In January of this year, flaws in a Leicester circumcision clinic’s Disclosure and Barring Service (DBS) checks contributed to the Care Quality Commission (CQC) concluding that there was a lack of clear systems to “keep people safe and safeguarded from abuse.” The investigation noted failings both in how DBS checks were carried out, as well as the level of checks which were carried out for individual employees.
DBS checks are essential to the safeguarding of vulnerable members of society and the CQC has the power to take enforcement action if Regulated Activity Providers decide not to take up DBS checks on eligible staff or cannot provide sufficient evidence of seeking appropriate assurances that a check has been undertaken where, in their view, people using the service are considered at risk because of the decision not to undertake these checks.
Established under Part V of the Police Act 1997, the DBS enables employers to access criminal records of potential and current employees, helping them to assess their suitability for the role and identify any potential safeguarding issues.
Whilst the basic level will only reveal ‘unspent’ convictions, both the standard and enhanced level will reveal ‘spent’ convictions. However, the disclosure of this information is contrary to the Rehabilitation of Offenders Act 1974 which states that a person with a criminal record is not required to disclose spent convictions. As such, an employer cannot require a standard or enhanced DBS check unless they have legal justification to do so.
Such legal justification can be found in the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 (“Exceptions Order”) which sets out the excepted professions and occupations, which includes medical practitioners and those in employment concerned with the provision of health services and which is of such a kind as to enable the holder to have access to persons in receipt of such services in the course of his normal duties. Should an employer be engaging an individual in a profession or occupation on this list, they are permitted to request a standard or enhanced check against that individual.
Within the Order, ‘health services’ is defined as “services provided under the National Health Service Acts 1946 to 1973 or the National Health Service (Scotland) Acts 1947 to 1973 and similar services provided otherwise than under the National Health Service” (emphasis added).
Therefore, provided that:
That person will fall under the exceptions order and a standard or enhanced check can be requested.
A Standard check will show details of spent and unspent convictions, reprimands and cautions held on file. An Enhanced check shows the same details as a Standard check but, importantly, organisations carrying out an Enhanced check can also request a check of the Adults’ Barred List and Children’s Barred List. The Barred List is a database which contain details of individuals that have been banned from working with children or vulnerable adults due to past behaviour or offences.
Under the Safeguarding Vulnerable Groups Act 2006 (as amended by the Protection of Freedoms Act 2012) (“SVGA”), barred individuals are under a duty not to enter into employment where that employment includes carrying out a Regulated Activity relating to children or vulnerable adults. A full list of what is a ‘Regulated Activity’ for children or vulnerable adults, is detailed in Parts 1 and 2 of the SVGA.
Further, a Regulated Activity Provider has a duty to check whether an individual is on the ‘barred list’ when considering whether to permit that individual to engage in a regulated activity relating to children and/or vulnerable adults. That is, should an employer be employing an individual to carry out a Regulated Activity, they must check that that individual is not on a list barring them from carrying out that activity when working with children and/or vulnerable adults. In brief, a Regulated Activity Provider is the person or organisation responsible for the management or control of the Regulated Activity.
Whether a DBS check should be carried out depends on that individual’s specific duties and responsibilities. As to whether the individual is carrying out a Regulated Activity, will depend on the nature of their role and, importantly, whether there is direct contact and interaction with the individual and those receiving the health services. If the answer is yes, a standard or enhanced DBS check should be requested. If the answer is no, a standard or enhanced DBS check cannot be carried out but the position may be considered for basic disclosure.
Consider, for example, the role of a health records assistant whose role includes locating, retrieving and delivering patients’ health records and requires them to walk past patient wards to get to their area of work. That individual would be providing a health service but would not have access to persons in receipt of health services as part of their normal duties. As such, they would not be eligible for a standard or enhanced check. However, they may be considered for a basic DBS check.
In creating policies and procedures as to whether a DBS check should be carried out and to what level, organisations should ask themselves the following questions:
Organisations should be aware that the CQC has the ability to take action against organisations whose systems and procedures for safeguarding patients are not sufficiently robust. As the CQC noted in the case of the circumcision clinic in Leicester “we saw that the lead clinician only had standard and not enhanced DBS clearance” which was evidence of safeguarding risk. This resulted in the clinic being rated as ‘requires improvement’ in respect of whether the services were safe.
If you would like advice in reviewing your policies and procedures around DBS checks or the interpretation of the SVGA, or are facing investigation for a related breach, contact Ian Manners (Partner) at email@example.com.