protection, safeguarding, social care, vulnerable adults (and protection), and vetting. International and European were affixed to most of the above terms for search purposes. Exclusion terms included health checks, disability checks, occupational health and England (the latter as we were familiar with this jurisdiction s schema). The research was further informed by correspondence and face to face meetings with experts and practitioners in different countries to clarify matters or to provide illustrations of systems in action. A purposive approach was adopted for identifying these additional resources and experts. 9

10 Table 1: Summary of searches Resource Title/name No. of articles & reports reviewed/relevant ASSIA 202/1 Databases Ingenta 178/1 Social Care Online 551/2 Journal of Adult Protection 230/5 Hand searched documents Health and Social Care in the Community 62/2 10

11 Findings The findings are in three parts: the evidence from the literature on the motives and practicalities of different approaches internationally; detailed findings with examples of what is happening in other countries in relation to protection of vulnerable adults (Table 2 captures the salient features of the policy and practice in each of these jurisdictions); and an overview of relevant employment practice in countries across the globe. Overall this review found that several countries, similar to the UK, require organisations, whether private or public, with a remit to work with vulnerable adults, to carry out disclosure checks on their staff and volunteers. Evidence on the motives and practicalities of different approaches internationally Little evidence was found relating directly to what works in preventing abuse or in the safeguarding of vulnerable adults (Faulkner and Sweeney 2011). There is considerable legislation and guidance promoting good professional practice, quality assurance in the design and delivery of care services affecting all vulnerable adults, as well as guidance for specific groups, such as the prevention of elder abuse (Podniek et al, 2010). Debates continue internationally about how to prevent abuse, including whether it is appropriate to take into consideration the findings of pre-employment screening such as taking up references or checking background information, which may go against or conflict with existing legislation on discrimination or human rights (von Spakovsky, 2012). Data relating to screening however tend to be general, with attention paid to the motives behind such activity (Backman, 2011; Hansen, 2012; Herzog- Evans, 2011) rather than on protection. The combinations of motives behind preemployment screening provide some insight into why certain countries do or do not have schemes that might safeguard vulnerable adults by checking the backgrounds of those supporting them, and thereby make decisions about not appointing individuals who might pose risks to their safety or wellbeing. Lam and Harcourt (2003), for example, considered whether the balance is right between the rights and re-integration into employment of someone who has served a criminal sentence versus the safety and security of members of the public and vulnerable people. Backman (2011) likewise raised concerns about balancing the rights of the individual with the need to provide protection to those in the workplace, noting how an individual s privacy and reintegration into society may often be secondary to public safety. Backman s (2011) study of the motives behind the increasing use of criminal checks in Sweden found that employers primary concern was with corporate security and risk, rather than with the protection of individuals. Connerley et al (2001), in a US-based study, similarly showed that fear of litigation following apparently negligent recruitment was a major driver for carrying out criminal checks. In contrast, Abujarad et al (2014) reported that the aim of a United States (US) state-wide system was to reduce abuse and neglect, as well as reducing service or programme fraud. However, Hansen (2012: para 1) concluded that in most countries particularly in the European Union and increasingly across the developing world, a job applicant s right to privacy trumps an employer s right to collect information about a potential employee. A study of how six countries approach their nation s justice system showed how this also affects how those who have been convicted are treated in job recruitment processes (Herzog-Evans, 2011). In some countries, for example, the law appears to place more emphasis on a right to know regarding employment (particularly England and Wales, and Australia), as compared to a right to be forgotten, as in France and Germany, about a person s past in numerous and increasing situations. All six countries were reported to be stricter in cases of a history of sexual offending, compared to other offences, specifically in order to prevent such 11

12 offenders from securing employment involving contact with children (Herzog-Evans, 2011). In Germany consideration of who is entitled to access records also takes account of the detrimental impact of a criminal record on the offender s reintegration into society (Morgenstern, 2011:25). The absence of literature on what works in terms of prevention, coupled with the range of arguments about screening, raises questions about whose responsibility it is to determine whether and what sort of vetting (a term used to generally mean checking of criminal or other related history) needs to take place. Appleton (2014:7) commented, in relation to children, that the UK vetting policy is unusual both historically and in relation to other countries, in assuming that it is the role of the central state to vet those who come into relationships of particular intensity with children in the public sphere. This category of relationships is defined as regulated activity. According to Appleton (2014), the idea of regulated activity is unprecedented and unique when compared to the vetting regimes in other countries, although, as we report below, other countries do specify preemployment checks for certain care settings or roles (see Abujarad et al, 2014). There is undeniable difficulty in proving whether pre-employment checks are effective in the prevention of abuse and neglect. Again there is little research on this since prevention is hard to prove in this and other areas. Appleton (2014) has argued that some of the worst incidents of abuse over the last decade or so in England have happened despite checks (but of course checks may have dissuaded other potential applicants with abusive intent from applying to work with vulnerable groups or have informed recruitment practice and excluded high risk employees). The results of a preliminary study of safety in higher education campuses in four US states indicated that those states that have either legislated or mandated the use of criminal background checks on new employees in university environments have not experienced a reduction in Clery Act incidents 2 (rape and murder of campus-based students) on their campus when comparing their pre-background check activity with their postbackground check implementation (Hughes et al, 2014). Arguments have been mooted that other existing relevant legislation, concerned with human rights (see McNeill-Keller, 2010 re: Canada), or the right to privacy (see Bennett, 2010, re: Japan), may have an impact on reducing crimes against vulnerable adults, but again no evidence has been found to support this. However, the US National Committee for the Prevention of Elder Abuse (Nexus, 2001) has produced figures to suggest that pre-employment checks are valuable in highlighting possible risks. It observed: When the records of prospective in-home support service workers in a California county were checked, over 15 per cent were found to have criminal records. In Texas, where certain convictions bar employment in longterm care and home health care settings, 9 per cent of applicants in 2000 were found to have convictions. Last year, when New Jersey passed legislation requiring all home care workers to have FBI fingerprint checks, four hundred employees, some of whom had been working for years, were found to have committed disqualifying crimes (Nexus, 2001). Some researchers have referred to the various ethical and practical difficulties of criminal record checking. Morgenstern (2011), for example, discussed the difficulties of estimating the length of time someone should bear the label of convicted offender (2011:20), and to whom the label should be visible. Similarly, concerns have been expressed in terms of who should have access to records. In the main, access to records has only been allowed through the police, or a third agency (Herzog- Evans, 2011) (in England this is the DBS). There has also been considerable discussion about the potential for unfair discrimination against job applicants with criminal records. In the US, for example, a ban the box debate is currently in 2 The Clery Act (1990), introduced following the rape and murder of a student living on a college campus, requires all eligible institutions to collect certain information with respect to campus crime statistics and campus security policies and to make this data widely available. 12

