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PART VII |
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PROTECTION OF CHILDREN AND VULNERABLE ADULTS |
| Protection of vulnerable adults |
Basic definitions. |
79. - (1) Subsections (2) to (7) apply for the purposes of this Part. |
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(2) "Care worker" means- |
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(a) an individual who is or has been employed in a position which is such as to enable him to have regular contact in the course of his duties with adults to whom accommodation is provided at a care home; |
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(b) an individual who is or has been employed in a position which is such as to enable him to have regular contact in the course of his duties with adults to whom prescribed services are provided by an independent hospital, an independent clinic, an independent medical agency or a National Health Service body; |
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(c) an individual who is or has been employed in a position which is concerned with the provision of personal care in their own homes for persons who by reason of illness, infirmity or disability are unable to provide it for themselves without assistance. |
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(3) "Care position", in relation to an individual, means a position such as is mentioned in subsection (2)(a), (b) or (c). |
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(4) "Employment" has the same meaning as in the Protection of Children Act 1999 (referred to in this Act as "the 1999 Act"); and references to an individual being employed shall be construed accordingly. |
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(5) "Supply worker"- |
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(a) in relation to an employment agency, means an individual supplied by the agency for employment in a care position or for whom the agency has found employment in a care position; |
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(b) in relation to an employment business, means an individual supplied by the business for employment in a care position. |
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(6) "Vulnerable adult" means- |
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(a) an adult to whom accommodation and nursing or personal care are provided in a care home; |
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(b) an adult to whom personal care is provided in their own home under arrangements made by a domiciliary care agency; or |
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(c) an adult to whom prescribed services are provided by an independent hospital, independent clinic or National Health Service body. |
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(7) The persons who provide care for vulnerable adults are- |
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(a) any person who carries on a care home; |
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(b) any person who carries on a domiciliary care agency; |
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(c) any person who carries on an independent hospital, an independent clinic or an independent medical agency, which provides prescribed services; and |
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(d) a National Health Service body which provides prescribed services. |
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(8) Regulations for the purposes of this section or section 90, 92 or 102 may only be made by the Secretary of State; and before making any regulations for the purposes of this section or section 92 or 102 the Secretary of State shall consult the Assembly. |
Duty of Secretary of State to keep list. |
80. - (1) The Secretary of State shall keep a list of individuals who are considered unsuitable to work with vulnerable adults. |
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(2) An individual shall not be included in the list except in accordance with this Part. |
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(3) The Secretary of State may at any time remove an individual from the list if he is satisfied that the individual should not have been included in it. |
Persons who provide care for vulnerable adults: duty to refer. |
81. - (1) A person who provides care for vulnerable adults ("the provider") shall refer a care worker to the Secretary of State if there is fulfilled- |
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(a) any of the conditions mentioned in subsection (2); or |
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(b) the condition mentioned in subsection (3). |
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(2) The conditions referred to in subsection (1)(a) are- |
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(a) that the provider has dismissed the worker on the grounds of misconduct (whether or not in the course of his employment) which harmed or placed at risk of harm a vulnerable adult; |
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(b) that the worker has resigned, retired or been made redundant in circumstances such that the provider would have dismissed him, or would have considered dismissing him, on such grounds if he had not resigned, retired or been made redundant; |
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(c) that the provider has, on such grounds, transferred the worker to a position which is not a care position; |
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(d) that the provider has, on such grounds, suspended the worker or provisionally transferred him to a position which is not a care position but has not yet decided whether to dismiss him or to confirm the transfer. |
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(3) The condition referred to in subsection (1)(b) is that- |
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(a) in circumstances not falling within subsection (2), the provider has dismissed the worker, he has resigned or retired or the provider has transferred him to a position which is not a care position; |
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(b) information not available to the provider at the time of the dismissal, resignation, retirement or transfer has since become available; and |
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(c) the provider has formed the opinion that, if that information had been available at that time and if (where applicable) the worker had not resigned or retired, the provider would have dismissed him, or would have considered dismissing him, on such grounds as are mentioned in subsection (2)(a). |
