1 SAFEGUARDING POLICY, PROCEDURES AND GUIDANCE Protecting those at risk, the adults who work with them and inspection / review team members Supplement, to be read in conjunction with the HMIE Safeguarding Policy, Procedures and Guidance issued in March This ensures guidance is compliant with the Protection of Vulnerable Groups (Scotland) Act 2007, operational from 28 February 2011.
2 HMIE SAFEGUARDING POLICY, PROCEDURES AND GUIDANCE: SUPPLEMENT Introduction This document details procedures in Scotland in relation to disclosure and is intended to be read in conjunction with the HMIE Safeguarding Policy, Procedures and Guidance issued in March The HMIE Safeguarding Policy, Procedures and Guidance publication of March 2008, issued to all current and new staff, remains entirely relevant to underpin practice and how we deal with any allegations or concerns raised in the course of our work. It also provides guidance where advice is sought from a third party related to Safeguarding matters. In particular, the 'Raising Concerns' proforma has ensured that we capture for the record any issues of concern arising from our contacts with others in establishments or services. These records are held securely within HMIE for future reference. Although the HMIE March 2008 publication remains the definitive document in relation to protection of children, young people and protected adults with whom we work, the introduction of the PVG Scheme on 28 February 2011 under the Protection of Vulnerable Groups (Scotland) Act 2007 (PVG Scheme), however, has meant that there are now some significant updates that require to be communicated to all who work for HMIE. It is important that this supplement provides everyone who works for and with HMIE with the key facts about the PVG Scheme and its implications for them. This supplement also provides clear guidance on how those we engage with are expected to operate within and apply the principles and regulations of the PVG Scheme. This supplement forms an integral part of the March 2008 Policy, Procedures and Guidance publication. The supplement should be retained within the 2008 publication for ready reference. The Safeguarding Aide-Memoire Card issued to all who work with and for HMIE remains absolutely valid and should be carried by employees when visiting establishments/services or be readily accessible at the workplace. Replacement copies of the card can be obtained from the HMIE Business Management and Communications Team. Please note that there are also now significant divergences in procedures and definitions between England and Wales and Scotland which require to be dealt with separately. This situation has been exacerbated by the withdrawal for review of proposed legislation in England and Wales which was broadly similar to that being introduced in Scotland. May 2011
3 Principles of the Act and Scheme To ensure that those who have regular contact with vulnerable groups through the workplace do not have a history of harmful behaviour. To deliver a fair and consistent system that will be quick and easy for people to use, simplifying the process. 1 Lists The PVG Scheme legislation provides for the protection of two vulnerable groups: children and protected adults and refers to regulated work with these groups. It provides two lists, one for each group. The effect of being included in either of these lists is that an individual is barred from undertaking regulated work (paid or unpaid) with children or protected adults or both and commits an offence if he or she does. An individual can be barred from one type of regulated work and not the other. Membership of Scheme The following may apply to join the PVG Scheme: People who work or volunteer with children and/or who work with protected adults in regulated positions. Child Section 97 of the Protection of Vulnerable Groups (Scotland) Act 2007 defines a child as an individual under 18 years. Protected Adult Section 98 defines a protected adult as an individual aged 16 or over who is provided with (and thus receives) a type of care, support or welfare services. This definition supersedes the definition of adult at risk. There are four types of services receipt of which makes an individual a protected adult: registered care services; health services; community care services; and welfare services. 1 Existing members of the PVG scheme will still need to complete an application form and provide identification documents each time they apply for a new role.
