Disclosure Scotland Protection Unit

DISCLOSURE SCOTLAND PROTECTION UNIT

DETERMINATIONS ADVISORY GROUP

Date:Wed 30 June 2010 (1000 to 1300 at Disclosure Scotland

Present:Gerry Hart (GH) (Chair), Kathleen McInulty (KM), Mary Milarky (MM), Richard Fowles (RF), Geraldine Doherty (GD), Tom Wood (TW), Dr Lorraine Johnstone (LJ), Julie Gunn (JG), Jean Maclellan (JMacL), Jennifer Macdonald (JMac), Kirsty McGowan (KMcG), John Weir (JW), Clare Wilson (CW), Jennifer Newman (JN), Jonathan Inglis (minutes)

Apologies:Marian Martin, Bill Duncan, George Kappler, Jan Warner, Yvonne Gailey

1. / Welcome and Introductions
GH opened the meeting by welcoming all attendees. Each attendee introduced themselves.
KM informed members that the Minister for Children and Early Years invited the Royal College of Nursing (RCN), Association of Teachers and Lecturers in Scotland (ATL) and Unison to jointly nominate a representative to join the group following a meeting with them on the issue of oral representations. RCN indicated they are happy to be consulted but do not wish to join the group. The other two organisations have not responded.
KM also confirmed an invitation had been extended to COSLA and there has been no response to date.
GH asked members to consider whether other groups should be represented. JMacL suggested the voluntary sector should be represented. GH suggested inviting Annie Gunner Logan from CCPS.
2. / Previous minutes and matters arising
Page 2: third sentence of the second paragraph is amended to
“GD explained the SSSC deals with investigation of conduct matters and handling of complaints about how conduct investigations are being carried out. She advised that it is important to ensure complaints and Freedom of Information and Data Protection requests are not allowed to distract from investigations”.
Page 2: third sentence of the fourth paragraph is amended to:
“Firstly an unacceptable actions policy is available on the SSSC website and contains the provision that where an individual has been threatening to staff they may be told that any further contact will only be accepted in writing”.
Page 2: fifth sentence of the fourth paragraph is amended to:
“Thirdly, she advised about the SSSC’s processes and systems for call handling and the guidance provided to callers.”
Page 4, third line of the third paragraph – delete the word “it”.
Members agreed on the minutes were an accurate reflection of the previous meeting. There were no matters arising.
3. / Update on PVG implementation programme
The Minister for Children and Early Years confirmed the PVG Scheme will ‘go live’ on 30th November 2010. A lot of work is required before then and there are various checkpoints in place to ensure implementation is on target for this date. The first stage of user acceptance testing is completed and BT is on schedule to deliver the IT system. There is greater focus on targeted communication with stakeholders. Internal and external communications will be improved through targeted stakeholder events. Guidance and training materials are now available on the Disclosure Scotland website. Specific guidelines for referrers will be added. There is a PVG web landing page.
GH stated Disclosure Scotland will require the help and support of all members of the Advisory Group to raise awareness of PVG and the referrals process.
4. / Development of the determinations process
KM provided an up date on the development of the determination process since the last meeting:

The Scottish Parliament has now approved the Automatic Listing Order and the Automatic Consideration for Listing Order.
Dr Lorraine Johnstone has been appointed as an independent consultant to advise the PU on the determinations process.
Protection Unit (PU) and Disqualified from Working with Children List (DWCL) staff will test the Stage 1 and Stage 2 assessment protocols between 7th and 15th July. This involves applying the protocols against examples of vetting information and a sample of cases referred to DWCL. Dr Johnstone’s colleague, Catherine Creamer, will participate in a review of the testing process and analysis of the findings.
The PU is currently in the process of recruiting Senior Caseworkers and Caseworkers.
The Royal College of Nursing provided notice to the Home Office of it’s intention to seek judicial review of the vetting and barring scheme in relation to the lack of oral hearings. If successful this will have an impact on Disclosure Scotland’s proposed determinations process.

