Policy and Procedure for Disclosure and Barring Service (DBS) Checking

Transcription

1 Policy and Procedure for Disclosure and Barring Service (DBS) Checking Version Number: V3 Name of originator/author: Senior HR Manager Name of responsible committee: Policy Development Group Name of executive lead: Director of Workforce and Organisational Development Date V1 issued: August 2011 Last Reviewed: September 2013 Next Review date: December 2015 Scope: Trust wide MMHSCT Policy Code HR15 Page 1 of 17

2 Document Title / Ref: Document Control Sheet Policy & Procedure for Disclosure & Barring Service (DBS) Checking Lead Executive Director of Workforce and Organisational Development Director Author and Contact Senior HR Manager Number Type of Document Policy Broad Category HR Document Purpose This policy applies to the appointment of all employees, paid and unpaid, including volunteers, bank staff, staff on honorary contracts and others not covered by the term employee. It is designed to assist in ensuring that all persons working within Manchester Mental Health and Social Care Trust are trustworthy and reliable and are not subject to any offences, which are a risk to service users. This policy takes account of current legislation relating to employment, rehabilitation of offenders, safeguarding children and vulnerable adults, and Department of Health guidelines. This policy is designed to supplement the Trust s Recruitment and Selection Policy & Procedure. Scope Trust Wide Version number V3 Consultation Risk Committee, Workforce Policy Development Group Approving Committee Workforce and Development Committee Approval Date September 2013 Ratification and Date Trust Management Board Date of Ratification 19/12/2013 V1 Valid from Date August 2011 Current version is valid from approval date Date of Last Review September 2013 Date of Next Review December 2015 Procedural Documents to be read in conjunction with this document: Recruitment & Selection Policy. Temporary Staffing Bank & Agency Procedure. NHSLA Risk Management Standards Training Needs Analysis Impact There are no Training requirements for this procedural document Policy on Procedural Documents Financial Resource Impact There are no Financial resource impacts Document Change History Changes to this document in different versions must be detailed below. Rationale for the change should also be given Version Number / Name of procedural document this supersedes Type of Change i.e. Review / Legislation / Claim / Complaint Date Details of Change and approving group or Executive Lead (if done outside of the formal revision process) 2 Review July 2013 Changes to the DBS process implemented on 17 th June 2013 regarding the update service. See sections 7 and 9. Updated policy to reflect these changes. Page 2 of 17

3 1 Legislative Feb 2013 Updated to reflect change from CRB to DBS External references used in the creation of this document: If these include monitoring duties upon the Trust for this policy the specific details should be recorded on the Monitoring and Compliance Requirements sheet Privacy Impact Jan 2013 Any issues? Choose an item. Assessment submitted Fraud Proofing submitted Jan 2013 Any issues? Choose an item. If not relevant to this procedural document give rationale: Policy authors are asked to consider each of the nine protected characteristics under the Equality Act We expect you to demonstrate that throughout the policy process you have had regard to the aims of the Equality Duty: 1. Eliminate unlawful discrimination, harassment and victimisation and any other conduct prohibited by the Act; 2. Advance equality of opportunity between people who share a protected characteristic and people who do not share it; and 3. Foster good relations between people who share a protected characteristic and people who do not share it. Please provide a brief account of how you have done this, further work to be completed and any support you have had in considering the aims and working in compliance with the Equality Duty. If you are unclear on how to do this or would like further advice and support then you may contact quality.admin@mhsc.nhs.uk. It is the responsibility of the approving group to ensure this statement reflects the Trusts objectives and position with compliance as set out within the NHS Equality Delivery System In line with the Trust values we may publish this document on our External Website. Is there any reason you would prefer this is not done? No It is the Authors responsibility to ensure all procedural documents comply with the Trust values If you are unclear on any of the requirements in the document control sheet then please quality.admin@mhsc.nhs.uk before proceeding Page 3 of 17