4 Regulated Work What is work? Work is any activity carried out on behalf of an organisation, establishment or service, in a paid or unpaid capacity. This includes volunteers, but excludes work as part of a personal relationship. While it is not possible to give a definitive list of roles, positions or types of work, or types of employment that constitute regulated work, the PVG Act defines work by reference to the activities that a person does; the establishments in which a person works; the position they hold; or the people for whom he or she has day-to-day supervision or management responsibility. To define regulated work it is necessary to look at: who an individual is working with; what they are doing; and where they are doing it. There are two types of regulated work: a) Regulated Work with Children Regulated work with children is outlined in Schedule 2 of the legislation. An individual may be doing regulated work with children if his or her work involves any of the following activities as part of his or her normal duties: caring for children; teaching, instructing, training or supervising children; being in sole charge of children; unsupervised contact with children under arrangements made by a responsible person; providing advice or guidance to a child or to particular children which refers to physical or emotional well-being, education or training; moderating a public electronic communication service which is intended for use wholly or mainly by children; providing, or working for an organisation which provides, a care home service which is provided exclusively or mainly for children; providing, or working for an organisation which provides, an independent health care service which is provided exclusively or mainly for children; work on any part of day care premises at times when children are being looked after in that part; and being a host parent.
5 b) Regulated Work with Protected Adults Regulated work with protected adults is outlined in Schedule 3 of the legislation. An individual is doing regulated work with protected adults where that individual is working in a position whose normal duties include carrying out duties including: caring for protected adults; teaching, instructing, training and supervising protected adults; being in sole charge of protected adults; providing assistance, advice or guidance to a protected adult or particular or protected adults which relates to physical or emotional well-being, education training; and inspecting adult care services (including inspecting any premises used for providing such services). Normal Duties Normal duties can be considered as something HMIE staff or an individual working for HMIE, staff member or volunteer in an establishment or service under scrutiny might do as part of his or her post on an ongoing basis eg duties appearing in a job description. Normal duties exclude one-off occurrences and unforeseeable events. No particular frequency of undertaking work or duration of work is specified in the Act as these depend on context. An activity is likely to be normal duties when: it appears in an individual s job description, task description or contract; it can reasonably be anticipated; or it occurs regularly. An activity is unlikely to be normal duties when: done in response to an emergency; arranged at the last minute to stand in for sickness or other unexpected absence of another worker; or done as a one-off activity of short duration that is not part of the individual s routine or occupation. Regulated Work - Incidental The scope of regulated work is narrowed by the incidental test. Some, but not all, activities are excluded from being regulated work if the activity is occurring incidentally to working with individuals who are not children or protected adults eg a teacher in a school is doing regulated work with children but a
6 college lecturer running woodwork classes in the evening aimed at adults is outside the scope of regulated work, even if one or two children attend the class. This is because the presence of the children is incidental to the main activity and purpose of the class which is to teach adults. An activity is likely to be incidental when: It is open to all (characterised by where the event is held, where it is advertised, admission policy, etc). Offences Under the PVG Scheme It is an offence for any individual to do, or seek or agree to do any regulated work for which the individual is barred. It is an offence for any employer or voluntary organisation to offer regulated work to an individual barred from that work. It is an offence for any employer or voluntary organisation not to refer an individual to Disclosure Scotland where the grounds for referral have been met. It is essential that organisations check with Disclosure Scotland as only individuals who are not listed as barred from regulated work can be PVG Scheme members. Eligibility Any individual doing regulated work in Scotland with children and/or protected adults will be eligible to apply to join the PVG Scheme.
7 Disclosure Types The types of disclosure are: Scheme Membership Statement; Scheme Record Disclosure; and Scheme Record Update. Scheme Membership Statement Any eligible individual can apply to, even in anticipation of employment, to become a Scheme member. This may also be done via a personal employer (au pair, etc). This would not, however, be sufficient for Scottish Government recruitment processes. The Scheme membership record will show: the type of regulated work the applicant has joined the scheme to do; that the applicant is not barred from regulated work of that type; if Scottish Ministers are considering listing the applicant for that type of regulated work; and, if the Independent Safeguarding Authority is considering listing the applicant for that type of work. If the applicant applied unilaterally the statement will only be sent to the applicant. If the individual applied via a personal employer, a scheme membership statement is issued to the personal employer and to the individual. HMIE inspection staff ie HMI, Health and Nutrition Inspectors, Assistant Inspectors, Associate Assessors and Lay Members who have opportunities to engage regularly with children and/or protected adults in the course of their normal duties will require to be a member of one or both parts of the PVG Scheme. If an individual does not already have PVG registration then the individual will require to become a Scheme member and costs incurred met by HMIE. Where an individual is already a Scheme member, then HMIE will arrange for a Scheme Record Update to be applied for and meet the costs of this. Scheme Record Disclosure Any eligible individual doing regulated work with children or protected adults as part of his or her normal duties may apply to become a PVG Scheme member through an employer or voluntary organisation. On application for a Scheme Record Disclosure the record will show: the scheme member s membership statement; and, any vetting information gathered by Disclosure Scotland.