13 play, in which employers are being urged to remove the tick box from application forms that require applicants to declare whether they have a criminal record or not. It is argued that this information could be sought further along the recruitment process (Jones Day Publications, 2014). While concerns have been raised that this may conflict with other laws prohibiting employers from hiring people convicted of certain crimes, the proposed ban the box rules would be unable to override other laws that specifically prohibit employers from hiring individuals with certain criminal records, including child care and elder care workers (Jones Day Publications, 2014). McNeill-Keller (2010) emphasised that where human rights legislation exists sufficient guidance should be made available to employers and employees to ensure that applicants and employees are fairly treated, and do not experience unwarranted discrimination based on their criminal records. Detailed findings The country review is in two parts. The first part covers the Anglophone countries where it was possible to obtain some detail or definitive information about their pre-employment checks. This includes: Australia, Canada, New Zealand, Northern Ireland, the Republic of Ireland, Scotland, and the US. As different policies were found operating across those countries with federal systems of government (Australia, Canada, US), some examples of these are included for illustrative purposes. Table 2 brings together the main features of the different checking systems in these countries. The second part, labelled for the purposes of this report as Rest of the World, covers the countries with well-developed welfare systems, such as Germany, Scandinavia and The Netherlands. Overall there was very little evidence of vetting procedures for people working with vulnerable adults. Because the research also revealed a number of other countries where there is reference to preemployment checks, albeit with little reference to their application to work with vulnerable adults, these countries are also included in this section. It was not possible, however, to draft a table for these countries (along the lines of the Anglophone countries) because of the paucity of evidence found of legislative requirements for pre-employment criminal records. Australia There is no single national framework setting out criminal checks for working with children or vulnerable adults. Criminal record checks vary across jurisdictions (see Example 1): all jurisdictions have checking systems relating to children; the Australian Capital Territory (ACT) and Tasmania are the only two to incorporate vulnerable (adults) in their coordinated checking systems. All national requirements (for children) apply to both paid staff and volunteers. There are specific laws regulating how employers access and use criminal record information, but no laws denying employers the right to take account of such information. Criminal records are held by police in each jurisdiction. Under Australian privacy laws an individual s criminal history is protected from release to third parties, unless assent is given by the individual. Any employer request for criminal history information requires the applicant to obtain their criminal history information themselves and provide this to the employer (Naylor, 2011). Mission Australia, an independent organisation working with families and individuals, stated in its response to the government s consultation about criminal record checks in Tasmania, that any scheme should: provide a robust, credible and defensible decision making framework to guide decisions about suitability for work in roles involving direct contact with vulnerable persons... [and] support organisations in creating safe environments for vulnerable persons (Mission Australia, 2013:4). In preference to a state by state scheme it favoured a national registration scheme delivering clear and consistent outcomes, efficiency gains and ease of administration. It argued that this would support the mobility of workers and volunteers across multiple jurisdictions and would enable organisations operating across multiple jurisdictions to implement consistent approaches to screening and governance (ibid, 2013:1). Example 1: Australian Capital Territory (ACT): The Working with Vulnerable People (Background Checking) Act 2011 A vulnerable person is defined under the 2011 Act as a child or an adult who is disadvantaged and who is accessing a regulated activity in relation to the disadvantage. Migrants, refugees, and homeless people are covered within the Act. The Act requires people who have contact with vulnerable people while engaging in regulated activities and services to register with the Office of Regulatory 13

14 Table 2: International Comparison of Vetting Procedures Country Australia: National Australia Territories: States ACT Legislation/policy title No national legislation Working with Vulnerable People (Background Checking) Act 2011 National guidance and/or accreditation required Defining vulnerable/ protected adult Type of test Lead agency Framework for policy direction X n/a n/a n/a n/a An adult who is disadvantaged & accessing regulated activities to help with that disadvantage. 3 tiers general, role-based, and conditional. Valid for 3 years. Justice and Community Safety Directorate A safe environment for vulnerable people Tasmania Registration to work with Vulnerable People Act This replaced the Good Character Check screening program An adult who is accessing a regulated activity. 2-tier registration: full or conditional. Valid for 3 years. Department of Justice Canada: national No national legislation n/a n/a n/a Human rights Canada Province: British Columbia British Columbia Criminal Records Review Act 1996 X An individual 19 years or older & who receives health (and care) services, other than acute care. Point-in-time Royal Canadian Mounted Police(RCMP) Preventing physical, sexual and financial abuse of vulnerable adults No national legislation New Zealand n/a n/a n/a n/a Northern Ireland The Safeguarding Vulnerable Groups (Northern Ireland) Order 2007 By type of service & accommodation 3 tiers: basic, standard and enhanced Re-test 2-3 years Department of Justice Access NI Protecting vulnerable people Republic of Ireland Children and Vulnerable Persons Act 2012* By mental and physical functional ability Re-test 5 yearly National Vetting Bureau Protecting vulnerable people Scotland The Protection of Vulnerable Groups (Scotland) Act 2007 [The PVG Act] An individual receiving a private or public health or care service 3 tiers basic, standard and enhanced Disclosure Scotland, (a government agency) To prevent or swiftly remove those who are unsuitable to work with children and protected adults US: federal Affordable Care Act 2011, incorporates some checks n/a Provider/supplier agencies certified at 3 levels of risk. Practitioners can only work with a certified agency. Tests vary across US Medicare and Medicaid Protecting public funds, incl. Medicare & Medicaid *Not yet enacted for adults 14

15 Services (Australian Institute of Family Studies, 2014). A person is not required to be registered if they are under 16 years of age. Three types of certification are required based on the eligibility of individual applicants. The general certification provides for the same conditions to engage in child-related work, including a threeyear certification period, ongoing monitoring, and mobility between role positions. The second type of certification is role-based. This certification restricts individuals to engaging in specified regulated activities with a stated employer. A background check is carried out and individuals must undergo screening each time they enter into a new contract. The role-based certification is a point-in-time check and cannot be moved freely between regulated activities. The third type of registration is conditional, imposing specific conditions on an individual s registration. The Minister has the power to determine the level of fees. Example 2: Tasmania: Registration to Work with Vulnerable People Act 2013 The Act defines a vulnerable person as a child or an adult who is accessing a regulated activity. It defines the type of contact that can reasonably be expected as a normal part of taking part in a regulated activity and which is not incidental. Contact is defined as being one or more of the following: 1. Physical, including taking part in the regulated activity 2. Oral communication, whether face-to-face or by telephone 3. Written communication, including electronic communication 4. Dealing with a record relating to the vulnerable person 5. Making a decision that affects the vulnerable person. The Act established a centralised screening process, based in the Department of Justice, which can undertake detailed risk assessment and seek information from other jurisdictions (Territories/ States) in Australia. Following a successful background check, people are registered and given a photo ID allowing them to work with children and vulnerable people for a period of three years before the card must be renewed. Successful applicants are provided with a working with vulnerable people registration card, which includes the photo ID and a unique identification number. The Act is being implemented in stages, starting with children, and subsequently being expanded to include working with vulnerable adults, such as older people, people with disabilities, people with mental illness as well as migrants, refugees and asylum seekers. The Act defines criminal history, in relation to a person, as meaning any convictions of, and findings of guilt against, the person for relevant offences, other than an annulled conviction, within the meaning of the Annulled Convictions Act 2003 (Registration to Work with Vulnerable People Act 2013). Those under the age of 16 years are not required to register for working in regulated activity (ibid Part 3, 15, (3)(a). It is an offence for an employer to engage an unregistered person in regulated activity. The Act does not provide for charging registration fees. On receiving an application from an applicant for registration under the Act, the Registrar conducts a risk assessment as to whether the person poses no risk, an acceptable risk or an unacceptable risk of harm to vulnerable persons, whether by reason of neglect, abuse or other conduct by the person. Examples given of types of harm to a vulnerable person are sexual, physical, emotional and financial. If the Registrar refuses to register an applicant both the applicant and the employer are informed of the decision but only the applicant is informed of the decisions for the refusal (Registration to Work with Vulnerable People Act, 2013). Canada There is no national legislation in Canada requiring compulsory checks on those working with vulnerable people, but those who work or volunteer with vulnerable adults or children may need to complete a vulnerable sector check (VSC). A vulnerable person is defined, under Section 6.3 of the Criminal Records Act 1985, as someone who, because of age, a disability, or other circumstances, whether temporary or permanent is either (a) in a position of dependence on others, or (b) at a greater risk than the general population of being harmed by a person in a position of authority or trust relative to them (Royal Canadian Mounted Police, 2010). Examples of positions requiring a VSC 15

