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Chapter 2: Scope of regulated work and access to disclosures

2.1 Introduction

42. This chapter focuses on the scope of regulated work with both children and protected adults, as well as limited circumstances where disclosures might be shared with third parties (i.e parties other than the individual who is the subject of the disclosure). It also considers possible new registration requirements for registered bodies.

43. Section 2.2 covers regulated work with children. The Act will replace the current definition of child care position in the 2003 Act with a new definition of regulated work with children ¹⁰. At present, organisations report difficulties when assessing whether the post they are seeking to fill is a child care position. The definition of regulated work with children in the Act is designed to be easier to follow than the definition of child care position in the 2003 Act. Proposed approaches to developing and presenting the extensive guidance that will need to be in place before the Scheme goes live are outlined.

44. Section 2.3 covers regulated work with adults. The Act replaces the current definition of adult at risk with a new concept of protected adult. ¹¹ The Act provides that an individual in receipt of registered care services or certain community care services is a protected adult. The Act allows the definition to be expanded to include certain health services and welfare services and this has always been the policy intention. This section explores how these powers could be used.

45. Section 2.4 considers circumstances where disclosures may be shared with a third party. ¹²

46. Section 2.5 considers whether organisations should be required to submit a minimum number of disclosure applications in order to maintain their registration status as a registered person or body ¹³.

2.2 Regulated work with children

Statutory definition

47. The definition of regulated work with children is set out in schedule 2 to the Act and it is not proposed to make anything other than very modest adjustments to it (e.g. to make special provision to include military service personnel who train 16 and 17-year-old recruits). The definition of regulated work with children is easier to follow compared to the current definition of child care position and some refinements to scope have been made.

Guidance

48. Stakeholders expressed concern during the parliamentary passage of the Act that it can be very difficult to determine whether a particular post is a child care position and that current guidance on this matter is inadequate. The Scottish Government accepts this and will honour commitments given by the previous administration to produce comprehensive guidance on regulated work before the Scheme goes live. This consultation paper does not include draft guidance but seeks views on the broad approach to developing such guidance.

49. The Scottish Government is proposing to establish a cross-sectoral working group to work on two fronts:

• to develop interim guidance on child care positions, since the 2003 Act has some time to run; and
• to develop the guidance under the Act.

50. The development of interim guidance based on current practice may be useful in identifying issues to be covered by the guidance under the Act.

51. The precise scope of regulated work with children is difficult to specify in detail. It is simply not possible or desirable to list every single position or job that comes within the scope of regulated work. The spirit of the legislation is to ensure that children are protected from unsuitable individuals working with them whilst ensuring that individuals are not brought within the scope of regulated work unnecessarily or disproportionately. The decision about whether a post is within the scope of regulated work must be taken by employers, informed by what the legislation allows and the knowledge of what the post entails. Those decisions should be seen as part of the organisation's overall approach to child protection.

52. Of course, there are large numbers of posts where it is obvious whether the post holder is or is not doing regulated work with children. For example, teachers and anyone whose regular workplace is a school is doing regulated work. For many other roles, the position is less clear. The guidance will seek to make it much easier to decide which posts come within the scope of regulated work and, for those that don't, specify what level of disclosure can be sought.

53. The guidance will expand on some of the terms used in the Act. For example, normal duties, caring, unsupervised contact, in sole charge, training etc. Guidance might be developed in the form of a series of questions or a flowchart to assist in determining whether a post is within the scope of regulated work with children. The views of stakeholders on the content and structure of guidance would be welcome.

Q 1: Do you have any comments on content and structure of guidance on the scope of regulated work with children as discussed in section 2.2?

2.3 Regulated work with adults

54. The scope of regulated work with adults is necessarily more complicated than for children. Children are a readily defined and easily identified part of the population so defining the various types of work which should be covered by the Scheme in that respect is relatively straightforward. With adults, not only do the types of work need to be identified (set out in schedule 3 to the Act) but also the circumstances in which adults need protection.

55. The Act does this by defining a protected adult, attracting the protection of the provisions in the Act. Individuals doing the types of work identified at schedule 3 with these protected adults should be scheme members.

56. A protected adult is defined by the Act ¹⁴ as an individual aged 16 or over who receives certain types of health, care or welfare services. This definition recognises that some adults may always require protection due to the nature or frequency of services they receive, while others may do so only for short periods, for example while visiting a dentist. The Act identifies the following services, receipt of which makes an individual a protected adult:

• certain care services registered under the Regulation of Care (Scotland) Act 2001;
• certain public and private healthcare services to be identified in regulations;
• certain community care services; and
• certain welfare services to be identified in regulations.

