|
| |
|
(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 |
| |
| |
(3) | A personnel supplier ascertains in accordance with this subsection that B is not |
| |
barred and is subject to monitoring only if— |
| 5 |
(a) | he obtains the relevant information (within the meaning of Schedule 4) |
| |
relating to B as part of an enhanced criminal record certificate relating |
| |
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 |
| 10 |
| |
(4) | For the purposes of subsection (3)(a) an enhanced criminal record certificate is |
| |
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 |
| 15 |
(b) | the application was countersigned on his behalf by such a registered |
| |
| |
(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. |
| 20 |
(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. |
| |
(7) | The condition is that— |
| |
(a) | the personnel supplier has ascertained these matters in accordance |
| |
| 25 |
(b) | before he gives the written confirmation he has reason to believe that B |
| |
has become barred or is no longer subject to monitoring. |
| |
(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 |
| 30 |
(1) | A regulated activity provider in relation to vulnerable adults falls within this |
| |
| |
(a) | he provides complementary or alternative therapy; |
| |
(b) | he is responsible for the control or management of a prison; |
| |
(c) | he is responsible for the control or management of the provision of a |
| 35 |
| |
(d) | it is an organisation which provides recreational, social, sporting or |
| |
| |
(e) | he provides wholly or mainly to vulnerable adults a course of |
| |
education or instruction which is of a prescribed description; |
| 40 |
(f) | he is responsible for the control or management of the provision of |
| |
housing (including sheltered housing); |
| |
(g) | he provides qualifying welfare services; |
| |
(h) | he makes arrangements for the appointment of a person or the |
| |
provision of a service as mentioned in section 43(1)(h) or (8). |
| 45 |
|
| |
|
| |
|
(2) | A regulated activity provider which is a local authority does not fall within this |
| |
section by virtue of paragraph (d) or (f) of subsection (1) if the authority makes |
| |
the provision in pursuance of any enactment. |
| |
(3) | A person provides qualifying welfare services if— |
| |
(a) | he provides welfare services, |
| 5 |
(b) | a local authority contribute or will contribute to the expenditure |
| |
incurred by him in providing those services, and |
| |
(c) | that contribution is or will be derived (in whole or in part) from any |
| |
grant which is or will be paid to the authority under a relevant |
| |
| 10 |
(4) | A relevant enactment is an enactment specified by the Secretary of State by |
| |
order which authorises payment of grant towards expenditure incurred by the |
| |
| |
(a) | in providing, or contributing to the provision of, welfare services, or |
| |
(b) | in connection with such welfare services. |
| 15 |
(5) | In subsection (3) a local authority is— |
| |
(a) | in relation to England, a county council, a district council, a London |
| |
borough council, the Common Council of the City of London or the |
| |
Council of the Isles of Scilly; |
| |
(b) | in relation to Wales, a county council or a county borough council. |
| 20 |
(6) | 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 |
| |
section 46 of the National Health Service and Community Care Act |
| 25 |
| |
(7) | The Secretary of State may by order amend subsection (1) by inserting a |
| |
paragraph or amending or omitting a paragraph for the time being contained |
| |
| |
| 30 |
(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 |
| |
| 35 |
(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— |
| |
(a) | a child care position (within the meaning of the Protection of Children |
| 40 |
| |
(b) | a care position (within the meaning of section 80 of the Care Standards |
| |
| |
(3) | Each of the following is an NHS body— |
| |
(a) | a National Health Service trust; |
| 45 |
|
| |
|
| |
|
(b) | a Strategic Health Authority; |
| |
(c) | an NHS foundation trust; |
| |
| |
(e) | a Local Health Board; |
| |
(f) | a Special Health Authority; |
| 5 |
(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 |
| |
proved to have been committed with the consent or connivance of, or to be |
| |
attributable to neglect on the part of— |
| 10 |
(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. |
| |
(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 |
| 15 |
consent or connivance of, or to be attributable to neglect on the part of— |
