Protection of Vulnerable Adults Schemeand Protection of Children Act . - PDF document

Protection of Vulnerable Adults Schemean
Protection of Vulnerable Adults Schemeand Protection of Children ActPOVA/PoCAContentsPageUNISONÕs responseEngland and WalesPOVA/PoCA coverageDefinitions within the Act6Registered care homes coverage6Domiciliary care agencies coverage6Registration of those who have contact with a care home7Pre-employment checks7raining and supervisionHow is my name referred to the list?8ower of certain authorities to refer9Action following provisional listing of an individual9Rights of the person referred10Northern IrelandPOCVA coverageDefinitions within the Act12Legal requirements to checkÑnew offences13right of appealScotlandDWCLDWCL14Responding to the evidence14right of appealFrequently Asked Questions16A/PoCAÑflow chart21Annex 3 Useful addresses/websites28UNISON GUIDE TO UNDERSTANDING POVA/POCAIntroductionThe Protection of Vulnerable Adults (POVA) and theProtection of Children Act (PoCA) (Protection ofChildren [Scotland] Act) (Protection of Children andVulnerable Adults in Northern Ireland) legislation haspreventing unsuitable people obtaining work,in anycapacity,whether paid or unpaid.It complements theprotection measures each provider is required to have.All care organisations entrusted with the care ofrelevant legislation in each country.UNISONÕs responseconcerned that the processes within the POVA/PoCA(England and Wales),ScotlandScotlandoCVAagainst natural justice.This is because:in our opinion,the process assumes anyonethe timescales for appeals against being placed onthe POVA register are too long and causethe lack of a right to appear before those makingthe decision to interim suspend or to fully suspendis an affront to common justicejeopardy,so professional staff can be subjected to

aA/PoCA England and Wales,PoCVA Norther
aA/PoCA England and Wales,PoCVA NorthernIreland,POCSA Scotland referral even when they haveregistration body and/or the employer.authoritative legal advice on every situation that mayarise from implementation of the POVA scheme andregion should they have difficulties with thePOVA/PoCA/PoCVA/POCSA process.It is not a guide tothe process,a separate guide will follow that will alsoinclude advice on the Bishard Recommendations.England and WalesBackgroundThe Protection of Vulnerable Adults (POVA) scheme,asset out in the Care Standards Act 2000,wasimplemented on a phased basis from 26 July 2004.Atthe heart of the scheme is the POVA list.Through referrals to,and checks against the list,careworkers who have harmed a vulnerable adult,orplaced a vulnerable adult at risk of harm,(whether ornot in the course of their employment) will be bannedThe intention of the POVA scheme is to significantlyIt creates a list of people,held by the Secretary ofState,or relevant minister,who are consideredcircumstances,registered providers of care,in relationto care homes and domiciliary care agencies,individuals,described below for inclusion on the POVAFrom this same date,in certain circumstances,yment agencies andPOVA list as part of an application for a CriminalCRBCRBlosure with respect toindividuals being considered for care positions.In thisway,as is explained later in this guidance,providers ofother robust pre-employment procedures) to preventAct imposes a duty on the Secretary of State towith children.This List is known as the Protection ofChildren Act (PoCA) List.The Secretary of State has thet they should not have beenincluded in it.There are a number of very important principlesmbodied in the Children Act:the wel

fare of the child is the paramount consi
fare of the child is the paramount considerationwherever possible,children should be brought up andcared for within their own familiesup their children themselves,this help would beprovided as a service to the child and his/her familybe provided in partnership with the parentsmeet each childÕs identified needsbe appropriate to the childÕs race,culture,religionand languagebe open to effective independent representationsdraw upon effective partnership between the localauthority and other agencies,including voluntaryagenciesdelay is avoided,and may only make an order if to doso is better than making no order at allchildren should be kept informed about what happensto them,and should participate when decisions areinformed about their children and participate whendecisions are made about their childrenÕs future.The procedures for referrals to the POVA/PoCA lists arein a flow chart as Annex 1.POVA/PoCA coverageThis guidance sets out,in summary,what is required ofyment agencies andimplementation.It covers both England and Wales,andover.The POVA scheme is currently implemented withcare homes,including workers supplied byemployment agencies and businesses to suchproviders,who are employed in care positions thatenable them to have regular contact in the courseA UNISON GUIDE TO UNDERSTANDING POVA/POCAb)care workers employed by registered providerswho carry on domiciliary care agencies,includingworkers supplied by employment agencies andbusinesses to such providers,who are employed inpersonal care in their own homes for persons who,by reason of illness,infirmity or disability,arec)adult placement carers.Although all such carerswere not covered when POVA was first introducedPOVA scheme to adult plac