4 CONTENTS Page 1. Policy Summary 4 2. The Disclosure & Barring Service 4 3. Key Issues 4 4. Determination of Level of Disclosure 5 5. Opportunity to disclose 6 6. Procedure for DBS Applications 7 7. Disclosure reports Use, Storage & Destruction 8 8. Positive Disclosures 8 9. Use of a previous CRB / DBS Certificate DBS Disclosure for Doctors in Training Temporary workers supplied by an agency Dismissals Reporting Review 10 Appendix 1 Appendix 2 Appendix 3 Appendix 4 Disclosure & Barring Service Eligibility Flowchart Process for dealing with positive disclosures 12 DBS Definitions 13 DBS Disclosure Activity Report Example 16 11

5 Policy & Procedure for Disclosure & Barring Service (DBS) Checking 1. Policy Summary 1.1 This policy applies to the appointment of all employees, paid and unpaid, including volunteers, bank staff, staff on honorary contracts and others not covered by the term employee. 1.2 It is designed to assist in ensuring that all persons working within Manchester Mental Health and Social Care Trust are trustworthy and reliable and are not subject to any offences, which are a risk to service users. This policy takes account of current legislation relating to employment, rehabilitation of offenders, safeguarding children and vulnerable adults, and Department of Health guidelines. 1.3 This policy is designed to supplement the Trust s Recruitment & Selection Policy & Procedure. 2. The Disclosure & Barring Service 2.1 On the 1 st December 2012 the Criminal Records Bureau (CRB) changed to become the Disclosure & Barring Service (DBS). The primary role of the DBS is to help employers make safer recruitment decisions and prevent unsuitable people from working with vulnerable groups including children. The DBS was established under the Protection of Freedoms Act 2012 and merges the functions previously carried out by the Criminal Records Bureau (CRB) and Independent Safeguarding Authority (ISA). 2.2 The barring side of the DBS provides expert caseworkers who process referrals about individuals or who have harmed or pose a risk of harm to children and/or vulnerable groups. They make decisions about who should be placed on the children s barred list and/or adults barred list and prevented by law from working with children or vulnerable groups. 2.3 The checking service allows employers to access the criminal record history of people working, or seeking to work in certain positions, especially those that involve working with children or adults in specific situations. 3. Key Issues 3.1 Part V of the Police Act 1997 makes criminal record checks available for positions that are identified as exempt under the Rehabilitation of Offenders Act (ROA) 1974 (Exceptions) Order 1975 (as amended). Not all NHS staff will require a DBS check, but such checks are mandatory for all staff who have access to persons in receipt of health services in the course of their normal duties. The trigger for a check and the level of check is based on a risk assessment against the roles and duties of the position being offered and the type of contact the individual will have with vulnerable groups. 3.2 No staff will commence in post until completion of the full DBS process, where applicable, except in exceptional circumstances and by agreement with the relevant Director. A previous CRB / DBS disclosure certificate can be used to expedite a start date subject to the principles set out in section 9, however a new DBS check must have been applied for by the Trust. 3.3 A declaration of unspent criminal convictions, cautions, reprimands and warnings will be requested from all applicants on the Trust s application form. In the case of posts that are exempt from the ROA, this will also include convictions that are otherwise spent and applicants are not entitled to withhold information about convictions. 3.4 It is important to point out that possession of a criminal conviction does not automatically make an applicant unsuitable for employment in the NHS. However, the DBS holds the power to bar people who have committed indictable offences from working or engaging in regulated activity with children and/or vulnerable adults. 5