8 The disclosure will be sent to both the individual and the employer or voluntary organisation. There is no cost to voluntary organisations. Scheme Record Update On an individual applying for another position the prospective employer may apply for a Scheme Member Update. This will show: the scheme member s membership statement; when the scheme record was last disclosed; if vetting information shows on the scheme record; and, whether or not vetting information has been added or removed from the scheme record since it was last disclosed. The update does not show details of that change. The employer/voluntary organisation will be able to request the PVG scheme record disclosure detailing these changes within thirty days; and a new application will be required. The scheme record update or disclosure will be sent to both the applicant and the voluntary organisation. There is no cost to voluntary organisations. HMIE inspection staff ie HMI, Health and Nutrition Inspectors, Assistant Inspectors, Associate Assessors and Lay Members who have opportunities to engage regularly with children and/or protected adults in the course of their normal duties will require to be a member of one or both parts of the PVG Scheme. In all likelihood, such individuals will already have a PVG Scheme registration through their normal everyday employment. In such cases, HMIE will apply for a Scheme Record Update and meet costs incurred.
9 Information Included Unlike the former system where the test for relevance of non-conviction information was made against each post, there will only be two relevance tests for the PVG Scheme, one for each type of regulated work. That is, one for regulated work with children and one for regulated work with protected adults. Individual Responsibilities If a scheme member leaves a position of regulated work then he or she must update Disclosure Scotland. Disclosure Scotland will then contact the employer / voluntary organisation for confirmation of the change. A scheme member must give Scottish Ministers notice within three months of: a change in the member s name; the issue of full gender recognition certificate to the member under Section 4 of the Gender Recognition Act 2004; and any other change in circumstances of a prescribed type. Updating of Records PVG Scheme membership will be updated automatically: when a member's circumstances change, eg if or he or she moves to a different job or is convicted of a crime; if the individual commits an offence that is relevant to children and/or protected adults his or her status may move to consideration for listing; if an individual s status moves to consideration for listing then, those organisations he or she is currently engaged with and for which he or she does regulated work will be informed. It is important, therefore, that when an individual leaves an organisation that Disclosure Scotland is informed in order that his or her PVG scheme membership is updated. If due to information received by Disclosure Scotland, a person s status changes from being a PVG Scheme member to being barred, then those organisations that he or she does that type of regulated work for will be informed. Listing Referrals An individual may become listed as barred from working with children or protected adults or both as a result of a referral from: an employer, voluntary organisations or regulatory body; a Court; or as a result of vetting information becoming available.
10 The individual may be listed automatically, or automatically considered for listing. Automatic Listing Convictions that would lead to an individual being listed automatically include: Rape; and Murder where the act was committed against a child or protected adult. Stages of Consideration for Listing Stage 1 Initial Consideration The information will be assessed by staff against criteria set out in structured decision-making process. The assessment gives a score to ensure that only cases that are likely to lead to an individual being listed move onto Stage 2. A key aim of Stage 1 is to weed out malicious or frivolous referrals as well as irrelevant or minor convictions. Stage 2 Formal Consideration An individual is considered to be under consideration for listing at this stage and any organisation that individual is known to be doing regulated work for will be notified. The referral is passed to a Disclosure Scotland caseworker who will examine the information it contains, request additional information if appropriate, request information from the individual who has been referred, and, if necessary, seek specialist advice. Most cases will be concluded at Stage 2 with the individual either being listed or notified that no further action is being taken. Stage 3 Panel Consideration Stage 3 exists for the small number of complex cases that demand substantial input from specialists. If a case passes to Stage 3 it will be considered by an expert panel that is made up of specialists from a variety of fields. The expert panel will make a recommendation on whether the individual should be listed to the senior listing officer in Disclosure Scotland who will make the final decision. Cases that reach Stage 3 are always concluded at the end of this stage. At the conclusion the individual will be listed or no further action will be taken.