ement schemes from 31t,until furthernoti
ement schemes from 31t,until furthernotice,the POVA scheme will not apply to care workersthat those who work with vulnerable adults in NHS orindependent hospitals,clinics and other facilities,orgency,are excludedfrom the ambit of the POVA scheme for the time being.However,through pre-employment checks,fair andpplications forlosures,patientscan be afforded high levels of protection from knownDefinitions within the ActSection 80 of the Care Standards Act 2000 (the Act) isPOVA process.The Act contains definitions of Ôcare555666ÔcareFor example,the definitionof ÔemploymentÕ in the Act is intentionally wide andincludes both paid and unpaid work,includingvoluntary work.whatever they might be) rather than their job title orIt should also be noted that the definition ofÔemploymentÕ used in the Act is very wide and isintended to ensure that even the most informal ofconnections and voluntary work are covered by theprovisions of the Act.More definitions within the Act have been attached asRegistered care homes coverageThe individuals listed below work in care homes.Therethey have regular contact in the course of their dutieswith residents.Otherwise they should not be checked.registered managers will already have been POVAStandards Inspectorate for Wales after the comingAdministrative,finance,clerical and reception staffCare assistantsNurses in care homes with nursing on the premisesCooksCleanersMaintenance workers,gardeners,handy-personsVolunteers (such as 푆riends of the Care HomeÕ)under arrangements made with the home,such ascoverage,areDeputy and assistant managers,including homeare organisers (Note that registered managers willalready have been POVA checked as part of theregistrat

ion process with the Commission for Soci
ion process with the Commission for SocialCare Inspection/Care Standards Inspectorate forWales after the coming into force of the POVAAdministrative,finance and clerical staffHome care workers/domiciliary care workers (Notethat the term Ôdomiciliary care workerÕ is defined inthe Domiciliary Care Agencies Regulations 2002,insummary,as a person employed in a position whichindividuals in their own homes.)Home helps/home support workers/domiciliaryVolunteers (including those recruited by agenciesRegistration of those who havecontact with a care home In a care home,individuals and services,whichsocial workers or care managerscommunity or district nurseschiropodistshairdressers and other professionals (some ofwhom may be self-employed,or may bevolunteers)volunteers from local community organisations orfor a POVA check.contract with them to provide a service,or has someother arrangement that comes within the widerdefinition of employment set out in the Act anddescribed in this guidance,and which involves theseWhere other professionals,volunteers or otherservices come into the care home as part of theirHence,council-based social workers or caremanagers,who,in the normal course of their statutoryduties with regard to assessment,visit care homeesidents,should not be checked against the POVA list.Community nurses who visit patients registered withthe practices or health centres that employ them,aspart of their regular duties to such patients,should notSimilar logic applies to services users in receipt ofservices from domiciliary care agencies in their ownhomes.The key is that those professionals,volunteersand other services who visit people in their own homesto provide personal care,and who are u

nder a contractto do so with the provide
nder a contractto do so with the provider of domiciliary care or undersome other arrangement that constitutes employmentas set out in the Act,should be checked against thePre-employment checksFor care homes and domiciliary care agencies,from 26July 2004,the regulations require:Details of any criminal offences:of which the person has been convicted,includingdetails of any convictions which are spent or,given,she/he admitted.Two written references,including,wherepplicable,a reference relating to the personÕs lastperiod of employment of not less than threemonthÕs duration which involved work withwork in that positiondocumentary evidence of any relevantqualifications and traininga full employment history,together with atisfactory written explanation of any gaps inemploymenta statement by the person as to her/his physicaldetails and evidence of registration with,orany professional body.Training and supervisionThe training and supervisory requirements for newstaff have been strengthened by the amendments toA UNISON GUIDE TO UNDERSTANDING POVA/POCAhe Care Home Regulations 2001 and the DomiciliaryCare Agencies Regulations 2002 that come into forceWhere providers of care wish to appoint individualsahead of the full CRB disclosure being issued,andsubject to the requirements,they must appoint anamed person,appropriately qualified andexperienced,to supervise new members of staff untilthey have completed induction training and until thefull CRB disclosure has been completed satisfactorily.The named person,so far as is possible,must be onduty at the same time as the new member of staff.Referral to the listThe Criminal Records Bureau aims to help employersand voluntary organisations make safer r