16 include teachers, social workers, day care workers and nurses. The Royal Canadian Mounted Police (RCMP) (2014) recommends VSCs as part of an overall employment or volunteer screening process. The RCMP is the steward of Canadian criminal record information. There is no federally regulated fee required for processing a VSC for a volunteer. Criminal checks differ from Province to Province in Canada. Details of practices in British Columbia are given below in Example 3. Human rights legislation across Canada, as well as privacy legislation in the federal jurisdictions, Québec, British Columbia, and Alberta, limits pre-employment screening of potential candidates. Under the privacy laws in these jurisdictions, employers must advise job applicants and employees of the purposes for which their personal information will be collected, used and disclosed. Informed consent must be obtained from the individual before conducting any background check. Background checks are limited to those that are reasonably required to assess the employee s suitability for continued or prospective employment (Wasser, 2013). There is considerable encouragement for organisations to carry out a VSC for paid staff and volunteers but it is ultimately up to an organisation to decide whether it does so. Employers are advised to consider both their hiring process and the human rights implications associated with hiring decisions when considering a prospective employee s criminal record. A VSC is a point-in-time search only. The frequency of having it completed is dependent on the security requirements of the organisation. Individuals may be required to complete multiple checks on an annual basis if they are working and/or volunteering within the sector in different capacities, such as volunteering at a retirement home and working with people with disabilities: The check is recommended as part of an overall employment or volunteer screening process. The check is initiated by the local police in the jurisdiction where the applicant lives. Not all paid or volunteer positions will require this type of check, the prospective employer or organisation advises the applicant about the information they need to bring with them to the organisation for police to start the check (McNeill-Keller, 2010). The police uses the Canadian Police Information Centre (CPIC) system as well as its own database to conduct a background search based on an individual s name, gender and date of birth. If the electronic search matches a pardoned sex offender record or is inconclusive, the applicant will be asked to submit a set of fingerprints to confirm their identity. Fingerprints are destroyed after 90 days - when the check is complete. As with all civil checks, the RCMP does not keep prints on file and they will not be searched for future purposes. There is a $25 fee to complete a VSC if a fingerprint submission is requested. Some local police agencies may charge additional service fees to process the submissions (Royal Canadian Mounted Police, 2013). Example 3: British Columbia - Criminal Records Review Act (Revised Statutes of British Columbia (RSBC, 1996)) British Columbia was the first province in Canada to require a thorough investigation of individuals working with children and vulnerable adults. The purpose was to protect children from individuals whose criminal records indicate they may pose a risk of physical or sexual abuse, and to protect adults from those with criminal records which indicate a risk of physical, sexual and financial abuse. Under the Act a vulnerable adult was defined as an individual 19 years or older who receives health services, other than acute care, from a hospital, facility, unit, society, service, holder or registrant. Subsequent guidance from the British Columbia Ministry of Justice has defined a Vulnerable Person as a person who, because of their age, a disability or other circumstances, whether temporary or permanent are (a) in a position of dependence on others, or (b) are otherwise at a greater risk than the general population of being harmed by a person in a position of authority or trust relative to them, as defined by the Criminal Records Act (British Columbia, 2014). 16

17 The Criminal Records Review Act (RSBC, 1996) requires every individual who is hired for employment or is already engaged in work with vulnerable adults in British Columbia to undergo a criminal record check, or criminal record check verification. Individuals must authorise a check for their employer or authorised organisation. The organisation submits the authorised check to the Criminal Records Review Program (CRRP) for review. The check is performed through the government agency for a non-refundable fee of $28 per criminal check. The registrar notifies the employee and employer, as well as any governing body involved, if a conviction or outstanding charge exists which presents a risk of physical or sexual abuse to children or vulnerable adults, or the risk of financial abuse to vulnerable adults. The employer is prohibited from hiring the employee for the job, or continuing to employ the employee, where the risk exists based on the outstanding charge or conviction (Watt, 2013). In British Columbia, an employer may not refuse to employ, continue to employ or discriminate against an employee because that person has been convicted of a criminal or summary conviction offence that is unrelated to the employment or to the intended employment of that person. The subsequent Criminal Records Review Amendment Act 2013 attempted to simplify the system for organisations. Employees, volunteers and applicants can now rely on a single criminal record check which lasts for five years and can be used with multiple employers if no risk is identified (known as a portable criminal record check ). Alternatively the applicant may provide a criminal record check verification authorization to specified organisations or employers. Employers and specified organisations are permitted to require a criminal record check, even if the individual could simply authorise criminal record check verification (Mennie, 2013). The revised Act further allows free criminal record checks for eligible volunteers working with children and/or vulnerable adults. In line with the national RCMP policy vulnerable sector check, fingerprinting was also introduced to further enhance the protection of children and vulnerable adults Because the CRRP retain records, in almost all circumstance, an individual will only be required to be fingerprinted, once every ten years though our program (Marshall, 2013). New Zealand Police vetting is allowed in New Zealand to protect society s most vulnerable members, including children, older people and people with special needs (New Zealand Police, 2014). Compulsory vetting however applies only to those working with children (introduced under the Vulnerable Children Act 2014). Organisations providing services to older people and people with special needs are however strongly encouraged by the police to check the criminal records of potential employees, current employees and volunteers (New Zealand Police, 2014). Such organisations can ask the police to check the criminal records of potential employees, employees or volunteers. The police service recommends that existing employees are police vetted every two to three years. Fees are payable (New Zealand Police, 2014). Police vetting has been allowed in New Zealand since the 1990s as a means of promoting good practice in certain professions. This became more stringent with the introduction of the Social Workers Registration Act 2003, which required the Social Workers Registration Board to ask the police to check if a social worker has any criminal convictions, whether in New Zealand or overseas (New Zealand Legislation, 2014). Social work students are also vetted at entry to their professional programmes, before their first placement and for subsequent placements, if they are in completely different organisations or sectors. Rigorous vetting for anyone working with children (18 years and under) was introduced in the Vulnerable Children Act

18 In all home-based and residential health or social care services for vulnerable adults or people with a disability provided by New Zealand District Health Boards (DHBs) or contracted out by DHBs (Public Health) staff have to be vetted. Job applicants are required to declare any criminal convictions on their application form. Any offer of employment is made subject to the criminal clearance check being satisfactory. Vetting requests cannot be made by individuals. Criminal conviction information held by the Ministry of Justice is accessed by the police and is released in accordance with the Criminal Records (Clean Slate) Act Data released by the police may include an individual s: Conviction history Driving demerit points or suspension of licence Family violence information Information about violent or sexual behaviour that did not result in a conviction. Minimal information about the behaviour may be released or an electronic red stamp may be placed on the request. Electronic red stamps recommend that vetted individuals do not have unsupervised access to children, older people or other vulnerable members of society. Only approved organisations, not individuals, can use the Police Vetting Service. To become approved, organisations must show that their staff care for children, older people, people with special needs or other vulnerable members of society (New Zealand Legislation, 2014). Northern Ireland By law employers may be required to obtain an enhanced check before they can employ someone to work with children or vulnerable adults. A request is made to AccessNI, a branch within the Department of Justice, to carry out and disclose an individual s criminal history for certain jobs or voluntary positions. The main statute is an Order in Council: The Safeguarding Vulnerable Groups (Northern Ireland) Order 2007 No (NI 2003). A person is defined as a vulnerable adult if they are over 18 years and living in residential accommodation or sheltered housing; receiving domiciliary care (home care) or any form of health care; is detained in lawful custody or under supervision by a probation officer; receiving a welfare service of a prescribed description or receiving payments under section 8 of the Carers and Direct Payments Act (Northern Ireland) 2002 (c. 6); or requires assistance in the conduct of their own affairs (NI Direct, 2013). The role of AccessNI, established in April 2008, is to supply certificates that show whether people who want to work in certain types of jobs have a criminal record or if other important information is known about them. Employers are responsible for knowing when a job or volunteering role requires an AccessNI check. There are three levels of check. The employer lets the individual know whether a basic, standard or enhanced check is necessary. An individual can apply for the basic check themselves, but only an employer registered with AccessNI can apply for standard and enhanced checks. A fee is chargeable to AccessNI (NI Direct, 2013). The Department of Health, Social Services and Public Safety maintains the list of individuals who are considered unsuitable to work with vulnerable adults (2003 Act; para 35(1)). An enhanced check discloses an individual s full criminal history, including spent and unspent convictions, relevant cautions and any other relevant material provided by police. By law employers may be required to obtain an enhanced check before they can employ a person to work with children or vulnerable adults, but an enhanced check is obligatory for employees and volunteers working in a regulated activity (see below). Regulated activity with adults refers to treatment or care for an adult which makes them vulnerable at that time. A person works in regulated activity with adults when they: Give healthcare as a GP, pharmacist, nurse, dentist, surgeon or specialist Give personal care such as dressing or washing Provide social work Help with general household matters such as handling cash, shopping or paying bills Help manage personal affairs such as legal papers Convey an adult in a vehicle to receive personal care, healthcare or social care. 18

