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CHAPTER 2: SCOPE OF REGULATED WORK AND ACCESS TO DISCLOSURES -PROPOSED ACTIONS
2.2 REGULATED WORK WITH CHILDREN
Q1 Do you have any comments on the content and structure of the guidance on the scope of regulated work with children?
Respondents were broadly supportive of the approach suggested in the consultation document that accessible guidance should be available before the PVG Scheme goes live.
A Guidance Advisory Group, representing a wide range of stakeholder interests has been set up to work with the Scottish Government on the development of guidance and training. The consultation analysis is helping to inform the work of this group and in particular, to explore how flow charts and diagrams can be used to make the guidance as accessible as possible.
Separately, subsequent to the publication of the consultation paper, issues around the definition of a child care position under the Protection of Children (Scotland) Act 2003 ( PoCSA) were raised by stakeholders. This has resulted in an amendment to schedule 2 of PoCSA. The amendment removes from child care position, the work carried out by Parent Council members in schools where they have no contact with children and has other impacts too. The Scottish Government plans, subject to Parliamentary approval, to make a similar amendment to the PVG Act, suitably adjusted for that legislative context.
Scottish Ministers wish to ensure that the scope of regulated work with children includes those positions where unsuitable people could pose a risk. However, the scheme needs to be proportionate so that, with the exception of certain specified positions set out in schedule 2, part 4 of the Act, those who have no contact with children and those who have minimal contact with children in circumstances where the children themselves are supervised by scheme members are not within the scope of in the scheme. For other positions, for example, delivery drivers visiting a school or care home, where the risk to vulnerable groups of their presence on the premises is minimal, the Scottish Government wants to ensure that organisations take responsibility for properly assessing and managing that risk.
For this reason, the Scottish Government plans to re-examine the scope of regulated work with children to ensure a proportionate approach is taken to describe the scope of regulated work. Although there has been general discussion around some of the issues during the engagement events on the PoCSA amendment, there has been no formal consultation as the issues came to light later. For this reason, there will be a consultation on the draft SSI and the Executive Note accompanying the draft SSI will provide an explanation of the proposed changes.
2.3 REGULATED WORK WITH ADULTS
DEFINITION OF PROTECTED ADULT
Q2a and b. Do you believe an individual should be a protected adult if they are in receipt of any health service ( NHS or private)? Are there any health services that should not be included?
Of those who responded to the question, just over half favoured the proposal. There was broad support for the policy intention of ensuring that adults in receipt of health services should be afforded protection by ensuring that those individuals who provide care and support services to them are scheme members.
Section 94 of the PVG Act defines a protected adult as an individual, aged 16 or over who receives one or more type of care or welfare service. This definition recognises that some adults may always require protection due to the nature or frequency of services they receive, while others may do so only for short periods, for example, during a visit to the GP. This is why section 94 must operate in tandem with schedule 3 of the PVG Act which outlines the duties that constitute regulated work with adults.
The term 'protected adult' serves two purposes. It avoids labelling adults solely on the basis of having a specific condition or disability and will help employers identify the services that make an adult 'protected' so that they can assess which posts constitute regulated work and are therefore within the scope of the PVG Scheme. In effect, to define those situations where an individual would be afforded the protection offered by the PVG Act.
Designating an individual as a protected adult while in receipt of an NHS or independent health care service offers the most practical way for the providers of these services to comply with the PVG Act. This is consistent with the way other parts of section 94 of the PVG Act operate. It will provide comprehensive coverage, including non-specific services like accident and emergency and ambulance, so avoiding the need for constant changing of lists of services. It is also broadly consistent with the proposals in England and Wales and Northern Ireland.
The Scottish Government plans to further clarify the health care services, the delivery of which accord adults protected status under the PVG Act. For the NHS, services will be prescribed by reference to those provided or secured by health boards under the National Health Service (Scotland) Act 1978. For private/independent health care services, these will be prescribed by reference to their meaning within the Regulation of Care (Scotland) Act 2001.
Defining a category of adult to be protected in this way is proportionate as it is the most appropriate means to ensure employers operate the PVG Act as intended. It places no obligations or expectations on adults to demonstrate vulnerability and avoids categorising adults solely by a condition or disability. Proportionality is also achieved through application of the tests relating to regulated work that are outlined in Schedule 3 of the PVG Act.
Services that the Scottish Government does not intend to be covered include occupational health services, beauty/cosmetic salons, and tattoo studios.
WELFARE SERVICES
Q3. Should the definition of welfare services be based upon:
1. The nature of the service provided?
2. An explicit list of prescribed services?
3. The personal characteristics of the individual receiving care?
4. An alternative proposal?
The majority of respondents to this question supported defining welfare services by the nature and purpose of the service provided. This is likely to be the simplest option to prescribe and for providers of services to use. It is also consistent with other parts of section 94 of the PVG Act.