ecruitmentdecisions by providing informa
ecruitmentdecisions by providing information on candidates whomay be unsuitable for certain work,especially workservice called disclosure.CRBCRBlosure thatwill contain information about their criminal record.Standard disclosuresshow spent and unspentavailable to applicants seeking paid or voluntary workor training in an occupation that is exempt from theRehabilitation of Offenders Act 1974.This includespaid or voluntary work with children less than 18 yearsEnhanced disclosuresshow spent and unspentconvictions and cautions.The police may also provide(which are relevant to the job or voluntary positionbeing sought).Enhanced disclosures are only availableto people seeking paid or voluntary work or training invising,or being in sole chargeprofession,seeking judicial appointments and forcertain statutory licensing purposes.In addition to information about a personÕs criminalrecord standard and enhanced disclosures,supplied ininformation about whether a person is:Education Act (i.e.included on List 99)included on the PoCA listsubject to a disqualification order from the court,Services Act 2000.adults the disclosure will also contain informationabout whether a person is included on the Protection ofHow is my name referred to theorganisation must,and other organisations may,refernames to the Secretary for State for consideration ofinclusion in the PoCA list.These are:that the organisation has dismissed the individualhave dismissed him/her,or would have considereddismissing him/her,on such grounds if he had notthat the organisation has,on such grounds,that the organisation has,on such grounds,or to confirm the transfer (e.g.the organisation mayhave suspended or transferred on a neutral basiswh

ilst an investigation is undertaken).Po
ilst an investigation is undertaken).Power of certain authorities toThe Commission for Social Care Inspection,NationalAssembly for Wales and Her MajestyÕs Chief Inspectorof Schools in England all have the statutory power torefer individuals to the Secretary of State for inclusionon the PoCA list.They may make referrals to the PoCAthat has not been referred to the Secretary of State bythe employer.Additionally,and very importantly,childcareorganisations and other organisations may refernames to the Secretary of State in othercircumstances.This would be where an individual hasresigned,retired or transferred to a position within thetion that is not a childcare position wheretime has since become available.On the basis of thattion the organisation has formed thetime and the individual had not resigned,retired ortransferred the organisation would have dismissed,ora child at risk of harm.It is important for all employers to note that referralsnot a serious option.For example,when it would onlypossible options but not a real possibility.If a referral ismade in such circumstances the Secretary of Statetter no further on the basis that itwould not be appropriate for the individual to beincluded on the list.A misconduct committed after thehave been dismissed.Definition of ÔmisconductÕge of the Act members of Parliamentwere anxious to ensure that situations whereincompetence (whether or not attributable tothe Secretary of State.ÔMisconductÕ is not definedwithin the Act.The determination of ÔmisconductÕ muste a matter for the employer to decide.Keeping inmind the criteria for referrals,the types ofcircumstance where the Secretary of State wouldexpect a referral to be made would be where anychild or

put a child at risk of harm.Acts of omis
put a child at risk of harm.Acts of omission andHowever,in the circumstances of this Act misconductphysical abuse which may include intentionalinappropriate restraint and/or consistently poorchildcare practices in contravention of organisationalAction following provisionalIf a name is included on the PoCA list,provisionally,theorganisathe person who made the referralthe person who made the referralwill immediately inform the individual by letter sent byy.The individual will then have thethe Secretary of State as to why their name should notoCA list.The Secretary of State willprovide the individual with a copy of the informationsubmitted by the referring organisation.written representations,or to indicate that he/shePersons provisionally included in the PoCA list maychildcare organisation.Other organisations shouldalso pay particular regard to the fact that theperson is provisionally included in the list whenBefore a name may be retained on the PoCA list theSecretary of State will need to be of the opinion that:harmed a child or placed a child at risk of harm,A UNISON GUIDE TO UNDERSTANDING POVA/POCA10whether or not in the course of employment),andthat the individual is unsuitable to work withThus,all representations made by the individual will bepassed to the referring organisation for comment.Similarly the Secretary of State would expect to be ablehim/her from the referring organisation.This processof information gathering and exchange will continuefor as long as it takes for the Secretary of State to besatisfied that he/she has sufficient information torequired to reach.It should be noted that some peoplemay be included on the PoCA list,even though the factswhich the Secretary of State t

