What changes are occurring on 12 October 2009 and how
does this affect me?
On 12 October 2009, the key barring provisions
in Schedule 3 of the 2006 Act and Schedule 1 of the 2007 Order come
into force.
Key changes introduced include:
- The replacement of the previous barred lists
(Protection of Vulnerable Adults (POVA) list, Protection of
Children Act (POCA) list and List 99 in England and Wales; the
Disqualification from Working with Children (DWC) List, the
Unsuitable Persons List (UP List) and the Disqualification from
Working with Vulnerable Adults (DWVA) List in Northern Ireland) as
well as the current system of Disqualification Orders which is
operated by the criminal justice system with two new lists – the
ISA Children’s barred list and the ISA
- Vulnerable Adults barred list;
- Regulated activity commences, which widens
the scope of sectors covered by the barred lists to include prisons
and most general health care settings;
- A new single ISA Referral Form and new ISA
Referral Guidance comes into operation
- New duties to share information and make
referrals to the ISA for
- Regulated Activity Providers
- Personnel Suppliers
- Keepers of Registers
- Supervisory Bodies
- Local Authorities
- Education and Library Boards and
HSC bodies
The above bodies also have
an existing duty to provide information they hold to the ISA on
request.
What is relevant conduct?
Relevant conduct is that which endangers or is
likely to endanger a child or vulnerable adult. Such conduct
includes emotional, psychological, sexual and verbal abuse.
Financial abuse, for example unauthorised withdrawals from a
vulnerable adult’s account, theft and fraud. Also neglect, which
would include failing to meet basic physical and or psychological
needs including treatment of medical conditions.
Who has a legal duty to
refer?
The Safeguarding Vulnerable Groups Act 2006
Act and the 2007 Order (Northern Ireland) set a legal duty for the
following groups to refer information to the ISA where there are a
concern involving vulnerable adults or children.
- Regulated activity providers;
- Personnel suppliers;
- Local authorities;
- Health and Social Services (HSS) bodies;
- Education and Library Boards;
- Keepers of registers; and
- Supervisory authorities.
What is a regulated activity
provider?
This is any person who is responsible for the
management or control of regulated activity for an organisation and
who engages another person to perform that regulated activity. An
example might be an NHS hospital that employs people to provide
care, supervision and advice to children and vulnerable adults. A
regulated activity provider may also be a person who manages
volunteers in a regulated activity position, such as a scout leader
or as part of a charitable organisation.
When do I refer?
A referral should be made to the ISA when a
regulated activity provider such as an employer or
volunteer coordinator removes a person from regulated or
controlled activity, or that person resigns, retires, is
made redundant or is transferred to a position which is not
regulated or controlled activity. Because the
regulated activity provider ‘thinks’ that a person has
carried out one or more of the following:
- engaged in relevant conduct;
- satisfied the Harm Test.; This is met when a relevant
person (an employer) believes that an individual may harm, may
cause to be harmed, put at risk of harm or may attempt to harm or
may incite another person to harm a vulnerable adult or a
child.
- received a caution or conviction for a relevant
offence.
If the above criteria have been met the
information must be referred to the ISA. This is
regardless of whether the action or offence was in connection with
their work. The referral should be made to the ISA when the
employer has gathered sufficient evidence as part of their own
investigations.
What forms should I use and where do I
send them?
The ISA will have introduced a new single
Referral form for use in relation to children and vulnerable adults
(up until this date you can contine to use the old style forms).
Once completed, the referral form as well as any supporting
evidence you may have, should be posted to:
Independent Safeguarding Authority
PO Box 181
Darlington
DL1 9FA
The referral form and guidance on how to make
a referral can be accessed through the ISA
website.
What information must I provide when
making a referral to the ISA?
The Referral Form identifies the information
and documents you should provide at the time you make a referral.
If you do not hold the information requested on the form then you
should leave that particular section of the form blank.
You are not required to obtain information
from another source or draft any documents (other than the Referral
Form) to meet your responsibilities to the ISA. . If you are aware
of relevant information that is held by another source you should
indicate this where required on the ISA Referral Form.
Making retrospective referrals before
12 October 2009
Although there is a legal duty to refer in
certain circumstances from 12 October 2009, there is also the power
(but not a mandatory duty) for local authorities, Education and
Library Boards, HSC bodies, keepers of registers and supervisory
authorities to make a retrospective referral to the ISA.
This is when there is evidence that an
individual has engaged in relevant conduct prior to 12 October 2009
and that the person is engaged or may engage in regulated or
controlled activity.
Do I have to provide information to
the ISA if they ask me for it?
Yes, the ISA has the legal right to receive
information where it asks for it from Regulated Activity Providers
and Personnel suppliers. There may be occasions during an
investigation when the ISA will ask you for additional information
to assist it with its decision making. However, this legal right
only extends to existing information that you might hold. Employers
are not required to undertake any additional investigations or
inquiries.
What do I do if I decide, following
the issues of a formal warning, to re-instate the
employee?
If following an internal disciplinary
investigation you for example, decide the best course of action is
to issue a formal warning and return the employee to a regulated
activity with additional training, you do not have a duty to refer
to the ISA.
What if an employee resigns before any
final internal disciplinary decision has been made?
If the criteria to make a referral to the ISA
are met then you must make a referral irrespective of whether the
employee is still employed by you.
How do I make a referral?
By using the ISA Referral Form which is
available on the ISA
website.
The complete Guidance, the ISA Referral Form and
additional information on the ISA and the referral process can be
found on the ISA website.
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