disclosure and barring service policy and procedure · protect patient safety by ensuring...

Document name: Disclosure and Barring Service (DBS) Policy Ref.:176

Issue date: January 2020 Status:1.2

Author: Melanie Hobbs of 47

Disclosure and Barring Service (DBS) Policy

Reference Number: 176

Author & Title: Melanie Hobbs, Trust Lead for Recruitment

Responsible Director: Claire Radley, Director for People

Review Date: January 2023

Ratified by: Strategic Workforce Committee

Date Ratified: January 2020

Version: 1.2

Related Policies and Guidelines

Employment Checks Policy Honorary Contract Policy Recruitment & Selection Policy Volunteers Policy Work Experience Policy & Procedure




Index:

1. Policy Summary _______________________________________________ 5

1.1 Aims and objectives of the policy ___________________________________ 5

2. Policy Statements _____________________________________________ 5

3. Definition of Terms Used _______________________________________ 6

4. Duties and Responsibilities _____________________________________ 6

5. Legislation ___________________________________________________ 8

5.1 Rehabilitation of Offenders Acts ____________________________________ 9

5.1.1 Rehabilitation of Offenders Act 1974 ____________________________ 9

5.1.2 Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 (as amended in England and Wales) ________________________________________ 9

5.1.3 DBS filtering rules ____________________________________________ 9

5.1.4 Non-exempt roles ____________________________________________ 10

6. Types of DBS disclosures and eligibility __________________________ 10

6.1 Basic Disclosure Check __________________________________________ 10

6.2 Standard Disclosure Check _______________________________________ 10

6.3 Enhanced Disclosure Check ______________________________________ 11

6.4 Enhanced DBS check without barred list information _________________ 11

6.4.1 Work with adults _____________________________________________ 11

6.4.2 Work with children ___________________________________________ 13

6.5 Enhanced DBS with a barred list information check ___________________ 14

6.6 Regulated Activity _______________________________________________ 14

7. Minimum requirements ________________________________________ 16

8. When to request a DBS check __________________________________ 16

8.1 Existing staff changing roles within the organisation __________________ 16

8.2 Retrospective DBS checks ________________________________________ 18

8.3 Healthcare Students _____________________________________________ 18

8.4 Work placement/experience _______________________________________ 18

8.5 Honorary contract holders ________________________________________ 19

8.6 Volunteers _____________________________________________________ 19

8.7 Temporary workers supplied by an agency and contractors ____________ 20

8.8 Doctors in training ______________________________________________ 20

8.9 Staff recruited from overseas _____________________________________ 21




8.9.1 Tier 2 visa applicants ________________________________________ 22

8.9.2 UK & EEA based applicants (with no visa requirements) ___________ 22

8.10 Military and ex-military personnel ______________________________ 22

8.11 Fit and Proper Persons Requirements (FPPR) ____________________ 23

8.12 Portability of DBS checks _____________________________________ 23

8.13 DBS update service __________________________________________ 23

9. Implementation ______________________________________________ 24

9.1 Recruitment ____________________________________________________ 24

9.1.1 Application stage ___________________________________________ 25

9.1.3 Offer stage _________________________________________________ 25

9.2 DBS check costs ________________________________________________ 26

9.3 Commencing employment without DBS clearance ____________________ 26

9.4 Dealing with a positive disclosure __________________________________ 27

9.5 Legal duties to refer to the DBS ____________________________________ 28

10. Storage, retention and disposal of records ________________________ 29

11. Monitoring Compliance _________________________________________ 31

12. Review _______________________________________________________ 31

13. Training ______________________________________________________ 31

14. References ___________________________________________________ 32

Appendix 1: Glossary of terms ____________________________________ 32

Appendix 2: Legislation underpinning DBS checks ___________________ 34

Appendix 3: Filtering rules _______________________________________ 37

Appendix 4: Awaiting the outcome of a DBS disclosure check certificate _ 39

Appendix 5: Risk Assessment form – positive disclosure ______________ 41

Appendix 6: Flowchart of DBS referrals _____________________________ 43

Appendix 7: Policy statement on the Recruitment of Ex-Offenders ______ 44

Appendix 8: Handling and retention of disclosure information __________ 46

Document Control Information _________________ Error! Bookmark not defined.

Ratification Assurance Statement ________________ Error! Bookmark not defined.

Consultation Schedule _______________________ Error! Bookmark not defined.




Amendment History

Issue Status Date Reason for Change Authorised

1.2 Approved Jan 2020 Jan 2020




1. Policy Summary The purpose of this policy is to outline the criminal records checks process and guidance, which forms one of the six NHS Employment Check Standards, the Trust will undertake for the appointment and ongoing employment of all relevant individuals within the Trust. In scoping this policy, requirements have been taken from a number of legislative drivers which are indicated in Appendix 2

1.1 Aims and objectives of the policy

Applies to all potential and existing members of staff, irrespective of their contractual status: substantive, fixed term, voluntary, honorary and work experience in order to make safer recruitment decisions.

Detail the arrangements that will apply to temporary workers supplied by an agency, doctors in training, honorary contract holders, retire and returnees and work experience placements.

Provide clear guidance on the processes that must be followed for the appointment and ongoing employment of all eligible individuals at the Trust in relation to criminal record checks

Provide guidelines on the appropriate application of the DBS process and management actions in response to the disclosure of criminal convictions for both existing and prospective employee.

Describe the process by which the Trust will meet its legal duty to refer to the DBS any individual being dismissed or removed from regulated activity.

Ensure the secure storage, handling, use, retention and disposal of disclosures and disclosure information is carried out within a formal framework that is compliant with current statutory requirements.

Ensure compliance with the DBS Code of Practice and NHS Employment Check Standards.

This policy should be read in conjunction with the NHS Employment Check Standards, the criminal record checks standard (NHS Employers, September 2019).

2. Policy Statements The Trust adheres to the NHS Employment Checks Standards for safer recruitment. As an organisation assessing suitability for positions which are included in the Rehabilitation of Offenders Act 1974 (Exceptions) Order using criminal record checks process through the Disclosure and Barring Service (DBS) the Trust complies fully with the DBS code of practice and undertakes to treat all applicants for positions fairly.




The Trust undertakes not to discriminate unfairly against any subject of a criminal record check on the basis of a conviction or other information revealed. A criminal conviction will not automatically bar a person from employment with the Trust. The weight given to the conviction will depend on the nature of the offence, at what age it was committed, when it occurred, if offences of a similar nature are repeated and its relevance to the post.

3. Definition of Terms Used The Disclosure and Barring Service (DBS) is an executive agency of the Home Office and provides access to information about criminal convictions and other police records to help employers make an informed decision when recruiting staff. The DBS provides controlled access to criminal records and related information through its disclosure service, enabling employers to make safer recruitment decisions by identifying candidates who may be unsuitable to work with Vulnerable Groups. Electronic Staff Record (ESR) – an integrated HR and payroll system for NHS organisations which enables employers to record information about their employees including the date and reference number of an individual’s DBS disclosure. GBG Group – an online eDBS provider and system that the Trust uses to process DBS applications. ID Checker – A person within the Trust who verifies identification documents face to face with candidates. Disclosure Certificate – a certificate that provides criminal record information, depending upon the type and level of disclosure requested. Update Service – is the online service where issued Disclosure Certificates can be registered and kept up to date. Registered applicants can then take issued certificates from role to role where the same level and type of check is required. Status Check - the term ‘Status Check’ is the record accessed by registered organisations on the Update Service in relation to the Disclosure Certificate. This allows registered organisations to be able to see whether there has been any change to the DBS information since the last Disclosure Certificate was issued. In addition to the above, a glossary of terms specific to DBS checks is provided in Appendix 1.

4. Duties and Responsibilities The Director for People is responsible for ensuring:

The monitoring and auditing of adherence to this policy and ensuring the Trust’s compliance with the DBS Code of Practice.




The Trust Lead for Recruitment is responsible for

Overseeing the introduction and operation of the policy. Ensuring the provision of guidance and support for Manager’s on the operation of the policy.

Acting as the principle point of contact for the GBG group and DBS.

Ensuring that the Trust’s practices comply with the requirements and guidance as outlined within the DBS Code of Practice.

The HR operational teams are responsible for:

Providing advice and guidance to managers in the implementation of the policy.

Assisting managers in dealing with non-disclosure of criminal convictions.

Processing checks for existing staff who are required to be rechecked.

The Recruitment and Medical Staffing teams are responsible for:

Ensuring that all job adverts include a reference to DBS checks (if required for the post), and an indication of the level of check required.

Ensuring that all information packs, electronic or paper based, include information on the DBS process, the secure handling and storage of DBS information, DBS Recruitment of Ex-Offenders Policy Statement and DBS Code of Practice.

Ensuring that applicants are aware that they will not be able to commence employment with the Trust until their DBS disclosure has been returned.

Advising the Recruiting Manager where information regarding convictions, cautions, reprimands etc. are detailed at the application stage.

Ensuring that DBS Checks received indicating a conviction are brought to the attention of the HR Operational Team and relevant Recruiting Manager.

Ensuring that where a positive disclosure is indicated that the candidate is advised of the information that will be shared.

Ensuring that the appropriate checks have been carried out for periods of non-UK residence.

