Protection of Freedoms Bill

Memorandum submitted by the General Social Care Council (PF 59)

1. The Protection of Freedoms Bill contains provisions that will amend the powers and functions of the Independent Safeguarding Authority (ISA) under the vetting and barring scheme. This briefing outlines the GSCC’s views on these provisions and some of the important matters that need to be considered.

About the General Social Care Council

2. The General Social Care Council (GSCC) was established under the Care Standards Act 2000 as the regulator of the social work profession and its education in England. We protect the public by requiring high standards of education, conduct and practice of all social workers.

3. The GSCC ensures that only those who are properly trained, able and committed to high standards practise social work. We do this by maintaining a compulsory register of social workers and issuing and enforcing a code of practice for the profession. The GSCC has the power to impose sanctions on social workers who do not meet the required standards of conduct. Where public protection warrants it, an independent panel of the GSCC can remove them from the register following a full investigation and hearing. Social workers who have been removed from the register are no longer able to practise social work legally in England.

4. The GSCC also regulates and promote high standards in social work education by approving the quality of social work qualifications offered by universities.

Background

5. The GSCC is currently subject to duties under the Safeguarding Vulnerable Groups Act 2006 (SVGA) to refer information to the Independent Safeguarding Authority. As a result of being under these duties, and through working with other professional regulators subject to similar duties, a number of major concerns have arisen about the legislation underpinning the Vetting and Barring Scheme. These concerns remain following the government’s review of the scheme. These concerns are:

- that the basis on which the ISA decides to bar an individual is very broad and unclear;

- that the circumstances in which regulators should to refer information to the ISA is unclear;

- that the mechanism for exchanging information about barring decisions is problematic and uncertain.

6. As a result of this, the GSCC considers that the Protection of Freedoms Bill 2011 provides an important opportunity to make further amendments to the Safeguarding Vulnerable Groups Act to address these concerns. It is important that these changes are made in order to improve public protection and to make it clear to the public the respective roles and responsibilities of professional regulators and the Independent Safeguarding Authority.

Clause 66 – The basis on which the ISA decides to bar an individual is very broad and unclear

7. Health and Social Care professional regulators collectively regulate approximately 1.4 million individuals in the United Kingdom. This is likely to be a substantial proportion of those individuals who are also engaged in the ‘regulated activity’ which is overseen by the ISA. [1] As a result, there are significant concerns in the social care sector about the overlap between the role of the professional regulators in preventing unsuitable individuals from working with vulnerable adults and the role played by the Vetting and Barring Scheme.

8. This potential for overlap arises because the ISA can bar an individual for either causing ‘harm’ or demonstrating the potential to cause ‘harm’ to a vulnerable person.

9. Harm is not defined in the legislation and so the ISA has wide discretion in terms of who to ‘bar’. An individual whose professional incompetence has caused harm or could have caused harm to a vulnerable person could be removed from working with vulnerable adults and children by the ISA. A registered professional could be barred for example, for inappropriate administration of medication by a nurse, poor administrative procedure in a social work setting, or even misdiagnosis by a doctor.

10. The GSCC consider that such areas of professional incompetence should be dealt with by the professional regulator and not by the ISA. Where the professional regulator can mitigate the risk to vulnerable people through removing a professional from their register the GSCC considers that there is no need for the ISA to bar such an individual. Introducing this principle in the legislation would make clear to the general public and the 1.4 million registered professionals the different roles played by the ISA and by professional regulators. It would also prevent the ISA and professional regulators making decisions on the same cases and hence avoid a duplication of effort.

11. The GSCC recommends that an amendment is made to the SVGA to the effect that where the professional regulator can mitigate the risk to vulnerable people through removing an individual from their register, there is no need for the ISA to bar that individual.

12. If such an amendment cannot be made, the GSCC would like to seek an assurance from Ministers during the debate on Clause 66 that the ISA will not be expected to bar an individual where professional regulators have mitigated the risk to the public.

13. In addition, the ISA has the power to bar an individual even if that individual has not engaged in any harmful activity. [2] This is known as the ‘harm test’. This is a very controversial clause which appears to allow the ISA to prevent someone from working in regulated activity even if they have not engaged in any form of harmful behaviour, but there is some evidence that they may pose a risk of harm. No guidance has been issued as to how and in what circumstances an individual could be barred for failing to meet this test.

14. This approach should be contrasted with the approach taken to professional regulation, where professionals are made aware through guidance and Codes of Conduct the activities that they should not engage in if they are to remain registered. Professional regulators, unlike the ISA, are also required to publish their decisions and the basis on which they were taken.

15. In order to provide greater public confidence in the decisions taken by the ISA it is recommended that the ‘harm test’ is removed from the SVGA. The circumstances in which an individual can be barred from working in regulated activity without having engaged in harmful behaviour remains unclear.

