PVG and the Duty to Refer
Craig Reid
Determinations Manager, Protection Unit
Session Topics
• Protecting Vulnerable Groups (Scotland) Act 2007
• The duty on employers to make referrals
• Barring and the consideration process
The Protection of Vulnerable
Groups (Scotland) Act 2007
• Made provision for a scheme whereby individuals with a known
history of harm can be prevented from doing work with children
and/or protected adults
• Disclosure Scotland manage this scheme – the Protecting
Vulnerable Groups (PVG) scheme
• Protection Services make decisions on unsuitability to undertake
regulated work
Eligibility for the PVG scheme
• Those undertaking regulated work with children and/or protected
adults are eligible to join the PVG scheme;
• Further information on what constitutes regulated work can be found
at:
www.mygov.scot/pvg-scheme/types-of-work-covered-by-pvg/
Suitability and Unsuitability
• About 7% of PVG scheme members will have convictions or Other
Relevant Information disclosed
• Suitability is a matter for employers who must look at a scheme
members suitability for a particular post.
• Professional Regulators consider suitability to be registered with
them
• Unsuitability is about regulated work generally and is the preserve
of Scottish Ministers
• The question for DS: “has this person engaged in conduct that
means they should be barred from all regulated work with a group?”
Referral Sources
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New scheme member applications
On-going monitoring of scheme members
Court referrals 1. Automatic listing, 2. Relevant offences
Regulatory body referrals
Employer referrals
Organisational Referrals
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Referral Grounds (section 2 of PVG Act)
Removal following disciplinary action
How to make a referral
Duty to Refer
Section 2 of the Protection of Vulnerable
Groups (Scotland) Act 2007
Whether or not in the course of the individual’s work:
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Harmed a child or protected adult
Placed a child or protected adult at risk of harm
Engaged in inappropriate conduct involving pornography
Engaged in inappropriate conduct of a sexual nature involving a
child or protected adult
• Given inappropriate medical treatment to a child or protected adult
Section 3 of the Protection of Vulnerable
Groups (Scotland) Act 2007
• Section 3 - Provides the duty on employers to refer where they have
dismissed or permanently removed the person from regulated work
BECAUSE OF A REFERRAL GROUND (section 2) or
• Would have done so had the person “otherwise stopped doing
regulated work” or had “been working for the organisation for a fixed
term”.
• This duty exists even if there is involvement from the police or
professional regulators.
Why Employer Referrals are Important
• They may be the first to know what has happened!
• The criminal standard of ‘beyond reasonable doubt’ might not be
met.
• Proceedings might not be taken because of an issue with the
witnesses
• Having an organisational referral in such cases when referral
grounds have been met is crucial in terms of safeguarding.
• At the moment, around half of all formally considered organisation
referrals result in the individual being included on a list
Example 1
A service user suspects money is being stolen from them. They set up
a CCTV camera which shows a care at home worker stealing money
from their wallet. The matter is reported to the employer and the police.
The police advise the employer not to do anything until they conclude
their criminal investigation. They suspend the individual immediately
but after 9 months they have still been given no further update from the
police and the individual remains suspended.
Should you make a referral?
Example 2
A newly qualified care at home worker was seen by a relative of the
service user to be using their home telephone calls to make personal
calls. The relative informed the service who investigate the allegations
and find the employee made personal calls to the value of £5.92. over a
period of 3 months. As the employee was still on their probation period,
the employer lets them go without any formal disciplinary process
taking place.
Should you make a referral?
Example 3
A service user calls to report that their partner has been assaulted by a
carer in their own home. The service user did not see anything directly
but heard shouting, saw the carer leave the home and the red cheek of
their partner. The carer admitted to her employer that she assaulted the
partner by slapping him to the face but that he had touched her
inappropriately and feeling threatened she acted without thinking. The
carer was dismissed on the grounds of gross misconduct.
Should you make a referral?
Example 4
A care at home worker becomes very close with a service user and
does a number of personal tasks which are not part of their job
description including taking the service user out for lunch on her days
off and allowing her daughter to attend the home of the service user.
The service user also provided the employee with a personal loan. The
employee has now left the organisation to take up another post and the
service user has made a formal complaint as the money has not been
repaid.
Should you make a referral?
What to include in a referral,
Prescribed Information
The Protection of Vulnerable Groups (Scotland) Act 2007
(Referrals by Organisations and Other Bodies)(Prescribed
Information) Regulations 2010:
• Personal details of the individual
• A description of the conduct and harm caused
• Copies of investigations, including witness statements and care
plans
• Minutes from disciplinary hearings
• Lots more……..
How to make a referral
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No facility for online referrals (yet)
Form available at:
www.mygov.scot/pvg-employer-referral
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Can be sent by email, to:
[email protected]
Failure to Refer
• Section 9 of the PVG Act 2007:
“An organisation which fails, without reasonable excuse, to comply with
a duty imposed by any of sections 3 to 5 within 3 months on which the
duty arose is guilty of an offence”
The Protection Unit’s Task
• Consider the information provided to us
• Using a defensible and structured approach:
– Identify individuals who may be unsuitable (stage 1: initial
consideration)
– Fully consider and make barring decisions on behalf of Scottish
Ministers (stage 2: formal consideration)
Initial consideration
Formal Consideration
• The individual is not barred
• Information gathering
• Unsuitable/Not unsuitable – What does this mean?
Basic Structure of Formal Consideration Process
 Comments or further
information from referring
body;
Information is sent to
individual
 Further information from
individual;
Individual may submit
representations within 28 days
 Information from any
other person Ministers
think appropriate;
Ministers gather further
information
Ministers send all information
on which they intend to rely to
the individual
Individual has final chance to
make representations
Ministers decide whether
to list
What information can be gathered
during formal consideration?
 Police information;
 Information from public
bodies;
 Information
from
regulated work provider;
Any other information
Ministers have through
operating PVG Scheme
 Report
by
expert
adviser;
 Assessment
by
22
Complex Case Advisory
Group.
Key Questions in Formal Consideration
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What was the harmful or inappropriate conduct including the
circumstances surrounding the conduct
Who the victims were and any vulnerabilities
What happened to the victims because of the individual’s conduct
What we know about why the individual behaved in this way
What the potential for harm is if this individual continues in
regulated work
This means the quality and completion of employer
investigation of the incident/s or harm can be key
Individuals Included In Lists since PVG go-live
10%
30%
adult
children
both
60%
Primary case source - listed since PVG golive
19%
Relevant offences
automatic listing
9%
51%
org referral
vetting
21%
Further Information
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Visit our stand outside;
General Enquiries
 Phone - 03000 2000 50
 Email – [email protected]
 Twitter - @DisclosureScot
Protection Unit [email protected]
Compliance –
[email protected]