19 This check is only available if requested by an AccessNI-registered organisation. Finding a suitable umbrella organisation to manage this may be a problem for very small voluntary organisations. AccessNI will search the appropriate barred list on children and adults held by the Disclosure and Barring Service (DBS). Each personal check is exclusive to that role. To maintain strict safeguarding measures in Northern Ireland, disclosure certificates may not be reused or transferred to later roles or jobs. If someone is barred from working with children or vulnerable adults, they are breaking the law if they work or volunteer, or apply to work or volunteer in regulated activity with those groups. If an employer knows the individual is barred and employs them in regulated activity, the employer is also breaking the law. Employers can recheck their staff. Each employer decides intervals for rechecking. Some recheck every two or three years. Others rely on employees declaring any changes to their criminal records. An employer must inform the DBS if the individual poses or could pose a risk to children or vulnerable adults. Registered bodies that apply for checks are responsible for looking after the disclosed information and must comply with AccessNI s code of practice. AccessNI monitors how organisations receive and store disclosure information. Employers who receive disclosure certificates from registered bodies must comply with data protection rules (NI Direct, 2013). Republic of Ireland The National Vetting Bureau (Children and Vulnerable Persons) Act 2012 (Irish Statute Book, 2012), provides the legislative basis for vetting people seeking work with children or vulnerable persons. The Act makes it mandatory for persons working with children or vulnerable adults to be vetted by the Gardaí police. Previously, persons applying for such positions were vetted on a nonstatutory basis. Enacted in December 2012 it is not yet fully in force (as at October 2015). The Act also provides for the use of soft information in regard to vetting. This is information other than criminal convictions where such information leads to a bona-fide belief that a person poses a threat to children or vulnerable persons (Citizen s Information, 2015). A vulnerable person is defined as someone over 18 years of age who: (a) Is suffering from a mental illness or dementia, (b) Has an intellectual disability, (c) Is suffering from a physical impairment, whether as a result of injury, illness or age, or (d) Has a physical disability, which is of such a nature or degree: 1. as to restrict the capacity of the person to guard himself or herself against harm by another person, or; 2. that results in the person requiring assistance with the activities of daily living including dressing, eating, walking, washing and bathing. (National Vetting Bureau, 2012: Para 2). Relevant work or activities relating to vulnerable persons under the Act range from services provided in hospitals, day care centres and residential services, to counselling, care and essential domestic services arranged by Health and Social Care bodies, and educational, recreational and leisure activities. The Act seeks to balance the rights of vetting subjects including the protection of their good name, and the rights of children and vulnerable adults to be protected from persons who are likely to cause them harm. Under the Act harm, in relation to a person, means exploitation or abuse, whether physical, sexual or emotional of the person. An organisation is not allowed to employ or enter into a contract for services with someone unless it receives a vetting disclosure from the Bureau in respect of that person (National Vetting Bureau, 2012, Part 3, para 12). It is an offence to contravene this. Applications for vetting disclosure for a person have to be made by a liaison person for a relevant organisation; applications from an organisation can be applied for on its own behalf. Organisations may also apply on behalf of other organisations (ibid: Part 3, para 13). The Minister has the powers to determine fees. 19

20 Scotland New arrangements for checking those working with vulnerable adults and children were introduced in 2007, following the Bichard Report (Bichard 2004), as occurred in England and Wales. The Protection of Vulnerable Groups (Scotland) Act 2007 (the PVG Act), replaced former legislation on disclosures, and introduced the concept known as regulated work (Scottish Government, 2010). The PVG Scheme ended the use of disclosure checks under the 1997 Act for those working with children and adults at risk. These were replaced by new types of disclosure records. The policy goal is expressed as follows: [the] Scheme ensures that those who either have regular contact with vulnerable groups through the workplace, or who are otherwise in regulated work; do not have a history of inappropriate behaviour (Scottish Government, 2010:5). People are excluded who are known to be unsuitable on the basis of past behaviour, from working with children and/or protected adults or who are detected as unsuitable while in the workplace. Disclosure Scotland keeps a list of individuals who are considered to be unsuitable to work with children ( the children s list ). Under the PVG Act, Disclosure Scotland also keeps, for the first time in Scotland, a list of those who are barred from working with protected adults ( the adults list ). The Scheme is managed and delivered by Disclosure Scotland as an executive agency of the Scottish Government. Two fee levels apply to the PVG Scheme. Checks are free for volunteers doing regulated work for qualifying voluntary organisations (see Appendix 1). In light of policy interest in encouraging people to have greater choice and control of their social care, self-directed support is being encouraged in Scotland (similar to personal budgets in England). A new Statement of Scheme Membership has been introduced to allow access to disclosure for 20 personal employers (such as people employing their own care workers or personal assistants). Personal employers can ask to see an up to date Statement of Scheme Membership to confirm or otherwise that the person is not barred (Disclosure Scotland, no date). United States (US) Federal laws and regulations govern the employment of individuals with specific convictions in certain industries or positions in both the private and public sector. These include child care workers in federal agencies or facilities, and participation in Medicare, Medicaid and state health care programs (EEOC Enforcement Guidance, 2012). Until the Affordable Care Act 2011 (commonly referred to in the US as Obamacare) the only established federal framework available applied to certified nursing assistants (CNAs) working in Medicare certified nursing homes or home health agencies. States must maintain a nurse registry and conduct pre-employment background checks on such workers. Implementation practices are however not standard across the states (Folkemer et al, 2008). Bolton (2006) reported on the early introduction of fingerprinting of registered nurses in the state of Texas concluding that this did not appear to deter registration. Details of systems operating on professional social work programmes are outlined by Haski-Leventhal et al (2010). Various screening tools have been introduced under the Affordable Care Act 2011, including unannounced site visits, background checks, and fingerprinting, based on the level of risk associated with different provider and supplier types. Under section 640 the Act 2011 stipulates that fingerprintbased background checks will be part of enhanced enrolment screening provisions for certain highrisk providers and suppliers participating in federal health care programs - specifically, Medicare, Medicaid, and the Children s Health Insurance Program (Carder-Thompson & McCurdy, 2014).

