Policy On The Use Of Disclosures, Rehabilitation Of Offenders And Protection When Working With Vulnerable Groups

Document Control

Policy Number

HR28

Policy Manual/System HR Policy
Author Senior HR Manager Version No 4
Reviewer HR Policy Group Implementation Date 01/04/2013
Signed By Director of Workforce, Employee Director Last Review Date

Next Review Date
01/06/2017

01/05/2020

 

1          FUNCTION

 

This policy has been developed to ensure NHS Fife adheres to the Rehabilitation of Offenders Act 1974 (Exclusions and Exceptions) (Scotland) Order 2003 (as amended), Part V of the Police Act 1997 and the Protection of Vulnerable Groups (Scotland) Act 2007.

 


 

2.         LOCATION

 

This policy applies to all directly employed NHS Fife staff, students, contract / agency workers, honorary / research appointments and volunteers within NHS Fife.

 

 

3          RESPONSIBILITY

 

The responsibility for the application of this policy rests with individual members of staff, line managers, the Directorate of HR and Fife NHS Board.

 

4.         OPERATIONAL SYSTEM

 

The prime aims of the policy are to ensure the correct application of the regulations and procedures in respect of the employment of ex-offenders, the application of Disclosure Scotland checks and referrals to the Protection of Vulnerable Groups listings.  The Operational System is set out at Annex A.

 

5.         RELATED DOCUMENTS

 

Appendix 1:    Statement on the Protection of Vulnerable Groups Act 2007

Appendix 2:   Statement on the Recruitment of Ex-Offenders

Appendix 3:    Statement on the Secure Handling, Use, Storage and Retention of Disclosure information

            Appendix 4:    List of Posts Requiring Disclosure Scotland Checks and Level of                                        Check

            Appendix 5:    Self Declaration Form

            Appendix 6:    Risk Assessment Procedure for Disclosure Purposes

 

NHS Fife Recruitment and Selection Policy, NHS Fife Management of Employee Conduct Policy, Safer Pre and Post Employment Checks PIN Policy and Agenda for Change Terms and Conditions of Service.

 

6.         REFERENCES

 

  • NHS Fife Recruitment and Selection Policy

  • NHS Fife Management of Employee Conduct Policy
  • Safer Pre and Post Employment Checks PIN Policy
  • Agenda for Change Terms and Conditions of Service
  • Rehabilitation of Offenders Act 1974
  • The Rehabilitation of Offenders Act 1974 (Exclusions and Exceptions) Scotland) Amendment Order 2015
  • Police Act 1997 Part V
  • Police Act 1997 (Criminal Records)(Scotland) Regulations 2006 10 (2) to 10 (7)
  • Protection of Vulnerable Groups Act 2007
  • Data Protection Act 1998
  • Code of Practice For Registered Persons and Other Recipients of Disclosure Information
  • Bichard Report

 

 

ANNEX A

 

CONTENTS

 

  1.             Introduction

 

  1.             Level of Disclosures

 

  1.             Posts Identified as requiring a Disclosure Check

 

  1.             Procedure for Disclosure Check

 

  1.             Overseas Applications

 

  1.             Medical Staff

 

  1.             Student Placements

 

  1.             Agency Staff / Independent Contractors

 

  1.             Current NHS Fife Staff including Bank Staff transferring posts/changing roles

 

  1.             Previous NHS Fife employees returning to employment (Leavers)

 

  1.             Volunteers

 

  1.             Honorary / Research Appointments

 

  1.             References

 

  1.             Lead and Counter Signatories

 

 

APPENDICES

  

Appendix 1:    Statement on Protection of Vulnerable Groups Act 2007

 

Appendix 2:    Statement on the Recruitment of Ex-Offenders

 

Appendix 3:    Statement on the Secure Handling, Use, Storage and Retention of Disclosure                     Information

 

Appendix 4:    List of Posts Requiring Disclosure Scotland Checks and Level of Check

