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Chapter 4: New types of vetting information

4.1 Introduction

155. Vetting information currently included on an enhanced disclosure for an individual working with children or adults at risk includes:

• all convictions (unspent or spent);
• relevant non-conviction information from the police;
• for child care positions, whether the applicant is on any UK list disqualifying them from working with children ( DWCL in Scotland; List 99 or the children's list in England and Wales); and
• for applications to work with adults at risk, whether the applicant is on the adults' list in England and Wales.

156. The Act expands vetting information to include the fact that an individual is on the Sex Offenders Register ³⁷, so that this will always be disclosed and considered (currently, the police have to consider whether this fact is relevant to the post being applied for). It also establishes a power ³⁸ to prescribe further types of vetting information. This chapter considers what types of information should be prescribed, particularly certain regulatory body and council information.

157. While regulatory bodies have a power to make referrals in respect of their registrants, there is no requirement on the face of the Act for them to provide vetting information. Councils must make referrals about employees in their capacity as employer if the referral grounds are met. But there is no requirement on the face of the Act for them to provide vetting information which might arise from other sources such as child protection investigations.

158. In considering whether new types of vetting information are appropriate, it must be remembered that any vetting information gathered:

• will be disclosed (unless specific provision is made otherwise, see section 4.3 below); and
• will lead to initial consideration for listing (any new types of vetting information will, by definition, be relevant to regulated work).

Therefore the information gathered needs to be proportionate and relevant to decisions about the suitability of the individual to do regulated work.

159. Section 4.2 of this chapter considers what regulatory body or council information should be shared. Section 4.3 considers whether there are circumstances in which sensitive information from a regulatory body or council on a scheme record should be considered by the CBU for listing but withheld from a scheme record disclosure (although not withheld from the individual about whom it relates). Finally, section 4.4 explores whether certain civil orders should also be prescribed as vetting information for the Scheme (and included in standard and enhanced disclosures).

4.2 Regulatory bodies and councils

160. Discussions are underway with regulatory bodies and councils over what types of information it might be appropriate for them to provide. Responses to this consultation will help inform this process. Vetting information from regulatory bodies and councils may provide valuable sources of additional information to inform the decision making process.

161. As new procedures and links will need to be developed, it is recognised that such information may prove more difficult to collect, in contrast to police information which is already well integrated into the disclosure process. Therefore it is not intended that vetting information from regulatory bodies and councils will be available when the scheme goes live. However, it is desirable for these links to be in place as soon as possible and the Scottish Government will be working with regulatory bodies and councils to achieve this.

Regulatory Bodies

162. Regulatory bodies regulate practice either by registering individuals or, as in the case of the Care Commission, registering services. In each case a live registration with the appropriate regulatory body is required in order for an individual to practice or a service to be delivered. Most aspects of the health professions are registered on a UK wide basis, while teachers and the social services workforce are regulated separately by each devolved administration. Provision in respect of three Scottish regulatory bodies and eight UK-wide health regulatory bodies is made at various places in the Act and will be extended through secondary legislation. ³⁹

163. Where regulatory bodies investigate allegations of poor or inappropriate practice, the decisions they take in relation to their registrants may be of interest to the scheme. Broadly speaking, regulatory bodies have the power to refuse registration, change the conditions of registration and de-register individuals if their conduct breaches the standards expected of them. It is proposed that any change in registration status or practice conditions that derives from harm ⁴⁰ or risk of harm to a vulnerable person should be regarded as vetting information, except where the harm is purely a consequence of a professional failing. For example, a doctor struck off the medical register for harming a child through sexual molestation would be relevant vetting information whereas if the doctor harmed children through professional incompetence, this would not.

164. Receipt of vetting information from a regulatory body may lead to a consideration for listing. However, no decision on whether to list would be made until the regulatory body had concluded its own proceedings, unless there was sufficient information from other sources to suggest that the individual should be listed anyway.

165. From the start of the scheme, regulatory bodies will be able to refer an individual where the grounds for referral are met. The main purpose of prescribing additional vetting information is to capture historical information when an individual applies to join the scheme for the first time. This means that the records of each regulatory body will need to be searched for possible matches for each scheme membership application. Further work with regulatory bodies will explore means to make this information available through direct computer links between the scheme and regulatory body information systems. Some registration information is already available on-line which forms the foundation for electronic sharing of information. However, historic information is not always in an electronically searchable format and it will not always be apparent whether the harm test is met. We are working through these issues with regulatory bodies.