6 3.5 All employees are required to report any police allegations, convictions, cautions, reprimands or warnings that occur during the course of their employment, whether at home or abroad to their line manager within 5 working days of the event, or as soon as reasonable practicable. Failure to do so will be treated as a disciplinary offence and may result in dismissal. Line Managers are responsible for discussing any reported incidents with the appropriate HR Business Partner to identify if any action is required. 3.6 Recruiting managers will be responsible for questioning and discussing with applicants any criminal convictions, cautions, reprimands and warnings at interview and advising them of the DBS process as applicable to the role. The recruiting manager is responsible for recording any information given on the interview documentation. 3.7 Failure by an employee to provide accurate and truthful information at the time of applying for the position will be considered as a disciplinary matter, which could result in dismissal or withdrawal of an offer of employment. 3.8 NHS Employers guidance confirms that there is no legal requirement to carry out retrospective (periodic) CRB / DBS checks on employees. A new DBS check would be undertaken where a concern is brought to the Trust s attention by either a member of the public, the police authorities, their line manager or where the individual themselves has alerted the Trust to an issue under 3.5 above. 3.9 The Trust reserves the right to carry out discretionary spot checks on individuals at any time. 4. Determination of Level of Disclosure 4.1 The recruiting manager will determine whether a DBS check is required for the post and the appropriate level upon completion of section A of the Establishment Control Form. The Disclosure & Barring Service Eligibility Flowchart at Appendix 1 provides a useful guide for managers. 4.2 The Disclosure and Barring Service (DBS) offers four types of criminal record check. Standard DBS check contain details of an individuals convictions, cautions, reprimands or warnings recorded on police central records and includes both 'spent' and 'unspent' convictions. These are shown on a criminal records check. Enhanced DBS check contains the same details as a standard check, together with any information held locally by police forces that it is reasonably considered might be relevant to the post applied for. Enhanced DBS & barred list check (child) includes information from the DBS's children's barred list and is only available for those individuals engaged in regulated activity with children and a small number of posts as listed in the Police Act regulations, for example prospective adoptive parents. Enhanced DBS & barred list check (adult) includes information from the DBS s adults barred list and is only available for those individuals engaged in regulated activity with adults and a small number of posts as listed in the Police Act regulations. 4.3 The new definition of regulated activity relating to children comprises only: (i) Unsupervised activities: teach, train, instruct, care for or supervise children, or provide advice/guidance on well-being, or drive a vehicle only for children; (ii) Work for a limited range of establishments ( specified places ), with opportunity for contact: for example, schools, children s homes, childcare premises. Not work by supervised volunteers; Work under (i) or (ii) is regulated activity only if done regularly. (iii) Relevant personal care, for example washing or dressing; or health care by or supervised by a professional; (iv) Registered child minding; and foster-carers. 4.4 The new definition of regulated activity relating to adults no longer labels adults as vulnerable. Instead, the definition identifies the activities which, if any adult requires them, lead to that adult being considered vulnerable at that particular time. This means that the focus is on the activities 6

7 required by the adult and not on the setting in which the activity is received, nor on the personal characteristics or circumstances of the adult receiving the activities. There is also no longer a requirement for a person to do the activities a certain number of times before they are engaging in regulated activity. There are six categories of people who will fall within the new definition of regulated activity (and so will anyone who provides day to day management or supervision of those people). A broad outline of these categories is set out below. (i) Providing health care Any health care professional providing health care to an adult, or anyone who provides health care to an adult under the direction or supervision of a health care professional. Please see the Safeguarding Vulnerable Groups Act 2006, as amended by the Protection of Freedoms Act 2012, for further details about what is meant by health care and health care professionals. (ii) Providing personal care Anyone who: provides physical assistance with eating or drinking, going to the toilet, washing or bathing, dressing, oral care or care of the skin, hair or nails because of an adult s age, illness or disability; prompts and then supervises an adult who, because of their age, illness or disability, cannot make the decision to eat or drink, go to the toilet, wash or bathe, get dressed or care for their mouth, skin, hair or nails without that prompting or supervision; or trains, instructs or offers advice or guidance which relates to eating or drinking, going to the toilet, washing or bathing, dressing, oral care or care of the skin, hair or nails to adults who need it because of their age, illness or disability. (iii) Providing social work The provision by a social care worker of social work which is required in connection with any health care or social services to an adult who is a client or potential client. (iv) Assistance with cash, bills and/or shopping The provision of assistance to an adult because of their age, illness or disability, if that includes managing the person s cash, paying their bills or shopping on their behalf. (v) Assistance in the conduct of a person s own affairs Anyone who provides various forms of assistance in the conduct of an adult s own affairs, for example by virtue of an enduring power of attorney. Please see the Safeguarding Vulnerable Groups Act 2006, as amended by the Protection of Freedoms Act 2012, for the further categories which are covered here. (vi) Conveying A person who transports an adult because of their age, illness or disability either to or from their place of residence and a place where they have received, or will be receiving, health care, personal care or social care; or between places where they have received or will be receiving health care, personal care or social care. This will not include family and friends or taxi drivers. 5. Opportunity to disclose 5.1 Information obtained through the recruitment and selection stage is designed to prevent unsuitable people from gaining access to vulnerable groups, while at the same time respecting human rights and privacy issues and complying with the requirements of the Data Protection Act. Candidates are requested to disclose any criminal convictions, warnings and reprimands at various stages of the recruitment & selection process. 5.2 On the application form: The monitoring section of the application form will ask candidates: Are you currently bound over, or do you have any unspent convictions issued by a Court or Court Martial in the UK or any other country? Are you currently bound over or have you ever been convicted of any offence by a Court or Court-Martial in the United Kingdom or in any other country? Has your name ever appeared on the Protection of Children's List or have you ever been referred to the Independent Safeguarding Authority (ISA) for consideration of barring against the Children's List? Has your name ever appeared on the Protection of Vulnerable Adults List or have you ever been referred to the Independent Safeguarding Authority (ISA) for consideration of barring 7

