|
| |
|
(a) | he provides the written confirmation mentioned in subsection (8), and |
| |
(b) | the condition in subsection (12) or (13) is satisfied in relation to him. |
| |
(12) | The condition is that C has not made an appropriate check. |
| |
(13) | The condition is that— |
| |
(a) | C has made an appropriate check, and |
| 5 |
(b) | before he gives the written confirmation he has reason to believe that B |
| |
has become barred or is no longer subject to monitoring. |
| |
(14) | For the purposes of subsection (3) a regulated activity provider obtains the |
| |
relevant information only if— |
| |
(a) | he obtains it as part of an enhanced criminal record certificate relating |
| 10 |
to the individual issued in relation to him under section 113B of the |
| |
Police Act 1997 (c. 50) during the prescribed period, or |
| |
(b) | in that period he obtains the information by making an application |
| |
| |
(15) | For the purposes of subsection (14) an enhanced criminal record certificate is |
| 15 |
issued in relation to a regulated activity provider only if— |
| |
(a) | he countersigned the application for the certificate as a registered |
| |
person for the purposes of Part 5 of the Police Act 1997, or |
| |
(b) | the application was countersigned on his behalf by such a registered |
| |
| 20 |
12 | Educational establishments: check on members of governing body |
| |
(1) | The appropriate officer commits an offence if he fails in the prescribed period |
| |
to obtain relevant information (within the meaning of Schedule 4) relating to |
| |
any person (B) who is appointed to the governing body of an educational |
| |
establishment mentioned in section 8(5). |
| 25 |
(2) | A person guilty of an offence under subsection (1) is liable on summary |
| |
conviction to a fine not exceeding level 5 on the standard scale. |
| |
(3) | A person does not commit an offence under subsection (1) if, in relation to any |
| |
continuous period for which B is a member of the governing body of the |
| |
| 30 |
(a) | the appointment first took effect before the commencement of this |
| |
| |
(b) | it continues to have effect after such commencement. |
| |
(4) | Subsection (3) does not apply in respect of an appointment which continues to |
| |
have effect after such date as the Secretary of State specifies by order. |
| 35 |
(5) | An appropriate officer is such person as is prescribed. |
| |
13 | Personnel suppliers and regulated activity |
| |
(1) | A regulated activity provider (A) does not commit an offence under section 11 |
| |
| |
(a) | he permits an individual (B) to engage in regulated activity without |
| 40 |
making an appropriate check (within the meaning of that section), |
| |
(b) | B is supplied to A by a personnel supplier, |
| |
|
| |
|
| |
|
(c) | the permission does not have continuous effect for a period exceeding |
| |
the prescribed period, and |
| |
(d) | the condition in subsection (2) is satisfied. |
| |
(2) | The condition is that, in the prescribed period, A obtains written confirmation |
| |
from the personnel supplier— |
| 5 |
(a) | that the personnel supplier has ascertained in accordance with |
| |
subsection (3) that B is not barred from the activity and is subject to |
| |
monitoring in relation to the activity, and |
| |
(b) | that the personnel supplier has no reason to believe that B either has |
| |
become barred from the activity or is no longer subject to monitoring in |
| 10 |
| |
(3) | A personnel supplier ascertains in accordance with this subsection that B is not |
| |
barred and is subject to monitoring only if— |
| |
(a) | he obtains the relevant information (within the meaning of Schedule 4) |
| |
relating to B as part of an enhanced criminal record certificate relating |
| 15 |
to B issued in relation to the personnel supplier under section 113B of |
| |
the Police Act 1997 (c. 50) during the prescribed period, or |
| |
(b) | in that period he obtains the information by making an application |
| |
| |
(4) | For the purposes of subsection (3) an enhanced criminal record certificate is |
| 20 |
issued in relation to a personnel supplier only if— |
| |
(a) | he countersigned the application for the certificate as a registered |
| |
person for the purposes of Part 5 of the Police Act 1997, or |
| |
(b) | the application was countersigned on his behalf by such a registered |
| |
| 25 |
(5) | A personnel supplier commits an offence if— |
| |
(a) | he provides the written confirmation mentioned in subsection (2), and |
| |
(b) | the condition in subsection (6) or (7) is satisfied in relation to him. |
| |
(6) | The condition is that the personnel supplier has not ascertained in accordance |
