Chris Payne explores the important differences between the old and new systems of criminal records and barred lists checks in this three-part article. In this third part he looks at referrals to the barred lists.
Making referrals to the barred lists
A registered manager of a care service continues to have a legal duty to refer anyone for possible inclusion on a Disclosure and Barring Service (DBS) barred list — paid staff member or volunteer — whom they have dismissed for misconduct, which has resulted in a service user being harmed or put at risk of being harmed. The majority of such referrals result from clear breaches of the service's safeguarding policies concerning abuse and restraint, administration of medication, moving and transferring, and health and safety.
A registered manager will also be committing an offence if he or she knowingly employs someone who has already been placed on the relevant barred list.
This is a change from the previous legislation in that an offence (resulting in possible prosecution) is now limited to the possibility of a manager consciously and deliberately appointing someone to a care role when he or she knows that the person has already been barred.
The DBS expects its decisions to be “fair, consistent and thorough” (Factsheet 2, Referral and Barring Decision-making Process). As under the previous system, care service employers have a legal duty to refer someone for inclusion on the DBS barred list under specified conditions. These conditions remain unchanged (following misconduct, etc). A responsible person who fails to provide information to the DBS without reasonable justification is committing an offence and could be subject to a fine of up to £5000. These conditions are similar to those that existed previously.
The timing of any referral
DBS guidance makes it clear that any referral should be made on the basis of firm evidence that misconduct has occurred and not on any provisional basis. For example, managers should not refer a person when just suspended, but should wait until the outcome of any disciplinary investigation. Where an employee or volunteer is suspected of having harmed a service user, a referral to the local safeguarding authority will be made, whose involvement should help to determine whether a referral to the DBS barred list is warranted. Under the legislation, a local authority has the power to refer a person to the DBS barred list on the basis of local safeguarding authority involvement (and the Care Quality Commission has a similar power). The DBS accepts that there might be occasions where the responsible person has strong concerns about the conduct or risks posed by certain individuals, but not the full evidence, and is willing to discuss the case for possible referral.
The referral process
Managers are advised to download and study the referral form to be completed, as well as studying the relevant factsheet found on the DBS website (Factsheet 2). This is because they will need to gather a substantial amount of information for the DBS case officers. The DBS has issued guidance on the data protection and security issues associated with the making of a referral (see Factsheet 6, Data Protection and Security). In the cases of referrals from care services, because there is a legal duty to refer the provision of the information needed, there is no breach of data protection requirements.
References and further information
Managers and staff should obtain and study the following information to help their understanding of the DBS and to keep track of changes to its procedures.
Department of Health (Regulated Activity) (Adults) (2012), available on www.dh.gov.uk.
Disclosure and Barring Service publications (all available on www.gov.uk).
Guidance on Criminal Records Checks
DBS Referral Guide: For Employers and Volunteer Managers
DBS Checks: Eligibility Guidance
DBS Referral Guidance: Completing the Form
Code of Practice for Registered Persons and Other Recipients of Disclosure Information (Revised April 2009)
Referrals to the Barred Lists: Factsheets:
Factsheet 1, Employers and Volunteer Managers —When to Make a Referral to the Disclosure and Barring Service
Factsheet 2, Referral and Barring Decision-making Process
Factsheet 3, Malicious and False Allegations
Factsheet 4, The DBS and Professional Regulators
Factsheet 5, Relevant Offences
Factsheet 6, Data Protection and Security
Factsheet 7, Local Authority: Referral Duty and Power
Factsheet 8, Reviews
Factsheet 9, Appeals
Volunteering England (2012) Disclosure and Barring Service (DBS) checks (formerly CRB checks). Available on www.volunteering.org.uk.
Managers should also note that the DBS operates an e-mail news and update service for which they can register on the DBS website.
Last reviewed 11 June 2013