11 Making a Referral An employer or voluntary organisation that dismisses an individual or removes an individual from regulated work with children or protected adults where the following grounds under Section 2 of the PVG Act have been met are legally obliged to make a referral to Disclosure Scotland and will be committing an offence if they fail to do so. The subject for referral must have done one or more of the following: Caused harm o A person s actions causing physical harm to another. o A persons actions causing psychological harm to another eg by placing them in fear, alarm or distress. o A person doing something illegal, which adversely affects someone else s property, rights or interests eg theft, fraud, embezzlement or extortion. Placed someone at risk of harm o A person attempts to harm another in any of the ways described above. o A person tries to get someone else to harm another. o A person does anything that might harm another or expose another to the risk of harm. Engaged in inappropriate conduct involving pornography. Engaged in inappropriate sexual conduct, or, Given inappropriate medical treatment. When considering harm and risk of harm it is important that individuals and employers/voluntary organisations develop an understanding of what sort of actions might result in someone being harmed or place at risk of harm. Within the scope of the PVG Act some of the things that might cause harm are: emotional abuse; neglecting a person s needs; inappropriate physical restraint; failing to attend to whatever health and safety requirements might be in force; using inappropriate language; and sexual abuse, physical assault, supplying illegal or unauthorised drugs.
12 When to Refer If, as a result of any of the grounds for referral, an employer or voluntary organisation dismisses an individual doing regulated work or transfers him or her to other duties that do not involve regulated work, then a referral must be made within three months. Even if that individual has already left the position for some other reason and even if that individual was not a member of the PVG Scheme. If an organisation becomes aware of an incident of harm or risk of harm toward a child and/or protected adult after an individual has stopped doing that regulated work and considers that, if it had known about it at the time, it would have dismissed the individual, or even might have dismissed the individual, then a referral must be made. A referral should not be made whilst an investigation takes place during which an individual is suspended or temporarily transferred to other duties until the transfer is made permanent or the individual is dismissed. All referrals must be made to Disclosure Scotland within three months of the date on which the grounds for making the referral were met. Appeals and Applications for Removal from Lists There is a formal process of appeal and for removal from the lists. HMIE Arrangements for Seeking Criminal Records Checks in Scotland HMIE remains a registered body with Disclosure Scotland and several members of the HMIE HR Team are registered counter-signatories. All application forms for PVG Scheme membership must be sourced from HR and returned to relevant HR staff. Disclosure records must be sought through PVG Scheme membership for all HMIE staff and those who work with us and are involved in regulated work with children or protected adults as part of their normal duties. The new PVG Scheme disclosure records will have the same place in recruitment and selection of staff and those who work with us as the previous disclosures and decisions as to suitability will be made on exactly the same basis. The only significant difference is the addition of a list of individuals barred from working with protected adults similar to that of individuals barred from working with children. It should be noted that for the first year, from commencement on 28 February 2011, only new applicants will be eligible to join the PVG Scheme. Holders of previously issued Standard and Enhanced Disclosures will thereafter be included in a rolling programme. Accordingly, those who already work for and with HMIE are likely to be
13 required to become PVG Scheme members over the course of 2012 to Those coming to work in the future with HMIE or current relevant HMIE employees who do not already hold PVG Scheme membership will be required to register with the Scheme.