| |
with subsection (3) that B is not barred and is subject to monitoring. |
| 30 |
(7) | The condition is that— |
| |
(a) | the personnel supplier has ascertained these matters in accordance |
| |
| |
(b) | before he gives the written confirmation he has reason to believe that B |
| |
has become barred or is no longer subject to monitoring. |
| 35 |
(8) | A person guilty of an offence under subsection (5) is liable on summary |
| |
conviction to a fine not exceeding level 5 on the standard scale. |
| |
14 | Exception to requirement to make monitoring check |
| |
(1) | A regulated activity provider in relation to vulnerable adults falls within this |
| |
| 40 |
(a) | he is responsible for the control or management of an establishment in |
| |
which persons are detained in lawful custody (within the meaning of |
| |
section 44(7)(a) to (c)); |
| |
(b) | he is responsible for the control or management of the provision of a |
| |
| 45 |
|
| |
|
| |
|
(c) | it is an organisation which provides recreational, social, sporting or |
| |
| |
(d) | he provides wholly or mainly to vulnerable adults a course of |
| |
education or instruction which is of a prescribed description; |
| |
(e) | he is responsible for the control or management of the provision of |
| 5 |
housing (including sheltered housing); |
| |
(f) | he provides welfare services of a prescribed description; |
| |
(g) | he makes arrangements of any description in connection with the |
| |
making of a payment in pursuance of section 57 of the Health and |
| |
Social Care Act 2001 or the provision of services paid for out of such |
| 10 |
| |
(h) | he makes arrangements for the appointment of a person or the |
| |
provision of a service as mentioned in section 44(10)(a), (b), (c) or (f). |
| |
(2) | A regulated activity provider which is a local authority does not fall within this |
| |
section by virtue of paragraph (c) or (e) of subsection (1) if the authority makes |
| 15 |
the provision in pursuance of any enactment. |
| |
(3) | In this section “welfare services”— |
| |
(a) | includes services which provide support, assistance, advice or |
| |
counselling to individuals with particular needs; |
| |
(b) | does not include community care services within the meaning of |
| 20 |
section 46 of the National Health Service and Community Care Act |
| |
| |
(4) | Paragraphs (c), (d), (e) and (f) of subsection (1) cease to have effect on the |
| |
| |
| 25 |
(a) | the last day of the period of three years starting on the day any |
| |
provision of this section is brought into force, or |
| |
(b) | such later day as the Secretary of State specifies by order. |
| |
(6) | A date specified under subsection (5)(b) must be not more than three years |
| |
| 30 |
(a) | the relevant day as mentioned in subsection (5)(a), or |
| |
(b) | the last day specified in respect of the paragraph concerned under |
| |
| |
(7) | The Secretary of State may by order amend or omit any paragraph of |
| |
| 35 |
| |
(1) | A regulated activity provider falls within this section if— |
| |
(a) | he permits a person (E) to engage in regulated activity in pursuance of |
| |
arrangements made by another person, |
| |
(b) | immediately before the permission takes effect E is engaged in relevant |
| 40 |
| |
(c) | for the duration of the permission E continues to be engaged in that |
| |
relevant NHS employment, and |
| |
(d) | the regulated activity is also relevant NHS employment. |
| |
(2) | Relevant NHS employment is employment with an NHS body in which the |
| 45 |
employee engages in regulated activity. |
| |
|
| |
|
| |
|
(3) | Each of the following is an NHS body— |
| |
(a) | a National Health Service trust; |
| |
(b) | a Strategic Health Authority; |
| |
(c) | an NHS foundation trust; |
| |
| 5 |
(e) | a Local Health Board; |
| |
(f) | a Special Health Authority; |
| |
(g) | a Primary Care Trust. |
| |
16 | Offences: companies etc. |
| |
(1) | If an offence under section 9, 10 or 11 is committed by a body corporate and is |
| 10 |
proved to have been committed with the consent or connivance of, or to be |
| |
attributable to neglect on the part of— |
| |
(a) | a director, manager, secretary or other similar officer of the body, or |
| |
(b) | a person purporting to act in such a capacity, |
| |
| he (as well as the body) commits the offence. |
| 15 |
(2) | If an offence under section 9, 10 or 11 is committed by a partnership (whether |
| |
or not a limited partnership) and is proved to have been committed with the |
| |
consent or connivance of, or to be attributable to neglect on the part of— |
| |
| |
(b) | a person purporting to act as a partner, |