21 The Centers for Medicare & Medicaid Services (CMS) established three levels of risk limited, moderate, and high. Each provider and supplier category is assigned to one of these three levels. Individuals who maintain a five per cent or greater direct or indirect ownership interest in a provider or supplier in the high risk category (including newly-enrolling home health agencies (HHAs) and newly enrolling durable medical equipment, orthotics, prosthetics, and supplies (DMEPOS) suppliers), are subject to a fingerprint-based criminal history report check. This is carried out by the Federal Bureau of Investigations (FBI) Integrated Automated Fingerprint Identification System (Carder-Thompson & McCurdy, 2014). The aim is to detect bad actors who are attempting to enrol in the Medicare programme and to remove those currently enrolled. Failure to submit required fingerprints will result in denial/ revocation of billing privileges. Any agency providing help at home, adult day care centres, or care in a nursing home or an assisted living facility (ALF) has to register with one of three US accreditation organisations. A pre-requisite of accreditation is that agencies fulfil federal and state requirements. The accreditation agencies check individual provider agencies and their meeting of requirements to carry out checks on their care staff. Only registered agencies are eligible for Medicare and Medicaid, and now as part of the eligibility criteria staff will have to undergo fingerprinting. There are no federal checking requirements on providers that do not claim Medicare or Medicaid funds. Information on criminal records is held by county, state and federal sources, including the FBI. Access to these records varies across states. States were, until the Affordable Care Act in 2011, solely responsible for rules governing selection, hiring and retention of all other in-home direct care workers (Folkemer et al, 2008). Galantowicz et al (2010) reported that state-level policymakers almost universally endorsed employment checks but there was no uniform protocol for screening and disqualifying candidates. In summary they found: Medicaid policies defer to states and state laws and practices vary widely There is no federal Medicaid requirement mandating criminal background checks, often used as a screening tool, for home and community-based services (HCBS) workers Forty-six states and the District of Columbia mandate pre-employment criminal background checks for defined categories of Medicaid inhome workers Most of these states enumerate criminal offenses (sic) that preclude employment, although the list of disqualifying crimes and the length of the disqualification vary widely Six states exempt family members or other relatives from criminal background check requirements (Galantowicz et al, 2010). Example 4: Florida: Requirement for pre-employment checks for people working with vulnerable adults differ between Licensed-only agencies, Licensed and Medicare agencies, and those that are accredited. Licensed agencies follow the individual state guidelines; Medicare agencies follow the respective state and Medicare guidelines; and those accredited also follow the respective accreditation standards established by the accreditation body. All Home Health Agencies (HHAs) funded by Medicare must undergo a national certification process and adhere to national standards of care, known as Medicare Conditions of Participation administered by the Health Care Financing Administration. However, Agencies licensed (Private) and licensed and certified (Medicare) that were in operation seven to eight years ago were grandfathered in for this requirement and do not need to go through the accreditation process, and are not held to the accreditation standards and requirements for screening listed under the national accreditation screening requirements. (Personal communication: Manager of a home health organisation, 29 Sept 2014). US assisted living facilities (ALFs) are guided by the state regulations in contrast to Nursing Homes which follow both state and federal regulations. Since 2013 ALFs in Florida have been required to undertake a federal background check that will identify any criminal convictions from other states. As one ALF manager observed such checks do not apply to directly employed care workers: 21

22 As far as home health agencies are concerned, they all have to do the same back ground checks. However, many people advertise in the paper as a caregiver for less money than the agency requires, and families will hire that person who does not have a background check. This is where people get into a lot of trouble. (Personal communication ALF manager 16/9/14). Unless funded through Medicare or Medicaid individual home health aides, caregivers, home care assistants, companions, and personal care assistants do not have to undergo a criminal check in order to work with a vulnerable adult. Criminal history record checks are required for certain Florida county employees and appointees. Included in this are qualified entities who must register with the department before submitting a request for screening under this section: Qualified entity means a business or organization, whether public, private, operated for profit, operated not for profit, or voluntary, which provides care or care placement services, including a business or organization that licenses or certifies others to provide care or care placement services. Each screening request must be voluntary and conform to the requirements established in the National Child Protection Act of 1993, as amended. As a part of the registration, the qualified entity must agree to comply with state and federal law and must so indicate by signing an agreement approved by the department (Florida, 2014). The national criminal history data can be made available to qualified bodies to use solely for the purpose of screening employees and volunteers or persons applying to be an employee or volunteer with a qualified entity. Example 5 - Virginia The Code of Virginia requires all applicants for employment at ALFs and adult day care centres to provide the hiring facility with a sworn statement or affirmation of the applicant s criminal convictions and pending criminal charges that occurred within or outside the Commonwealth of Virginia. Volunteers are only permitted to serve in a licensed assisted living facility or licensed adult day care centre with the permission, or under the supervision, of a person who has received a clearance. The Code contains a list of Barrier Crimes which automatically bar individuals convicted from employment at a licensed ALF or adult day care centre and bar licensure of applicants convicted of same from ALF licensure. These crimes include murder or manslaughter, extortion by threat, threats of death or bodily injury, sexual assault, abuse and neglect of incapacitated adults. Applicants for employment convicted of one misdemeanour barrier crime not involving abuse or neglect may be hired if five years have elapsed following the conviction (Virginia Department of Social Services, 2012). Example 6 - Oklahoma In the State of Oklahoma an agency is not allowed to: employ an aide until seven years has elapsed since the completion of a sentence where the aide was convicted of, or pled guilty or no contest to, a felony or misdemeanour offense... [including abuse, neglect or financial exploitation of any person entrusted to the care or possession of such person] in any state or federal jurisdiction (Oklahoma State Department of Health, 2014). In 2012 Oklahoma introduced fingerprinting as part of pre-employment checks. It justified this policy change on the grounds that former namebased background checks applied only to a limited class of employees and were not national in scope. It reported evidence of employees in long-term care settings with criminal and abuse findings crossing state boundaries to continue new employment in long-term care settings. The new system was designed to avoid duplications of fingerprinting and because the checks are portable there are no associated costs to employers and citizens following changes in employer within the industry. New hires will have a continuously monitored criminal history and will not require re-fingerprinting when changing employers within the industry. Under the new system a live scan fingerprint vendor collects digital image fingerprints, designed to ensure that more reliable fingerprints are collected the first time, reducing delays, costs and inconvenience. Applicants pay a $10 one-off fee. 22

23 Rest of the world The following section covers 26 countries, including those referred to earlier as having welldeveloped welfare systems. Most of the data comes from Practical Law Canada Q&A (Thomson Reuters, 2014) which provides comparative data on countries covering all continents except Africa. It notes only those countries that undertake employment checks and so caution is needed in interpretation. A small percentage of entries refer to criminal records usually in the context of fiduciary matters. The information covers the type of data employers are legally allowed to ask for when recruiting for any job. This section makes no reference to the health and care industry for adults in either the public or private sector. In a small number of entries, drawn from other sources, criminal records are referred to in relation to working with children. Argentina - Law stated as at 1 Nov 2013 Background checks can be carried out, but there are restrictions that apply to these checks. Austria - Law stated as at 1 Nov 2013 During a job interview, an employer is only entitled to ask questions to determine an applicant s suitability for the position. Questions relating to pregnancy and family planning, political views, previous convictions, financial circumstances and medical conditions are not generally permissible. It is common practice to use social media networks for insight into an applicant s background. Information that has been made public by an applicant can definitely be used during the recruitment process. Sensitive and/or personal information that has not been made public by the applicant cannot be used in the recruitment process. Bulgaria - Law stated as at 1 Jan 2014 Background checks are conducted by requiring the applicant to produce a number of documents, which should be presented to the employer before entering into an employment contract. Documents consist of two main types: (i) Legally required usually medical certificate, proof of professional qualification or capacity and personal ID card, plus a criminal record certificate for some jobs; (ii) Required by the employer usually specific additional documents germane to the job. China Law as at 1 December 2014 Employment Contract Law states that employers have the right to obtain basic information from employees that directly relates to the employment contract. Employers must follow the legal requirements regarding personal data processing and protection when obtaining basic employee information. There is no law specifically addressing what kind of personal information is directly related to the employment contract. In practice, information such as an employee s age, education, language skills and work experience are usually deemed necessary to perform an employment contract and therefore directly related to performing it. Colombia - Law stated as at 1 Nov 2013 In Colombia companies can review the background records of new applicants, provided that they have the applicant s express consent. Under Colombian labour laws, employers cannot withdraw an offer of employment based on the outcome of the background checks of a candidate. Cyprus - Law stated as at 1 Sept 2014 The criminal background of a candidate is considered as sensitive data. It is prohibited to gather or ask such information unless either: a legal exception applies and the employer obtains the candidate s explicit consent. For criminal offences, the exceptions relate to information concerning convictions for dishonesty or fraud. For these exceptional positions the employer can ask the candidate to provide a previous criminal conviction record. 23