8 against the Vulnerable Adults List? This section of the application is only accessed by the recruitment administrator and is not disclosed to the recruiting manager. 5.3 At Interview: The recruiting manager will give all candidates the opportunity to declare any criminal convictions, cautions, reprimands. Where the post being interviewed for requires a DBS check this will include all spent, as well as, unspent convictions, cautions, reprimands. Candidates will be informed that failure to disclose could result in a conditional offer being withdrawn. Candidates will also be informed that any disclosure will be held in confidence and discussed only with the HR team as appropriate. The possession of a criminal conviction does not automatically make an applicant unsuitable for employment in the NHS. A note of the discussion must be made on the relevant interview form for cross reference. 5.4 On the self-declaration form: Self-declaration forms must be handled, stored and destroyed in the same way as DBS check information and should not be kept on file any longer than necessary Where a vacancy meets the criteria for a check, the advert will clearly state that any offer of employment will be subject to a DBS check being carried out. A disclosure will only be applied for once a decision to offer the post has been taken and a conditional offer made. Prospective employees will be advised that as the position being applied for is exempt from the Rehabilitation of Offenders Act 1974 they are required to provide a self-declaration providing details of any criminal records and information about both spent (old) and unspent (current) convictions as part of the application process. This will be obtained by issue of Model Declaration Form A and any information given will be verified by obtaining the DBS disclosure Where the position does not meet the criteria for a DBS check, but may still be regarded as a position of trust, prospective employees will be required to complete a self-declaration providing information about unspent (current) convictions only as part of the application process. This will be obtained by issue of Model Declaration Form B. Consideration will also be given as to whether a Basic Disclosure should be obtained. 6. Procedure for DBS Applications 6.1 Once a post has been identified as requiring a DBS check and the appropriate level has been assessed as outlined above, the Employee Resourcing team member will identify if the prospective employee requires a new DBS check in accordance with paragraph 9.7 below. A self-declaration of criminal convictions form and a DBS application form will be sent along with the provisional offer of employment to complete and return. The DBS application form includes information explaining how to complete it. 6.2 The individual must return the form and supporting documentation in person to ensure that the documents are checked with the individual present to verify their identity. 6.3 The Employee Resourcing team member will check documentation against a list of DBS requirements. A list of approved forms of ID is available from the ER team. Photocopies of the documents are retained on the personal file. No photocopies of the DBS application form will be retained. 6.4 The application form is re-checked by a counter-signatory for approval and confirmation of which level of check required standard or enhanced and where enhanced which list(s) to be checked. The details are entered onto ESR and the front of the applicant s personal file, then the form is forwarded to the DBS. (N.B. The counter-signatory is someone who has gone through a more enhanced DBS check and is given authority to countersign DBS form. The returned disclosure certificate will be addressed to the counter-signatory.) 6.5 The procedure followed must ensure confidentiality and compliance with the Data Protection Act 8