| 20 |
| he (as well as the partnership) commits the offence. |
| |
(3) | In subsection (1), “director”, in relation to a body corporate whose affairs are |
| |
managed by its members, means a member of the body. |
| |
| |
(1) | If the commission of an offence under section 9, 10 or 11 is due to the act or |
| 25 |
default of an employee of a regulated activity provider or personnel supplier, |
| |
the employee is guilty of the offence; and the employee may be proceeded |
| |
against and punished whether or not proceedings are also taken against his |
| |
| |
(2) | For the purposes of subsection (1), an employee includes a person who acts in |
| 30 |
an unpaid capacity under the direction of the officers of an unincorporated |
| |
| |
| |
18 | Controlled activity relating to children |
| |
(1) | A reference to a controlled activity relating to children must be construed in |
| 35 |
accordance with this section. |
| |
(2) | An activity which falls within any of subsections (3) to (5) is a controlled |
| |
activity to the extent that it is not a regulated activity relating to children. |
| |
(3) | An activity falls within this subsection if— |
| |
(a) | it consists in or is carried out in connection with any form of health care, |
| 40 |
treatment or therapy to which subsection (6) applies, |
| |
|
| |
|
| |
|
(b) | it is carried out frequently by the same person, and |
| |
(c) | it gives the person an opportunity mentioned in subsection (7). |
| |
(4) | An activity falls within this subsection if— |
| |
(a) | it is carried out in a further education institution (within the meaning |
| |
of section 140(3) of the Education Act 2002 (c. 32)), |
| 5 |
(b) | it is carried out frequently by the same person, |
| |
(c) | it is carried out for or in connection with the purposes of the institution, |
| |
| |
(d) | it gives the person the opportunity mentioned in subsection (7)(a). |
| |
(5) | An activity falls within this subsection if it consists in or involves on a regular |
| 10 |
basis the day to day management or supervision of a person carrying out an |
| |
activity which falls within subsection (3) or (4). |
| |
(6) | This subsection applies to health care, treatment or therapy which is provided |
| |
| |
(a) | in pursuance of arrangements made by or under an enactment, |
| 15 |
(b) | in an establishment in relation to which a requirement to register arises |
| |
under section 11 of the Care Standards Act 2000 (c. 14), or |
| |
(c) | by an agency in relation to which such a requirement arises. |
| |
(7) | The opportunities are— |
| |
(a) | opportunity to have any form of contact with children; |
| 20 |
(b) | opportunity to have access to the health records of children. |
| |
(8) | The Secretary of State may, by order, amend subsections (2) to (7) (including by |
| |
adding new subsections or omitting or varying any of the subsections or |
| |
anything contained in them). |
| |
19 | Controlled activity relating to vulnerable adults |
| 25 |
(1) | A reference to a controlled activity relating to vulnerable adults must be |
| |
construed in accordance with this section. |
| |
(2) | An activity which is ancillary to or is carried out wholly or mainly in relation |
| |
to an activity which falls within subsection (4) is a controlled activity to the |
| |
extent that it is not a regulated activity relating to vulnerable adults if— |
| 30 |
(a) | it is carried out frequently by the same person, and |
| |
(b) | it gives the person an opportunity mentioned in subsection (5). |
| |
(3) | An activity which consists in or involves on a regular basis the day to day |
| |
management or supervision of a person carrying out an activity mentioned in |
| |
subsection (2) is also a controlled activity relating to vulnerable adults. |
| 35 |
(4) | Each of the following falls within this section— |
| |
(a) | the provision of primary care services; |
| |
(b) | the provision of hospital services; |
| |
(c) | the provision of domiciliary care; |
| |
(d) | the making of arrangements in connection with an adult placement |
| 40 |
| |
(e) | the provision of community care services; |
| |
(f) | such other activity as is prescribed. |
| |
(5) | The opportunities are— |
| |
|
| |
|
| |
|
(a) | opportunity to have any form of contact with a vulnerable adult; |
| |
(b) | opportunity to have access to the health records of a vulnerable adult; |
| |
(c) | opportunity to have access to such other information as may be |
| |
prescribed relating to a vulnerable adult. |
| |
| 5 |
“adult placement scheme” means a scheme— |
| |
(a) | under which an individual agrees with the person carrying on |
| |
the scheme to provide care or support (which may include |