24 Denmark The employer s right to information is determined by the Danish Act on Processing of Personal Data, With the written approval of the applicant or employee, the employer can subject their personal data to scrutiny by means of a database governed by social security legislation. If the applicant refuses such scrutiny, the employer can refrain from recruitment. A job applicant must disclose previous convictions where the offence is relevant to carrying out their duties and if there is proximity between the offence and the position. An official permit regulated by statute for the relevant function is required, in relation to insurance clerks, attorneys or finance managers. As a rule, the employer obtains information about relevant previous convictions from the public criminal records kept by the police with the written approval of the applicant (Wisskirchen, 2011). Finland - Law stated as at 1 Dec 2014 There is no legislation requiring checks to be carried out on people working with vulnerable adults. Compulsory checks do exist though for those working with children. The purpose of the Act on checking the criminal background of persons working with children (504/2002) (Ministry of Labour, 2003) is to protect the personal integrity of minors and to promote their personal security. It applies to all providers of private social services or private health care services, and to municipalities. All jobs requiring a criminal check have to include this requirement in their adverts. For the purpose of establishing a person s criminal record, an extract from the criminal record produced under the 2003 Act may not be more than six months old. The Act on the Protection of Privacy in Working Life 2004 sets out specific rules for processing employee-related personal data and applies, as appropriate, to job applicants as well. An employer is only allowed to process personal data directly necessary for the employee s employment relationship. The employer should collect personal data about the employee primarily from the employee directly. In order to collect personal data from elsewhere, the employer must obtain the employee s consent. However, this consent is not required when an authority discloses information to the employer to enable the latter to fulfil a statutory duty, or when the employer acquires personal credit data or information from the criminal record in order to establish the employee s reliability (Thomson Reuters, 2014). France - Law stated as at 1 Aug 2014 Under Article L of the Labour Code, information requested by an employer to a prospective employee is strictly limited to matters linked to the position and must aim at assessing his or her professional skills. Asking about an applicant s criminal record (Extrait No 3 du Casier Judiciaire) is neither expressly authorised nor prohibited by the Labour Code. However, since all information requested must be linked to the position it is justified in very few positions, such as ones linked with the regular use of money (for example, banking activities). An employer additionally has the option in cases such as care and security, under administration law, of having police files reviewed by local government. Employers may make use of all information from the internet, irrespective of whether it was posted on social or work-oriented networks (Wisskirchen, 2011). Germany The primary law governing background checks in Germany is The Federal Data Protection Act (Bundesdatenschutzgesetz, BDSG), introduced in Prior to the BDSG the employer s legitimate business interest in collecting information was generally limited by the employee s personal right to protect personal information. Permissible research (including questions and background checks) had to be directly relevant to the requirements of the envisaged role, e.g. questions can be asked concerning physical requirements or criminal convictions listed in the central criminal register, such as traffic offences for drivers, or offences against property for roles with fiduciary responsibility. Candidates are permitted to incorrectly answer prohibited questions without consequence (this is known as the right to lie ) but in cases where the criminal offences may have importance for carrying out the job, a future employee must tell the truth about his or her criminal record. If they do not, it is considered a breach of (pre-) contractual duties and justifies the prompt dismissal of the employee (Morgenstern, 2011). The primary purpose of the BDSG is to ensure, among other things, that personal information is collected directly from an applicant or employee rather than from third parties such as third-party vendors, consumer-reporting agencies, former employers, referees, the courts, or the Internet. The BDSG permits the collection of information 24

25 via third parties only where the nature of the business purpose necessitates the collection from third parties and there is no overriding legitimate interest of the individual to whom the data relates to. In other words, employers may seek information from third parties only where the particular position requires certain information to be confirmed and supplemented through background checks. The BDSG created an extended certificate of conduct allowing farreaching access of employers to criminal records concerning anybody who might be involved in working with children. All employers in the area of child care, youth welfare institutions, schools, and other children s services, are obliged to check applicants for jobs and existing employees. Two types of access to criminal records information are distinguished in the German system: access to the register itself and access to some of the information via a so-called certificate of conduct. Gibraltar - Law stated as at 1 Jul 2014 An employer must inform the applicant and obtain their consent prior to carrying out searches relating to an applicant s health, or criminal offences that they have, or are alleged to have, committed. This information is classified as sensitive personal data under the Data Protection Act An employer or any third party who carries out such checks will also need to ensure that their processing and storage of that information are in accordance with EU data protection law. Hong Kong - Law stated as at 1 Mar 2014 Prospective employers must always obtain an applicant s consent in order to use the applicant s personal data (for example, name, address, date of birth) to conduct background checks. This includes informing the applicant on or before collecting the personal data of both the purpose for which the personal data is being collected and to whom the personal data will be transferred. India - Law stated as at 1 Nov 2013 There are no restrictions or prohibitions on carrying out background checks for applicants in India, after obtaining their consent. This includes requesting information regarding an applicant s health and criminal record. Indonesia - Law stated as at 1 Nov 2013 Based on the latest verbal information from an official at the Ministry of Manpower there are no prohibitions under the Labour Law on background checks on applicants. Italy Questions related to past criminal records are only permitted if a clear police certificate is deemed to be a requirement for the kind of job to be performed. Questions related to pending criminal proceedings are not allowed. From April 2014 anyone who employs a person to work with children must obtain their criminal records. This applies both to the public and private sectors. The certificate of a criminal check lasts six months, after which a new one should be requested. An employer who does not comply will face a fine of 10,000 to 15,000 Euros. Concerns have been expressed about how direct and regular contact with children is to be defined, who can impose sanctions and who will pay for the issue of certificates (Bagnasco & Melis, 2014). Japan 3 There is no single law governing background screening in Japan, however various pieces of legislation cover parts of a screening process. Until recently, employers had the right under Japanese law to conduct employment background checks on candidates. Unless the scope of this check was extremely unreasonable, or clearly unnecessary, and could be viewed as an invasion of privacy, candidates were obliged to respond truthfully to questions posed by their potential employers. Over the last few years, background screening in Japan has been regulated by the enactment of several separate pieces of legislation relating to discrimination, privacy and dealing with third party agencies (Takahashi, 2005). The Personal Information Protection Act 2003 seeks to: Protect the rights and interests of individuals while taking consideration of the usefulness of personal information, in view of a remarkable increase in the use of personal information due to development of the advanced information and communications society (Article 1). The Act relates only to the private sector. The person/agency applying for the information must describe, as specifically as possible, the purposes of using Personal Information, and the person has to be informed of the data collected and its 3 Source - (accessed 30 October 2015) 25

26 purpose. There are guidelines accompanying the Act which contain both mandatory and desirable provisions. Recognising that the scale of risks vary from one industry to another the Act provides for minimum obligations only and leaves the relevant government ministry to set up sector-specific desirable measures for collecting information from applicants (Takahashi, 2005). There is no mention in the Act or the accompanying notes relating to the care industry, or to criminal checks. Mexico - Law stated as at 1 Nov 2013 In Mexico a potential candidate for any job may be required to consent to background checks, including requests about their criminal history, consumer credit, and motor vehicle records, as a condition of employment. If consent is not provided, an employer may legally refuse to hire a potentially qualified candidate. An employer must request the background check of an applicant prior to extending an offer of employment. The applicant must then decide if they will consent to undergo the background check process. Employers must be able to demonstrate proof of consent. In order to substantiate that valid consent was obtained, it must include specific wording indicating that the candidate agrees to the background check. Federal Labour Law does not put any restriction on an applicant s background check, but the Federal Law Protection of Personal Data in the Possession of Private Parties, places an obligation on an employer collecting personal data to provide a privacy notice to the owner. Norway Legislation relating to criminal disclosure is directed by the Helsepersonelloven 1999 (Health Personnel Act). 4 The Act s objective is to contribute to patient safety and health service quality as well as create trust of both health personnel and the health service. Only those people working in health and social care with children and persons with mental disability disorders must show a limited police certificate prior to employment. The interpretation of people with mental disability disorders is unclear, but it does not appear to cover people with dementia living in nursing homes and care homes. Offences covered by the limited police certificate are concerned with criminal offences relating to sexual violence and other (major) sexual offences. Offences such as murder or violence (unless of a sexual nature) are not included in the limited police certificate. Neither are drugs-related or other offences. Panama - Law stated as at 1 Aug 2014 An employer can request a criminal background certificate provided the employee expressly consents. Only the employee can request these certificates for labour purposes. The employer can request that the applicant provide a criminal background certificate. Romania - Law stated as at 1 Dec 2013 Pre-employment checks are allowed under the Romanian Labour Code provided that they are limited to a specific scope and purpose, that is, they are necessary for assessing the applicant s professional and personal aptitudes for employment. It is not mandatory for applicants to present their criminal record. This is only a necessary prerequisite in limited cases expressly regulated by law (for example, for employees who work with children). Russian Federation - Law stated as at 1 Apr 2014 An employer has limited capacity to carry out background checks in relation to applicants. As a general rule, the employer can only process an applicant s personal data with his/her prior consent. The employer must inform the employee of the goals and methods of obtaining personal data, as well as of the nature of the expected personal data and the consequences of employee refusal to give written consent to obtain them. South Korea - Law stated as at 1 Nov 2013 Separate consent must be obtained if an employee s health information or criminal records are to be checked. Individuals with a custodial record for sexual abuse against children are barred from working with them for a period of ten years, under the Act on the Protection of Children and Juveniles from Sexual Abuse, A translation of parts of the Health Personnel Act can be found at: jeringen.no/nb/dep/hod/dok/lover_regler/reglement/2002/act-of- 2-july-1999-no-64-relating-to-hea.html?id= (accessed 13 March 2016). The original can be found at hp04.htm. 26