akes into account do notPoCA list whilst
akes into account do notPoCA list whilst suspended or provisionally transferredto a position within the organisation which is not auntil the organisation has dismissed the individual,orHowever,even if theconclusion,the person provisionally on the PoCA listRights of the person referredAny individual provisionally included in the PoCA listretained in the list.The individual will be given 28 daysin which to make written representations,or to indicatethat he/she intends to make representations within aersons who have been provisionally included in thePoCA list for more than nine months may,with leave ofthe Care Standards Tribunal,have the issue of theirinclusion in the list determined by the tribunal insteadwever,if the person whoallegations,he/she cannot apply to the tribunal until sixmonths after those proceedings have been disposedIndividuals who are confirmed on the PoCA list,following provisional listing,will have the right ofappeal to the tribunal if they do so within 3 months ofthe date of that decision.This is an independentcases is binding and final.However,appeals may bemade to the High Court on points of law.The Secretary of State has discretionary powers toremove names from the PoCA list in limitedcircumstances (for instance,where a conviction hasbeen quashed on appeal or where a malicious referralis uncovered following the production of newevidence),without the need to go through the tribunal.It will still be possible for an individual to seek leave toappeal against a decision of the Secretary of State notCare Standards ActAs a result of an individualÕs name being included onthe Care Standards Act 2002.work could include paid or unpaid activity (whichincludes volunteering) allowing yo

u to have contactdomiciliary agency oper
u to have contactdomiciliary agency operated within the public,privateList 99The Secretary of State for Education will referindividuals to List 99.If you have been reported ontoList 99,your name,departmental reference number(where applicable),national insurance number andare subject to a direction made by the Secretary ofte for Education under Section 142 of the EducationAct 2002,which is known as ÔList 99Õ.Section 142applies to the following work:roviding education at a schoolproviding education at a further educationproviding education under a contact ofemployment,or for services where the other partyto the contract is a local education authority,or aperson exercising a function relating to theprovision of education on behalf of a localeducation authoritytaking part in the management of an independentwith children and is carried out at the request of,orwith the consent of,a relevant employer (whetherIn this context a relevant employer is:a local education authoritya person exercising a function relating to theprovision of education on behalf of a localeducation authoritythe proprietor of a school (which includes thegoverning body of a maintained school)the governing body of a further educationThe Protection of Vulnerable Adults list,Protection ofChildren Act list and List 99 are made available to theCriminal Records Bureau,and details of an individualÕsinclusion may be provided on a confidential basis tolocal education authorities and other bodies concernedA UNISON GUIDE TO UNDERSTANDING POVA/POCA11NORTHERN IRELANDBackgroundThe Pre-Employment Consultancy SerPECSPECSbeen replaced by two services,the Protection ofNINIPOC[NI]POC[NI]Vulnerable NINIvice (POVA[NI]).Both areoperated b

y the POCVA team based in the ChildcareP
y the POCVA team based in the ChildcarePolicy Directorate at the Department of Health,SocialSerDHSSPSDHSSPSThe Protection ofChildren and Vulnerable Adults (NI) Order 2003 (POCVA)commenced on 1 April 2005 (with the exception ofArticle 46) and improved the arrangements forproviding a legislative basis for maintaining two lists asthe Disqualification for Working with Children (DWCorking with Children (DWC)Ñconsidered not fit to work with childrenthe Disqualification for Working with Vulnerable Adults(DWVA [NI]) listÑa list of those individuals who arePOCVA also provides a legislative basis for pre-check before appointing anyone into childcaretion on 1 April 2005.with vulnerable adults,will start at a later date.However,care providers are encouraged to familiariseof Health,Social Services and Public Safety willDepartment will facilitate checks for care positions inThe procedures for referrals to the POCVA lists are in aPOCVA coverageThose staff who are covered by the POCVA Order are:maintenance,building works and staff consideredServices Provided Under Contract to a Carerovider;Nursing and Allied Health Professionals Studentsformally employed;College students of further and higher education;Employment,nursing and employment agencyChild care positions;Individuals providing child care services in theirown homes;Staff employed by private contractors within childcare organisation premises;Services provided under contract to a child careorganisation;Junior Leaders;pplicants from abroad.Definitions within the Actthe protection of Vulnerable Adults,Northern Ireland(POVA [NI]) Service,Section 2.2 lists the definition ofterms for care positions,care provider,personal care,childcare organisation

s,non-childcare organisations,accredited
s,non-childcare organisations,accredited organisations and childcare positions.Inbroad terms it means a person under the age of 18Grounds for referralPOVA/PoCA are as follows:that the care provider/organisation has dismissedvulnerable adult/child at risk of harmthat the individual has resigned,retired or beenmade redundant in circumstances such that thecare provider would have dismissed him/her,orwould have considered dismissing him/her on suchthat the care provider/organisation has,on suchgrounds,transferred the individual to a position12ithin the organisation which is not athat the care provider/organisation has,on suchgrounds,suspended the individual or provisionallyposition,but has not yet decided whether todismiss him/her or to confirm the transfer.Legal requirements to checkÑnew offencesPOCVA introduces the following new offencesfollowing commencement of Article 46:anyone who is disqualified from working withpply for,offer to do,accept or do any workan individual who knowingly employs a disqualifiedindividual to work in a care position,offers work to,,a disqualified individual,orIndividuals found guilty of any of these offences will bethemselves that the potential employee does not havea criminal record for violence,abuse or neglect ofvulnerable adults before offering a care position.Careproviders who do not carry out the appropriate checksmay find themselves without any adequate defenceagainst a charge of ÔknowinglyÕ employing someoneadults.Although the requirement to check will notDepartmentÕs recommendation that all care providerscarry out checks on all prospective care workers ascurrently not a prohibition on employment in a careposition,but it will be a prohibition once A