 

Appendix 5:    Self Declaration Form

 

Appendix 6:    Risk Assessment Procedure for Disclosure Purposes

 

1.         INTRODUCTION

 

1.1       Rehabilitation of Offenders Act 1974

 

The Rehabilitation of Offenders Act 1974 provides that, if a person has been found guilty of an offence, they may become rehabilitated (i.e. treated as they had never committed the offence or been convicted for it) after a rehabilitation period, which varies according to the sentence imposed.  At the end of the period, provided that the person has not committed any offences in the meantime, the original offence is considered “spent”.

 

An “Exceptions Order” made under the Act, however, identifies types of employment where a spent conviction may still properly be taken into account in considering whether to dismiss or to refuse to employ someone.  The excepted jobs include:

 

            “Employment concerned with the provision of health services… which involve access       to patients”.

 

The Exceptions Order also provides that spent convictions may be taken into account in considering a person’s suitability for admission to the following professions:

 

  • Medical Practitioner
  • Dentist, Dental Hygienist, Dental Auxiliary
  • Nurse, Midwife
  • Ophthalmic Optician, Dispensing Optician
  • Pharmaceutical Chemist
  • Physiotherapist, Dietitian, Podiatrist, Occupational Therapist, Medical Laboratory Scientific Officer, Radiographer, Remedial Gymnast, Orthoptist.

 

The exceptions apply only in the context of enquiries relating to applications for employment (or use of the Management of Employee Conduct Policy if a conviction was not revealed at the time of application).  Any information obtained by employers regarding otherwise spent convictions must be treated in confidence and as being relevant only to suitability for employment. 

 

1.2       The Rehabilitation of Offenders Act 1974 (Exclusions and Exceptions) Scotland) Amendment Order 2015

 

This amendment restricts the requirements for self-disclosure at the time of application.

 

1.3       Part V of the Police Act 1997

 

Part V of the Police Act 1997 introduced a system of disclosing criminal history information to individuals and organisations for employment and other purposes.

 

Disclosure Scotland has been established for the purposes of issuing Disclosure certificates under Part V of the 1997 Act.  This service is responsible for issuing three levels of certificates, which are known as ‘Basic Disclosures’, ‘Standard Disclosures’ and ‘Enhanced Disclosures’. In addition the Protecting Vulnerable Groups (PVG) Scheme provides a registration scheme for any persons who wish to undertake regulated work with Children and/or Vulnerable Adults.

 

The aim of the Disclosure Scotland service is to enhance public safety and to help employers and voluntary organisations in Scotland to make safer recruitment decisions.

 

NHS Fife’s statement in relation to the Recruitment of Ex-Offenders is contained within Appendix 2.

 

 

2.         LEVEL OF DISCLOSURES

 

2.1       Basic Disclosure

 

This is the lowest level of disclosure and is available to anyone who applies in the appropriate manner and pays the fee.  The disclosure provides details of convictions that are unspent under the Rehabilitation of Offenders Act 1974, or states that there are no such convictions.

 

Basic Disclosures are not job-specific or job related and may be used for any purpose.  It will be for the individual to decide whether to show the Basic Disclosure to employers / licensees, or anyone else who wishes to see it.

 

 2.2      Standard Disclosures

 

These are available for those applying for positions listed in the Rehabilitation of Offenders Act 1974 (Exclusions and Exceptions) (Scotland) Order 2003 (as amended).

 

A standard disclosure contains details of all convictions on record, whether spent or unspent under the Rehabilitation of Offenders Act 1974.  This means that even minor convictions, no matter when they occurred, are included on the Disclosure.

 


2.3       Enhanced Disclosure 

 

These are available for those applying for positions listed in the Rehabilitation of Offenders Act 1974 (Exclusions and Exceptions) (Scotland) Order 2003 (as amended).