16. If such an amendment is not made the GSCC recommends that Ministers set out during the debate on Clause 66 the specific circumstances in which the ‘harm test’ would be applied.

17. Further, in order to ensure transparency about the decisions taken by the ISA it would be useful if the ISA was obliged to provide a summary of the types of cases which have led to barring decisions each year.

Clause 74 – The basis on which Professional Regulators refer information to the ISA

18. The GSCC, like other professional regulators, remains under a duty under the SVGA to refer information about unsuitable individuals to the ISA. The government proposes that this duty should now be a power to refer information.

19. However, the types of cases which professional regulators should refer to the ISA remains unclear as a result of the tests set out in the legislation. These tests remain unchanged as result of the government’s review of the scheme. The SVGA requires the GSCC to refer information to the ISA where an individual has caused harm or has the potential to cause harm and it ‘thinks’ that the ISA ‘may’ consider it ‘appropriate’ to bar an individual. [3]

20. As noted above there is no definition of harm in the legislation and so potentially all of the cases of misconduct and impaired fitness to practice which the regulators deal with should be referred to the ISA. However, to do this would cause significant difficulties for the ISA in terms of the volume of referrals and would lead to a duplication and overlap of regulatory responsibilities.

21. As a result, the GSCC has been basing its decision to refer information to the ISA on the principle that where we have mitigated the risk to vulnerable people through removing an individual from working as a social worker or applied another sanction a referral is not necessary. Only in those cases where the GSCC cannot mitigate the risk of harm is a referral required.

22. The GSCC have an agreed an approach with the ISA to referrals which is based on this principle as this has emerged as the only practical way of taking referral decisions. It would be useful, however, if the SVGA could be amended to state that where regulators consider they have mitigated the risk of harm to vulnerable people they are not expected to make a referral to the ISA. To do so would make clear to the public the respective roles and responsibilities of the ISA and professional regulators in protecting the public.

23. If such an amendment cannot be made it would be useful if Ministers could provide a clarification during the debate on Clause 74 that professional regulators are not expected to make a referral to the ISA if they consider that they have successfully mitigated the risk to vulnerable people.

Clauses 71 and 74 – The mechanism for exchanging information about barring decisions is problematic

24. A key function of any barring system is that any decision taken by the central barring authority (the ISA) should be communicated to other regulatory bodies in order to protect the public and to ensure that unsuitable individuals do not gain access to vulnerable individuals.

25. The current Sections 43 and 44 of the SVGA place duties on the Secretary of State and the ISA to notify professional regulators of any decision taken to bar an individual who is on their register. Unfortunately, these provisions have not been enacted. The result of this is that the GSCC has discovered that a number of our registrants have been barred by the ISA and we have not been notified by the ISA about this.

26. This failure to share information about barring decisions causes significant reputational damage to professional regulators and undermines confidence in the Social Care Register. The GSCC is clear that only those individuals who are qualified and suitable to work as social workers should appear on the Social Care Register. If the register contains individuals who have been barred by the ISA without the GSCC knowing about this, this significantly undermines our ability to fulfil our statutory duties.

27. The GSCC therefore supports the requirements on the ISA and the Secretary of State to notify regulators of barring decisions and the reasons behind these decisions. However we are greatly concerned about the fact that these changes will not be introduced until the Protection of Freedoms Bill receives Royal Assent. In the meantime, there is the continued possibility of the ISA barring a social worker and the GSCC not being informed about this. It would be useful if Ministers could set out how information exchange between regulators and the ISA is expected to work during this interim period.

28. However, whilst supporting this amendment a number of key concerns remain about how this information exchange will work under the new arrangements.

29. Clause 74 (3) requires the ISA to notify professional regulators if it ‘knows’ or ‘thinks’ that an individual may be a registered professional. Unless the ISA is able to identify that an individual is registered then they will not know who to notify and the information exchange will not work. Bearing in mind that professional regulators collectively regulate around 1.4 million people, it remains unclear how the ISA will ‘know’ or think that an individual is a registered professional.

30. It would be very useful if Ministers could clarify how this process for exchanging information will work during the debate on this clause.

31. A further concern for regulators is the possibility that they may be charged a fee to find out barring information about individuals. Under Clause 74 (5A) regulators can apply to the Secretary of State to be notified about whether an individual is or has been barred. Under Clause 71, applying to the Secretary of State for such information requires the payment of a fee. [4]

32. Bearing in mind that professional regulators collectively regulate 1.4 million individuals accessing information about registered individuals from the ISA or Secretary of State could have a significant cost for professional regulators. It could also act as a disincentive to seeking information about barred individuals.

33. The GSCC would therefore like an assurance that it will not be charged a fee in the future to access information about whether social workers have been barred by the ISA.

April 2011