9 Disclosure reports Use, Storage & Destruction 7.1 With effect from 17 th June 2013, the DBS stopped issuing two DBS certificates. Therefore a DBS certificate will only be sent to the applicant, even if it contains any criminal record information. Therefore the applicant will be requested to contact the ER team to bring in the original certificate for checking and copying. The applicants permission must be obtained to copy the certificate and they will be asked to sign the copy to confirm their consent. The storage procedure will be explained to them. 7.2 Where a disclosure indicates no criminal history, this will be recorded on ESR together with the date received and the date of the disclosure report. The recruiting manager will be informed that the applicant/employee has been cleared to commence in post (subject to all other pre-employment checks). 7.3 The copy of the DBS certificate and self-declaration of Criminal Conviction form will be stored by month, held securely in lockable, non-portable storage cabinet with access strictly controlled and limited to persons who need to have access to this information in the course of their duties. 7.4 Once a decision has been made as to whether to appoint or not, the DBS Certificate and selfdeclaration of Criminal Conviction form will be kept for no longer than six months from appointment, and six months from where the applicant has been unsuccessful, to allow for the consideration and resolution of any disputes or complaints. After this time the certificate and self-declaration form will be removed and destroyed confidentially. 7.5 A record of the following will be kept on the ESR system: the issue date of the DBS certificate the level of check requested, including any checks against one or both of the barred lists the unique reference number of the certificate. The DBS check outcome, e.g. post to be offered, offer withdrawn etc. 8. Positive Disclosures 8.1 The DBS certificate will reveal if the individual has a criminal record, including details of convictions, cautions, reprimands or final warnings. The DBS certificate will only provide the basic facts such as the name and date of offence(s) and, if applicable, details of any sentence(s). It will not put them into context. 8.2 Information obtained through DBS checks can help managers make an informed decision on whether or not to appoint a prospective employee. The decision rests with the Trust as to whether to employ a person whose DBS check reveals a conviction or other relevant information. The information provided should be carefully considered in the light of all the relevant circumstances and judged on a case-by-case basis. 8.3 If a disclosure indicates a conviction, caution or other record, the disclosure will be recorded and stored as above. The counter-signatory will make checks to ascertain whether the issues reported had been declared on either the application form, at interview or on the self-declaration form. 8.4 If the issues on the disclosure certificate have not be previously declared, the recruiting manager will be informed and will be required to contact the candidate to ascertain why they failed to disclose this information, as this will normally result in the offer of employment being withdrawn. The recruiting manager will discuss the candidates explanation for failing to make the declaration with a member of the ER team. In exceptional circumstances and following discussions with the appropriate head of service / general manager a decision may be taken to accept the candidates explanation for failure to disclose. 8.5 Where an individual identifies on the application form any sanctions relating to fraud (cautions, 9

10 convictions etc.) or any other dishonest acts as identified in the Trust s Anti-Fraud and Corruption policy, the application must be brought to the attention of the Director of Finance for consideration and decision as to whether to proceed. 8.6 In the event there are also other convictions, cautions etc. such as assault, these should also be referred to another Director as appropriate to the area of work the individual has applied to work in. Both the Director of Finance and the other Director will be made aware of each other s involvement and a joint view obtained on the appropriateness of proceeding. 8.7 The procedure for dealing with positive disclosure is detailed in Appendix 2. This process applies irrespective of whether a candidate currently holds a post with the Trust. 9. Use of a previous DBS Certificate 9.1 Portability refers to the re-use of a DBS check obtained for a position in one organisation and later used for another position in another organisation. On the 17 th June 2013 the DBS introduced the DBS update service. This is a voluntary applicant-led system where they can subscribe themselves when their new certificate arrives and pay an annual subscription fee directly to the DBS. If an applicant is registered with the update service an online update check can be made by the Trust which will negate the requirement for a new check. The applicant still has to provide the Trust with the original certificate for copying as detailed in section 7. (There is no official expiry date for a criminal record check issued by the Disclosure and Barring Service (DBS). Any information revealed on a DBS certificate will be accurate at the time the certificate was issued.) 9.2 If the applicant has not registered with update service and it has been identified that a post requires a DBS check, a new disclosure must be applied for by the Trust (subject to 9.7). A disclosure must be received before the candidate is able to commence employment in a regulated activity. 9.3 It may be possible to use a previous DBS check to allow a candidate to commence in post pending the receipt of the Trust disclosure. This will depend on the date the CRB / DBS check was completed, if any positive declarations were made and the level of the previous check (i.e. standard / enhanced) must be the same as required for this position. The DBS check certificate must be less than 12 months old if obtained from another NHS Organisation and less than 6 months old if non NHS. A reference from the requesting organisation must also be obtained to confirm employment. 9.4 Where a positive disclosure is made, the Trust will require the receipt of a new DBS check before the candidate is able to commence employment in a regulated activity. 9.5 In all cases all other pre-employment checks including the completion of a self-declaration of criminal convictions form A must also be received before the candidate is able to commence employment in a regulated activity. 9.6 Junior doctors on rotation will only require a new DBS check every 3 years, subject to all other conditions in this policy. The lead employer will be responsible for undertaking this check. 9.7 A new DBS check is not always required where an existing member of staff moves jobs within the Trust and their roles and responsibilities and level of contact with that vulnerable group has not significantly changed. If a DBS check has been made by the Trust within the last 3 years, and the level of the check and vulnerable group has not changed, then a new DBS check will not be required. If there has been a break of service for more than three months between leaving the old position and taking up the new position a new DBS check will be required. In all cases a self declaration form A must still be completed. 9.8 In very exceptional circumstances, the Trust may make a risk-based decision to appoint applicants before the outcome of a DBS check is received, but this must only be where there is an urgent need to appoint because of an identified risk to patient safety or welfare, or where the individual is required to undertake induction training. In any such cases, an appropriate DBS check must have been applied for and appropriate safeguards must be in place to manage that individual, such as 10

