03 / 7 / 2015 1.52pm
This information should be read in conjunction with the Criminal record and barring check standard which outlines the legal requirements to obtain checks through the Disclosure and Barring Service (DBS).
Changes to legislation and policy impacting on current practice under the DBS regime
Duties to refer to the DBS
Q. Can employers still obtain a copy of the disclosure certificate?
Employers can only ask the DBS for a copy of the applicant’s disclosure certificate where ALL of the following conditions apply;
- the individual has subscribed to the Update Service
- in obtaining a status check this has revealed a change to the information provided on the original disclosure certificate
- as a result of this, a new DBS check has been applied for
- the DBS issued a new disclosure certificate to the applicant more than 28 days ago and the applicant has failed to present this to their employer or volunteering organisation.
It is important to stress that employers must not ask applicants to request a reprint of their DBS disclosure certificate in order to provide them with a copy. In such cases, the DBS have a right to decline any such requests.
Q. Who is responsible for paying for a DBS check?
The need for a DBS check has always been regarded as an employment requirement and because of this, the majority of employers across the country agreed to put in place arrangements to either pay the fee for DBS certificates on the individual’s behalf, or to reimburse individuals for this fee. This arrangement is similarly replicated within the NHS across the Borders and across Sectors.
Employers continue to have local discretion on this matter but any shift from current best practice will need careful consideration, including assessment of the risks on ability to recruit if neighbouring trusts decide to continue to pay for DBS checks, especially in hard to recruit areas; and the impact on existing staff where you are minded to introduce requirements for DBS checks retrospectively or periodically. Working closely with Staff Side will be key to making sure the impact of any changes are fully understood and can be implemented effectively.
Employers who have arrangements in place to pay for DBS certificates may be interested to know that provisions were introduced back in June 2013 which provides relief from income tax where employers pay or reimburse fees for subscribing to the DBS Update Service, and/or the fee for DBS disclosure certificates when applicants become subscribed to the Update Service.
Further information you can be found in the HM Revenue & Customs Tax Information and Impact Note at http://www.hmrc.gov.uk/.
Volunteers continue to be eligible for DBS checks free of charge however, if checks are undertaken by an Umbrella Body, there may be an administration charge which you will need to pay for.
Volunteers are also entitled to free subscription to the DBS Update Service. Eligibility for free checks and subscription to the Update Service no longer applies if they subsequently move into paid employment. Any fees will be charged the next time they are required to have a DBS check or where their Update Service subscription is due to expire.
Changes to legislation and policy impacting on current practice under the DBS regime
Q. Are all director level positions now eligible for a DBS check following the introduction of the Care Quality Commission's fit and proper person requirements?
The fit and proper person requirement (FPPR) regulations came into force for all NHS trusts from November 2014 and should be applied where considering appointments to director level positions.
However, it is important to make clear that these regulations do not make any changes to current legislation which supports eligibility for a DBS checks.
Whether or not a director level position falls eligible for a DBS check remains to be determined by their roles, responsibilities and the type of access the position may allow them to have with adults and children in receipt of health care. Employers should continue to follow requirements as outlined by the criminal record and barring check standard which remains in line with current legal requirements.
Further scenario based example guidance has been produced to help provide further clarity for employers when considering making appointments in the NHS.
Employers can undertake a free check against the list of directors which is held by Companies House to verify if an individual has been barred from carrying out a director level position, or is subject to any restrictions, in order to meet compliance with the fit and proper person requirements.
More information about the fit and proper person requirements and guidance on how employers can evidence compliance can be found on our website.
Q. What should employers be doing in follow up to recommendations 6 and 7 outlined within the lessons learnt report which specifically relate to DBS processes?
Recommendation 6: The Home Office should amend relevant legislation and regulations so as to ensure that all hospital staff and volunteers undertaking work or volunteering that brings them into contact with patients or their visitors are subject to enhanced DBS and barring list checks.
This recommendation has not been accepted - legislation which underpins the requirement for a check under the DBS regime remains unchanged. It is important that employers fully understand their legal responsibilities in regard to ensuring positions they are recruiting to (including when making appointments to volunteering roles) are eligible for a DBS check, and the level of check required. Eligibility for a DBS check continues to be dependent on the roles and responsibilities of the position being appointed to, and the type of access they will have with children and/or adults in receipt of healthcare. Employers should make sure that their local policies and processes are fully compliant with the requirements outlined by the criminal record and barring check standard. Further scenario based example guidance has been provided to support employers when considering whether or not a position is eligible for a DBS check and what level of check might be required.
Recommendation 7: All NHS hospital trusts should undertake DBS checks (including, where applicable, enhanced DBS and barring list checks) on their staff and volunteers every three years. The implementation of this recommendation should be supported by NHS Employers.