| |
accommodation) to an adult who is in need of it, and |
| |
(b) | in respect of which a requirement to register arises under |
| 10 |
section 11 of the Care Standards Act 2000 (c. 14); |
| |
“community care services” has the same meaning as in section 46(3) of the |
| |
National Health Service and Community Care Act 1990 (c. 19); |
| |
“domiciliary care” must be construed in accordance with section 44(4) and |
| |
| 15 |
“hospital services” means in-patient or out-patient services provided by— |
| |
(a) | a National Health Service trust; |
| |
(b) | an NHS foundation trust; |
| |
(c) | a Primary Care Trust; |
| |
(d) | an independent hospital (within the meaning of section 2 of the |
| 20 |
Care Standards Act 2000); |
| |
(e) | an independent clinic (within the meaning of that section); |
| |
(f) | an independent medical agency (within the meaning of that |
| |
| |
“primary care services” means any of the following— |
| 25 |
(a) | primary medical services or primary dental services provided |
| |
under the National Health Service Act 2006 (“the NHS Act”) or |
| |
the National Health Service (Wales) Act 2006 (“the NHS (Wales) |
| |
| |
(b) | general ophthalmic services provided under Part 6 of the NHS |
| 30 |
| |
(c) | general ophthalmic services provided in accordance with |
| |
section 38 of the National Health Service Act 1977 ; |
| |
(d) | pharmaceutical services provided in pursuance of |
| |
arrangements made under section 126 or 127 of the NHS Act or |
| 35 |
section 80 or 81 of the NHS (Wales) Act, or local pharmaceutical |
| |
services provided under section 134 of, or Schedule 12 to, the |
| |
NHS Act or under section 92 of, or Schedule 7 to, the NHS |
| |
| |
(e) | a service which corresponds to a service mentioned in any of |
| 40 |
paragraphs (a) to (d) but which is provided otherwise than by |
| |
virtue of arrangements made pursuant to an enactment |
| |
mentioned in that paragraph. |
| |
20 | Controlled activity: guidance |
| |
(1) | The appropriate authority may issue guidance as to the steps to be taken by a |
| 45 |
person who falls within subsection (3) in relation to permitting another person |
| |
to engage in controlled activity. |
| |
|
| |
|
| |
|
(2) | A person who falls within subsection (3) must have regard to guidance issued |
| |
| |
(3) | These are the persons— |
| |
(a) | a Strategic Health Authority; |
| |
| 5 |
(c) | a Special Health Authority; |
| |
(d) | a Primary Care Trust; |
| |
(e) | a Local Health Board; |
| |
(f) | a National Health Service trust; |
| |
(g) | an NHS foundation trust; |
| 10 |
(h) | a local authority within the meaning of the Local Government Act 1972 |
| |
| |
(i) | a person carrying on or managing an establishment or agency in |
| |
relation to which a requirement to register arises under section 11 of the |
| |
Care Standards Act 2000 (c. 14); |
| 15 |
(j) | a person carrying on or managing an activity in respect of which a |
| |
requirement to register arises under that section as modified by |
| |
regulations under section 42 of that Act; |
| |
(k) | a further education institution (within the meaning of section 140(3) of |
| |
the Education Act 2002 (c. 32)); |
| 20 |
(l) | such other person as is prescribed carrying out an activity prescribed |
| |
pursuant to section 19(4)(f). |
| |
(4) | The appropriate authority is— |
| |
(a) | in so far as any function of a person falling within subsection (3) is |
| |
exercisable in relation to Wales, the National Assembly for Wales; |
| 25 |
(b) | in any other case, the Secretary of State. |
| |
| |
| |
(1) | An individual is subject to monitoring in relation to regulated activity if— |
| |
(a) | he is not barred from engaging in the activity, |
| 30 |
(b) | he makes a monitoring application, |
| |
(c) | he satisfies the prescribed requirements, and |
| |
(d) | he pays the prescribed fee. |
| |
(2) | A monitoring application must specify whether it is in respect of— |
| |
(a) | regulated activity relating to children, or |
| 35 |
(b) | regulated activity relating to vulnerable adults. |
| |
(3) | On a monitoring application being made the Secretary of State must— |
| |
(a) | make such enquiries as he thinks appropriate to ascertain whether any |
| |
relevant information exists in relation to the individual; |
| |
(b) | request the person who holds such information to provide it to him; |
| 40 |
(c) | provide the individual with any such information (except information |
| |
to which subsection (6) applies) unless he thinks that the individual has |
| |
already been provided with the information. |
| |
(4) | The Secretary of State must also ensure that— |
| |
|
| |
|