11 restricted access to children or vulnerable adults or supervision, until the disclosure has been obtained. Approval must be sought from the relevant Director. 10. DBS Disclosure for Doctors in Training 10.1 NHS Employers Criminal Records Bureau guidance sets out advice regarding the portability of checks for doctors in training. Doctors on educationally-approved rotational training will be regarded as being in continuous employment during the term of training and are therefore required to have a DBS check, as a minimum, once every three years, rather than each time they change rotation The Trust seeks written assurances, prior to each rotation, from the host employer that appropriate clearances have been obtained within the last three years. 11. Temporary workers supplied by an agency 11.1 Temporary staff supplied by an agency, including locums and staff working as part of a Trust bank, are required to have DBS checks at least once a year. The Trust obtains written assurances from the agency upon placement that an appropriate check at the correct level has been carried out within the last 12 months. More frequent checks may be carried out where any such assurances cannot be provided, or where there is a concern about an individual s practice The annual check requirement does not apply to individuals who are working on a Trust bank in addition to holding a substantive NHS contract. The Trust will seek written assurances that the substantive employer has carried out appropriate checks at the correct level when they were first appointed. If, however, the individual leaves their substantive post, or where there is a break in service of three months or more prior to them applying to a Trust bank then a new DBS check will be requested If the bank worker has registered with the DBS update service this will negate them requiring a new annual check. Instead, the update service will be checked and a record of the date the check was made on ESR. 12. Dismissals 12.1 Where an employee is dismissed or a volunteer is removed because they have harmed a child or adult, or where the Trust would have taken such action had they not left, the Disclosure & Barring Service must be informed. The relevant Head of Service / General Manager will liaise with the HR Business Partner in making the referral. 13. Reporting 13.1 Quarterly reports will be submitted to the Workforce and OD Committee detailing DBS disclosure activity. An example is appended at Appendix Review 14.1 This policy will be monitored on an ongoing basis and will be reviewed every two years and / or in light of any NHS Employers guidance or legislative changes. 11

12 Appendix 1 Disclosures & Barring Service Eligibility Flowchart Is the post exempt from the rehabilitation of offenders act 1974? (Eligible positions) Yes No Does the person have access to persons in receipt of health services in the course of their normal duties? No Is the post considered to be a position of trust? i.e. chief executive, senior manager, board level director, finance manager? Yes Yes No Is this post undertaking regulated activity? (Summary of new definitions) Basic Disclosure Not eligible No Yes Standard DBS Disclosure Is the regulated activity related to children? Yes Enhanced DBS & barred list check (child) No Is the regulated activity related to adults? Yes Enhanced DBS & barred list check (adult) 12