KM confirmed there is still work to be done modelling criminal convictions to determine which offences can be automatically excluded from further consideration, which should be automatically considered and the range of offences which could be included or excluded depending on the context of the offence and the individual’s pattern of previous convictions.
GH asked member for their views and experiences on the handling of conviction information in relation to employment decisions.
CW suggested it will be relatively easy to identify the offences which can be classified as automatically exclude (from any further consideration) or include (for further consideration). The challenge will be with the offences where context is critical to whether they are in or out.
JW stated that there are a number of offences which do not appear to be serious on the face of it but the circumstances may indicate the individual poses a risk to vulnerable groups e.g. breach of the peace with a sexual aggravator or menacing calls under the Telecommunications Act. He confirmed some of these offences carry an aggravation code which could help Disclosure Scotland identify them. He also stated that dishonesty charges should be included as they may involve exploitation of the elderly or other vulnerable groups. JMacL agreed highlighting that about 50% of harm to the elderly is financially motivated.
GD stated it is important that regulatory bodies and employers retain the responsibility of deciding who is suitable for certain roles, including registration in certain professions. She suggested the threshold for listing should be higher than that applied by a regulatory body as it means barring an individual from the entire workforce. GD stated that SSSC believe there is a significant overlap between the roles of both workforces in practice that should result in an individual being barred from both workforces in all instances.
TW suggested a key consideration should be whether the individual’s past behaviour indicates recklessness which demonstrates disregard for the safety of others. This may be demonstrated by a pattern of behaviour or an isolated incident.
LJ explained the weaknesses in an actuarial approach to assessing risk of reconviction and risk of harm. It was agreed that there is no evidential basis for an algorithm approach although it may be possible to develop some rules over time following analysis of cases.
GH confirmed that the PVG Act and the secondary legislation are considered to be compliant with the European Convention on Human Rights. Under DWCL an individual can only be listed following employment disciplinary proceedings or a conviction by the courts.
GH confirmed that it will be possible to ensure the system will only rule out items specifically marked as exclude. Everything else will result in the case being presented to a caseworker. The employer will continue to receive a record of all vetting information and will have responsibility for making a final decision on suitability. GH confirmed a series of quality assurance measures will be in place to monitor the screening of vetting information.
GH indicated he would like members of the group to endorse the PU’s approach to the modelling of offences. Agreed that KM will liaise with TW, GD and JMacL to develop the modelling before the next meeting and present a paper at the next meeting.
LJ presented an overview of the consultancy and the findings from the literature search. These findings support the PU’s approach to decision making and highlighted some additional dynamic risk factors which should be included. The consultancy team is producing a scoping paper which will be completed by the end of July. Agreed to circulate a copy to members.
5. / Training for Protection Unit staff
Due to time restrictions members agreed to consider this at the next meeting.
6. / Referrals to the Protection Unit – thresholds and process
MM shared an overview of the types and format of organisational referrals to DWCL. 50% of referrals require more information at the initial stage, even to clarify competency. MM is drafting guidelines specifically for referrers to clarify what information the PU will need and how it should be presented. Agreed to circulate a draft of the guidelines to members for comments.
MM stated that currently one third of all referrals to the DWCL team result in no further action either due to the referral not meeting the competency tests or the nature/ level of harm is minor.
MM stated the following types of information is crucial when assessing a case –

Disciplinary investigation witness statements
Disciplinary hearing notes
Personal information on the individual
The individual’s professional qualifications, experience and training
The individual’s role and responsibilities in their organisation
The area of the organisation’s code of practice/ guidelines considered to be breached

KM stated that whilst the PU is likely to defer a decision until court or regulatory body proceedings are concluded, however in some cases the level of risk may be such that a decision is required. GD stated the SSSC would prefer to send information to the PU once their case is concluded, as this information is subject to change.
Members discussed the decision-making process and agreed that the working agreements for the exchange of information with DWCL would need to continue under PVG.
GH indicated the extent of information provided to organisations when an individual is placed under consideration for listing will be discussed at the next meeting.
7. / Role and recruitment of Complex Case Advisory Group members
Members agreed to email comments on the paper to GH.
8. / AOCB
No items raised.

ACTION POINTS

Advisory
Group
Action 10/02 – 1 / KM to liaise with TW, JMacL and GD on the modelling of offences and present paper at the next meeting / KM
Action 10/02 – 2 / Members to email comments on LJ’s scoping paper by the end of July / Advisory
Group
Action 10/02 – 4 / Members to email comments on draft referral guidelines. / Advisory
Group
Action 10/02 – 3 / Advisory Group to email comments on Complex Case papers to GH by next meeting / Advisory Group

Jonathan Inglis

Protection Unit

20 July 2010

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