| |
| |
(b) | a person purporting to act as a partner, |
| |
| he (as well as the partnership) commits the offence. |
| |
(3) | In subsection (1), “director”, in relation to a body corporate whose affairs are |
| 20 |
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 |
| |
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 |
| 25 |
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 |
| |
an unpaid capacity under the direction of the officers of an unincorporated |
| |
| 30 |
| |
18 | Controlled activity relating to children |
| |
(1) | A reference to a controlled activity relating to children must be construed in |
| |
accordance with this section. |
| |
(2) | An activity which falls within any of subsections (3) to (5) is a controlled |
| 35 |
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, |
| |
treatment or therapy to which subsection (6) applies, |
| |
(b) | it is carried out frequently by the same person, and |
| 40 |
(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)), |
| |
(b) | it is carried out frequently by the same person, and |
| |
(c) | it gives the person the opportunity mentioned in subsection (7)(a). |
| 5 |
(5) | An activity falls within this subsection if it consists in or involves on a regular |
| |
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 |
| |
| 10 |
(a) | in pursuance of arrangements made by or under an enactment, |
| |
(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— |
| 15 |
(a) | opportunity to have any form of contact with children; |
| |
(b) | opportunity to have access to the medical records of children. |
| |
19 | Controlled activity relating to vulnerable adults |
| |
(1) | A reference to a controlled activity relating to vulnerable adults must be |
| |
construed in accordance with this section. |
| 20 |
(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— |
| |
(a) | it is carried out frequently by the same person, and |
| |
(b) | it gives the person an opportunity mentioned in subsection (5). |
| 25 |
(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. |
| |
(4) | Each of the following falls within this section— |
| |
(a) | the provision of primary care services; |
| 30 |
(b) | the provision of hospital services; |
| |
(c) | the provision of domiciliary care; |
| |
(d) | the making of arrangements in connection with an adult placement |
| |
| |
(e) | the provision of community care services. |
| 35 |
(5) | The opportunities are— |
| |
(a) | opportunity to have any form of contact with a vulnerable adult; |
| |
(b) | opportunity to have access to the medical records of a vulnerable adult; |
| |
(c) | opportunity to have access to such other information as may be |
| |
prescribed relating to a vulnerable adult. |
| 40 |
| |
“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 |
| |
section 11 of the Care Standards Act 2000 (c. 14); |
| 5 |
“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 43(3) and |
| |
| |
“hospital services” means in-patient or out-patient services provided by— |
| 10 |
(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 |
| |
Care Standards Act 2000); |
| 15 |
(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— |
| |
(a) | primary medical services provided in pursuance of section |
| 20 |
16CC of the National Health Service Act 1977 (c. 49); |
| |
(b) | primary dental services provided in pursuance of section 16CA |
| |
| |
(c) | personal dental services provided in accordance with an |
| |
agreement made in pursuance of section 28C of that Act; |
| 25 |
(d) | general ophthalmic services provided in accordance with |
| |
| |
(e) | pharmaceutical services provided in pursuance of |
| |
arrangements made under section 3, 41 or 41A of that Act or |
| |
under Schedule 8A to that Act or section 28 of the Health and |
| 30 |
Social Care Act 2001 (c. 15); |
| |
(f) | a service which corresponds to a service mentioned in any of |
| |
paragraphs (a) to (e) but which is provided otherwise than by |
| |
virtue of arrangements made pursuant to an enactment |
| |
mentioned in that paragraph. |
| 35 |
20 | Controlled activity: guidance |
| |
(1) | The appropriate authority may issue guidance as to the steps to be taken by a |
| |
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 |
| 40 |
| |
(3) | These are the persons— |
| |
(a) | a Strategic Health Authority; |
| |
| |
(c) | a Special Health Authority; |
| 45 |
(d) | a Primary Care Trust; |
| |
(e) | a Local Health Board; |
| |
(f) | a National Health Service trust; |
| |
|
| |
|
| |
|
(g) | an NHS foundation trust; |
| |