13 Appendix 2 Process for dealing with positive disclosure 1. Where a positive disclosure is made the following process must be applied: The counter-signatory informs the recruiting manager of the positive declaration and confirms if discussions were had at interview in relation to disclosure of convictions. The interview notes are checked by the counter-signatory. The recruiting manager contacts the applicant by telephone to invite to a meeting to discuss the declaration. In some cases a discussion over the telephone may suffice. A member of the HR team can be made available to attend this meeting if the recruiting manager feels this is required. 2. The meeting with the applicant should follow the format below: Reassure the applicant regarding confidentiality. Ensure that the applicant is aware of the DBS Policy and the DBS Code of Practice and provide a copy on request. Seek the applicant s confirmation that the details on the certificate are accurate. Should the applicant dispute this, advise them to contact the DBS and do not proceed further with the appointment until this is resolved, unless satisfied that the details are no bar to commencement. Discuss the applicant s reasons for non-disclosure. Discuss the information on the form and circumstances surrounding it. Explain that you will need to contact a senior HR colleague to discuss and agree whether the application can proceed further. Explain that the applicant will be kept informed and notified of the outcome. This will be confirmed in writing where a negative decision is made. The counter-signatory will make a note on the applicants personal file of dates of discussions and outcomes and record outcome on the DBS decisions spreadsheet. 3. In making a decision, consideration must be given to the following: any legal or regulatory requirements the nature of the offence its relevance to the position being applied for the length and type of sentence issued the age it was committed whether the applicant has a pattern of offending behaviour, for example, if there are multiple offences whether the applicant s circumstances have changed since the offending behaviour. For example, where the offence was time-limited or committed as a juvenile and the individual has taken on responsibilities in life to enhance their standing in society, such as through education or voluntary work the circumstances surrounding the offending behaviour and the explanation offered by the individual. 4. In exceptional circumstances and following discussions with the appropriate head of service / general manager a decision may be taken to accept the candidates explanation for failure to disclose. The applicant will be informed and a note retained on their personal file. 5. Where a decision is made to withdraw the conditional offer, this will be confirmed in writing to the applicant. 13

14 DBS Definitions Appendix 3 Bind-over A bind-over is an order about future conduct designed to reduce crime and increase public safety. The individual concerned is required to keep the peace for a fixed period of time as specified by the court. Caution A caution is a formal warning about future conduct given by a senior police officer, usually in a police station, after a person has admitted an offence. It is used as an alternative to a charge and possible prosecution, generally used for juvenile or first-time offences. Basically there are two types of caution: Simple caution - previously known as a formal caution - is used to deal quickly and simply with those who commit less serious crimes. It aims to divert offenders away from appearing in court and to reduce the likelihood of them offending again Conditional caution - introduced by the Criminal Justice Act 2003, differs from a simple caution in that the offender must comply with certain conditions to receive the caution and to avoid prosecution for the offence they have committed. Like simple cautions, conditional cautions aim to keep lower level offenders out of court. The conditions are usually in the form of rehabilitation or reparation where the offender is requested to repair/or make good the damage caused. The offender may be requested to pay financial compensation. Child A child is a person aged under 18. Conditional Discharge Conditional discharge is where no further action is taken against an offender unless they commit a further offence within a given period (no more than 3 years) Court Conviction Arises from offences tried at Court. Criminal Record A record of convictions held on the Police National Computer (PNC) for individuals convicted of crimes (includes information on cautions, reprimands, final warnings and bind-overs). Data Protection Act The Data Protection Act 1998 regulates the use of information about an individual and requires that any person, or organisation, who is to use information about an individual, uses it in accordance with the Data Protection principles. The Act also introduces safeguards in relation to sensitive personal data which may include information on ethnic or racial origin; political opinions; religious beliefs; physical or mental health; and criminal records. Department for Children, Schools and Families (DCSF) Formerly known as the Department for Education and Skills (DfES). The DCSF is the government department responsible for improving the focus on all aspects of policy affecting children and young people, as part of the governments aim to deliver educational excellence Disclosure Disclosure is the term that is used to describe the service provided by the Disclosure & Barring Service (DBS) and the document issued to the applicant and Registered Body when a DBS check has been completed. Disclosure & Barring Service (DBS) The DBS provides access to information about criminal convictions and other police records to help employers make an informed decision when recruiting staff across England and Wales. 14