rticle 46A right of appealinformation
rticle 46A right of appealinformation that is submitted to the Department ofHealth,Social Services and Public Safety to support theo the Care Tribunal.The individual will be able toappeal a decision by the Department to include his/hername on Disqualification for Working with ChildrenDWC [NI]DWC [NI]tion for Working withVulnerable Adults (DWVA [NI]) list or against theincNINININIThere is also scope for a listed person to apply to theCare Standards Tribunal for removal of their name fromNINININIThe Care Tribunal willare met.Actual removal from the lists will only bepossible if the Care Tribunal deems the individual to beA UNISON GUIDE TO UNDERSTANDING POVA/POCA13SCOTLANDBackgroundconducting a consultation seeking views on the needfor further protections for vulnerable adults that wouldbe taken forward when a suitable legislativeopportunity arises.The consultation paper is the thirdin a series about the protection of vulnerable adults.Itwill bring together several strands of policy thinkingaround vulnerability dating back to 1997 with a view toco-ordinating them into a coherent whole.If theoutcome of this supports legislation then a bill(Vulnerable Adults Bill) would be introduced to theScottish Parliament.ScotlandScotlandPOCSAPOCSAcommenced on 10 January 2005.3bbAct,which would trigger the need for retrospectivedate will be fixed in due course.It established a list ofadults who are the Disqualified from Working withpast and currentpast and currentThislist can be checked by a disclosures check fromw chart as Annex 1.POCSA coverageScotlandScotlandAct 2003whose normal duties include providing,or workingfor an organisation which provides a care homeservice or an independent healthcare servicew

hich is provided exclusively or mainly f
hich is provided exclusively or mainly for childrenwhose normal duties include work on day caresupervising or being in sole charge of childrenwhose normal duties involve unsupervised contactwhose normal duties include caring for childrenunder the age of 16 in the course of the childrenÕsemployment substantial part of whose normal duties includesupervising or training children under the age of 16in the course of the childrenÕs employment.When the Act refers to the ÔestablishmentÕ it will coveran institution which is exclusively or mainly for thea hospital which is exclusively or mainly for thereception and treatment of childrenan educational establishmenta home which is exclusively or mainly for childrenother establishments) of the Social WScotlandScotlandauthorities of residential accommodation forthe current legislation until changes have been made.The DWCLtion from Working with Children ListDWCLDWCLIf someone has been referred to the DWCL bythe courts,the name is automatically added to the list.officials authorised by Scottish ministers.They woulddecisions on behalf of Scottish ministers.A casepanel considers all information submitted by thereferral,any observations and any further informationDefinitions within the Act have been attached as AnnexResponding to the evidencethe accused when contacted with the knowledge thatprovisionally.You will be invited to send yourobservations on that information and if you disagree14an be made regarding further information including inorder in support of your opposition to the referral thatyour case.You will be given 21 days to submit yourcomments and if you are unable to do this,ancircumstances.If you fail to respond on time or makeonly a pa

rtial response,the regulations allow the
rtial response,the regulations allow theScottish ministers,or the panel on their behalf,to maketheir decision on the basis of observations andinformation already held.It is extremely important that the timescales areA right of appealreferral from a body or as a consequence of an inquiry,you may appeal to the Sheriff within 3 months of theappeal lodged late if you can show a good reason forthe late submission of your appeal.An appeal is madepplication and you may wishIf your appeal is unsuccessful you have further right ofthe Sheriff.A further appeal to the Court of Session mayPrincipal.An appeal against a proposed referral by thecriminal court to the DWCL following conviction for ancircumstances change or the conviction,whichTo be removed from the DWCL an application must besuch an application.Normally applications will only be18 years at the time they were included on the list andA UNISON GUIDE TO UNDERSTANDING POVA/POCA15Q What is PoCA?- PoCA (Protection of Children Act) is a statutoryscheme.Where the criteria in the Act are satisfied,theemployer is legally required to carry out a PoCA checkbefore a person can be appointed.The CriminalCRBCRBhowever,only carry out aPoCA check as part of a disclosure including a criminalrecord check.Guidance on the application of theProtection of Children Act (PoCA) is available on theDepartment of Health website at:www.doh.gsi.gov.uk/scg/childprotectQ Which posts will require a PoCAcheck?A- To require a PoCA check,the post must fit one ofDisclosure,providing the precise definition of aregulated position is satisfied.ÔA position whose normal duties include caring for,training,supervising or being in sole charge ofServices Act)under the PoCA scheme?- Empl