Ensuring that DBS Checks are recorded on the Electronic Staff Record System (ESR).

Ensuring that the relevant DBS Self-declaration form is completed.

Accurately and comprehensively verifying the identity of the applicant prior to the submission of a disclosure application.

Interview panels should:

Ensure that candidates are not unfairly discriminated against during the recruitment and selection process on the basis of criminal convictions held.

Ensure that confidentiality is maintained regarding any convictions disclosed by candidates at any stage of the recruitment process.

Recruiting Manager/Line Manager are responsible for:

Ensuring that candidates are not unfairly discriminated against during the recruitment and selection process on the basis of criminal convictions held.

Seeking advice from the Human Resources department if required.

Discussing sensitively and appropriately with the candidate at interview stage, information disclosed at the application stage regarding convictions, cautions, reprimands etc.




Completing the DBS risk assessment form (awaiting the outcome of a DBS disclosure check) in circumstances where an individual needs to start work although their DBS check has not been received.

Ensuring staff awaiting a satisfactory DBS check work under supervision where appropriate, until a satisfactory check is received.

Completing the DBS risk assessment form (convictions declared/undeclared) when an individual’s DBS check reveals a positive disclosure

Engaging with the positive disclosure process to assess the relevance of the criminal record for the role.

Individuals at the recruitment stage are responsible for:

Providing necessary evidence of identity checks having received a conditional offer letter.

Declaring any convictions/cautions/reprimands or warnings that are not protected.

Proving the relevant, original documents to verify identity (as specified by the Recruitment or Medical staffing team).

Providing the original Disclosure Certificate (where relevant) in a timely manner in order to be verified and recorded by the Trust.

Where a DBS check reveals a disclosure, complying with the request to provide the disclosure certificate and attending meetings to discuss the matter when requested to do so.

Maintaining subscription with the Update service, if applicable.

In the event that a DBS certificate is lost or misplaced before the Trust has verified the Disclosure Certificate and a new check is requested, the applicant will be responsible for paying the cost of the new check. The cost of the check will be deducted from the salary.

Individuals during employment – all members of staff have a contractual obligation to comply with the provisions of this policy by:

Alerting their manager, if they receive a new conviction, caution, reprimand and/or final warning during their employment with the Trust and in the case of clinical staff alerting their professional regulatory body.

Where engaged in regulatory activity, answering the DBS self-declaration question included as part of their annual appraisal paperwork.

Responding to the Trust’s request for a new DBS check in a timely manner. Existing staff may be subject to disciplinary action and possible dismissal if they knowingly fail to disclose relevant information in relation to a DBS disclosure or barred list status.

5. Legislation DBS checks are a mandatory part of the Trust’s recruitment process and apply to all potential and existing members of staff, irrespective of their contractual status




The Trust is responsible for ensuring that the correct level of DBS disclosure is applied to each post in accordance to the area worked and the nature of activity. This must balance the need to prevent unsuitable people working in specific roles against the requirement for fair treatment of rehabilitated offenders.

5.1 Rehabilitation of Offenders Acts

5.1.1 Rehabilitation of Offenders Act 1974 Under this legislation, convictions, cautions, reprimands and final warning can become spent after a specified period (known as the rehabilitation period). Once a conviction or caution becomes spent (old) the ex-offender is not normally legally required to declare this information when applying for the majority of jobs, volunteering activities and education or training course. However, to protect the vulnerable, certain professions within health, social care and other sectors are exempt from these provisions under the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 (as amended.

5.1.2 Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 (as amended in England and Wales)

This lists specific positions, professions, employment, offices, works and licences which are exempt from the provisions defined by the Rehabilitation of Offenders Act. This means that the Trust when appointing individuals into any of the listed positions or professions are legally entitled to ask applicants to declare all spent and unspent convictions, cautions, reprimands and final warnings which are not protected by the DBS filtering rules and to take these into account as part of the recruitment process. By law the Trust can only request a standard or enhanced disclosure for an applicant to a position that is identified under the Exceptions Order. For all other positions, the Trust may only request details of any unspent (current) convictions. For further information on the Rehabilitation of Offenders Act and legislative drivers please refer to Appendix 2.

5.1.3 DBS filtering rules The DBS filtering rules were introduced on 29 May 2013 under the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 (Amendment) (England and Wales) 2013. From this date, certain spent or minor convictions and cautions are now protected (or filtered out) when certain conditions are met, and they will never appear in a DBS disclosure certificate. The Trust, must be careful to ensure that it does not inadvertently ask for or, consider information which falls under the DBS filtering rules and use this to make a recruitment or employment decision. For further information on the filtering rules please refer to Appendix 3.




5.1.4 Non-exempt roles Roles which are not exempt from the Rehabilitation of Offenders Act and are therefore not subject to a standard or enhanced DBS check will be checked at a basic disclosure level.

6. Types of DBS disclosures and eligibility

A criminal record check relates to the data about a person’s criminal history. The information included in a criminal record may vary between countries, and even between jurisdictions within the same country. In most cases, a check will include criminal offences including convictions, conditional cautions and youth conditional cautions (formerly known as final warnings and reprimands). It may also include traffic offences such as speeding and drink-driving. In some countries the record is limited to actual convictions issued by a court of law, while others will include arrests, charges, charges missed, charges pending and even charges of which the individual has been acquitted. Carrying out criminal record checks helps the Trust ensure, as far as possible, that unsuitable people are prevented from entering the workforce and accessing adults and children who are considered at their most vulnerable because they are receiving health services.

The eligibility to undertake a DBS check will be determined at the recruitment stage based on the requirements of the post as outlined within the job description and mandated guidance available from the DBS and NHS Employment Check Standards.

6.1 Basic Disclosure Check This check is the lowest level of disclosure and only contains details of unspent (current convictions). It may include information about conditional cautions or conditional youth cautions. The Trust will undertake basic disclosures on all posts that are not exempt under the Rehabilitation of Offenders Act 1974 (Exceptions) 1975 Order.

6.2 Standard Disclosure Check A standard check contains details of both unspent (current) and spent (old) convictions, cautions, reprimands and final warnings, held in England and Wales on the Police National Computer (PNC). Most of the relevant convictions in Scotland and Northern Ireland may also be included. The Trust can only carry out a standard check where the position is listed as exempt under the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 (as amended). When appointing to positions which are exempt, the Trust is permitted to ask for and consider criminal convictions, conditional cautions and conditional youth cautions (formerly reprimands and final warnings) that are not protected (i.e. eligible for filtering (please see Appendix 3 for more information on the filtering rules). This




may also include information about any offences committed in Scotland and Northern Ireland that may equally be regarded as an offence under English law. To meet eligibility for a standard check, positions being appointed to, must require the individual undertaking that role to be providing a health service which also allows them to have access to patients as part of their normal duties. Access only relates to where individuals have direct, physical contact with patients as part of their day to day activities; it does not include positions where there is no contact with patients or where access to patients is ‘incidental’. This level of check does not show whether a candidate is barred from working with children and adults. Full details of the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 List can be found on the DBS website. https://www.gov.uk/government/organisations/disclosure-and-barring-service

6.3 Enhanced Disclosure Check An enhanced check contains the same as a standard check but may also include any non-conviction information held by local police, where they consider it to be relevant to the post and therefore disclosed and considered by an employer. This information is referred to as ‘Approved Information’ on the Disclosure Certificate. To be eligible for an enhanced level DBS check, the position must be included in both the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 and the Police Act 1997 (Criminal Records) Regulations 2002 as amended by the Police Act 1997 (Criminal Records) (Amendment) Regulations 2013. This includes work or volunteering with vulnerable groups. There are two levels of an enhanced DBS check. An enhanced DBS check without barred list information and an enhanced DBS check with barred information. The enhanced DBS check with barring information is only available for those individuals who are employed in regulated activity.

6.4 Enhanced DBS check without barred list information The Trust can apply for an enhanced check without barred list information for positions identified as an exempt position as described above (section 6.3) and also included in the Police Act 1997 (Criminal Records) (Amendment) Regulations 2013

6.4.1 Work with adults To qualify for this type of DBS check in the Trust the person has to be undertaking specified activities with adults in receipt of health care. Individuals carrying out one or more of the following activities with adults in receipt of a health care service will be eligible for an enhanced check without barred list information:

The activity must be carried out by the same person regularly

Definition of ‘regularly’

https://www.gov.uk/government/organisations/disclosure-and-barring-service




Providing any form of care, supervision, treatment or therapy. (Care in this context excludes the provision of ‘personal care’ which is a regulated activity and would therefore be eligible for an enhanced check with barred list information). 2. Providing any form of teaching, training, instruction, assistance, advice or guidance on their emotional or physical well-being. 3. Moderating a chat room (if the individual carrying out this activity interacts with adult users and has responsibility for monitoring, removing or preventing the addition of content, or controls access to the service). 4. Face-to-face contact with adult residents in a care home. Regularly is defined (unless otherwise specified) as

when the activity is carried out: ⎯ frequently, at least once a week on an

ongoing basis ⎯ intensively, any time 5. Representing or providing advocacy on behalf of a statutory service and has contact with the adult. 6. Providing transportation wholly or mainly for adults and their carers to and from places where they will be receiving/or have received healthcare services. This excludes taxis which can be used by the general public. 7. People who have responsibility for carrying out inspection functions of a health, social care or specified service. For example, inspections carried out by the Care Quality Commission (CQC) and where any such inspection would permit the individual to have contact with adults who are in receipt of a health, social care, or specified service. 8. People who are specified office holders (e.g. chief executives of local authorities that have any social service functions, directors of adult social services in England or Directors of social services, directors of social services of a local authority in Wales, charity trustees of charities whose staff

Regularly is defined as when the activity is carried out:

- frequently, at least once a week on an ongoing basis

- intensively, any time on more than four days in any 30-day period

- overnight, any time between 2am and 6am which gives the opportunity for the person to have contact with the adult




or volunteers are eligible for enhanced DBS checks because of their main duties, people who have to register with the Care Quality Commission in order to provide a health or social care service, i.e. registered managers and service providers, elected members of a local authority, members of the executive of a local authority or a member of any committee of the executive (including area committees and sub committees) who discharge social services functions which relate wholly or mainly to adults who receive a health or social care service or a specified activity).