27 Spain - Law stated as at 1 Nov 2013 There is no clear indication in Spanish law as to what information employers are allowed to ask employees for during the hiring process. Employers usually ask about the training and professional profile of the candidate and they should avoid personal questions. Switzerland - Law stated as at 1 Nov 2013 The Personal Autonomy and Dependent Care Law (39/2006) 2007 guarantees public support for people who cannot lead independent lives for reasons of illness, disability or age and regulates the workforce providing services for these groups (European Monitoring Centre on Change - accessed 14 March 2015). In principle, background checks are permissible to determine whether a candidate is suited for the job. The information which may be requested by the future employer depends on the position for which the candidate is applying. Summary This section of the report revealed little relevant data on international policy and practice relating directly to the protection of vulnerable adults through employment checks, from the health and social databases, journals or relevant international and European bodies. In relation to international systems for pre-employment checks for applicants seeking work with vulnerable adults, there is limited research and a variety of practice seems to exist. Where research or commentary about the expiry of criminal convictions exists (or ability to deny access to such information) the debates are concerned with human rights, equality and privacy. The data reported above show that the emphasis of interest is on children and primarily concerned with sexual abuse or exploitation. The Netherlands Background checks regarding applicants and employees are generally permitted, but limited by the Data Protection Act (Wet Bescherming Persoonsgegevens). They are only supposed to be carried out in relation to a firm offer of a job. It is up to applicants as to whether they provide information to the potential employer about any previous convictions, except if there are functionrelated previous convictions such as an applicant for a position as a primary school teacher previously convicted for the sexual abuse of children. Employees have a duty to provide comprehensive information as requested by their employer at any time during the current employment period, to the extent that scrutiny of data relating to the employee s position is relevant. The interests of the employer outweigh those of the applicant (Wisskirchen, 2011). Turkey - Law stated as at 1 Nov 2013 There are no legal restrictions on background checks under Turkish law. Under the Turkish Labour Code, an employer must keep a personnel file for each employee, though what the file must contain is not specified. Therefore, employers in Turkey generally keep details of employees criminal records, health reports, and so on, on file. 27

28 Discussion By exploring practice in different countries regarding criminal checks, this review has highlighted the many and diverse factors that may be weighed up before a system is put in place. The key policy challenges identified by this international study in determining whether and which systems should be put in place included: protection and reassurance of the public; balancing offenders rights to privacy with the need for public protection; identification of relevant offences; provision of effective mechanisms for monitoring and controlling the employment of offenders where there is contact with vulnerable adults ; and the costs of implementing systems. An article in Volunteer Now s regular newsletter encapsulated the range of tasks but also the values involved in vetting and safeguarding when it asked its readers Are you aware of your legal and moral responsibilities to keep adults safe? Do you want to ensure your practice is current and up to standard? (Volunteer Now, 2014). Without further study it has not been possible to determine how each country has reached the balance that it feels best meets its own particular circumstances. However, as discussed above it is likely that the desired balance, or emphasis, may be influenced by a country s approach to its own judicial system (see Herzog-Evans, 2011; Morgenstern, 2011), its commitment to human rights (Backman, 2011), its desire to promote trust of staff and among colleagues (Vabø, 2012) as well as its attitude towards those who are vulnerable or at risk of harm. We found little evidence that care users consumer right to know the background of the person providing them with care services has played substantial parts in such debates. Why protection exists, who is being protected, from whom and in what form they are being protected, have formed the key areas for discussion here. But the practicalities, including the types of check available, identifying where responsibility lies in obtaining a record check and who is allowed access to criminal records also need consideration. Examples from the country by country review serve to illustrate the different arguments for and approaches taken to carrying out employment checks, and the respective limitations and responsibilities that are placed upon employers and employees. The purpose of vetting Different countries appear to define or describe the purpose of vetting schemes in varying ways indicating distinctive emphases of what is important to them (acknowledgement is made of possible changes of meaning arising from translation from the original language to English). In New Zealand the legislation states the purpose of vetting is to protect society s most vulnerable members, while in Norway it is to contribute to safety for patients and quality within the health service, as well as to create trust in... personnel. Mission Australia took a two-fold position: arguing for a solid framework that would both protect employing bodies and create a safe place for vulnerable persons. This raises critical questions about where the balance of interest lies in developing schemes: between an organisation s requirement to safeguard its own interests as a service provider, or in protecting those for whom it provides services. In British Columbia vulnerable adults are being protected from individuals whose criminal record indicates they pose a risk of physical, sexual or financial abuse. As noted earlier, the Republic of Ireland aims to balance the rights of vetting subjects (employees) with protection of their good name, with the rights of children and vulnerable adults to be protected from people who may be more likely than others to cause them harm. This balance holds some parallels with Lam and Harcourt s (2003) and Backman s (2011) observations about the importance of balancing the rights of the individual with the need to provide protection to those in the workplace. 28