 

An enhanced Disclosure contains details of all convictions on record, whether spent or unspent under the Rehabilitation of Offenders Act 1974.  This means that even minor convictions, no matter when they occurred, are included on the Disclosure.  The types of post suitable for an enhanced disclosure check would be posts unrelated to work with vulnerable groups plus posts with access to vulnerable adults other than through regulated work.

 

They also are issued in respect of applicants for various licences and statutory childcare positions.  Enhanced Disclosures include all of the details contained within a Standard Disclosure but may also contain non-conviction information held locally by Police, where this is considered relevant to the post or voluntary work being sought.  Public Interest Disclosure information may be provided separately by the Police where an individual is being investigated for a named crime or an allegation has been received, the nature of which gives rise to concern and their employment falls under the scope of a ‘Notifiable Occupation’.  A notifiable occupation is as outlined within the Public Interest Disclosure in terms of Scottish Executive Police Circular 4/2007, Notifiable Occupations Scheme and the Release of Sensitive Policy Information to Third Parties.

 

2.4       Protection of Vulnerable Groups Scheme

 

This is the highest level of disclosure and is available for positions which involve regulated work with children and/or vulnerable adults.  This level of check replaces enhanced disclosure for individuals working with vulnerable groups and makes provision for those individuals already included in the Disqualified from Working with Children’s List to be migrated onto the PVG children’s list automatically.  It also established for the first time in Scotland a list of those who are unsuitable to do regulated work with adults.  This involves those regularly caring for, training, supervising or being in sole charge of children, young people and adults at risk.

 

 

 

3.         POSTS IDENTIFIED AS REQUIRING A DISCLOSURE/PVG CHECK

 

NHS Fife posts identified as requiring a Disclosure check are listed in Appendix 4. 

 

All preferred candidates for posts identified above will be required to undertake a Disclosure check as part of the pre-employment screening processes.

 

Where a new post is being established the recruiting manager should contact the relevant Human Resources Officer / Manager, to clarify if the post will be subject to a Disclosure check.

 

Managers are required to indicate on the NHS Fife Vacancy Management Form whether a post requires a Disclosure Scotland check in line with this policy.

 

4.         PROCEDURE FOR DISCLOSURE CHECK OR SELF DECLARATION

 

4.1       Recruitment- Applications for Posts

 

 

Information on which category of check is required will be included in the job application pack. As part of any offer of employment candidates will be subject to one of the following:

 

  • For posts in regulated work – Protection of Vulnerable Groups Scheme membership
  • For all other posts which are subject to a criminal conviction record check – A Police Act check
  • For posts not subject to a criminal conviction record check– A self-declaration (Appendix 5)

 

For more information on the rules visit:

https://www.mygov.scot/convictions-higher-disclosures/?via=http://www.disclosurescotland.co.uk/SummaryoftheChanges.htm

 

For more information on offences which must always be disclosed:

https://www.mygov.scot/disclosure-types/?via=http://www.disclosurescotland.co.uk/documents/HigherLevelDisclsoure--revisedAlwaysDiscloseList--8February2016.pdf

 

For more information on offences which are to be disclosed subject to rules:

https://www.mygov.scot/disclosure-types/?via=http://www.disclosurescotland.co.uk/documents/HigherLevelDisclosure--revisedRulesList--8February2016.pdf

 

           

Any failure to disclose convictions when required could result in the withdrawal of any offer of employment, disciplinary action or dismissal by NHS Fife.  Any information given, however, will be completely confidential and will be considered only in relation to the post to which the application refers.

 

4.2       Interviews

 

           If a post does not require a Disclosure Scotland check a self declaration form must be complete if an offer of employment is made.

 

If a post requires a Police Act Scotland Disclosure check candidates will be issued with the appropriate paperwork to complete if an offer of employment is madeIf a post requires aPVG check candidates will be issued with the appropriate PVG paperwork to complete if an offer of employment is made.  The applicable form will be issued when NHS Fife has established if the candidate is already an existing scheme member or not to ensure the correct PVG application form is provided.