While not a legal requirement, employers are already permitted to require periodic DBS checks as part of their local policy. At this current time there is no appetite to prescribe a frequency period by which employers should undertake any repeat checks – instead they are recommended to consider how they can encourage workers and volunteers to subscribe to the DBS Update Service which offers a more satisfactory solution to this recommendation because of the added safeguarding measures this can provide. See our briefing document on using the DBS Update Service which can be found on this website. Subscription to the Update Service remains free for volunteers.
Where employers have already implemented periodic DBS checks as part of their local policy, these arrangements can continue unaffected.
It is important that employers regularly review local recruitment policies and practices to ensure they remain fully compliant with current legal requirements under the DBS regime; and appropriate and proportionate measures are considered to minimise any potential risks to patient safety.
Q. Can we ask for periodic DBS checks on existing staff members?
There is no legal requirement for employers to undertake periodic DBS checks however, employers may choose to put local policies in place which require this.
Currently, the frequency by which employers undertake periodic checks can be determined locally, but it must be justifiable and proportionate to risk.
Given the launch of the DBS update service in June 2013, employers may find it more beneficial to consider how they might encourage individuals to subscribe to this service, before introducing periodic checks. Further information about the update service can be found on our website.
When considering introducing periodic checks, it will be essential to inform all staff of any proposals well in advance to allow for any concerns to be aired and discussed so that they fully understand how the changes will impact on them.
Given that the law around eligibility for a DBS check may change from time to time, it is essential that employers make absolutely certain that staff remain eligible for the same level of check and that the correct level of check is applied for.
Further updates will be provided on our website and communicated through our NHS Workforce Bulletin.
Q. What is the adult first check service and can this be applied for when making appointments in the NHS?
The DBS adults first check replaced the pre-existing Protection of Vulnerable Adults (POVA) first check which was a service originally offered to social care. However, NHS organisations may take advantage of this service in exceptional circumstances ie to help reduce delays in making urgent appointments to manage winter pressures, and where such delays in recruitment would significantly put the provision of services and patient care at risk.
The check costs £6 and must be applied for alongside a request for a full enhanced DBS check which currently costs £44. Where the check confirms that the individual is not barred from undertaking a regulated activity with the relevant workforce, and where all other pre-employment checks prove satisfactory, employers may allow the individual concerned to take up appointment in advance of receiving a copy of their full enhanced DBS disclosure certificate. In considering whether this service would be advantageous, it is important to note that:
- additional information provided within a full enhanced DBS disclosure certificate may still need to be considered and therefore appointments should be made with appropriate measures being put in place to manage that individual (such as supervision or restricted duties) until the full enhanced disclosure certificate has been received
- this check only provides assurances that the individual is not barred from working in a regulated activity with adults, and therefore must not be applied for/or relied on where the individual would be required to provide regulated activity with children. All appointments to regulated activity with children will require receipt of a full enhanced DBS disclosure certificate before appointment can be made.
Duties to refer to the Disclosure and Barring Service
Q. Should employers be referring to the regulatory body or to the DBS?
If the employee is in a registered profession, then the employer will need to consider whether they believe that individual may have breached their professional code of practice, and whether the matter is purely a professional issue, or a safeguarding issue, or both.
The legal duty to refer to the DBS remains irrespective of any referral being made to a regulatory body.
Q. Who does the DBS share information with?
It must be recognised by any party providing information to the DBS that it may be necessary for information to be disclosed by the DBS to another party. This may include (but may not be limited to):
- the individual themselves
- the police
- a relevant authority (e.g. probation/prison service)
- a supervisory authority (e.g. CQC, Monitor)
- a Keeper of Registers (e.g. GMC, NMC).
The DBS will only disclose information to any party where:
- there is a legal duty to do so
- in response to a request for subject access made by a person
- to allow a person to provide representations against information which the DBS intend to rely on when barring a person
- a Keeper of Registers, eg the GMC requiring the disclosure of information under their legislation for fitness to practice case.
Where a legal power exists, the DBS will consider the disclosure of information and will normally only disclose information for the purposes of safeguarding of children or vulnerable adults.
Whenever a disclosure is made to the DBS, the person or organisation providing the information should be aware that, under normal circumstances, the DBS will not contact them for permission to further disclose information. However, it is recognised that there may be occasions where information is particularly sensitive and the release of information may jeopardise:
- the prevention/detection/investigation of crime
- the apprehension/prosecution of offenders, or
- the safety/security /liberty/welfare of children or vulnerable adults.
Normally the sensitivity relating to the disclosure of information is time limited e.g. where a police investigation has not yet been concluded. It is important that the DBS is aware of any concerns relating to the disclosure of information in cases of particular sensitivity such as those outlined above. In such cases, any party disclosing information to the DBS may highlight information of particular sensitivity. This will allow the DBS to contact the person / organisation who disclosed the information to gain a better understanding of any concerns and make an informed decision whether the information may be disclosed.
Further information about how they share information and who they share information with, can be found on the DBS website.