14 Important things about the PVG Scheme which staff and those who work with us need to know The following pages will act as a ready reference guide and provide points which should be born in mind when engaging with any establishment, organisation or service which is making provision for children, young people and protected adults. Managers of establishments and services can be advised to seek further guidance from the following useful contacts: Disclosure Scotland Tel: Website: Central Registered Body in Scotland (CRBS) Tel: Website: Service providers should know the following. It is an offence to recruit a person who is barred from working with children and/or protected adults taking account of the services provided. It is an offence for a barred individual to put themselves forward for regulated work. It is not compulsory for an individual to join the PVG Scheme. An establishment, organisation or service can make the decision that a person does not need to be a member of the PVG Scheme. It is an offence for an establishment, organisation or service to insist on an individual being required to be registered with the PVG Scheme where they do not come under the scope of regulated work. If an establishment, organisation or service is registered with the CRBS and concerns come to light about one of its staff or voluntary workers, then senior management are legally bound to make a referral. This may lead to the individual concerned being barred from working with children or vulnerable adults. CRBS or Disclosure Scotland should be contacted for advice in such circumstances. When is PVG Scheme Membership Necessary? Registration with PVG Scheme is required if an individual is doing regulated work.
15 The following questions should be asked to establish if the work being undertaken is regulated. Is it work? Work includes: paid work; unpaid work; work done under contract; teaching, instructing, training or supervising children or protected adults; caring for any children or protected adults; being in sole charge of children or protected adults; and providing advice or guidance to a child or vulnerable adult which refers to physical or emotional wellbeing, education or training. Who are they working with? Children this means any individual under the age of 18? Protected adults this is an individual receiving health/care and/or welfare services? or Both? What do they do? Do their normal duties include: Teaching, instructing or training children or protected adults? caring for children or protected adults? being in sole charge of children or protected adults? unsupervised contact with children or protected adults? and/or providing advice or guidance to children or protected adults? Is it their normal duties? It is likely to be their normal duties/work when: it appears in a person s job description, task description or contract; it can be reasonably anticipated; and/or it occurs regularly. IMPORTANT: it MUST be normal duties to be regulated work. It is unlikely to be normal duties when: it is done in response to an emergency; it is arranged at the last minute to stand in for someone who is ill or other unexpected absences; an
16 is a one-off activity of short duration which is not part of the individual s normal routine or occupation. If any of these circumstances are the reason for an individual working with children, young people or protected adults then the individual is not engaging in regulated work and does not need to be PVG Scheme registered. Where an individual is on a stand-by rota to assist on a fairly regular basis in the event of occasional absence of another worker then the circumstances alter and the expectation is that such an individual will be a member of the PVG Scheme. Are there any Exceptions? The scope of regulated work could be narrowed by a number of factors. The incidental test Some, but not all, activities with children and protected adults are excluded from being regulated work if the activity is occurring incidentally. An activity is likely to be incidental when: it is a public event; it attracts a wide cross-section of society; and the children s or protected adults attendance is discretionary. An activity is unlikely to be incidental when: it is targeted at children and/or protected adults; it is more attractive to children or protected adults; and the children s and/or protected adults attendance at the event is mandatory. Children in work or employment Any 16/17 year olds who are working are excluded. Opportunity for contact If the volunteer is supervised at all times. Limitation on work in establishments (eg a school) The volunteer worker is supervised at all times and/or there are no children present, eg at an evening Parent Council Meeting or a Parent-Teacher consultation afternoon where children are accompanied by their parents/carers.
17 If one of these exceptions applies then the individual volunteer/worker is not doing regulated work and membership of the PVG Scheme is not required. REMEMBER: The PVG Scheme is only a part of a safe recruitment process. Every post should have a job description, interviews are carried out, references followed up and ideally, paid staff and voluntary workers are supervised. Supervision means that the standard of the person s work is monitored by an individual that they are responsible to or are line managed by. Feedback and relevant training should feature. Together, these factors help ensure safer recruitment and working practices.