 

In addition to the completed Disclosure application form, candidates will be required to bring evidence to confirm their identity to interview.  The evidence required is as follows:

 

At least three forms of identity must be checked, one of which should be photographic.  These should confirm the name, the date of birth and the current home address of the applicant.  This means at least two items from the following list:

 

a)         A current passport      

            b)         New format UK driving licence

            c)         A birth certificate

 

Plus at least one item from the following list of address-related evidence, containing the name and address of the applicant: -

 

a)         Utility Bill

b)         Bank Statement

c)         Credit Card Statement

d)         Mortgage Statement

 

Where an applicant claims to have changed their name by deed poll or any other mechanism, NHS Fife will require to see formal documentary evidence of such changes.

 

NB:  Previous Disclosure checks (certificates) issued by Disclosure Scotland will not be taken as evidence of identity.

 

The Chair of the Interview Panel will be required to check the evidence of identity and confirm on a Manager’s Declaration Form for each candidate that they have seen this.  In making this declaration, the Chair of the Interview Panel confirms that the evidence that they have seen matches the information provided by the applicant on their Disclosure application form.  

 

A conditional offer of employment will be sent to the preferred candidate advising them that any offer of employment is subject to completion and satisfactory return of the pre-employment checks required by NHS Fife, of which Disclosure is one. 

 

No unconditional offer of appointment can be made until all required pre-employment checks, including Disclosure, are completed.

 

Confirmation that a Disclosure check was completed and deemed satisfactory will be evidenced in the employee’s personal file by confirming the date and level of Disclosure check on the pre-employment checklist.  Relevant information will be held on a confidential Human Resources database.  The Disclosure Certificate will then be filed, stored and destroyed within the Human Resources Directorate, in accordance with the procedure detailed in Appendix 3.  

 

 4.3      Candidates with Previous Convictions

           

To ensure consistency in decisions made, where a previous offence / criminal conviction is confirmed by Disclosure Scotland, NHS Fife will undertake a risk assessment in line with the process outlined in Appendix 6 and will constitute a panel of core senior officers in respect of relevant risks. 

 

This panel will make decisions on employment status where an individual has a previous offence / criminal conviction which results in a medium to high risk.  When Disclosure Scotland confirms this, the panel must arrange to take a decision as a matter of urgency.

 

Individuals who are barred from working with vulnerable groups cannot be appointed to undertake regulated work.

 

This panel will comprise the  member of EDG with responsibility for the area concerned and the Senior HR Manager. For posts within Appendix 4 for the Children’s list the Executive Director with Responsibility for Child Protection will also participate in the panel.

 

4.4       Convictions of Staff During the Course of their Employment within NHS Fife

 

Should a member of staff be subject to any criminal proceedings during the course of their employment, then the onus is on them as an individual to inform their manager immediately.  The manager should seek advice from an HR Manager / Team Leader within the Human Resources Directorate.

 

Following placement, where an individual is subsequently charged with or convicted of a criminal offence, disciplinary action should not be taken automatically. Consideration needs to be given to what effect the charge or conviction has on the employee’s suitability to do the job and their relationship with their employer, work colleagues and others, such as patients and this should be dealt with in accordance with the NHS Fife Management of Employee Conduct Policy.   Where associated misconduct relating to a subsequent criminal conviction and/or barring from undertaking regulated work has not resulted in dismissal from an organisation, that subsequent conviction/barring may mean that an employee is unable to meet the terms of their contract. In such cases, a hearing should be convened, chaired by an individual with the authority to dismiss.  While the process should be carried out following the procedure set out within the Management of Employee Conduct Policy. 

           

4.5       Referrals to Disclosure Scotland

 

The relevant statutory regulatory bodies and Disclosure Scotland may  require to beinformed, where an individual is charged with or convicted of a criminal offence or has become barred from undertaking regulated work.

