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Safeguarding Vulnerable Groups Bill [HL]


Safeguarding Vulnerable Groups Bill [HL]

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(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

under Schedule 4.

(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

person.

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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).

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(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

establishment—

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(a)   

the appointment first took effect before the commencement of this

section, and

(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

if—

(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,

 
 

Safeguarding Vulnerable Groups Bill [HL]

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(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

relation to it.

(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

under Schedule 4.

(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

person.

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(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

with subsection (3), and

(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

section if—

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

probation service;

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Safeguarding Vulnerable Groups Bill [HL]

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(c)   

it is an organisation which provides recreational, social, sporting or

educational activities;

(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

payments;

(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

1990 (c. 19).

(4)   

Paragraphs (c), (d), (e) and (f) of subsection (1) cease to have effect on the

relevant day.

(5)   

The relevant day is—

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(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

after—

30

(a)   

the relevant day as mentioned in subsection (5)(a), or

(b)   

the last day specified in respect of the paragraph concerned under

subsection (5)(b).

(7)   

The Secretary of State may by order amend or omit any paragraph of

subsection (1).

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15      

NHS employment

(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

NHS employment,

(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.

 
 

Safeguarding Vulnerable Groups Bill [HL]

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(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;

(d)   

a Health Authority;

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—

(a)   

a partner, or

(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.

17      

Offences: employees

(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

employer.

(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

body.

Controlled activity

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,

 
 

Safeguarding Vulnerable Groups Bill [HL]

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(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,

and

(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

for a child—

(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

scheme;

(e)   

the provision of community care services;

(f)   

such other activity as is prescribed.

(5)   

The opportunities are—

 
 

Safeguarding Vulnerable Groups Bill [HL]

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(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.

(6)   

In this section—

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

(5);

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

section);

“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)

Act”);

(b)   

general ophthalmic services provided under Part 6 of the NHS

30

(Wales) Act;

(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

(Wales) Act;

(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.

 
 

Safeguarding Vulnerable Groups Bill [HL]

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(2)   

A person who falls within subsection (3) must have regard to guidance issued

under subsection (1).

(3)   

These are the persons—

(a)   

a Strategic Health Authority;

(b)   

a 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

(c. 70);

(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.

Monitoring

21      

Monitoring

(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—

 
 

 
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