NHS Employers recommend using the online eligibility tool on it’s website to determine eligibility for this level of check. https://www.nhsemployers.org/case-studies-and-resources/2018/08/dbs-eligibility-tool

6.4.2 Work with children

Work with children includes anyone who is working or volunteering in a supervised capacity with children in a specified role or specified place. The activity with children must be carried out by the same person. Specific child-related roles that are eligible for an enhanced check without barred list information are listed below. These activities must involve supervised access to children.

The activity must be carried out by the same person regularly

Definition of ‘regularly’

Providing any form of care, supervision, treatment or therapy. (Care in this context excludes the provision of ‘personal care’ which is a regulated activity and would therefore be eligible for an enhanced check with barred list information). 2. Providing any form of teaching, training, instruction, assistance, advice or guidance on their emotional or physical well-being. 3. Moderating a chat room (if the individual carrying out this activity interacts with children who are users

Regularly is defined as when the activity is carried out:

- frequently, at least once a week on an ongoing basis

- intensively, any time on more than four days in any 30-day period

- overnight, any time between 2am and 6am which gives the opportunity for the person to have contact with the child/children.

https://www.nhsemployers.org/case-studies-and-resources/2018/08/dbs-eligibility-tool





and has responsibility for monitoring, removing or preventing the addition of content, or controls access to the service). 4. Providing transportation of wholly or mainly for children and their careers or guardians to and from places where they will be receiving/or have received health care services. This excludes taxis which can be contacted and used by the general public.

Work with children also includes people who have regular day to day management or supervision of individuals carrying out the activities as described above.

6.5 Enhanced DBS with a barred list information check Barred list information is not routinely provided in an enhanced check. To be eligible to request information held against the adults and/or barred lists, the position or activities must be listed as a regulated activity in the Safeguarding Vulnerable Groups Act 2006 as amended by Protection of Freedoms Act in 2012. This level of check will include the same information as the enhanced disclosure (see section 6.3) and will outline whether the person is barred from carrying out certain activities with children and/or adults as may be relevant to the position being appointed to.

6.6 Regulated Activity Regulated activity is where an individual is engaging either in paid work or as a volunteer, in one of the six categories of Regulated Activity as defined by the Protection of Freedom’s Act 2012 as follows:

Adults Children

Any activity involving working or volunteering with adults that is of a specific nature. An adult refers to any individual who is aged 18 years or over.

An activity involving working or volunteering with children that is of a specific nature. A child refers to any individual who is aged less than 18 years.

1 Providing health care Any health care professional providing health care to an adult, or anyone who provides health care to an adult under the direction or supervision of a health care professional.

Regulated Activity refers to unsupervised activities and specified places: 1 Unsupervised activities: teaching, training, instruction, caring for or supervising children, or providing




2 Providing personal care Anyone who provides physical assistance; prompts and supervises; and/or trains, instructs or offers advice to adults because of their age, illness or disability relating to eating or drinking, going to the toilet, washing or bathing, dressing, oral care or care of the skin, hair or nails. (This excludes any physical assistance for hair care). 3 Providing social work Activities include assessing or reviewing the need for health or social care services, and providing on-going support to clients. 4 Assistance with cash, bills and/or shopping for an adult because of their age, illness or disability. 5 Assistance in the conduct of a person’s own affairs E.g. power of attorney 6 Conveying Drivers who transport an adult because of their age, illness or disability to or from places where they are able to receive health care, personal care or social care. E.g. patient transport service driver, ambulance technicians, hospital porters for patients.

advice/guidance on well-being, or driving a vehicle only for children. 2 Work for a limited range of establishments (‘specified place’) with the opportunity for contact with children, e.g. schools, children’s homes, childcare premises. This does not include work by supervised volunteers. 3 Providing personal care E.G. washing or dressing or health care by or supervised by a professional. 4 Registered child minding and foster-caring

In addition to the activities listed above regulated activity also includes where:

an individual is providing ‘unsupervised’ teaching, training, instruction, caring for or supervision of children, where these activities are undertaken frequently. Frequently is determined as once a month or more, three or more days in any 30 day period or overnight between the hours of 2am and 6am.

A person whose role includes the day to day management or supervision of any person who is engaging in regulated activity, is also in regulated activity.

The Department of Health and Social Care and Department of Education have produced two factual notes which can be referred to, when considering whether certain NHS roles meet eligibility under regulated activity:




Regulated activity with adults https://www.gov.uk/government/publications/new-disclosure-and-barring-services Regulated activity with children https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/550197/Regulated_activity_in_relation_to_children.pdf It is unlawful for the Trust to knowingly allow an individual to engage in a regulated activity with the group(s) they are barred from engaging with.

7. Minimum requirements Whilst not all positions in the NHS are eligible for an DBS check, to ensure that unsuitable people are prevented from entering the workforce and accessing adults and children the Trust has made the decision that all new candidates taking up positions where there is no requirement for a DBS check will undertake a basic disclosure check. For all other positions, the trigger for a DBS check and the level of check required is determined by the type of activities the individual in that role will be undertaking and the level of access this will allow them to have with patients. In assessing eligibility for a DBS check and the appropriate level required, it is highly recommended that the eligibility tool on the NHS Employers website is used: https://www.nhsemployers.org/case-studies-and-resources/2018/08/dbs-eligibility-tool Further information can also be found in the DBS guide to eligibility available on the gov.uk website: https://www.gov.uk/government/publications/dbs-check-eligible-positions-guidance

8. When to request a DBS check For new employees to the Trust the relevant check will be undertaken once a conditional offer of employment has been made. The Trust’s paperwork makes it clear that the offer is conditional until all satisfactory checks have been completed, including a DBS check.

8.1 Existing staff changing roles within the organisation If an existing member of staff has had a DBS check for an existing position and they apply for another job which has the same or similar responsibilities, then a new check is not normally required. If the new check relates to Maternity Services, Paediatrics, NICU, Sexual Health, the Emergency department and the Older

https://www.gov.uk/government/publications/new-disclosure-and-barring-services

https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/550197/Regulated_activity_in_relation_to_children.pdf

https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/550197/Regulated_activity_in_relation_to_children.pdf



https://www.gov.uk/government/publications/dbs-check-eligible-positions-guidance




Persons Unit, the employee will not be able to take up a post until the DBS Disclosure check is received. A new check will always be required if the member of staff:

- is moving to another position which requires a different level of check or clearances against a different barred list.

- has never had a DBS check before and is moving to a position that now requires them to have a check.

- There has been a break of service for more than 3 months between leaving the old position and taking up the new position.

The Trust reserves the right to ask existing employees (including volunteers and other workers) in relevant positions for a disclosure check to undertake a fresh DBS check if their actions or activities give cause for concern. The grounds for this could be allegations of inappropriate behaviour made by a child or vulnerable adult, or a colleague, parent, carer or member of the public. In such circumstances a full investigation will be carried out in accordance with the relevant Trust policies. If during the course of employment an employee (including volunteers and other workers) is arrested, charged, cautioned or convicted of any criminal offence, they must notify the circumstances to their line manager as soon as practically possible and before the start of the next shift. This includes any pending court appearance, bind-overs, absolute and conditional discharges. A failure to disclose such information to the Trust may result in disciplinary action, including dismissal, being taken by the Trust. The Line Manager must discuss such disclosure of information with the HR Operations Team. Employees (including volunteers and other workers) are also required to declare if they are the subject of a Police investigation, in the UK or abroad, which may lead to one of the above sanctions. The reason for this disclosure is for the Trust to protect its reputation and safeguard the interests of its patients, and to provide appropriate support to the individual employee. Failure to disclose such information may result in disciplinary action being taken by the Trust. Any employee (including volunteers and other workers) refusing to comply with a DBS Disclosure request or does not respond to Trust notification letters within a reasonable time, will be advised that their deliberate and unreasonable refusal to carry out this fundamental legal requirement and/or to comply with this contractual obligation will lead to the employee being subject to disciplinary action, including dismissal, in line with the Trust’s Disciplinary Policy and Procedure. The Trust will assure employees (including volunteers and other workers) that any information about convictions that are not relevant to their current post will have no impact on their continued employment with the Trust. If during the course of employment, concerns or information comes to light regarding an employee who poses a risk of harm to vulnerable groups and where they have been dismissed, or removed from working in a ‘Regulated Activity’ with children or




adults the Trust has a legal duty to refer information to the DBS. For further information on the duty to refer to the DBS please refer to section 9.5.