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(4) If it appears from the information submitted with a reference under subsection (1) that it may be appropriate for the worker to be included in the list kept under section 80, the Secretary of State shall- |
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(a) determine the reference in accordance with subsections (5) to (7); and |
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(b) pending that determination, provisionally include the worker in the list. |
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(5) The Secretary of State shall- |
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(a) invite observations from the worker on the information submitted with the reference and, if he thinks fit, on any observations submitted under paragraph (b); and |
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(b) invite observations from the provider on any observations on the information submitted with the reference and, if he thinks fit, on any other observations under paragraph (a). |
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(6) Where- |
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(a) the Secretary of State has considered the information submitted with the reference, any observations submitted to him and any other information which he considers relevant; and |
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(b) in the case of a reference under subsection (2)(d), the provider has dismissed the worker or, as the case may be, has confirmed his transfer on such grounds as are there mentioned, |
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the Secretary of State shall confirm the worker's inclusion in the list if subsection (7) applies; otherwise he shall remove him from the list. |
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(7) This subsection applies if the Secretary of State is of the opinion- |
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(a) that the provider reasonably considered the worker to be guilty of misconduct (whether or not in the course of his employment) which harmed or placed at risk of harm a vulnerable adult; and |
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(b) that the worker is unsuitable to work with vulnerable adults. |
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(8) The reference in subsection (6)(b) to the provider dismissing the worker on such grounds as are mentioned in subsection (2)(d) includes- |
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(a) a reference to his resigning, retiring or being made redundant in circumstances such that the provider would have dismissed him, or would have considered dismissing him, on such grounds if he had not resigned, retired or been made redundant; and |
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(b) a reference to the provider transferring him, on such grounds, to a position which is not a care position. |
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(9) This section does not apply where- |
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(a) the provider carries on a domiciliary care agency, or an independent medical agency, which is or includes an employment agency or an employment business; and |
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(b) the worker in question is a supply worker in relation to him. |
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(10) Nothing in this section shall require a person who provides care for vulnerable adults to refer a worker to the Secretary of State in any case where the dismissal, resignation, retirement, transfer or suspension took place or, as the case may be, the opinion was formed before the commencement of this section. |
Employment agencies and businesses: duty to refer. |
82. - (1) A person who carries on an employment agency or an employment business ("the provider") shall refer a supply worker to the Secretary of State if there is fulfilled- |
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(a) in the case of an employment agency, any of the conditions mentioned in subsection (2); or |
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(b) in the case of an employment business, any of the conditions mentioned in subsection (3). |
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(2) The conditions referred to in subsection (1)(a) are- |
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(a) that the provider has decided not to do any further business with the worker on grounds of misconduct (whether or not in the course of his employment) which harmed or placed at risk of harm a vulnerable adult; |
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(b) that the provider has decided on such grounds not to find the worker further employment, or supply him for further employment, in a care position. |
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(3) The conditions mentioned in subsection (1)(b) are- |
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(a) that the provider has dismissed the worker on the grounds of misconduct (whether or not in the course of his employment) which harmed or placed at risk of harm a vulnerable adult; |
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(b) that the worker has resigned or retired in circumstances such that the provider would have dismissed him, or would have considered dismissing him, on such grounds if he had not resigned or retired; |
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(c) that the provider has, on such grounds, decided not to supply the worker for further employment in a care position. |
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(4) If it appears from the information submitted with a reference under subsection (1) that it may be appropriate for the worker to be included in the list kept under section 80, the Secretary of State shall- |
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(a) determine the reference in accordance with subsections (5) to (7); and |
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(b) pending that determination, provisionally include the worker in the list. |
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(5) The Secretary of State shall- |
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(a) invite observations from the worker on the information submitted with the reference and, if he thinks fit, on any observations submitted under paragraph (b); and |