57. The healthcare and welfare services to be identified in regulations are the subject of this consultation.

Current eligibility for enhanced disclosure

58. Individuals who work with adults at risk are currently eligible for enhanced disclosure. To obtain enhanced disclosure under current arrangements organisations need to undertake a three stage assessment to be satisfied that:

• the individual will have contact with adults at risk in the course of their duties where
• adults at risk means they have a specified condition and/or disability and
• the adults at risk are receiving health or social care services.

Scope of the Scheme and regulated work with adults

59. The Act replaces the concept of "contact" with that of regulated work with adults, which is more specific and proportionate. The Act replaces the latter two elements of the test described above with a single definition of protected adult, defined by the services provided to the adult. This should make it more straightforward for organisations to apply. Replacing the contact condition with regulated work will mean that some workers who currently get enhanced disclosure should not be scheme members. As identified in 2.2 above, it will be equally important to set out clear guidance to employing organisations that enables them to make appropriate decisions about whether a post is within the scope of regulated work.

60. Guidance needs to define protected adults in a way that is readily understood by those who provide services, by those who do work for such service providers, and by those adults receiving such services. The protected adult definition derives from the outcome of a consultation exercise in February 2004 Protecting Vulnerable Adults - Securing their Safety by the then Scottish Executive which sought views on establishing a list of individuals unsuitable to work in adult care positions.

61. The Act takes account of the increasing trend in adult care towards person-centred support by incorporating those in receipt of self-directed support (direct payments) within the definition of protected adult. Personal assistants are the most obvious one-to-one example of this way of working.

62. Moving to a regulated work definition which has a normal duties test for activities such as caring, teaching etc means that, broadly speaking, some individuals who come into contact with protected adults through their work should not be scheme members. For example, people who work in a shop within a hospital, or serving lunches at church organised events, should not come within the scope of regulated work with adults as a result of those activities. The Act also excludes any care work done for a family member or unpaid care work done for a friend from the scope of the Scheme.

63. As with children, it is neither possible nor desirable to provide a definitive list of those roles that will come within the definition of regulated work with adults. It is proposed that doctors, nurses, dentists, opticians, social workers, social care staff, housing support workers, those that directly assist in care and support roles, and many that provide care and support roles within voluntary and charitable sector organisations will need to be scheme members. These cases are relatively straightforward because the 'client' will be a protected adult and the worker will be doing regulated work with adults by virtue of the same transaction. The 'client' is a protected adult because of the care received and the worker is doing regulated work because of the care given.

64. However, in other cases, individuals will be doing regulated work because their client group are predominantly protected adults by virtue of receiving services from someone else. For example, the teaching, instructing, training or supervising of protected adults is intended to come within the scope of regulated work with adults ¹⁵. In this case, the provision of the activity itself does not make the individual a protected adult. Furthermore, these activities do not constitute regulated work where protected adults are only incidentally present.

65. For example, a lecturer who teaches evening cookery classes to members of the public would not be working with protected adults by virtue of providing the service. If the classes are aimed at members of the public in general, the presence of any protected adults in the room does not mean that the lecturer is doing regulated work because it is incidental. However, if the classes were advertised as cookery classes for adults with learning disabilities, it could be anticipated that there would be a significant number of protected adults at the classes and this would be regarded as regulated work.

66. The Act already prescribes the care services and community care services, receipt of which would make the individual a protected adult. This section goes on to explore proposals for identifying the health and welfare services, receipt of which make an individual a protected adult.

Health services

NHS services

67. It is proposed that receipt of any NHS service ¹⁶ should make an individual a protected adult. These are primarily NHS Scotland services, including primary medical services, general dental services, ophthalmic and pharmaceutical services. The effect would be that any adult when receiving care or treatment from or on behalf of NHS Scotland would be considered a protected adult.

68. This approach ensures that the whole range of services that the NHS provides are covered. This is however balanced by the fact that not all activities within these services will fall into the category of regulated work with adults and only those who undertake regulated work with adults will be required to be scheme members. For instance, receipt of dental services would make an individual a protected adult whilst they receive that service, but an assessment of the different activities carried out within a particular dental surgery will determine who requires to be a member of the scheme. So, a dentist would need to become a member of the scheme because he/she undertakes regulated work with adults (namely caring for protected adults ¹⁷) whereas a dental receptionist would not.

Private and independent health services

69. Similarly, it is proposed that receipt of any private or independent healthcare service ¹⁸ should make an individual a protected adult. These include independent hospitals, private psychiatric hospitals, independent clinics and independent medical agencies.