Defining welfare services in this way will rightly leave employers to decide, based on their own knowledge of types of services they provide, whether delivering their services means adults become protected under the PVG Act. It will therefore help employers to determine which of their employees delivering these services are doing regulated work with adults.
This is the more preferable option to the others as many consultation respondents recognised that attempting to define a list of all welfare-type services would likely leave gaps and require constant updating. Respondents also recognised that using an individual's disability, illness or characteristics (eg age) to define vulnerability is no longer consistent with person-centred adult protection policy.
The Scottish Government plans to define welfare services by the nature and purpose of the service that an organisation provides. Welfare services will include support, assistance, advice or counselling to individuals which:
- are provided by or on behalf of an organisation;
- have a frequency to their delivery;
- require formal training;
- either require some contract between provider and recipient, or are distinguished in a certain way, for example, by being personalised to meet an individual's needs.
Work will continue to further develop and clarify definitions to be included in secondary legislation and to ensure that the associated guidance is clear and easy to understand.
Q3b. Should the definition of welfare services be expanded to include commercial organisations that provide services similar to those provided by the statutory and voluntary sector?
There was widespread support from respondents for the proposal to expand the definition of welfare services to include those provided by the commercial sector. This is a logical approach which will ensure consistent protection based on the nature of the service provided, to assist and support individuals rather than the status of the organisation providing it.
The Scottish Government plans to define welfare services in a way that incorporates commercial organisations that provide services similar to those provided by the statutory and voluntary sector.
The need to engage with relevant commercial sector organisations will be factored into stakeholder communication and guidance activities to ensure that they are aware of the implications of this change.
2.4 CONTRACTORS AND DISCLOSURE
Q 4a and b. Do you believe that disclosure information should be shared with third parties? If yes in which circumstances should the information be shared:
- Where a third party is contracting a transport provider for the purposes of transporting children or protected adults?
- Where a third party is contracting a provider for the purposes of maintaining premises in which services are provided predominantly to children and/or protected adults and where the maintenance will take place whilst these individuals are on the premises?
- Where a council is offering direct payments in return for the delivery of care to a protected adult?
- Where a council is letting premises to individuals and the intended use involves regulated work?
This has proven to be a challenging area, with mixed views expressed by respondents. The question arose in the first instance from a desire to have a consistent approach to practice in relation to transport service contractors. In this area, respondents from both the contractor and commissioner sphere broadly supported the proposal to allow for the sharing of disclosure information. The majority of those answering the question were in favour of sharing information relating to contracting for transport services.
However there was much less support for third party disclosure in the other circumstances outlined. It was seen by many respondents to be disproportionate and intrusive, particularly in relation to direct payments and the letting of premises.
The Scottish Government plans to allow the sharing of disclosure information between contractors and commissioners where councils or health boards are contracting for the provision of transport services to transport children and/or protected adults. Information will only be able to be shared with the explicit consent of the individual who is the subject of the disclosure. This will be reflected in secondary legislation and set out in guidance.
There are no immediate plans to allow the sharing of disclosures with commissioners in any of the other circumstances outlined in the consultation.
2.5 CHANGES TO REGISTRATION OF REGISTERED BODIES.
Q5a and b. Should there be a minimum threshold of applications per annum from a registered body as a condition of registration? If yes how many?
This question relates to the organisations registered with Disclosure Scotland for the purpose of receiving standard and enhanced disclosures under the Police Act 1997 or scheme record disclosures under the PVG Act. It arises because a large number of these 3,500 registered organisations only carry out very small numbers of disclosure applications. This makes it difficult for Disclosure Scotland to ensure the compliance of registered bodies with the legislation and the code of practice issued under the Police Act 1997.
There was little support for this proposal. However it remains important to achieve compliance with the code of practice and to manage inactive counter-signatories. Disclosure Scotland is often not informed when counter-signatories give up that role, which poses the risk that they may continue to countersign applications illegally.
A minimum threshold of applications per annum, as a condition of registration will not be applied. Instead, the Scottish Government intends, subject to Parliamentary approval to make registration subject to the payment of an annual subscription. The subscription will include a charge for each counter-signatory giving registered bodies an incentive to maintain this information accurately.
This will ensure that Disclosure Scotland is able to maintain up to date information and ensure compliance with the code. It may also encourage organisations that undertake fewer disclosures to use an umbrella body.
Alongside this, the Scottish Government plans to restrict organisations to a single registration (at present a number of larger organisations have multiple registrations). To ensure that larger organisations are able to manage their relationship with Disclosure Scotland, it is proposed to allow them to create and manage sub-accounts within a single registration. This will ensure that invoices reach the right part of the organisation and that responsibility for compliance with the various requirements of the code of practice rests with the right individuals.
Work will continue alongside the consideration of scheme membership fees to establish an appropriate fee for the registration subscription. Disclosure Scotland will also work closely with registered bodies to manage this transition process and to promote the availability of umbrella bodies for those that choose not to maintain an active registration.
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