oyers have a duty,under the Education(Re
oyers have a duty,under the Education(Restriction of Employment) Regulations 2000,todismissed from relevant employment on grounds ofve led to their dismissal,or consideration of theirdismissal,on those grounds,if they had not resigned.month of the personÕs dismissal or resignation.Q What is POVA?- The Protection of Vulnerable Adults (POVA)scheme,as set out in theCare Standards Act 2000,is implemented on a phasedbasis from 26 July 2004.At the heart of the scheme isthe POVA list.Through referrals to,and checks against the list,careworkers who have harmed a vulnerable adult,orplaced a vulnerable adult at risk of harm (whether ornot in the course of their employment) will be bannedQ What information has to be providedunder the POVA scheme?- Employers are required by the regulations to reportinformation,relating to the circumstances of thedismissal or resignation to the Secretary of State.y of State can only act if the allegation ofmisconduct has been substantiated by other means.POVA list? - A check against the POVA list should be made foreligible applicants where the Commission for Socialdisclosures as part of the registration process.This applies to registered managers and registeredresponsible individuals in relation to care homes andy care agencies.16Frequently asked questionsProtection of Vulnerable Adults (POVA) and Protection of Children Act(PoCA)Q When could I be referred to the POVA- Registered persons have a duty to refer careworkers to the list where any action or inaction on theplaced a vulnerable adult at risk of harm.The registration authority may refer where they haveevidence from their regulatory work that they considerthat the care worker has been guilty of misconduct(wheth

er or not in the course of his/her emplo
er or not in the course of his/her employment)that harmed or placed at risk of harm.Q Who else is likely to refer me to thelist?A- The police have a responsibility to report registeredppropriate offences.Registration bodies mayEmployers may report registrants who are in theprocess of disciplinary action because of harmfulQ What is the Commission for SocialCare Inspection?A- Launched in April 2004,the Commission for SocialCare Inspection is the single,independent inspectoratefor all social care services in England.The remit of CSCIis greater than anything seen before in social care.Itregisters the private and voluntary care servicest are required to meet national standardsinspects,assesses and reviews all care services inthat area.This includes private and voluntary careservices and local council social servicesinspects boarding schools,residential specialschools and further education colleges withpublishes an inspection report detailing its findingsafter each inspectionnumber and quality of private and voluntary careservices in their local areadeals with complaints about care service providerscouncil social services departments.Q What happens if the Commission forCSCICSCIAÐ If a complaint relates to an allegation of abuseagainst children or adults then the commission willrefer the complaint to the relevant social servicesWhere CSCI is notified under Regulation 37 of staffvulnerable adult or placed them at risk of harm,thisunder the POVA scheme.ged that CSCI will be most likely to exerciseits power to refer in relation to registered providers andregistered managers whose conduct warrants referralfor inclusion on the POVA list.Q Under what circumstances are caseslikely to be referred?A

- It is likely that allegations that wo
- It is likely that allegations that would lead agrounds of harm,or risk of harm,will also trigger anadult protection referral under the local multiÐagencyprocedures.Actions under such procedures typicallyQ When will employers check the POVAresponsibility to check the names of new staff againstA UNISON GUIDE TO UNDERSTANDING POVA/POCA17he register.The Regula66Regulations 2003 and Regula99Domiciliary Care Agencies Regulations 2002 say:ÒNew staff are confirmed in post only followingcompletion of a satisfactory police check,satisfactorycheck of the Protection of Children and VulnerableQ How do POVA and PoCA fit with theDomiciliary Care?- POVA is not specifically referenced under standard14 Protection of the person.Standard 14.8 stipulateschildren to the POCA list.POVA is not specificallyselection.Checks against the PoCA list are includedQ How do POVA and PoCA fit with theNational Minimum Standards of NursesAgencies?A- Nursing agencies fall within the scope of the POVAthey act as employment agencies supplying staff to theregulated services currently covered by the POVAQ What is the local code on regulatingcare?Awith NHS partners,the police force,local providers ofcare and other stakeholders have set up codes ofÒIn safe handsÓ.Where harm to vulnerable adults isalleged or proved,appropriate actionand associated disciplinary procedures.The provisionspre-employment checks but also to these local codesby requiring that care workers may be referred to thePOVA list along with other appropriate actions.allegation reported to POVA?- You will be given 28 days in which to make writtenobservations,or to indicate that you intend to makeobservations within a reasonable period.Ifobservations are no