8.2 Retrospective DBS checks All staff (including volunteers and other workers) who work in Maternity Services, Paediatrics, NICU, Sexual Health and the Emergency department will be required to undertake a new check every 3 years. Reminders will be sent to staff from the HR Operations team. The Trust will also undertake a retrospective DBS check for all clinical staff that have never had a DBS check. For non-clinical staff that have never had a DBS check a self-declaration form will need to be completed. The HR operations team will monitor and undertake this process.

8.3 Healthcare Students Students undertaking vocational placements as part of a professional qualification are likely to be eligible for a DBS check. The Trust will need to determine the level of check required based on the activities the individual will be required to undertake and the risks associated with these. The check itself may be obtained by the educational establishment and the Trust will need to obtain written assurance that the educational establishment has carried out an appropriate check at the correct level. Where assurances cannot be provided, the Trust is likely to require a new check. The relevant Health Education Institute (HEI) organisation or Training Body is responsible for requesting a DBS disclosure as part of the admission/application procedure. The Educational Lead is responsible for satisfying the Trust that the DBS was undertaken within the appropriate level and type. Where there is a delay in obtaining a DBS check, students may take up their placement providing appropriate safeguards are in place to supervise that individual until appropriate clearances have been given. The Trust may refuse commencement of a placement if assurances from the Higher Education Institute/Training Body or a new DBS check cannot be fully satisfied.

8.4 Work placement/experience The Protections of Freedoms Act 2012 stipulates that employers can only legally obtain a DBS check on individuals who are aged 16 and over. For students who are undertaking a work experience placement as part of the Trust’s formal work experience programme managed by the Widening Participation team, DBS checks will not be required as the students are fully supervised at all times. Individuals observing clinical practice is not in itself a regulated activity and therefore there is no eligibility for an enhanced check with barred list information. However, the




Trust may wish to consider whether their duties and/or level of contact with patients may fall eligible for a different level of check. In all cases where individuals are carrying out work experience/placement the Trust must ensure that:

- They are fully supervised for the period of the placement - Only permitted to carry out duties which are appropriate to their level of

knowledge, skills and experience - Not permitted to undertake regulated activity

If the individual is over the age of 16 and the placement is likely to last more than 10 days, eligibility for a DBS check will need to be to determined based on the type of duties they will be required to undertake and the level of access this will give them to patients.

8.5 Honorary contract holders For those individuals who are already employed by a NHS organisation/University or for an organisation that undertakes employment checks which conform to the NHS Employers Check Standards, the Recruitment or Medical staffing team will seek written confirmation that all employment checks, including a DBS check at the correct level have been undertaken by the employing organisation. This confirmation will include the date of issue, the certificate number and the type and level of the check. The Trust may request a fresh DBS check if assurances by the host organisation cannot be obtained. The trust may refuse commencement of an honorary placement if assurances from the host organisation or a new DBS check cannot be fully satisfied.

8.6 Volunteers The DBS service will issue a disclosure free of charge if the person satisfies the following criteria: ‘A person who is engaged in any activity which involves spending time, unpaid (except for travelling and other approved out of pocket expenses) doing something which aims to benefit someone (individuals or groups) other than in or in addition to close relatives’. The triggers for a DBS check are the same regardless of whether the individual is a paid employee or unpaid volunteer. Should a volunteer engage in paid employment with the Trust, a fresh DBS disclosure must be completed, regardless of level. Volunteers should not be allowed to commence their role without a DBS disclosure to ensure that the Trust meets its obligations to ensure safer recruitment practices and to protect its patients, clients and staff.




The Trust strongly recommends that those volunteers subject to a new DBS check register and join the DBS Update Service.

8.7 Temporary workers supplied by an agency and contractors

For agency workers, the Trust will contact agencies within the multi-regional contract and/or Crown Commercial Framework as these undergo rigorous audits and checks which ensure that agency workers supplied are employed in line with the NHS Employment Check Standards and the Trust’s employment check policy. In exceptional circumstances where a framework agency cannot fulfil the assignment and a non-framework agency is used, the Staffing Solutions Team must assure themselves that the appropriate checks have been undertaken and that they are satisfied that the individual booked to work in a post which requires a DBS disclosure check has a satisfactory check including a relevant barred lists check (where applicable) for the work they will be doing before work with the Trust can commence. If the agency worker is requested out of office hours, it is the Recruiting Manager’s responsibility to verify with the agency that the appropriate employment checks are in place and that they are satisfied that the individual booked to work in a post which requires a DBS disclosure check has a satisfactory check including a relevant barred lists check (where applicable) for the work they will be doing before work with the Trust can commence. Where staff are working for contractors, the requirement that the contractor must undertake DBS clearance where the role of the contracted person(s) demands it, must be made clear in the terms of the agreement between the Trust and the contractor. Monitoring of the fulfilment of this should take place by an appropriate Divisional or Corporate representative. Where the contractor does not agree to this requirement the contractor should not be used. The requirement for a DBS check in all cases for contractors is dependent on the duties and responsibilities they will be undertaking and meets the eligibility criteria.

8.8 Doctors in training Doctors on educationally-approved training rotations will be regarded as being in continuous employment for the full term of their training programme. Trainee doctors who are not subscribed to the DBS Update Service must be required to have a DBS check at least once every three-years rather than each time they change rotation or unless concerns are raised. The Trust will need to seek written confirmation from the host/previous employer that a DBS check has been obtained within the preceding three-year period and it is at the correct level for the role they will be undertaking. Where the doctor will be working with children the Trust will need evidence that the DBS check was at the correct level and that a check has been made against the Children’s Barred List. In these circumstances the Trust will not require a further check until the 3 year period has elapsed or unless concerns are raised.




Where the post involves working with vulnerable adults the Trust will need evidence that the check was at the correct level and that a check had been made against the Vulnerable Adult’s Barred List. In these circumstances the Trust will not require a further check until the 3 year period has elapsed or unless concerns are raised. In all cases the Trust will seek written assurances from the host/previous employer that appropriate satisfactory clearances have been obtained within the last 3 years. If the above criteria cannot be met, it is strongly recommended that the individual is not permitted to start work in any form of ‘Regulated Activity’ until the outcome of the DBS check is known. In exceptional circumstances, where the health, safety and welfare of staff and/or patients may be affected, then a risk based assessment should be made using the relevant DBS risk assessment form (Appendix 4) and as a minimum the following must apply:

A Trust DBS check is being processed.

A clear DBS Self-declaration has been submitted.

For Trust appointed doctors, satisfactory references have been received (at least one of these must be from the most recent employer).

The individual will be not working in the Maternity, Paediatrics, Sexual Health, NICU, ED or Older Person’s unit

Safeguards are put in place until the outcome of the DBS check has been received.

The Trust may undertake DBS checks more frequently than 3 years, but any additional checks must be proportionate to risk, e.g. where assurances cannot be obtained from the host/previous employers, or the new post changes the level/type of check required under the terms of the Safeguarding Vulnerable Groups Act or if cause for concern has been raised.

8.9 Staff recruited from overseas NHS Employers recommends that employers should consider undertaking a relevant DBS check on EEA and non-EEA nationals, in addition to the overseas police check to assure themselves that the individual is:

Not barred from working with children and/or adults (where relevant to the role)

Does not hold a criminal record in the UK The DBS check will be processed by the Recruitment or Medical Staffing team as soon as is practical. This is generally once the individual can satisfy the identification requirements in order for the DBS check application to be processed. The requirement for an overseas police checks currently vary depending on where the applicant is based. Overseas police checks must be in accordance with the relevant country’s justice system. The DBS website provides further information on the application process for overseas criminal record checks based on the country of residence.




https://www.gov.uk/government/publications/criminal-records-checks-for-overseas-applicants

8.9.1 Tier 2 visa applicants As part of the Tier 2 visa process the Home Office require all applicants to provide a police certificate or certificate of good conduct from the country or countries they have resided in for 12 months or more while aged 18 or over, in the last 10 years prior to their application being made (or less if the individual is aged between 18 -27). This requirement also applies to any of their adult dependents (aged 18 or over). The 12 months period is intended to include any countries the individual has been resident in, in a single period or cumulatively. For Tier 2 applicants, this requirement does not apply to individuals who have been issued with a certificate of sponsorship prior to 6 April 2017 or to those who are applying to renew or extend their current leave to remain in the UK.

8.9.2 UK & EEA based applicants (with no visa requirements) If the role being recruited to is eligible for a DBS check and the applicant is either living in an EEA country, or they are currently living in the UK but have declared that they have spent a period of 6 months (this can be a single period or cumulatively in the last 5 years) or more in the last 5 years in an EEA country the applicant will need to:

- Provide evidence of a police certificate or equivalent from the relevant country or countries

- and - Undertake a DBS check as soon as is reasonably practical (even if the

individual has never lived or worked in the UK before. The Trust can accept a certificate of good conduct/standing or other equivalent issued by a police authority overseas as a valid police check. The Trust cannot accept a certificate of good standing issued by an overseas regulator as these are not equivalent to a police check.

