APPENDIX 12
PROCEDURE GUIDANCE NOTE: DISCLOSURE AND BARRING SERVICE
1. INTRODUCTION
This local practice guidance supplements the London Multi-agency Policy and Procedures to Safeguard Adults from Abuse and reflects the local practice guidance for referrals to the Independent Safeguarding Authority.
The scheme aims to prevent unsuitable people from undertaking certain paid or volunteer work with adults at risk. It will do this by barring those where the information shows they pose a risk of harm to children, young people or adults at risk.
This section should be read in conjunction with the DBS referral guidance and referral form which can be found at www.dbs-gov.org.uk. This guidance is a work in progress, and while the local context will change as national policy is clarified, this currently represents best practice at this time.
2. DUTY TO REFER TO THE DBS
Certain groups have a legal duty to refer information, including regulated activity providers (any person who is responsible for the management and control of regulated activity for an organisation and who engages another to perform that activity), personnel suppliers, local authorities, Health and Social Services bodies, keepers of registers and supervisory authorities.
A referral must be made to the DBS when a regulated activity provider:
1. withdraws permission for an individual to engage in regulated or controlled activity, or would have done so had that individual not resigned, returned, been made redundant or been transferred to a position which is not regulated activity;
because
2. they think that the individual has:
§ Engaged in relevant conduct;
§ Satisfied the harm test; or
§ Received a caution or conviction for a relevant offence
If both conditions are met the information must be referred to the DBS. Good practice should be that a referral is only made once there is sufficient evidence as part of the investigation to support their reasons for withdrawing the person from regulated activity.
Relevant conduct as set out by the 2006 Act is any conduct:
§ That endangers a child or vulnerable adult or is likely to endanger a child or vulnerable adult;
§ If repeated against or in relation to a child or vulnerable adult, would endanger them or would be likely to endanger them;
§ That involves sexual material relating to children (including possession of such material);
§ That involves sexually explicit images depicting violence against human beings (including possession of such images), if it appears to DBS that the conduct is inappropriate; or
§ Of a sexual nature involving a child or vulnerable adult, if it appears to DBS that the conduct is inappropriate.
Harm Test as defined by the 2006 Act is satisfied if the relevant person believes that
an individual may:
§ Harm a child or vulnerable adult;
§ Cause a child or vulnerable adult to be harmed;
§ Put a child or vulnerable adult at risk of harm;
§ Attempt to harm child or vulnerable adult;
§ Incite another to harm a child or vulnerable adult.
A relevant offence for the purposes of referrals to DBS is an automatic inclusion offense as set out in the Safeguarding Vulnerable Groups Act 2006 (Prescribed Criteria and Miscellaneous Provisions) Regulations 2009. A copy of these regulations can be found at www.legislation.gov.uk
3. MAKING REFERRALS TO THE DBS FOLLOWING SAFEGUARDING ADULTS INVESTIGATION
When an allegation against an employee or volunteer who works in regulated activity is made, the safeguarding process should be instigated as per the safeguarding adults policy. This policy may need to work alongside any HR disciplinary procedures. The primary concern is to make the adult at risk safe, which may include removing the employee or volunteer from the setting. This does not mean that a referral to the DBS needs to be made at this point, as although you have met the first condition of removing the person from the activity, the basis is on an allegation only at this point.
Once information is gathered which would support that relevant conduct has occurred or that the harm test is satisfied, then your legal duty to refer to the DBS is triggered.
As part of the multi-agency safeguarding adults procedures, a safeguarding adults investigation will take place which will look at the allegation. This investigation is then considered at the case conference and a decision made as to whether the allegation is substantiated, inconclusive, not substantiated or partially substantiated. It is at this meeting that any recommendations and outcomes for the person alleged to have cause harm are made. A referral to the DBS is one of the potential outcomes.
If an allegation is found to be substantiated, and once this information is shared with the employer, the employer (also know as the regulated activity provider) may need to start disciplinary proceedings which may include the removal of their employee or volunteer. The employer has a duty to complete the referral to the DBS when the conditions [ as per section 2] has been met. This will also apply when the local authority is directly employing, either in a paid or volunteer capacity, any worker found to have satisfied the harm test or relevant conduct.
Additionally the Act sets out, under Section 39, that the Local Authority has a duty to refer information when the following conditions are met. Broadly, these circumstances are that the Local Authority thinks that:
a) An individual satisfies any criteria under which he/she could be barred or considered for barring. This would include the harm test, relevant conduct and relevant offence.
b) The individual is engaged or may engage in a regulated activity, and
c) The DBS may consider it appropriate for the individual to be included in a barred list.
In all case conferences where there is a substantiated allegation against an employer or volunteer, a referral must be made to the DBS by the Local Authority as part of the outcome to the safeguarding adults case. The case conference should decide who will be responsible for completing the DBS referral form.
The Local Authority is only required to refer to the DBS prescribed information that they hold, and would not have access to employment records, personal details of the person alleged to have cause harm, etc. Therefore, although the DBS referral form requests a range of information, the lead person completing the form as agreed at the case conference need only provide information that was held as part of the safeguarding adults process.
Although this may result in some duplication of information referred to the DBS, by both the Local Authority and the Employer, both organisations will have different levels of information. There are clearly different conditions outlining when a regulated activity provider should refer, as opposed to the Local Authority as lead agency in safeguarding adults.
All DBS referrals should be signed off by the service manager of the appropriate adult social care team prior to submission to the DBS.
4. MAKING A REFERRAL WHEN THERE IS NO DUTY TO REFER/INCONCLUSIVE OUTCOME
The DBS will consider all information referred to it from any source in relation to whether an individual should be included in a barred list.
For example:
Regulated activity providers and other groups may provide information where following an internal investigation there is insufficient evidence to show relevant conduct occurred, but they still have concerns about that individual; or
Where an employer may have concern about an individual who has left their employment and they know or think that the individual works in regulated activity in another setting.
Again, there is no duty to refer to the DBS but the local authority, as lead agency for safeguarding, may do so. For example, if an allegation against a care worker is found to be unsubstantiated, but there continues to be concerns expressed about the suitability of that employee to work with vulnerable adults, the case conference can still recommend for a referral to the DBS to be made.
All potential referrals to the DBS by the Local Authority following an inconclusive outcome to a safeguarding alert should be discussed with the Service Manager of the relevant care group, before the DBS referral is made.