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(b) invite observations from the provider on any observations on the information submitted with the reference and, if he thinks fit, on any other observations under paragraph (a). |
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(6) Where the Secretary of State has considered the information submitted with the reference, any observations submitted to him and any other information which he considers relevant, the Secretary of State shall confirm the worker's inclusion in the list if subsection (7) applies; otherwise he shall remove him from the list. |
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(7) This subsection applies if the Secretary of State is of the opinion- |
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(a) that the provider reasonably considered the worker to be guilty of misconduct (whether or not in the course of his employment) which harmed or placed at risk of harm a vulnerable adult; and |
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(b) that the worker is unsuitable to work with vulnerable adults. |
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(8) Nothing in this section shall require a person who provides care for vulnerable adults to refer a worker to the Secretary of State in any case where the dismissal, resignation or retirement took place or, as the case may be, the decision was made before the commencement of this section. |
Power of registration authority to refer. |
83. - (1) The registration authority may refer a care worker to the Secretary of State if- |
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(a) on the basis of evidence obtained by it in the exercise of its functions under Part II of this Act, the authority considers that the worker has been guilty of misconduct (whether or not in the course of his employment) which harmed or placed at risk of harm a vulnerable adult; and |
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(b) the worker has not been referred to the Secretary of State under section 81 or 82 in respect of the misconduct. |
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(2) Section 81(4) to (7) shall apply in relation to a reference made by the registration authority under subsection (1) as it applies in relation to a reference made by a person under section 81(1). |
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(3) The reference in subsection (1) to misconduct is to misconduct which occurred after the commencement of this section. |
Individuals named in the findings of certain inquiries. |
84. - (1) Subsection (2) applies where- |
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(a) a relevant inquiry has been held; |
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(b) the report of the person who held the inquiry names an individual who is or has been employed in a care position; and |
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(c) it appears to the Secretary of State from the report- |
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(i) that the person who held the inquiry found that the individual was guilty of relevant misconduct; and
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(ii) that the individual is unsuitable to work with vulnerable adults.
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(2) The Secretary of State- |
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(a) may provisionally include the individual in the list kept under section 80; and |
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(b) if he does so, shall determine in accordance with subsections (3) to (5) whether the individual's inclusion in the list should be confirmed. |
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(3) The Secretary of State shall- |
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(a) invite observations from the individual on the report, so far as relating to him, and, if the Secretary of State thinks fit, on any observations submitted under paragraph (b); and |
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(b) invite observations from the relevant employer on any observations on the report and, if the Secretary of State thinks fit, on any other observations under paragraph (a). |
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(4) Where the Secretary of State has considered the report, any observations submitted to him and any other information which he considers relevant, he shall confirm that individual's inclusion in the list if subsection (5) applies; otherwise he shall remove him from the list. |
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(5) This subsection applies if the Secretary of State is of the opinion- |
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(a) that the person who held the inquiry reasonably considered the individual to be guilty of relevant misconduct; and |
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(b) that the individual is unsuitable to work with vulnerable adults. |
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(6) In this section- |
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"relevant employer" means the person who, at the time mentioned in the definition of "relevant misconduct" below, employed the individual in a care position; |
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"relevant misconduct" means misconduct which harmed or placed at risk of harm a vulnerable adult and was committed (whether or not in the course of his employment) at a time when the individual was employed in a care position. |
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(7) In this section "relevant inquiry" means any of the following- |
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(a) an inquiry held under- |
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(ii) section 35 of the Government of Wales Act 1998;
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(iii) section 81 of the Children Act 1989;
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(iv) section 84 of the National Health Service Act 1977;
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(v) section 7C of the Local Authority Social Services Act 1970;
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(b) an inquiry to which the Tribunals of Inquiry (Evidence) Act 1921 applies; |
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(c) any other inquiry or hearing designated for the purposes of this section by an order made by the Secretary of State. |
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(8) Before making an order under subsection (7) the Secretary of State shall consult the Assembly. |