8.10 Military and ex-military personnel If the period that the applicant spend abroad was because they were or are serving in the armed forces the Trust can ask for an original extract from their military service record instead of a oversea police certificate or DBS check in this country. The extract should disclose any convictions or cautions and cover all periods spent overseas of 6 months or more. Convictions and cautions for criminal conduct while serving in the military will be recorded on the Police National Computer (PNC). This includes any convictions or cautions that have been committed outside the UK that would be recognised as criminal offences under civilian law if they had been committed in England and Wales.






Serious convictions for disciplinary offences (non-criminal conduct) while serving in the military will also be recorded. This relates to disciplinary action that may have been taken against an individual because they demonstrated certain behaviours that would be regarded as a crime under military law but not in civilian life. The Trust will not regard these in the same way as convictions and cautions and will consider any issues relating to non-criminal behaviour or conduct as part of the wider assessment of suitability. Further information is available in Schedule 1 of the Police and Criminal Evidence Act (Armed Forces) Order 1984 (Recordable Service Offences) Act 2009. http://www.legislation.gov.uk/uksi/2009/1922/contents/made

8.11 Fit and Proper Persons Requirements (FPPR) These regulations which were introduced to Foundation Trusts in November 2014 require the Trust to undertake a DBS check on all ‘Executive Directors, Non-Executive Directors or equivalent where the position and the role meet the eligibility criteria for a standard or enhanced DBS check’. In instances where the role does not meet the eligibility criteria for a DBS check a basic check will be undertaken. For an enhanced check with children’s and/or adults barred list the position or activities must be listed as a regulated activity in the Safeguarding Vulnerable Groups Act 2006 as amended by Protection of Freedoms Act in 2012. The Trust will also undertake additional checks against these individuals to ensure itself that none of the other criteria of unfitness applies.

8.12 Portability of DBS checks The DBS defines portability as meaning the reuse of a disclosure certificate which has been obtained for a position in one organisation and is later used for another position in different organisation. The Trust will accept a disclosure certificate which has been issued for another role and where the individual is not subscribed to the update service in the following circumstances:

- the certificate is dated within the last 3 years - the completed self-declaration form indicates no concerns - the DBS disclosure certificate indicates that the check is at the correct level for

the role and workforce - the disclosure certificate presented is genuine and relates to the person

presenting themselves

8.13 DBS update service This service is an online subscription that enables the Trust to accept an individual’s pre-issued standard or enhanced DBS disclosure certificate by carrying out an instant online check. This online check will confirm whether or not the individual’s criminal record status has changed since the last disclosure was issued. Therefore,

http://www.legislation.gov.uk/uksi/2009/1922/contents/made




this service enables portability of standard and enhanced disclosure certificates where individuals are changing roles and the new position does not change the level of check required or the workforce they are working or volunteering with, for example children, adults or both children and adults. The Trust strongly recommends that those subject to a new DBS check register and join the DBS Update Service. Registrations can either be made when the individual:

- Is in the process of getting a standard or enhanced DBS check. In this case the DBS must receive the application form within 28 days.

- Has received the standard or enhanced DBS certificate in which case the application must be made within 30 days of the certificate being issued.

The Trust must have the individual’s consent to carry out the online check to view the status of an existing standard or enhanced DBS certificate which is obtained via the new appointment form. The online status check will provide 1 of 4 responses:

a) The certificate is clear and there is no new information. The Trust can accept the current DBS disclosure certificate.

b) The certificate contains information but there is no new information. The Trust will need to make the recruitment decision based on the information provided in the individual's original DBS disclosure certificate.

c) New information is known - which means that new information has been recorded since the issue of their last DBS disclosure certificate. In this instance, the Trust will need to obtain a new DBS check.

d) Details not found – this means that the details entered are incorrect, the subscription has not yet been processed or they haven't yet subscribed or the Disclosure certificate has been removed from the Update Service.

9. Implementation

9.1 Recruitment The Trust must be able to demonstrate that information for the DBS check is only asked for that is strictly necessary to be able to gain assurance of an individual’s suitability for the role they are recruiting to. This is of utmost importance to ensure compliance with the Data Protection Act 2018 (DPA) and the General Data Protection Regulation 2018 (GDPR). All adverts will include a link to the Trust’s policy statement on recruiting individuals with a criminal record (please refer to Appendix 7). This can reassure individuals who have a criminal record that any information they disclose will be considered fairly on a case-by-case basis. The Recruitment and Medical Staffing teams follow the DBS process for confidential checking for transgender applicants in accordance with the Gender Recognition Act 2004.




9.1.1 Application stage The requirement for a DBS check will be made clear in the advert by the Recruitment or Medical Staffing team and in the conditional offer of employment. This is to ensure applicants understand what information may be sought about them as part of the recruitment process. If at the application stage, any convictions, cautions, warnings, reprimands or additional information has been disclosed to the Recruitment or Medical Staffing team this information will be passed to the Recruiting Manager prior to interview. The Recruiting Manager and interview panel will be responsible for discussing this where appropriate at the interview with the candidate.

9.1.2 Selection stage Only the successful applicant(s) at interview will be required to undergo a DBS check. The Recruitment or Medical Staffing team will advise the applicant of the level of the DBS check required for the role in consultation with the Recruiting Manager. Recruiting Managers must use the interview template available on the recruitment intranet pages and ensure that the relevant DBS question for the role is asked of each candidate at interview. If information about an applicant’s criminal record is discussed verbally, it is recommended that this is carefully recorded and stored separately and securely on the applicant’s file in line with DPA guidelines. This is in case of any challenge about the recruitment process or final recruitment decision being raised.

9.1.3 Offer stage Once a conditional offer of employment has been made, the Recruitment or Medical Staffing team will send the successful applicant a link to the GBG online disclosures system so that they can complete their DBS application. The team will also arrange to meet (where required) with the applicant to obtain and appropriately verify all relevant identity documents. The Trust receives details of the disclosure check via the GBG system. However, the Trust may request that an applicant provides their original DBS certificate prior to starting employment with the Trust. In cases where a positive disclosure is indicated via the online system, the applicant will need to provide the original DBS disclosure certificate. The Recruitment or Medical Staffing team will create a record on ESR of the DBS disclosure details as follows: - The name of the individual and issue date of the certificate. - The level of check requested, including checks against one or both of the barred lists. - The position for which the certificate was requested. - The certificate reference number.




If the individual loses the DBS disclosure certificate before the Recruitment or Medical Staffing team request to see the certificate the Trust reserves the right to charge the individual for the full cost of a new DBS check. Where the check reveals a positive disclosure the Recruitment or Medical Staffing team will advise the Recruiting Manager and relevant HR operations team member. Please see section 9.4 for further information on this process. All applicants must also complete and return the DBS Self Declaration Form in line with NHS Employment Check Standards. The Trust has adopted the use of self-declaration forms as it can be useful to ensure applicants have a greater understanding about the type of information that will be requested about them and considered as part of the recruitment process. It also gives applicants an opportunity to identify any additional information or evidence that they may wish to be considered in support of their application. For this purpose, the Trust will utilise the two model declaration forms developed by NHS Employers, which outline a range of questions that the Trust is legally entitled to ask of applicants, including information about criminal records, registration with professional bodies and fitness to practise, as may be appropriate to the role being appointed to. They also include questions about issues relating to conduct or behaviour in circumstances that may be relevant to consider in a work-related setting.

9.2 DBS check costs New applicants to the Trust will be liable to pay the full cost of the DBS check. Once the applicant has joined the Trust, the cost of the check will be taken automatically over a period of one or four months in equal payments from the monthly salary. These arrangements will be communicated to all new staff in the conditional offer letter and their consent gained via the new appointment form. If the employee leaves the Trust during this repayment period the outstanding amount will be deducted from their final salary.

9.3 Commencing employment without DBS clearance Individuals should not be allowed to commence employment without a DBS disclosure to ensure that the Trust meets its obligations to ensure safer recruitment practices and to protect its patients, clients and staff. There may, however, be very exceptional circumstances where there may be a delay which is severely affecting service delivery, where the Trust may approve that an individual may commence work before the DBS disclosure check is received. On these rare occasions a risk assessment form must be completed using the relevant




DBS risk assessment form (Please refer to Appendix 4) and as a minimum the following must apply:

A Trust DBS check is being processed.

A clear DBS Self-declaration has been submitted.

Satisfactory references have been received (at least one of these must be the most recent employer).

The individual will be not working in Maternity Services, Paediatrics, NICU,

ED or Older Person’s unit

Safeguards are put in place until the outcome of the DBS check has been received.

The DBS risk assessment form must be completed by the Recruiting Manager and authorised by the Divisional Manager or equivalent Senior Manager/Professional Lead.