166. A two-prong test is proposed for regulatory bodies in determining whether they have vetting information about an individual. Where the test is met, they must provide the information to the CBU.

167. The first component of the test is that the regulatory body has taken a decision (currently or historically):

• not to register an individual or service on application;
• to de-register an individual or service;
• to place conditions on the registration of an individual or service
• to place an interim suspension order on an individual or service; or
• to prosecute or take legal proceedings against an individual.

168. The second component of the test is that the reason for taking the decision was because the regulatory body considers that the individual, or one or more individuals associated with the service, has harmed or risked harm to a vulnerable person, over and above harm arising from professional incompetence.

Q 12a: Is there any regulatory body information other than that set out in 4.2 that should be regarded as relevant vetting information?

Q 12b: Would there be any circumstances where sharing this type of information would not be appropriate?

Councils

169. As employers, councils have a duty to refer any employee meeting the referral grounds set out in the Act. However, they may also hold other information which may be relevant. For example, where child (or adult ⁴¹) protection proceedings identify that an individual has harmed a vulnerable person, that individual may be unsuitable to do regulated work. In cases where criminal offences may have been committed and the police are involved, this information will be recorded on police information systems. However, there will be cases where only the council holds the information.

170. This is a very sensitive and difficult area which presents a number of challenges that will take time to address, so it is not proposed that council vetting information will be available to the scheme when it commences.

171. The first challenge is to identify what information should be shared with the scheme. As the scheme does not have investigative capacity, only information that had been through a formal consideration process could be referred. All 32 councils would need to apply a similar standard to information provided so that any vetting information received from a council could be considered of equal value. The most straightforward approach is to stick to matters of fact, for example that the individual's child was placed on the child protection register or taken into care.

172. The second challenge is to find a means for sharing, storing and retrieving the information when an application to join the scheme is made as the incident may have taken place many years before the individual applies to do regulated work. One approach is for child and adult protection committees to build a step into the case review process which considers whether vetting information about individuals alleged to have caused harm should be passed to the Scheme. Committees will have arrived at their decisions following a robust assessment of risk by a multi-disciplinary team and could be given some discretion as to when to pass information on.

173. For vetting information from local authorities to work effectively:

• councils would need to pass on sufficient information about the individual causing the harm to enable a definite match to be made with an individual's application or scheme record; and
• the scheme would need to access any information about an individual rapidly as part of a disclosure application process.

174. Clearly this poses a number of problems:

• data about a child protection case usually centres on the child rather than the adult who caused the harm, so searching for details of adults may be difficult;
• trawling information from all 32 councils at the time the application is received could be costly and time consuming, particularly as councils have a variety of conventions and IT systems for storing such information; and
• some of the information may be softer and so less precise than other sources of vetting information and so may need interpretation.

175. One option to address this would be for vetting information to be passed to the scheme at the time that it is generated, whether or not the individual to whom it relates is a scheme member. The information could then be stored centrally but owned and, where appropriate, added to by the council. The information would only ever be used if the individual applied to become a scheme member.

176. Because of the complexity summarised above, definitive proposals about what information held by councils should be treated as vetting information have not yet been agreed. This is a particularly complex and sensitive area of work and further discussion will take place with councils and related partners in the coming months. Meanwhile, views are welcomed on what information might be relevant and how to overcome the challenges outlined above.

Q 13a: What information do councils hold that might be relevant to an individual's suitability to do regulated work with children or adults?

Q 13b: Do you have any suggestions on how council vetting information could be gathered ?

4.3 Handling sensitive information from regulatory bodies and councils

177. As noted in section 4.1, new relevant vetting information will normally be disclosed (on application) and may lead to consideration for listing. By definition, regulatory body and council vetting information will always be relevant. However, the Act provides the flexibility ⁴² to customise the use of regulatory body and council vetting information, in recognition of the sensitivity around it. For example, it could be possible to keep sensitive vetting information on an individual's scheme record without disclosing it to employers. This information would, of course, have to be disclosed to the individual as part of any consideration for listing so that they could make effective representations.

178. No decision has yet been made on whether or when this power should be used. It is likely that regulatory body information will, in general, be disclosed whereas some council information might be appropriate to withhold from a disclosure. There is a qualitative difference in that regulatory body information relates to the working life of the individual concerned whereas council information may be primarily domestic.

Q 14a: Should it be possible for vetting information from regulatory bodies and councils to be withheld from disclosure certificates?

