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
Overseas police checks
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 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 the DBS check?
The need for a DBS check has always been regarded as an employment requirement and because of this, a large number of NHS trusts across the country have put in place arrangements to either pay for or reimburse individuals for the fee. This arrangement is similarly replicated in the NHS and in other sectors in Scotland and Wales.
Employers however, continue to have local discretion on this matter. Any shift from pre-existing arrangements to pay or reimburse these fees will need careful consideration. Working closely with staff side will be key to ensuring any impact on the organisation's ability to recruit, especially in hard to recruit areas, and individuals themselves is fully recognised and understood.
Employers that pay for/or reimburse the subscription fee for subscribing to the DBS Update Service and/or the fee for a DBS check when individuals subscribe to the Update Service, are entitled to income tax relief. Further information you can be found in the HM Revenue & Customs Tax Information and Impact Note on the HMRC website.
Q. How do you go about obtaining an overseas police check for applicants from the Republic of Ireland?
Where recruiting individuals from the Republic of Ireland, employers should ask applicants to apply directly to the Irish police (Garda) to gain access to any personal data they may hold about them. Individuals should complete a Data Protection Access Request form and return it with relevant information to Garda Criminal Records Office, Racecourse Road, Thurles, Co. Tipperary. The fee for this service is €6.35. Further information is available on the Garda website.
Q: Can employers make cost savings by using the DBS update service?
Research from Ipsos MORI (taken from the DBS press release issued on 17 June 2013) showed that a trust the size of the Royal Free London performing around 126 checks a year, could make a saving of over £2,700 per annum.
Research also showed where policies were in place to carry out periodic checks, free access online status updates will save employers either £26 or £44 for every re-check they would have otherwise performed.
A staffing provider, such as NHS Professionals, performing around 11,000 checks a year (even if only half of those required to be rechecked in any one year) would mean a saving of £242,000 per annum.
Changes to legislation and policy impacting on current practice under the DBS regime
Q. Are all director level positions eligible for a DBS check under the Care Quality Commission's fit and proper person requirements?
The fit and proper person requirement (FPPR) regulations do not impose any changes to current legislation which defines eligibility for a DBS check. Not all director level positions will fall eligible for a DBS check. This continues to be determined by the responsibilities of the job and the type of access that role permits them to have patients.
Further guidance about the fit and proper person requirements and compliance can be found on the employment checks section of this 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 outlined that: 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.
Regulations underpinning the DBS regime already stipulate the type of roles and activities which fall eligible for a DBS check and these remain unchanged. If workers and volunteers are carrying out a regulated activity with adults and/or children, the employing organisation must obtain an enhanced DBS check with relevant barred list information. NHS organisations continue to have a duty to ensure they are legally entitled to obtain a DBS check and understand the level of check required for different roles. Further guidance can be found in the criminal record and barring check standard.
Employers may find it useful to refer to our NHS DBS eligibility tool which contains scenario-based examples to ensure they are legally entitled to obtain a DBS check for different positions.
Recommendation 7 outlined that: 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 under local policy. There is no appetite from government to prescribe a frequency period by which employers should undertake any repeat checks. Employers may wish to further consider how they may benefit from encouraging certain professionals to to subscribe to the DBS Update Service because of the added safeguarding measures this can provide. See our briefing document on using the DBS Update Service. 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 continue to be unaffected by these recommendations. It is important that employers have plans in place to regularly review local recruitment policies and practices to ensure they remain fully compliant with current legal requirements; 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. The frequency by which employers undertake periodic checks should be determined locally and be proportionate to risk. When considering whether or not to implement periodic DBS check, employers may find it beneficial to consider how they might encourage certain professionals to subscribe to this service. Further information about the update service
can be found on our website.
Any changes to current practice should be carried out in full consultation with staff and staff side colleagues to ensure all workers affected 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 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. NHS organisations may take advantage of this service in exceptional circumstances i.e. 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. Do employers need to refer to the DBS even where they have already made a referral to a regulatory body?
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, NHS Improvement)
- 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, e.g. the GMC requiring the disclosure of information under their legislation for fitness to practise 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.
Overseas police checks
Q When new overseas police check requirements come into effect on 6 April for individuals coming across on a Tier 2 visa, will this also apply to individuals already in the UK who are applying to extend their visa?
No, the new rules only apply to new applicants entering the UK.