9.4 Dealing with a positive disclosure Having a criminal record does not automatically mean that the individual cannot be considered for a role in the Trust. For those individuals where a criminal record check reveals a conviction, caution or other relevant information, the information should be carefully considered on a case-by-case basis and assessed against what other information the applicant has presented during the recruitment process. Where a disclosure certificate reveals the existence of a criminal record, the Recruitment or Medical Staffing team will check to ensure that this information has been declared by the applicant prior to appointment (NHS Jobs application form, self-declaration form or interview). Where the DBS has made a barring decision against one or both of the DBS Barred Lists, it will be illegal for the Trust to allow the individual to engage in ‘regulated activity’ with the vulnerable group the barred decision is applied to. As the DBS disclosure will only provide the basic facts about the date of the conviction or other offence, the offence committed, the court and the sentence or disposal and not the circumstances surrounding the offence, the individual will be given the opportunity to discuss the information at a formal meeting (either in person or via the telephone with the Recruiting Manager. A member of the HR Operations team may also be present. The purpose of the meeting will be to obtain the mitigating circumstances and context surrounding the conviction. The Divisional Manager or relevant Director will make the final decision on whether to process with recruitment. The decision maker will then consider the following when deciding on the relevance of offences to particular posts and the risk:

The seriousness of the offence and its relevance to the safety of groups such as patients, service users and visitors.

Whether the post involves any direct responsibility for finance or items of value.

Whether the post involves direct contact with the public/patients/service users.

The length of time since the offence.




The age of the applicant at the time of the offence(s)

Whether the offence was isolated or part of a history of offending.

Any relevant information offered by the applicant regarding the circumstances which lead to the offence being committed and the explanation offered by the individual

Any life experiences that they may have had since the offending behaviour to evidence their rehabilitation.

Whether the offence involved a child and/or vulnerable adult.

Whether the applicant’s circumstances have changed since the offence was committed making reoffending less likely.

Whether the behaviour could pose a risk to patients/service users.

Whether the post involves one-to-one contact with children and/or vulnerable adults.

What level of supervision the post holder will receive.

Whether the applicant fully disclosed the offence on their self-declaration form and the degree of remorse, or otherwise and their motivation to change.

Whether the offence came to light retrospectively.

Establish whether any regulatory body (NMC/GMC/HCPC) took any action following the offence.

Recruiting Managers may find it useful to refer to NHS Employers ‘positive disclosure guide’ which is intended to help recruiting managers follow best practice when having a conversation with an applicant who declares information on their criminal record - https://www.nhsemployers.org/case-studies-and-resources/2019/09/positive-disclosure-discussion-guide Recruiting Managers should in all cases, balance the risks associated with a criminal offence with the wider range of information obtained at the application, interview and pre-employment checking stage before making their final recruitment decision. All discussions must be recorded on file, alongside clear reason reached to appoint or reject the applicant. The information must be stored securely and in line with data protection and GDPR requirements. In cases where the applicant or employee has not declared the criminal record these will need to be investigated. The investigation may lead to disciplinary action under the Trust’s disciplinary procedure or withdrawal of an employment offer, if it is considered that the information about the criminal record was deliberately withheld. Please refer to Appendix 5 for the risk assessment form.

9.5 Legal duties to refer to the DBS The Trust has a legal duty to refer to the DBS a person employed or engaged to work or volunteer in a regulated activity. This includes where the worker has been supplied by a third-party staffing provider, for example, an agency or contractor. The duty to refer also applies even when a report has already been made to another body, such as a professional regulatory or licensing body. Please refer to Appendix 6 for the DBS referrals flowchart.

https://www.nhsemployers.org/case-studies-and-resources/2019/09/positive-disclosure-discussion-guide

https://www.nhsemployers.org/case-studies-and-resources/2019/09/positive-disclosure-discussion-guide




The DBS sets out two conditions which both need to be met for there to be a legal duty to refer. Condition 1: The Trust withdraws permission for a person to engage in regulated activity with children and/or vulnerable groups, or moves the person to another area of work that isn’t regulated activity. This includes situations when you would have taken this action but the person was redeployed, resigned, retired or left. Condition 2: The Trust believes the person has carried out one of the following:

An action which satisfies the harm test in relation to children and/or vulnerable groups. A person meets the harm test if they cause someone to be harmed, put them at risk of harm, attempt to harm or incite another to harm.

They have engaged in relevant conduct. This is conduct which endangers or is likely to endanger a child or someone from a vulnerable group, may endanger if repeated again, involves sexual material relating to children (including possession), or conduct of a sexual nature.

They have been cautioned or convicted of a relevant offence. For example, automatic barring from working with adults or children in regulated activity, either with or without the right to make representations. Further information about automatic barring offences can be found on the NHS Employers website - http://www.safeguardingdurhamadults.info/media/13639/DBS-referral-guide-relevant-offences-for-England-and-Wales/pdf/Relevant_offences_for_England_and_Wales.pdf

If the Trust does not make a referral when the legal duty conditions are met it will be committing an offence and may be subject to a fine of up to £5,000. The duty still applies if an individual has resigned before a formal decision to dismiss or remove them from regulated activity has been made. Further information on employer duties to make referrals to the DBS can be found on the DBS website - https://www.gov.uk/guidance/making-barring-referrals-to-the-dbs

10. Storage, retention and disposal of records

DBS disclosure certificates contain sensitive personal data and therefore the Trust must comply with the Data Protection Act 2018 the General Data Protection Regulation) and the DBS code of practice. The code is designed to ensure that any criminal record information released is used fairly and is handled and stored appropriately. Criminal record information must only be used for the specific purpose it was requested for and with the applicant’s explicit consent. The Trust must record and retain the following information on ESR, the details of which will be entered on ESR by the Recruitment or Medical Staffing team:

http://www.safeguardingdurhamadults.info/media/13639/DBS-referral-guide-relevant-offences-for-England-and-Wales/pdf/Relevant_offences_for_England_and_Wales.pdf



https://www.gov.uk/guidance/making-barring-referrals-to-the-dbs




The issue date of the disclosure certificate.

The level of check requested.

The position it was requested for.

Any checks against one or both barred lists.

The unique reference number of the certificate.

The decision to offer/withdraw the appointment. Details from disclosure certificates, self-declaration forms and positive disclosure meetings should be stored on the applicant’s personal digital file where access is strictly controlled and secure. The storage of this information will be kept in line with the DBS code of practice and data protection laws. Please refer to Appendix 8 for the Trust’s policy on the handling and retention of disclosure information




11. Monitoring Compliance Describe how compliance with this document will be monitored and how identified actions for change will be implemented.

12. Review This policy will be subject to a planned review every three years as part of the Trust’s Policy Review Process. It is recognised however that there may be updates required in the interim arising from amendments or release of new regulations, Codes of Practice or statutory provisions or guidance from the Department of Health or professional bodies. These updates will be made as soon as practicable to reflect and inform the Trust’s revised policy and practise.

13. Training Managers are responsible for ensuring all their staff receive the type of initial and refresher training that is commensurate with their role(s). Staff must refer to the Mandatory Training Profiles, available on the intranet, to identify what training in relation to the NHS employment checks is relevant for their role and the required frequency of update. Further information is available on the statutory and mandatory training web pages about each subject and the available training opportunities. The Mandatory Training Policy identifies how training non-attendance will be followed up and managed and is available on the intranet. Training statistics for mandatory training subjects are collated by the Learning & Development team, and are reported to the Strategic Workforce Committee. Staff must keep a record of all training in their portfolio. All staff and managers can access their mandatory training compliance records via the Trust’s mandatory reporting tool (STAR) available on the intranet.




14. References This policy has information drawn from a number of sources including the following:

Disclosure and Barring Service Code of Practice

DBS checks: detailed guidance

NHS Employers: NHS Employment Check Standards revised September 2019

Rehabilitation of Offenders Act 1974

Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 (Amendment) Order 2013

Police Act 1997Freedom of Protections Act 2012

Safeguarding Vulnerable Groups Act 2006

Data Protection Act 2018

General Data Protection Regulation (GDPR)

Appendix 1: Glossary of terms Spent convictions - convictions defined by the Rehabilitation of Offenders Act 1974 as being ‘spent’ after specified periods of time. ‘Spent’ convictions do not need to be brought to the attention of the Trust unless the work or the post is covered by the Rehabilitation of Offenders Act 1974. However, under the Rehabilitation of Offenders 1974 (Exceptions) Order 1975 (Amendment) (England and Wales) Order 2013 certain ‘spent’ convictions and cautions will become ‘protected’ when specific conditions are met and therefore will not be disclosed. Unspent convictions – if a person has been convicted of an offence for which a sentence of more than 2.5 years was imposed (regardless of how much time was actually spent in prison) the conviction can never be spent. Regulated Activity – this is a term used in the regulation of care services under the Health and Social Care Act, and to activities a person who is listed on the DBS barred lists is prohibited from doing under the Safeguarding Vulnerable Groups Act. For the purposes of this policy the focus will be upon the latter. Where an individual is engaging, either in paid work or as a volunteer, in a regulated activity employers must request an enhanced DBS check with a check against the appropriate barred lists. It is an offence for the Trust to ‘knowingly’ appoint or continue to allow an individual who is barred from working with children and/or adults to engage in a regulated activity with that group. Bind over – an order which requires the individual concerned to keep the peace for a fixed period of time, as specified by a court. Failure to observe this order may result in a forfeit or penalty being enforced on the individual. Caution – a formal warning about future conduct usually issued at a police station by a senior police officer, after a person has admitted committing an offence. It is used




as an alternative to imposing a charge and possible prosecution. Generally used for juvenile or first-time offences. Charge – a formal accusation against a person that they have committed a criminal offence. Conditional discharge – where no further action is taken against an offender unless they commit a further offence within a given period (no more than three years). Conviction – the outcome of a criminal prosecution which concludes that the person accused is guilty of the crime they are charged of, or where the individual makes a plea of guilty. It does not include a final judgment that has been pardoned, set aside, reversed, or otherwise rendered inoperative.