29 Without exception sexual abuse offences against children appear always to be as viewed as potential grounds for exclusion from care work or other forms of contact with children. Pijoan (2014) has suggested that there may be more emphasis on this in respect of children and their risks of sexual abuse in parts of continental Europe where systems are not well developed on the basis of European interest in such risks. In the US, the Virginia Code contained a list of what it termed Barrier Crimes, that automatically barred working in given circumstances, and unusually clearly identified what these crimes were. Of particular note here was abuse and neglect of incapacitated adults, alongside such crimes as murder, manslaughter and extortion by threat. In Australia the types of harm that could be imposed upon a vulnerable person are given as sexual, physical, emotional and financial. Who is being protected? Defining who is to be protected reveals another area for deliberation. The inherent vulnerability of a child is not generally questioned, but an adult s vulnerability is defined variously by the status of their physical, mental or intellectual health (Republic of Ireland, Norway); whether their condition is long term or temporary (Canada); by the health and care services they are using, such as domiciliary or hospital care; by the nature of their accommodation, such as residential care, sheltered housing, nursing home, hospital (see Northern Ireland); or by the type of contact with that body. Additionally some jurisdictions specify the need for assistance in the conduct of a person s affairs (Northern Ireland and Tasmania) as a mark of vulnerability. ACT and Tasmania share a common understanding with England in defining a vulnerable person in relation to their use of a regulated activity. The Republic of Ireland defines the person first: as being someone over 18 years of age who is suffering from a mental or physical condition, that necessitates their having a service that guards them against harm by another person, and/or because they need assistance with the activities of daily living, such as dressing, eating, walking, washing and bathing. Under British Columbia s Criminal Records Review Act (RSBC, 1996) a vulnerable adult was initially defined as an individual 19 years or older who receives health services, other than acute care, from a hospital, facility, unit, society, service, holder or registrant. Subsequent guidance from the British Columbia Ministry of Justice moved the definition from someone being defined by the services they use, to someone whose life may be at risk by virtue of a disability or their age from a relative or a person in a position of authority or trust (British Columbia, 2014). Most of the legislation and guidance on safeguarding declared their aim to be protecting vulnerable adults usually in receipt of a care service, and children. This study however also found other sectors for which legislation provides apparently important protections. Examples included migrants, refugees and asylum seekers (in Tasmania under the Registration to Work with Vulnerable People Act, 2013) or those detained in lawful custody (in Northern Ireland, under The Safeguarding Vulnerable Groups Order 2007). This adds a further dimension to the debate because it may change the form of guidance and training needed to ensure the law does protect such vulnerable people individually or as a group. While the purpose of vetting, as shown above, is of course mainly about the protection of vulnerable people, judicial systems in some countries give greater weight to the impact such investigations may have on those who are required to disclose criminal records, on the rehabilitation prospects of offenders, and the impact these inquiries may have on their reintegration into society (Morgenstern, 2011). Who and what are people being protected from? In all circumstances where legal frameworks were found to exist to protect children and vulnerable adults, the requirements for checking applied to prospective and current paid staff and volunteers. The age at which people are vetted was generally not stipulated, except in the case of Tasmania where it was noted that a person under the age of 16 years is not required to be registered to engage in a regulated activity. A number of countries specify that certain professions have to be vetted, whether or not there is legislation about protecting vulnerable adults. In Norway, for example, those working in health and social care with children and persons with mental disability disorders have to show a limited police certificate prior to employment. Likewise, despite there being no national legislation in New Zealand relating to work with vulnerable adults, there are rigorous entry requirements for professional staff, such as nurses and social workers who will 29

30 be working with vulnerable adults. And while the main purpose of recent Spanish legislation requiring care staff to register with a government body was to regulate workforce practices, there is a potential secondary benefit in protecting vulnerable adults because it is now possible to track care staff (EMCC, 2009). In the US care providing institutions, such as Assisted or Independent Living Facilities and Home Health Agencies, as well as individuals have to be accredited to work with vulnerable adults, if they are supported by Medicare or Medicaid. It was unusual to find references to whether or how families were checked. In general there was no requirement for family carers to undergo criminal record checking. However, if a non-relative seeks to be appointed as a suitable person to receive Direct Payments (cash for care) on behalf of a person lacking mental capacity in England, this person must undergo a DBS check. By contrast, in the US only six states exclude family members or other relatives from criminal background check requirements in such circumstances (Galantowicz et al, 2010). How people are being protected This review has illustrated a range of legislation and practice guidance, along with the concomitant levels of enforcement that may contribute to the protection of vulnerable people. In addition to specific legislation designed to protect vulnerable adults (as seen in British Columbia and Tasmania), different frameworks are in place that also have the potential for protecting the public at large including vulnerable adults (even though they are not specified). These ranged from non-statutory guidance on good practice in employment procedures, such as in Canada and Japan (see Bennett 2013 on the voluntary PrivacyMark in Japan to encourage good practice in how to gather personal information); to more general legislation in areas such as employment law and criminal law, to registers, associations and disciplinary bodies for professionals including lawyers, doctors, teachers, and the existence of Sex Offender or similar registers. Human rights legislation is an example where wide ranging protection is offered to everyone in many domains of their lives, but is not specific about modifications for either vulnerability or prevention of abuse. Some countries highlight the balance between adhering to their own legislation on human rights (eg Canada) with the potential invasion of job applicants privacy and what it should be permissible to ask on forms or in interview (eg Japan, Germany, US). In other countries legislative powers are supplemented by guidance and/or the membership requirements of professional bodies, private and public bodies, to ensure safe practice and protection. Substantial encouragement and guidance about preventing abuse supplement the law in New Zealand and Canada. Others strongly encourage good or safe practice in staff recruitment, though as shown by the country review above much of this appears related to protecting business interests, usually against fraud than to protecting service users. This review has noted the increasing use of fingerprinting of employees so that their identity can be confirmed and checks made (see Example 3, British Columbia, and Example 6, Oklahoma). The new checks appear to combine an interest in protecting vulnerable people with preventing fraud and in enhancing trust in professionals (Bolton, 2006). Others suggest supplementary fingerprinting, with other forms of inspection, such as making site visits (see the Affordable Care Act 2011); or creating a workplace culture that encourages and enables staff to keep a watchful eye on colleagues (see Northway et al, 2007). A recent OECD (2013) report on the longterm care of elderly people made no mention of criminal disclosures, but suggested that measures to protect people from elder abuse could include national awareness campaigns and training for care workers to identify and respond to abuses. But some of these measures, as indeed in so many circumstances, depend on whether it is feasible to undertake surveillance in care work with vulnerable adults. 30

31 The length of time for which a check is valid and the time that must elapse before a person may be eligible for certain work again also vary between countries. Point-in-time checks offer a continuous opportunity to check people applying for different roles (see ACT and Canada above) and a check for a new job in Finland has to be less than six months old. The portability (ability to use or carry over one check in another care setting or relationship) of such checks varies. Depending on the offence people are also barred from working with vulnerable adults for different length periods across the world from seven to ten years in South Korea. While the Tasmanian legislation requires that the ID card awarded permitting people to work with children and vulnerable adults must be renewed every three years, the Canadian system uses a point-in-time check, in which the frequency of checking can depend on the circumstances and the frequency with which a person changes jobs and roles within a year. Payment for acquiring a criminal check further varies by country, with responsibility divided or shared between the employer and the employee. There is no evidence however that the fees make a difference to either party s willingness to undergo a check, though the consistent pattern that volunteers are not asked to pay for checks suggests a general view that this would be unfair or off-putting for volunteers. A further point, highlighted by this review, is consideration of a country-wide versus federated system which allows for different practices between one state/province/territory and another. As noted above in the example of Oklahoma, the lack of access to data from across the US was one of the factors that made this State decide to go ahead with fingerprinting; while Canada as a whole recommends point-in-time checks, in contrast with British Columbia, the only Province in Canada to introduce legislation to protect vulnerable adults, which legislates for checks every five years. and whether such responsibilities are mandated by legislation or exist as good practice guidance. In almost all situations there is a break between a low level check where the employee is responsible for submitting accurate information to their prospective or current employer and the level at which the employer is responsible for knowing when a job or volunteering role requires the appropriate level of checking (see, for example, AccessNI). Appleton (2014) noted that some organisations responsible for children comment on the critical value of staff informal vigilance but no evidence was found that such organisations would wish to abolish mandatory checks. In New Zealand the law allows organisations to make informed decisions about potential employees, current employees or volunteers working directly with vulnerable groups. Organisations providing services to such groups can ask the police to check the criminal records of current staff and volunteers and job applicants, even though it is not mandatory (New Zealand Police, 2014). In other countries, such as Japan, the onus appears to be on job applicants to provide evidence of their own suitability, for example, by their obtaining and paying for a police check. Some European countries have systems whereby individuals can apply for an extract of their criminal records when applying for particular jobs and employers can ask employees to provide either certificates of good conduct or records extracts (Herzog-Evans, 2011). The responsibility for disclosure continues once the person is employed. In Tasmania, for example, an employed person can be fined if he or she fails to inform the police, in In addition to the legislation and practice guidance it is also widely accepted that it is everybody s responsibility to monitor and protect children and vulnerable adults in countries in the developed world. Volunteer Now acknowledged in its training programme for people working in safeguarding that it is Everyone s Business (see Volunteer Now, p3: para 2.1; see also NIASP, 2013). There are different perspectives on how this responsibility is practised; where the balance lies between the employer and employee/applicant, 31