Q 14b: If you answered yes above, in which circumstances should such information be withheld?

4.4 Civil orders

179. Disclosure certificates currently include details of criminal convictions and, in the case of enhanced disclosures, other information considered relevant by the police. Civil orders are only disclosed on enhanced certificates if the police consider that they are relevant. The Act allows regulations ⁴³ that would take this discretion away from the police by specifying civil orders as vetting information which would then always be considered in relation to suitability and would be disclosed on scheme records. The 1997 Act also allows for regulations ⁴⁴ to specify civil orders which would always be disclosed through standard and enhanced disclosures.

180. There are a number of civil orders that perhaps should be routinely disclosed because they are always relevant to working with vulnerable groups:

• Risk of Sexual Harm Order (and any interim order);
• Sexual Offences Prevention Order (and any interim order);
• Notification Order (and any interim order); and
• Foreign Travel Orders.

181. Risk of Sexual Harm Order: This order follows a police application to a sheriff court in respect of a person who has, on at least two occasions, engaged in sexually explicit conduct or communication with a child or children, and as a result there is reasonable cause to believe that the order is necessary to protect them from harm. The order prohibits the person from doing anything described in it.

182. Sexual Offences Prevention Order ( SOPO): This order is intended to protect the public from the risks posed by sex offenders by placing restrictions on their behaviour. A SOPO also requires the offender to register with the police. SOPOs can be made on application to a sheriff court by a chief constable in respect of an offender who has been previously dealt with in connection with a sexual offence, and by a Scottish court when it deals with an accused following conviction for a sexual offence.

183. Notification Order: This order is intended to protect the public in the UK from the risks posed by sex offenders who have committed sexual offences overseas. Such offenders may be, for example, British nationals convicted abroad or foreign nationals, with a previous conviction, who now reside in the UK. Essentially, a notification order requires the offender to register with the police as if they had been convicted in the UK.

184. Foreign Travel Order: This order allows the courts, in certain circumstances, and on application of a chief constable, to prohibit those convicted of sexual offences against children aged under 16 from travelling overseas, where there is evidence that they intend to cause serious sexual harm to children in a foreign country.

185. Other civil orders, for example antisocial behaviour orders ( ASBO) may or may not be considered relevant depending on the nature of the behaviour that led to the ASBO. We propose that the police should retain the discretion to disclose such orders as they consider relevant.

Q 15a: Which civil orders should be disclosed on scheme records?

• None
• Risk of Sexual Harm Order (and any interim order)
• Sexual Offences Prevention Order (and any interim order)
• Notification Order (and any interim order)
• Foreign Travel Orders

Q 15b: Which civil orders should be disclosed on standard and enhanced disclosures:

• None
• Risk of Sexual Harm Order (and any interim order)
• Sexual Offences Prevention Order (and any interim order)
• Notification Order (and any interim order)
• Foreign Travel Orders

Q 15c: Should any other civil orders be routinely included on:

• Scheme record disclosures?
• Standard and enhanced disclosures?

If so, please specify.

4.5 Other possible vetting information

186. In developing the Act, there was no specific intention to prescribe vetting information beyond that set out in the rest of this chapter (i.e. regulatory bodies, councils and civil orders). However, stakeholders' views are welcome on whether there are other sources of vetting information that should also be prescribed.

187. One option would be to include the fact of previous referrals on a disclosure certificate. This would mean that an individual who had been referred to the scheme by an organisational employer or regulatory body but, following formal consideration, had not been listed would have the fact of the referral disclosed. The detail of the referral would not be disclosed, but the source would. Where a referral was dismissed at the initial consideration stage because it was frivolous or vexatious, it would not be included.

188. The advantages of including such information are:

• it would enable a prospective employer to validate references from previous employers; and
• it would alert prospective employers that relevant concerns had been raised about suitability.

189. The counter arguments are:

• if a previous referral did not result in listing, then the individual is not unsuitable, so the fact of the referral should not be relevant to other employers;
• safer recruitment practice should mean that new employers find out about any unsatisfactory conduct that led to a referral by taking up references, so don't need the information disclosed; and
• disclosure of previous referrals may lead to risk averse employers refusing to appoint people who are not unsuitable for regulated work, purely on the basis that they have been referred to the scheme.

Q 16a: Should the fact of previous competent referrals be included on scheme record disclosures?

Please give reasons for your response

Q 16b: Is there any other vetting information beyond that from the police, regulatory bodies, councils and the civil orders identified in 4.4 that should be included on disclosures?

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