Appendix 2: Legislation underpinning DBS checks Rehabilitation of Offenders Act 1974 (as amended in England and Wales) Under the Rehabilitation of Offenders Act 1974 convictions, cautions, reprimands and final warnings can become spent after a specified period (known as the rehabilitation period). Rehabilitation periods vary depending on the sentence or order imposed by the court, not the actual offence. Once a conviction or caution becomes spent (old) the ex-offender is not normally legally required to declare this information when applying for the majority of jobs, volunteering activities, and education or training courses. However, to protect the vulnerable, certain professions within health, social care, and other sectors are exempt from these provisions under the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 (as amended). Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 (as amended in England and Wales) The Exceptions Order lists specific positions, professions, employment, offices, works and licences which are exempt from the provisions defined by Rehabilitation of Offenders Act. This means that employers appointing individuals into any of the listed positions or professions are legally entitled to ask applicants to declare all spent and unspent convictions, cautions, reprimands and final warnings which are not protected by the DBS filtering rules and to take these into account as part of their recruitment process. DBS filtering rules The DBS filtering rules were introduced on 29 May 2013 under the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 (Amendment) (England and Wales) 2013. From this date, certain spent or minor convictions and cautions are now protected (or filtered out) when certain conditions are met, and they will never appear in a DBS disclosure certificate. Employers must be careful to ensure that they do not inadvertently ask for or, consider information which falls under the DBS filtering rules and use this to make a recruitment or employment decision. Legal Aid, Sentencing and Punishment of Offenders Act 2012 On 10 March 2014, changes to the Rehabilitation of Offenders Act came into effect in England and Wales under Section 139 of the Legal Aid and Sentencing and 24 Punishment of Offenders Act 2012 (LASPO). These changes impact on the period that needs to elapse before a conviction or caution can be considered spent. Employers should ensure they are only asking applicants for information that they are legally permitted to seek. This is particularly relevant where recruiting to positions which are eligible for a basic disclosure (which requires individuals to declare unspent convictions only).




Police Act 1997 (as amended) The Police Act 1997 (as amended in England and Wales) permits employers to convictions and cautions by requesting a standard or enhanced disclosure through the Disclosure and Barring Service (DBS). Section 123 of Part V of the Act makes it a criminal offence for employers to require a standard or enhanced disclosure when considering appointments to positions which are not exempt (included in the Rehabilitation of Offenders Act (Exceptions) Order. Police Act 1997 (Criminal Records) (Amendment) Regulations 2013 The regulations outline when an enhanced criminal record certificate may be children by obtaining information against the barred lists. Part V of the Police Act 1997 (Criminal Record Certificates: Relevant Matters) (Amendment) (England and Wales) Order 2013 Changes to the Police Act were introduced in England and Wales on 29 May 2013 amending the definition of relevant matters. Relevant matters specifically refer to information that is not protected by the DBS filtering rules, and police forces can include when responding to a request for information through a standard or enhanced DBS disclosure. This is because of the potential risk to the vulnerable, and where disclosing this information may add relevant contextual or background to a conviction or a caution which might be invaluable to an employer when they are considering applicants for specific roles. Safeguarding Vulnerable Groups Act 2006 The Safeguarding Vulnerable Groups Act 2006 was created in direct response to recommendations made in the Bichard Inquiry into the Soham murders in 2002. The inquiry questioned the way organisations recruited people to work with vulnerable groups and the way background checks were carried out. The Act provided the legal basis for setting up the Independent Safeguarding Authority (which was superseded by the Disclosure and Barring Service in 2012) and laid the original foundations for the Vetting and Barring Scheme (VBS). It set 25 out the type of work and activities that a person who has been barred must not do, known as regulated activities. Changes under the Protection of Freedoms Act 2012 The Protection of Freedoms Act came into force in 2012 following a review into the criminal record system which was led by the independent government adviser, Sunita Mason. The following provisions were enforced under the Act:

⎯ The establishment of the Disclosure and Barring Service (DBS) merging the functions of the Criminal Records Bureau (CRB) and the Independent Safeguarding Authority (ISA).

⎯ The introduction of a new definition of regulated activity reducing the scope of eligibility for enhanced checks with barred list information.

⎯ The launch of the DBS update service which allows the portability of disclosure certificates where individuals are subscribed to the service.

⎯ The introduction of a single DBS disclosure certificate which is only issued to the applicant to whom the information relates. Employer certificates are no longer issued as the norm.




⎯ A stipulation that criminal record checks can only be obtained for individuals aged 16 years or over.

⎯ The introduction of a more rigorous relevancy test which police forces need to apply when deciding whether to include non-conviction information in response to a disclosure request. This does not impact on their common law powers to share

information where it is regarded necessary for safeguarding the most vulnerable ⎯ Removal of the requirement for police forces to disclose additional information about applicants separately (known as brown envelope information).

⎯ A new representation process for individuals providing the opportunity for them to challenge inaccurate information contained in their disclosure certificate. Data Protection Act 1998 Under section 184 of the Data Protection Act 2018 (previously section 56 of the DPA 1998) this amendment was specifically put in place to prevent the misuse of Subject Access Requests (SARs). It became unlawful for an employer to require an applicant or existing member of staff (including workers supplied through an agency or contractor) to obtain a copy of their full criminal record directly from the police, probation service or courts by using their subject access rights under the Data Protection Act, and then share it with them. This is known as an enforced subject access request. Any employer in England or Wales who carries out an enforced subject access request may now face prosecution by the Information Commissioners Office (ICO). Employers in England and Wales must only request this information through a standard or enhanced disclosure via the DBS or a basic disclosure through Disclosure Scotland. Changes to data protection from 2018 Employers will need to be aware of the changes which came into effect from 25 May 2018 under the General Data Protection Regulation (GDPR). The Regulation brought in a number of significant changes to how organisations collect, handle and store information about staff as well as patients.




Appendix 3: Filtering rules A number of changes were introduced from 29 May 2013 under the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 (Amendment) (England and Wales) Order 2013. These changes came into force following a Supreme Court judgment in 2013 that found the Police Act 1997 and the Rehabilitation of Offenders Act 1974 private life under Article 8 of the European Convention on Human Rights. Filtering is similar in its concept to the rehabilitation periods under the Rehabilitation of Offenders Act. However, instead of establishing what information should become spent after a specified period of time, filtering establishes the type of criminal record information that will become protected (i.e. subject to filtering) and therefore will not be included in a standard or enhanced disclosure certificate. The change does not mean that information will be removed from the Police National Computer (PNC) and police forces continue to retain their common law powers to include information in the disclosure certificate where they reasonably believe it to be relevant to do so in order to protect vulnerable groups. Applicants no longer need to declare any cautions or convictions that are protected, irrespective as to whether they are intending to engage in regulated activity. It is unlawful for an employer to take protected cautions and convictions into account when making a decision to employ a person or dismiss an existing employee. For adults (persons aged 18 or over at the time of the offence) An adult conviction will be removed from a DBS check only when it meets the following four conditions:

1. Eleven years have elapsed since the date of the conviction. 2. It is the person included). 3. The conviction did not result in a custodial or suspended sentence (any

conviction resulting in a custodial or suspended sentence will always be included).

4. The conviction does not appear on the list of specified offences relevant to safeguarding.

An adult caution (including reprimands and final warnings) will be removed after six years have elapsed since the date of the caution and if it does not appear on the list of specified offences. There is no limit to the amount of cautions that can be filtered. For juveniles (persons under the age of 18 at the time of the offence)

A juvenile conviction will be removed from a DBS check only when it meets the following four conditions:

1. Five and a half years have elapsed since the date of conviction. 2. It is the person’s only conviction (multiple convictions will always be

included). 3. The conviction did not result in a custodial or suspended sentence (any

conviction resulting in a custodial or suspended sentence will always be included).




4. The conviction does not appear on the list of specified offences relevant to safeguarding.

A youth caution (including reprimands and final warnings) will be removed after two years have elapsed since the date of the caution and if it does not appear on the list of specified offences. Again, there is no limit to the amount of cautions that can be filtered. The DBS have provided guidance outlining the type of criminal offences which would never be filtered from a disclosure certificate.




Appendix 4: Awaiting the outcome of a DBS disclosure check certificate

If the employee is to work within Maternity Services, Paediatrics, NICU, the Emergency Department, the Sexual Health department or the Older People Unit the Trust will not permit commencement prior to receipt of a satisfactory DBS check. Section 1 – Employee Details (To be completed by the Recruitment/Medical Staffing team)

Candidate Name

Position applied for

Department & Division

Recruiting Manager

Section 2 – Pre employment checks (To be completed by the Recruitment/Medical Staffing team)

Yes/Date No Pending N/A

Date DBS application sent

Clear self-declaration (has the candidate declared any convictions, cautions, reprimands or warnings?)

Satisfactory registration check

Identity check completed

Reference checks completed

Right to work check completed

Occupational Health check completed

Section 3 - Risk Assessment (To be completed by the Recruiting Manager) Risk considerations:

- Does the post involve one to one contact with children or other vulnerable groups?