 

The Director of Workforce or designated Deputy will be responsible for referring an employee to Disclosure Scotland in relation to Children and Vulnerable Adult Lists.  Referrals to the lists will be signed on behalf of NHS Fife by the Director of Workforce.

 

4.6       Authorisation to Commence Duties without Standard Disclosure Information

 

Only under exceptional circumstances should staff be allowed to commence in post prior to receipt of a satisfactory standard disclosure check.  In such circumstances, staff must not undertake duties where there is any access to children or vulnerable adults and staff should be appropriately supervised and deployed to an area where there is no access to children or vulnerable adults.  This decision will only be made by the following Officers:

 

  • Chief Operating Officer
  • H&SC Divisional General Managers
  • Executive Directors
  • NHS Fife Director of Workforce

 

In circumstances where the Chief Operating Officer, Executive Directors or the H&SC Divisional General Managers are considering commencement of a candidate prior to receipt of a standard disclosure check, the advice of the Senior HR Manager must be sought.

 

The Human Resources Directorate will maintain a record of and monitor details of those staff commencing prior to receipt of Disclosure Scotland information.

 

4.7       Situations where PVG membership or Scheme Record Updates are not available prior to commencement

 

It is a contravention of the Protection of Vulnerable Groups Act 2007 to commence any individual undertaking regulated work without the completion of the appropriate pre-employment checks.  If any exceptional circumstances arise as a result of this, then advice should be sought from the Senior HR Manager.

 

 

5.         OVERSEAS APPLICATIONS

 

Disclosure Scotland checks do not include any overseas residence information.  Applicants falling into this category include United Kingdom residents, whether British Nationals or otherwise, with recent periods of overseas residence and those with little or no previous United Kingdom residence information.

 

It may be difficult to obtain satisfactory evidence of applicants in these categories, however, all applicants who fall into this category will be required to produce evidence of criminal record checks from overseas.

 

This may be of little value and if there is difficulty in obtaining such evidence, the Chair of the Panel must discuss this with the appropriate Human Resources Officer / Manager.

 

NHS Fife will, ask part of the pre-employment process, request a PVG check for overseas candidates, allowing the candidate to become registered with Disclosure Scotland and to obtain a PVG Scheme membership.  Candidates will be able to commence in post pending the PVG check, provided there has been receipt of a clear overseas police check.

  

6.         MEDICAL STAFF

 

Recruitment of rotational Specialty Registrars, FY1 / FY2 and some other medical staff, is undertaken via a national recruitment process.  Pre-employment checks including a requirement to undertake Disclosure Scotland checks are undertaken by each Board to which the doctor is rotated as part of their training scheme.  NHS Fife will request evidence that a Disclosure check has been undertaken as part of changeover arrangements.

 

7.         STUDENT PLACEMENTS

 

Student placements may commence provided a Disclosure check has been carried out to the same level required as the work to be undertaken and can be evidenced by the relevant higher education institution e.g. Queen Margaret University; Napier University; Dundee University; University of Abertay; to the NHS Fife manager responsible for the students. The higher education institution will be notified of the levels of Disclosure required for each placement by the relevant manager, who is the designated contact for that institution. 

 

 

8.         AGENCY STAFF / INDEPENDENT CONTRACTORS

 

If an agency / contractor are supplying a worker into an area or post, which would require the NHS Fife post holder to have a Disclosure check carried out, then the agency worker must meet the same requirements.  The manager responsible for booking the agency worker must seek confirmation from the agency supplier that the agency worker has had a Disclosure check to the level required for the work offered.

 

 9.        CURRENT NHS FIFESTAFF INCLUDING BANK STAFF TRANSFERRING     POSTS / CHANGING ROLES

 

 

If a current employee who has not had a Disclosure check undertaken, due to their commencement date with NHS Fife being prior to April 2002 when Disclosure Scotland checks were implemented, moves to a post which has been identified as subject to a standard disclosure check, they will now be subject to a standard disclosure check, but will be allowed to transfer post, pending receipt of the standard disclosure check.