70. As with proposals for NHS services, this approach appears to be the best way of ensuring comprehensive coverage of these services. Anything less, such as select particular services by reason of a particular condition or a requirement for specific treatments, could lead to difficulties in accurately determining which services were included because:

• of the need to update lists as new treatments and/or services arise; and
• characterising a service provided due to a particular condition or need for treatment is not consistent with person-centred care approaches, and may be perceived as stigmatising.

71. Again, the scope of the scheme would be limited to workers who are doing regulated work with adults, not simply those who come into contact with protected adults through their work.

Q 2a: Do you believe an individual should be a protected adult if they are in receipt of any health service ( NHS or private)?

Q 2b: Are there any health services that should not be included? If so, please specify them as precisely as you can and why they should not be included.

Welfare services

72. The Act includes a power to identify welfare services, receipt of which would make an individual a protected adult. This provision extends the protection of the Act to individuals receiving services from the voluntary and charitable sector which resemble statutory services. This provision could also be used to include services provided by commercial (i.e. for profit) organisations who provide welfare services. In order to avoid inappropriate disclosures or loopholes in the protection offered, the services need to be defined as simply and clearly as possible, allowing organisations to be clear which of their employees or volunteers are doing regulated work.

73. Three possible options for defining the scope of the scheme are outlined below:

Option 1. Definition based on the nature of the services provided:

74. This requires a generic approach to describing the services, but would still require providers to reach a judgement on whether particular work activities undertaken by individuals providing these services were covered.

75. One way in which this might be done is to prescribe those services that, for example:

• are similar to those carried out in the statutory sector;
• are delivered on behalf of an organisation;
• have a certain frequency and formality attached to them;
• require some formal training to be undertaken;
• require some form of a contract between the service provider and recipient; or
• have certain distinguishing factors e.g. are personalised to the individual adult's needs.

Option 2. Definition based on an explicit list of welfare services:

76. This approach would require listing all of the services that should be covered by the Act and might include:

• personal care and support - e.g. help with eating and washing;
• day care or overnight care and support, including holidays or short breaks - e.g. respite for carers, providing assistance to enable a person to go on holiday;
• home help services;
• hostels and crisis services ;
• counselling services - e.g. drug or alcohol issues, bereavement counselling, support for those with mental health issues;
• information and advice services - e.g. benefits, welfare rights etc;
• transport services;
• providing training and assistance in finding employment;
• supported employment;
• advocacy support;
• support groups - e.g. mediation, self help groups;
• developing an active social life;
• meals on wheels;
• good neighbour schemes; and
• befriending services.

(Note that this list is intended to be illustrative not exhaustive.)

77. While this approach, on the face of it, would offer clarity for service providers, it would be difficult to ensure that the list of services was comprehensive from the outset and that gaps did not open up as services (and descriptions of them) change and evolve.

Option 3. Definition based on personal characteristics of individual:

78. This option would introduce an element of the protected adult's personal characteristics to the definition. For example, this could be described as " services or assistance provided to an adult if it is provided by reason of age, disability, mental disorder, illness or physical or mental infirmity".

79. Under this definition, an individual would only be a protected adult not because of the personal characteristic, but because they were receiving a service as a result of that characteristic. As the protection afforded by the Act only comes into being through the adult's receipt of a service, this should ensure that all appropriate services were covered by it.

80. A possible advantage of this approach is that it would avoid the difficulty of defining the service in such a way as to ensure all the services we wish to include are actually included. However, during the Parliamentary passage of the Adult Support and Protection (Scotland) Act 2007 some stakeholders objected to identifying adults at risk by personal characteristics (e.g. types of disability).

Q 3a: Should the definition of welfare services be based upon:

• the nature of service provided?
• an explicit list of prescribed services?
• the personal characteristics of the individual receiving care?
• an alternative proposal?

Please explain the reasons for your preferred option.

Q 3b: Should the definition of welfare services be expanded to include commercial (i.e. for profit) organisations who provide services similar to those provided by the statutory and voluntary sector?

2.4 Contractors and disclosure

81. Currently, a successful application for an enhanced disclosure leads to a copy of the disclosure being sent to the individual and the registered body which countersigned the application. This may be an employer, voluntary sector organisation or regulatory body. Nobody else has the right to see the disclosure certificate in order to protect the individual's privacy and promote the rehabilitation of offenders.

82. The Act ¹⁹ allows for the possibility of circumstances in which a third party should be able to request sight of disclosures obtained by a contractor to that party. One example raised during the parliamentary passage of the Act is the situation where school bus services are contracted by a local authority. The bus company is employing drivers to do regulated work with children and would be expected to ask for scheme record disclosures. The bus company needs to fulfil its legal obligation not to employ a barred individual but would also be interested in any driving convictions on the disclosure certificate. However, the council also has an interest in ensuring that the driver is not unsuitable to work with children because of its responsibilities towards children in its schools.