(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 |
| 5 |
Care Standards Act 2000 (c. 14); |
| |
(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 |
| 10 |
the Education Act 2002 (c. 32)). |
| |
(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; |
| |
(b) | in any other case, the Secretary of State. |
| 15 |
| |
| |
(1) | An individual is subject to monitoring in relation to regulated activity if— |
| |
(a) | he is not barred from engaging in the activity, |
| |
(b) | he makes a monitoring application, |
| 20 |
(c) | he satisfies the prescribed identification 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 |
| |
(b) | regulated activity relating to vulnerable adults. |
| 25 |
(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) | provide the individual with any such information (except information |
| |
to which subsection (6) applies) unless he thinks that the individual has |
| 30 |
already been provided with the information. |
| |
(4) | The Secretary of State must also ensure that at such intervals as he thinks |
| |
appropriate such enquiries are made as he thinks appropriate to ascertain |
| |
whether any new relevant information exists in relation to the individual. |
| |
(5) | Relevant information is— |
| 35 |
(a) | the prescribed details of relevant matter (within the meaning of section |
| |
113A of the Police Act 1997); |
| |
(b) | information which the chief officer of a relevant police force thinks |
| |
might be relevant in relation to the regulated activity concerned; |
| |
(c) | such other information as may be prescribed. |
| 40 |
(6) | This subsection applies to information mentioned in subsection (5)(b) which |
| |
the chief officer of a relevant police force thinks it would not be in the interests |
| |
of the prevention or detection of crime to disclose to an individual subject to |
| |
| |
|
| |
|
| |
|
(7) | For the purposes of subsection (1)(a) an individual is to be regarded as being |
| |
barred from regulated activity by virtue of paragraph 2 or 7 of Schedule 2 only |
| |
after IBB has decided under paragraph 2(4) or 7(4) not to remove him from the |
| |
| |
(8) | A monitoring application is an application made to the Secretary of State in the |
| 5 |
prescribed form and manner. |
| |
(9) | If the prescribed identification requirements include a requirement that the |
| |
applicant has his fingerprints taken at such place and in such manner as may |
| |
be prescribed, the regulations may make provision requiring their destruction |
| |
in specified circumstances and by specified persons. |
| 10 |
(10) | For the purpose of verifying evidence of identity supplied in pursuance of the |
| |
prescribed identification requirements the Secretary of State may obtain such |
| |
information as he thinks is appropriate from data held— |
| |
(a) | by the United Kingdom Passport Agency; |
| |
(b) | by the Driver and Vehicle Licensing Agency; |
| 15 |
(c) | by the Secretary of State in connection with keeping records of national |
| |
| |
(d) | by such other persons or for such purposes as is prescribed. |
| |
(11) | Relevant information is new if it was not discovered when any earlier inquiries |
| |
under this section were carried out. |
| 20 |
(12) | References to a relevant police force must be construed in accordance with |
| |
section 113B of the Police Act 1997 (c. 50). |
| |
| |
(1) | The Secretary of State may cease monitoring as mentioned in section 21 in |
| |
relation to an individual in such circumstances as are prescribed. |
| 25 |
(2) | The Secretary of State must cease such monitoring in relation to an individual |
| |
| |
(a) | satisfies the Secretary of State that he is not engaged in the regulated |
| |
activity concerned or the corresponding controlled activity, and |
| |
(b) | requests the Secretary of State to cease monitoring. |
| 30 |
(3) | In subsection (2)(a) the corresponding controlled activity is— |
| |
(a) | if the regulated activity is regulated activity relating to children, |
| |
controlled activity relating to children; |
| |
(b) | if the regulated activity is regulated activity relating to vulnerable |
| |
adults, controlled activity relating to vulnerable adults. |
| 35 |
| |
After section 119A of the Police Act 1997 (further sources of information: |
| |
| |
“119B | Information monitor |
| |
(1) | There is to be an information monitor for the purposes of this Part. |
| 40 |
(2) | The information monitor is a person appointed by the Secretary of State |
| |
(a) | for such period, not exceeding three years, as the Secretary of |
| |
| |
|
| |
|