15 Disclosure Scotland Disclosure Scotland is part of the Scottish Criminal Record Office and provides access to criminal conviction data in Scotland. They can provide a basic disclosure service to employers within England and Wales. A basic disclosure is an application for details about unspent convictions only. All applications for standard and enhanced disclosures for England and Wales must still be obtained from the DBS in Liverpool. Exceptions Order The Exceptions Order to the Rehabilitation of Offenders Act (ROA) 1974 sets out those occupations and positions exempt from the provisions of the ROA. These are generally positions of trust; where there is a valid need to see a person's full criminal history in order to assess their suitability for a position. This information is intended as general guidance only. It must not be regarded as a definitive interpretation of the Act. Anyone requesting further guidance should seek legal advice. Exempted Question An exempted question is a valid request for a person to reveal their full criminal history (including spent convictions) and is made possible by virtue of the Exceptions Order to the Rehabilitation of Offenders Act (ROA) Final Warning A formal verbal warning given by a police officer to a young person who admits their guilt for a first or second offence. However, unlike a reprimand, the young person is also assessed to determine the causes of their offending behaviour and a programme of activities is identified to address them. Police National Computer (PNC) The central police database against which all criminal record checks will be made. Rehabilitation of Offenders Act (ROA) 1974 The Rehabilitation of Offenders Act (ROA) 1974 enables some criminal convictions to become 'spent', or ignored, after a 'rehabilitation period' (see below). Rehabilitation Period A rehabilitation period is a set length of time from the date of conviction. After this period, with certain exceptions, an ex-offender is not normally obliged to mention the conviction when applying for a job or when involved in criminal or civil proceedings (see further details under spent conviction). Reprimand A reprimand is given to young offenders (aged 17 and under) who have committed their first offence. Spent conviction The Rehabilitation of Offenders Act (ROA) 1974 sets out to make life easier for many people who have been convicted of a criminal offence and who have since lived on the right side of the law. A person convicted of all but the most serious criminal offences and who receives a sentence less than 2.5 years in prison, benefits from the Act if they are not convicted again during a specified period. This is called the rehabilitation period (as described above). In general terms, the more severe a penalty is, the longer the rehabilitation period. Once a rehabilitation period has expired and no further offending has taken place, a conviction is considered to be 'spent'. In most circumstances an employer cannot refuse to employ someone, or dismiss them, on the basis of a spent conviction. Generally, spent convictions do not have to be declared, unless the individual is applying for a position of trust. In such circumstances, an employer is entitled to ask a candidate to reveal details of all convictions, whether spent or not. This is, in part, to ensure that children and other vulnerable groups are adequately protected from those in positions of authority over them. These positions of trust, or excepted professions, are set out in the Rehabilitation of Offenders Act (Exceptions) Order. Suspended sentence A suspended sentence is when a person sentenced to prison is not actually sent to prison - provided they keep out of trouble for the period of the suspension 15

16 Volunteer Volunteers should undergo the same pre-employment checks as for a paid staff. The definition of a volunteer throughout these standards refers to: A person who is engaged in any activity which involves spending time, unpaid (except for travelling and other approved out-of-pocket expenses), doing something which aims to benefit someone (individuals or groups) other than/or in addition to close relatives Warning A final warning is given to young offenders (aged 17 and under) who have committed a second offence. Police will refer the young offender to a youth offending team. 16

17 Appendix 4 Disclosure & Barring Services Activity Report Example Confidential During the period between insert date and insert date there has been the following activity in relation to new starters within Manchester Mental Health & Social Care Trust. Total number of new starters: 20 Total number of new starters with positive disclosure: 5 Total number of new starters who confirmed a conviction on their 4 application form as applicable Total number of new starters who did not confirmed a conviction on 1 their application form Total number of new starters with a positive disclosure appointed 4 Total number of new starters with a positive disclosure not appointed 1 Positive disclosure breakdown New starters with positive disclosure appointed DBS Number of Type of Post applied Recruiting Reason Disclosure convictions / conviction / for Manager appointed Number cautions caution Drink driving Staff Nurse A N Other Not relevant to role. Conviction 10 years ago New starters with positive disclosure not appointed DBS Number of Type of Disclosure convictions / conviction / Number cautions caution Theft / possession of stolen goods Post applied for Recruiting Manager Reason not appointed Housekeeper A N Other Failure to disclose convictions. 17