FAQ Supreme Court webinar

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Below are the questions asked and the answers given in our webinar detailing the Supreme Court judgement on criminal disclosure and its implications. 

How likely is parliament to approve the legislation? And if it does, when will the changes take effect?

We do not anticipate parliament raising many issues with the legislation when it returns from recess in September, so the legislation is expected to pass quite quickly. 

Based on the information received and issues covered in this session, what is currently being proposed is unworkable at an operational level, so we do expect changes to the law that will cause effect at operational level to take a while.

What do you recommend employers focus on now, to ensure readiness for the changes coming into effect?

While of course important, criminal record checks are just one part of the recruitment process and there should be more focus on the other elements (adequate references, values based exercises etc), rather than over reliance on a DBS check when making a recruitment decision.

Nacro, in conjunction with Dominic Headley, will be providing guidance to support employers.

I don't quite understand what is meant by the phrase "principle of foreseeability" - please can you explain?

It is about certainty - if someone applied to be a doctor, they would be eligible for an enhanced disclosure with barred list information. At other stages of training, University etc. an applicant may only need to self disclose. Clarity must be provided to the applicant as to the level of DBS check that would be needed to apply for the desired role, to avoid scenarios where people are set up to fail.

Will this affect those on the update service moving forward, or only if there is a new conviction?

Yes, the update service is one of the key areas of implications. The check status will only be updated if there is more information, not less. This means people already registered to the update service and employers will not be notified if less information is legally required.

There are also data implications as employers may then be holding more information about a person's criminal record than they are legally required to.

How large scale will the changes to our recruitment processes need to be?

We will only be able to accurately assess the potential impact on recruitment processes once the Government has agreed to the new DBS filtering rules.

NHS Employers is intending to host a further webinar in the coming months to support employers to prepare for any changes to recruitment processes in light of the new filtering rules. Any updates will be made available on the NHS Employers website and communicated through the Workforce Bulletin as soon as more information is known.

How are we assured that individuals know what to disclose? With such complex criteria, how can we as employers support them easily to do that? 

The employment check standards and guidance on the use of model declaration forms issued by NHS Employers, signposts employers and individuals to contact the confidential helplines run by Nacro and Unlock.

Employers are encouraged to ensure that staff and candidates are made aware of this service so that they can fully understand their rights and responsibilities when disclosing criminal records. This will become even more important when the changes come into force.

Is there a role for the DBS to provide guidance to offenders at the time of conviction re: what and when to disclose? 

The DBS certainly has a role to play in ensuring comprehensive guidance on the rights and responsibilities when disclosing criminal records is publicly available and capable of being understood by individuals - with the help of legal or professional advice if necessary. 

The Ministry of Justice, courts and police also have a primary role in making sure offenders are aware of, and understand, the implications of having a criminal record, with the help of legal and professional advice where necessary.

Are there any changes that can be made on NHS Jobs to make this easier for applicants?

NHS BSA is already making some significant changes to the NHS Jobs site with a view to improving the applicant experience more generally. 

NHS Employers will continue to support them in understanding any implications around any changes to the criminal record regime so they can consider this as part of any developments they are undertaking on the standard NHS application form.

I may have missed this, but are custodial sentences still always going to be disclosed? 

Yes. Under the Government's proposed changes to DBS filtering rules for standard and enhanced certificates, custodial sentences will always be disclosed.

In the opinion of the panel - would it remove complexity and enhance safeguarding if the level of disclosure in healthcare settings was at the same level for all roles?

DBS eligibility is enshrined in legislation. NHS Employers has developed tools and resources to help employers determine which level of check a role may be eligible for.

In our view, it is proposed changes to the DBS filtering rules that may increase complexity - not the level of check carried out.

Some of the scenarios covered in the webinar demonstrate that in some instances the proposed changes could potentially lead to less criminal record information being disclosed on a standard or enhanced DBS certificate than a basic disclosure. We do not believe that this supports safeguarding. 

Can you confirm that the model declaration forms should be retained on the candidate's file if they are employed?

NHS Employers guidance on the use of model declaration forms mirror DBS guidance on the handling of criminal record information. 

This stipulates that if organisations are inspected by the CQC and those that require retention of certificate information in order to demonstrate "safer recruitment practice" for the purpose of safeguarding audits, can retain for as long as practical.

Criminal record information should be kept securely, in lockable, non-portable storage containers with access strictly controlled and limited to those who are entitled to see it as part of their duties.

This practice will need to be compliant with the Data Protection Act, Human Rights Act, General Data Protection Regulation (GDPR), and incorporated organisation's policy on the correct handling and safekeeping of DBS certificate information.

Do you foresee these changes impacting the way people are sentenced? For example, affray conviction re: reprimand

In July 2019, the government announced it plans to reform the Rehabilitation of Offenders Act 1974 by reducing the length of time people with convictions need to disclose short custodial sentences and community sentences to employers. They will outline any proposed changes in a sentencing White Paper to be published in Autumn 2020. We do not foresee that any changes will impact the way that people are sentenced as the criminal record disclosure regime operates separately to the sentencing regime.

Will NHS Employers be updating the current model declaration form templates to take these changes into account? 

NHS Employers will be reviewing the model declaration forms and any supporting guidance in due course. There are some primary changes which are being considered, regardless of the Parliamentary decision, which are thought necessary to provide clarity for both employers and individuals. 

Do we need to implement new model declaration forms?

When revised guidance is published, employers will either be required to use the new model declaration forms or ensure they review any organisational forms and guidance they issue to applicants to mirror the changes.

How can candidates access public guidance to know what they should or shouldn't disclose? 

NHS Employers will ensure that employers and candidates are signposted to any practical guidance developed on the new DBS filtering rules by Nacro and Dominic Headley & Associates (DHA).

Is there a newsletter or similar we can sign up to to get updates on the judgement?

NHS Employers will communicate any updates after the government has debated the proposed changes to DBS filtering rules in parliament.

Is there anything we can do to raise concerns ahead of Parliamentary debate? And who do we raise them with?

We expect the changes to be debated first in the House of Lords on 10 September. 

Employers may raise concerns through any relevant engagement networks run by NHS Employers or by contacting us via the employmentchecks@nhsemployers.org mailbox so that we can consider views as part of any discussions we need to have across the system.

Individuals or other organisations are recommended to raise any issues of concern at the highest level, for example, through their local MP. 

It seems that what will be revealed by the DBS will depend on what order they take the legislation i.e. if never filtered is viewed first, the removal of reprimands etc. will be secondary and will still be seen?

We anticipate that the government's proposed changes to the multiple convictions rule and disclosure of youth cautions, reprimands and final warnings will come into force simultaneously. 

This means that operationally, youth cautions, final warnings, reprimands and multiple counts and/or convictions (that meet the new criteria for filtering) will no longer be disclosed automatically in a DBS certificate.

However, the police will retain the ability to disclose youth cautions or multiple convictions that have been filtered on enhanced criminal record certificates, if they believe that caution(s) or conviction(s) or the circumstances surrounding the offending behaviour are relevant to the role being applied for. 

There is not a mention of regrading drink driving bans on the filtering list, could you confirm if they qualify for filtering?

Conviction(s) for drink driving would qualify for filtering as long as all other provisions have been met.

Convictions for causing death by drink driving would NOT be filtered. 

How are employers in sectors outside the NHS responding to model declaration forms that are used in the NHS?

The Supreme Court ruling will affect employers in all sectors, meaning they will have responsibility to review all guidance, policies, and practices to align with the new ruling,

The guidance issued by NHS Employers is tailored specifically to meet to requirements that apply to NHS organisations in England.

 

 

 

 

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