83. In that example, there is a reasonable argument that both parties (the bus company and the council) have a legitimate interest in the disclosure and have different fields of expertise in interpreting any vetting information disclosed. The bus company has expertise in driving qualifications and offences and needs to assess the disclosure for suitability to drive a school bus, as well as satisfying itself that the individual can lawfully do regulated work with children. The council has expertise in child protection and needs to assure itself that the individual is suitable to work with children, even if not barred from such work.

84. However, this was a contentious matter during the passage of the Act because this change in the law would mean that access to disclosure certificates could become part of a contract for services. The difficulty arises where the council and bus company have diverging views as to the individual's suitability or otherwise. This is perhaps unlikely in the case of a bus company and not altogether disastrous if the company has the capacity to re-allocate the driver to other duties. But it is much more acute for, say, a small voluntary sector care provider contracted to provide care services on behalf of a local authority. In this situation, the voluntary sector organisation may not be able to re-allocate a care worker to other duties.

85. There is also a counter argument that the local authority, in contracting out services, passes on the requirement to ensure that individual employees are not unsuitable to the contractor. The council's responsibility is to ensure that its contractor has appropriate arrangements in place to ensure the protection of the children or protected adults it cares for.

86. For these reasons, it is important that any loosening of the restrictions on access to disclosure certificates is carefully considered and tightly framed to cover only the specific circumstances intended.

87. The advantages of allowing commissioners to view the disclosures of contractor staff include:

• providing reassurance to commissioners about the suitability of staff delivering services on their behalf;
• providing expertise on child and adult protection that might not be held by the employing organisation making decisions about suitability; and
• providing additional reassurance to service users.

88. The disadvantages of allowing commissioners to view the disclosures of contractor staff include:

• delays in appointments where a disclosure has to be passed on and considered again;
• disempowering service providers rather than ensuring that they have appropriate child and adult protection procedures; and
• the potential for disputes over an individual employee's suitability.

89. It may be appropriate for disclosure information to be shared with a third party in the following specific circumstances:

• where the contractor provides transport services for children or protected adults (e.g. school buses);
• where the contractor provides maintenance services for buildings in which children or protected adults are present during the provision of those services;
• where the contractor provides services to a protected adult funded by self-directed support (direct payments) ²⁰ from the council; and
• where a council is letting premises and the intended use of the premises involves regulated work.

Q 4a: Do you believe that disclosure information should be shared with third parties?

Q 4b: If so,in which of the following circumstances should disclosure information be shared with a third party?

• Where a third party is contracting a transport provider for the purposes of transporting children or protected adults;
• Where a third party is contracting a provider for the purposes of maintaining premises in which services are delivered predominantly to children and/or protected adults and where the maintenance will take place whilst these individuals are on the premises;
• Where a council is offering direct payments in return for the delivery of care to a protected adult; and
• Where a council is letting premises to individuals and the intended use of the premises involves regulated work.

Please expand on your answers by explaining your choice(s).

2.5 Changes to registration of registered bodies

90. Registered bodies are organisations (including voluntary sector organisations) registered with Disclosure Scotland to countersign applications for standard or enhanced disclosures, normally because some of their workers or registrants are eligible for disclosure. Registered bodies are subject to requirements set out in regulations with which they must comply in order to continue their registration. Only registered bodies will be able to request scheme record disclosures and short scheme record disclosures under the Act.

91. During the 5 years that Disclosure Scotland has been operating, it has become apparent that some organisations make a very high number of annual disclosure applications, while others do not. At 31 August 2007, a total of 3470 bodies were registered with Disclosure Scotland. In the last financial year (2006-07), 35 registered bodies (1% of the total) were responsible for 50% of all disclosure applications. Conversely, 1741 registered bodies (61% of the total) accounted for just 1% of applications.

92. It is not desirable to have a large number of registered bodies requiring very few disclosures each year. Registration requires an organisation to comply with a statutory code of practice, which can be quite onerous, particularly for small organisations that make few applications.

93. The Act allows a minimum number of disclosure applications in any 12 month period to be specified as a requirement of registration ²¹. Views are sought on the minimum number of disclosures a registered body should request per annum as a requirement of their registration.

94. Organisations making smaller numbers of applications per year would still be able to apply via an umbrella body, which would be able to support them in the process as well as assisting with interpretation of any information disclosed.

Q 5a: Should there be a minimum threshold number of applications per annum from a registered body as a condition of registration?

Q 5b: If so, should the threshold be:

• 50 per annum?
• 100 per annum?
• 200 per annum?
• a higher or lower level (please specify)?

Q 5c: Approximately how many disclosure applications does your organisation make in a typical year (if applicable)?

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