- What level of supervision will the post holder receive? - Does the post involve any direct responsibility for finance or items of value?




What is the impact on the service and how detrimental would it be for the Trust if this individual did not start until the DBS disclosure is received? Why should the individual commence in post? What is the risk to the organisation?

Please detail what measures/safeguards will be put in place to ensure the safety of patients pending the return of a satisfactory DBS disclosure. (This should include no access to patients unless supervised at all times, training, non-patient contact duties etc.)

Please state who will be responsible for the supervision of this individual whilst you await the outcome of their DBS disclosure?

Section 4 – Authorisation (To be completed by the Divisional Manager or equivalent Senior Manager/Professional Lead) Please note that by signing this DBS Risk Assessment form you are aware that we are agreeing to start this applicant without following the Trust’s recruitment protocols and the NHS Safer Recruitment protocols. Should the disclosure certificate highlight any issues which make the applicant unsuitable as an employee we may need to dismiss the individual through the Disciplinary Policy and Procedure and may be at risk of appeal and an Employment Tribunal. Based on the criteria and recommendations provided on this form my decision is as follows:

Name

Signature

Position




Date

Appendix 5: Risk Assessment form – positive disclosure

To be completed where a positive disclosure has been received.

Section 1 – Employee Details (To be completed by the Recruitment/Medical Staffing team)

Candidate Name

Position applied for

Department & Division

Recruiting Manager

Section 2 – Level of Disclosure (to be completed by the Recruitment/Medical Staffing team)

Level of disclosure requested

Enhanced Standard Basic

Vulnerable Adults List Yes No

Vulnerable Children’s list Yes No

Details of Offence(s) Offence (as detailed on the

DBS Disclosure Certificate Details (if known – provide a brief outline of the circumstances surrounding the offence(s) as indicated on the application form or verbally from applicant

1.

2.

3.

Section 3 – Risk Assessment (to be completed by the HR Operations Team and Recruiting Manager Did the applicant declare any of the disclosure information prior to the DBS being applied for? If not has the applicant provided an explanation for this?

Does the applicant agree that the information provided on the DBS Disclosure Certificate is correct? If not why not?

When the offence was committed and how old was the applicant at the time?

Is this a matter a one off offence or are there a number of offences which form a pattern?




Are there any mitigating circumstances? (E.g. peer pressure, financial, lack of judgement etc.)

Has the applicant’s circumstances changed since the offence?

Does the applicant regret the matter(s)? What is their attitude towards the matter(s) now?

Would they do anything differently? Have they demonstrated any efforts not to re-offend (e.g. by attending a rehabilitation course)

Questions relating to the post and risks involved What is the nature of the role and what level of contact will the individual have with children/vulnerable adults?

What is the frequency of the contact with patients?

Will the applicant be required to work unsupervised with patients at any time?

Does the post require dealing with or access to money?

Will the nature of the post present and realistic opportunities for re-offending?

In light of the above, do you consider employing the individual to be a high/medium or low risk?

Can any safeguards be implemented to reduce/remove any risk if the appointment is considered to be a medium or low risk? (e.g. no unsupervised contact)

Recruiting Manager’s decision to proceed (to be completed by the Recruiting Manager) Comments: After discussion of the matter(s) with the applicant and in light of the information provided, do you wish to:

Withdraw Offer of Employment Continue with Offer of Employment

Name Position Signature Date




Appendix 6: Flowchart of DBS referrals




Appendix 7: Policy statement on the Recruitment of Ex-Offenders

As an organisation using the Disclosure and Barring Service (DBS) checking service to assess applicants’ suitability for positions of trust, the Royal United Hospital Bath NHS Trust (RUH) complies fully with the Code of Practice and undertakes to treat all applicants for positions fairly.

The RUH undertakes not to discriminate unfairly against any subject of a DBS check on the basis of a conviction or other information revealed.

We are committed to the fair treatment of our staff, potential staff or users of our services, regardless of race, gender, religion, sexual orientation, responsibilities for dependants, age, physical/mental disability or offending background.

We actively promote equality of opportunity for all with the right mix of talent, skills and potential and welcome applications from a wide range of candidates, including those with criminal records.

We select all candidates for interview based on their skills, qualifications and experience.

A criminal record will not necessarily bar someone from working for the Trust.

A DBS check and the level of the check (Enhanced with a check against the barred lists, Enhanced without a check against the barred lists, Standard or Basic) is only requested after a thorough risk assessment has indicated that one is both proportionate and relevant to the position concerned.

Where a DBS check is to form part of the recruitment process, we encourage all applicants called for interview to provide details of their criminal record at an early stage in the application process, except for certain spent convictions and cautions which are ‘protected’, so not subject to disclosure to employers and that cannot be taken into account. Further information on the filtering of old and minor cautions and convictions is available on request.

Our policy statement on the recruitment of ex-offenders, is made available to all DBS applicants at the outset of the recruitment process.

We will only ask an individual to provide details of convictions and cautions that we are legally entitled to know about. Where a DBS certificate at either standard or enhanced level can legally be requested (where the position is one that is included in the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 as amended) and where appropriate Police Act Regulations (as amended), we can only ask an individual about convictions and cautions that are not protected.




We ensure that all those in the Royal United Hospital Bath NHS Trust who are involved in the recruitment process have been suitably trained to identify and assess the relevance and circumstances of offences. We also ensure that they have received appropriate guidance and training in the relevant legislation relating to the employment of ex-offenders, e.g. the Rehabilitation of Offenders Act 1974.

At interview, or in a separate discussion, we ensure that an open and measured discussion takes place on the subject of any offences or other matter that might be relevant to the position. Failure to reveal information that is directly relevant to the position sought could lead to withdrawal of an offer of employment.

We make every subject of a DBS check aware of the existence of the Code of Practice and make a copy available on request.

We undertake to discuss any matter revealed in a DBS check with the person seeking the position before withdrawing a conditional offer of employment.

All information received as part of this process will be treated as highly confidential and in line with our policy regarding the security, storage and retention of applicants and staff criminal records information, and as required by the DBS Code of Practice.




Appendix 8: Handling and retention of disclosure information

Organisations using the DBS checking service must comply with the code of practice. The code of practice is issued under section 120 of the Police Act 1997. The code ensures that sensitive and personal information, disclosed by the DBS, is handled and stored appropriately and is kept for only as long as it is necessary. The Trust has adopted the guidance and policy statement issued by the DBS for the handling of DBS certificate information. 1. General principles As an organisation using the Disclosure and Barring Service (DBS) checking service to help assess the suitability of applicants for positions of trust, the RUH complies fully with the code of practice regarding the correct handling, use, storage, retention and disposal of certificates and certificate information. The Trust also complies fully with its obligations under the General Data Protection Regulation (GDPR), Data Protection Act 2018 and other relevant legislation pertaining to the safe handling, use, storage, retention and disposal of certificate information and has a written policy on these matters, which is available to those who wish to see it on request. 2. Storage and access All disclosure information is processed confidentially through the GBG online disclosures system, kept in the individual’s secure digital personal file or in a locked container with access strictly controlled and limited to those who are entitled to see it as part of their duties. 3 Handling In accordance with section 124 of the Police Act 1997, certificate information is only passed to those who are authorised to receive it in the course of their duties. The Trust recognises that it is a criminal offence to share criminal information with anyone not entitled to see it. 4 Usage Certificate information is only used for the specific purpose for which it was requested and for which the applicant’s full consent has been given. 5 Retention The Trust no longer automatically receives the disclosure certificate and will not keep any photocopy or other image of the certificate. Once a recruitment (or other relevant) decision has been made, the certificate information is not kept for any longer than is necessary. This retention will allow for the consideration and resolution of any disputes or complaints, or be for the purpose of completing safeguarding audits. Throughout this time, the usual conditions regarding the safe storage and strictly controlled access will prevail. The Trust will retain a record of the following on ESR:




The name of the individual and issue date of the disclosure certificate The level of check requested, including any checks against one or both of the barred lists The position for which the certificate was requested The unique reference number of the certificate; and if subscribed to the Update Service, the individual’s unique reference number The recruitment decision made 6 Disposal All DBS information will be destroyed by secure shredding. The Trust will not keep any photocopy or other image or a DBS check. However, notwithstanding the above, we will keep a record of the date of issue of a certificate, the name of the subject, the type of certificate requested, the position for which the certificate was requested, the unique reference number of the certificates and the details of the recruitment decision taken on ESR. Information contained on the risk assessment and/or self-declaration forms will be retained on the individual’s personal digital or personal file in order to demonstrate ‘safer recruitment’ practice for the purpose of safeguarding audits. This practice will be compliant with the Data Protection Act, Human Rights Act, General Data Protection Regulation (GDPR). During the recruitment process candidates will be advised that information on their DBS check will be held on their personal file which is stored electronically with access strictly controlled and limited to those who are entitled to see it as part of their duties. All information is destroyed 7 years after an individual has left the Trust in line with our Corporate Records policy. Any risk assessments or associated paperwork completed by the Recruiting Manager must not be stored in any form by the manager (e.g. on a local personal file, email account, on a computer hard drive etc.). This paperwork should be confidentiality destroyed or returned to the HR department.

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