 

If a current employee has had a standard disclosure check undertaken and is transferring to a post with the same level of disclosure then a further standard disclosure check will not be required.

 

If a current employee has had a disclosure check and is transferring to a post doing regulated work that requires a PVG check, then they will be subject to a PVG check and will not be allowed to undertake regulated work pending the PVG scheme membership or scheme report update being gained.

 

If a current employee is transferring to a post requiring a self declaration they must complete the self declaration form. 

 

 

10.       PREVIOUS NHS FIFE EMPLOYEES RETURNING TO EMPLOYMENT OF NHS FIFE (LEAVERS)

 

If a previous employee of NHS Fife who had a standard disclosure re-applies for a post within NHS Fife that requires a standard disclosure, the candidate may commence according to the following criteria;

 

·         previous employee has reapplied to NHS Fife within 3 months of terminating employment with NHS Fife; and

 

·         the last NHS Fife employment was in a similar post, and similar type of patient to that of the post applied for and required the same level of standard disclosure; and

 

  • can be evidenced by the candidate to the recruiting manager by presenting the original copy of the previous standard disclosure check.

 

If all these criteria cannot be met or if the candidate terminated more than 2 months prior to re-applying, a further standard disclosure check is required priorto the candidate commencing in post.

 

If all these criteria are met, then the candidate can commence employment.  However, a further standard disclosure check must be undertaken and any offer will be subject to this.

 

PREVIOUS NHS FIFE EMPLOYEES RETURNING TO REGULATED WORK WITHIN THE EMPLOYMENT OF NHS FIFE (LEAVERS)

 

If a previous employee of NHS Fife who is a scheme member re-applies for a post undertaking regulated work within NHS Fife, the candidate may commence according to the following criteria;

 

·         previous employee has reapplied to NHS Fife within 2 months of terminating employment with NHS Fife; and

 

  • can be evidenced by the candidate to the recruiting manager by presenting the scheme membership record.

 

  • That the scheme membership record confirms that no additional vetting information has been added since leaving NHS Fife.

  

If all these criteria cannot be met or if the candidate terminated more than 2 months prior to re-applying, a scheme record update will be requested and must be received within NHS Fife prior to the candidate commencing in post.

 

If all these criteria are met, then the candidate can commence employment.  However, a scheme record update will be requested and any offer will be subject to this.

 

 

 

 

11.       VOLUNTEERS

 

The level of Disclosure required for volunteers will be dependent upon the area in which they are deployed.

 

The Disclosure Scotland check must be processed and deemed satisfactory prior to commencing voluntary work within NHS Fife in accordance with Appendices 1 and 4.

 

 

12.       HONORARY / RESEARCH APPOINTMENTS

 

The level of Disclosure check required for individuals holding honorary / research contracts will be undertaken to the same level required for NHS Fife staff, in line with Appendix 4.

 

The Disclosure Scotland check must be processed and deemed satisfactory prior to commencement of the honorary / research contract within NHS Fife.

 

 

13.       REFERENCES

 

When providing references to employers for existing or ex-employees the referee should not reveal any information regarding convictions or related public interest information.

 

 

14.       LEAD AND COUNTER SIGNATORIES

 

The Designated Lead Signatory for NHS Fife is the Director of Workforce.

 

            Additional Counter Signatories are as follows:

 

  • Head of HR
  • Head of Staff Governance
  • Senior HR Manager
  • HR Manager/Team Leader
  • HR Officers
  • Recruitment Co-ordinator
  • NHS Fife Nurse Bank Manager
  • Primary Care Manager

           

One of the signatories must countersign the Disclosure application and confirm that the information is accurate.  Disclosure Scotland will contact the signatory with the outcome of each check.

 

 

 

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