t received,the Secretary of Statewill ma
t received,the Secretary of Statewill make his/her decision based on all availableQ How does the POVA/PoCA list affect- As soon as a care worker is provisionally includedon the POVA list,prompt referral to appropriateregulatory bodies such as the General Social CareCouncil and the Nursing and Midwifery Council shouldPOVA list,the person who made the referral,if she/he isQ Does the existence of other civil orcriminal cases affect this timetable?AA list is also the subject of any civil or criminalproceedings in connection with the allegations ofmonths after those proceedings have been disposedof.This may mean that the nine-month delay beforeQ When can I appeal against being onthe POVA list?Ain the POVA list for more than nine months,may seekleave of the Care Standards Tthe tribunalthe tribunalthe tribunal instead of by the Secretary of State.If theindividual has also been provisionally included on the,if they wish,only seek leave ofthe tribunal to determine her/his position on that list.18review of inclusion on the POVA list?- An individual included on the POVA list may makean application to the tribunal for their removal from thelist.On application the tribunal will determine whetheror not the individual should continue to be included onthe list.If the tribunal is satisfied that the individual isshall direct the Secretary of State to remove theindividual from the list.Otherwise it will dismiss theapplication and the individual will remain on the list.Similar provisions exist for review of inclusion on thePoCA list.Q What are the conditions that need toapply before I can make an application?Application under thisprovision are that:pplication withleave of the tribunalluded on the POVA lis

t (otherwisepplying for leave of the tri
t (otherwisepplying for leave of the tribunal.Only oneapplication for leave may be made in any 5-yearan individual who was over the age of 18 at thelusion on the POVA list must havePOVA list for a continuous period of 10 years,beforeapplying for leave of the tribunal.Only oneQ What is the Care Standards Tribunal?The tribunal is an independent judicial bodyappointed by the Department for Constitutional AffairsDCADCAThe tribunal has a judicial head Ð ÔthePresidentÕ,also appointed by the DCA,who has certainhear a particular appeal and each tribunal consists of aegal member who acts as the chairman,and two laymembers with expertise relevant to the appeal in hand.Wales only)- The tribunal has issued its own guidance forappellants in how to use its services and how to lodgeappeals.Copies of this guidance are available from theCare Standards Tribunal Secretariat at 18 PocockStreet,London SE1 OBW.The guidance is alsoavailable on the Tribunal Websitewww.carestandardstribunal.gov.uk.Q What are the grounds for referring anScotlandScotlandAAn organisation will have a duty to make a referralchildcare position harms a child or puts a child at riskchildcare position who harms a child or puts a child atrisk of harm and would have been dismissed if theyretired,been made redundant or leftat the end of a temporary contract,must also beQ.What do you do if you haveWales in Scotland?Scotland should register with Disclosure Scotland.Theaccesses the UK wide PNC system and ScotlandÕsCriminal History System has access to a number ofEnglish and Welsh prescribed lists,including List 99Vulnerableales.It isnecessary in this circumstance to get disclosures fromA UNISON GUIDE TO UNDERSTANDING POVA/POCA19Q What POV

A checks need to be made- Equivalents t
A checks need to be made- Equivalents to the POVA scheme do not operate inIt should be noted,however,that both Enhanced andStandard Disclosures will highlight any convictions inboth Scotland and Northern Ireland.These arerecorded on the Police National Computer,however,recorded.But,in the case of an Enhanced Disclosureon someone who is seen to have a Northern Irelandall Northern Ireland convictions will be shown.England and Wales?When carrying out disclosure checks in Scotland,Disclosure Scotland (the Scottish equivalent of theCRB,operated by the Scottish Criminal Record Office)Wales.However,this will not include a check againstthe POVA list.Q Who do I contact if I have a problemwith the lists?Asteps to follow.Contact can be made throughUNISONdirect at 0845 355 0845.20A UNISON GUIDE TO UNDERSTANDING POVA/POCA21ANNEX 1Procedure for referrals to the POVA/PoCAAdultIs a person aged 18 years and over.ChildIs a person under the age of 18.England and WalesChildcare positionOne which is Ôconcerned with the provision ofaccommodation,social services or healthcare servicesto children or the supervision of children; and is suchas to enable the holder to have regular contact withChildcare organisationChildcare organisation means a body:accommodation,social services or healthcarevices to children or the supervision of childrented by or by virtue of anyAll Ôchildcare organisationsÕ have a statutory dutyto refer names to the Secretary of State in certainspecified circumstances for possible inclusion onthe PoCA listwhen they propose to offer someone employmentin a childcare position,to check,through theCriminal Records Bureau,whether an individual isincluded on the PoCA list or List 99no

t to employ a person in a childcare posi
t to employ a person in a childcare position if thatperson is included on the PoCA list or List 99to cease to employ someone in a childcare positionif it is discovered that the individual is included inOther organisationsThere are many other organisations outside of theÔregulatedÕ sectors,as set out above,that also ÔcareÕ forchildren in one way or another.These organisationsinclude:voluntary organisations through the ÔuniformedÕyouth activities (Scouts,Guides,Cadet Forces etc)national and local youth clubsreligious organisationssporting and leisure groups where activities areundertaken by children.Care workerCare worker means:an individual who is or has been employed in aposition which is such as to enable him to havean individual who is or has been employed in apersonal care in their own homes for a person whoEmploymentEmployment referring to an individual being employedany employment,whether paid or unpaid andwhether under a contract of service orludes an office established by,or by virtue of,aWhile the majority of employees will be employedunder a contract,whether made orally or in writing,by a contractual arrangement.The definition used isconnections and voluntary work are covered by the22ANNEX 2Definition of termsHarmarm is defined in section 121 of the POVA Act asin relation to an adult who is not mentally impaired,means ill treatment or the impairment of healthin relation to an adult who is mentally impaired,or achild,means ill treatment or the impairment ofThe Children Protection Act explains that ÔharmÕ hasthe same meaning as in section 31 of the Children ActÔharmÕ means ill treatment or the impairment ofhealth or development (including,for example,treatmen

t of another)ÔdevelopmentÕ means phys
t of another)ÔdevelopmentÕ means physical,intellectual,emotional,social or behavioural developmentÔhealthÕ means physical or mental healthÔill treatmentÕ includes sexual abuse and forms ofill-treatment which are not physical.Personal careestablished,ordinary meaning of Ôpersonal careÕincludes four main types of care,which are:assistance with bodily functions such as feeding,bathing and toiletingtouching,including activities such as helping aperson get out of a bath and helping them getnon-physical care,such as advice,encouragementand supervision relating to the foregoing,such asemotional and psychological support,including thepromotion of social functioning,behaviourProvidersThe persons who provide care for vulnerable adultsare:any person who carries on a care home ny person who carries on a domiciliary careagency.Providers of carepersons who carry on care homes and registeredpersons who carry on domiciliary care agencies.(Carehomes include care homes that provide nursing care,formerly known as Ônursing homesÕ.The term ÔcarryRegular contactThe Act does not include definitions of Ôregular contactÕand Ôpersonal careÕ,which are fundamental to the wayin which the POVA scheme will run.The term Ôregular contactÕ will have its ordinaryyday meaning.Ultimately,it will be up to the courtsto decide what it means in the context of the Act.But,the term Ôregular contactÕ impliescontact that has a constant or definite pattern,or whichrecurs at short uniform intervals or on severalemployment,a provider of care will need to decidewhether the contact that the worker will have with carehome residents will be Ôregular contactÕ.This will be aquestion of fact,and providers of care s

hould considerthis carefully,having rega
hould considerthis carefully,having regard to this guidance and,ifnecessary,their own legal advice.It should also benoted that the key to deciding whether a person(whatever they might be) rather than their job title orSupply workerSupply worker means:in relation to an employment agency,an individualsupplied by the agency for employment in a careposition or for whom the agency has foundin relation to an employment business,anindividual supplied by the business for employmentulnerable adultulnerable adult means:A UNISON GUIDE TO UNDERSTANDING POVA/POCA23n adult to whom accommodation and nursing orown home under arrangements made by adomiciliary care agency.Northern IrelandAccredited organisationsThe legislation provides for non-childcareorganisations to apply to become accredited bydemonstrating compliance with a minimum set ofstandards.Once accredited organisations will have thesame responsibilities as childcare organisations towith children and to carry out checks of prospectiveemployees.Care positionsA position either paid or unpaid which:enables the individual to have regular contact,inthe course of their duties,with adults to whomaccommodation is provided at a residential careenables the individual to have regular contact in theservices body or at a private hospitaland of the need for such care,for persons who byCare providerany person who carries on a residential care homeany person who carries on a domiciliary careagency or is a social worker,care manager,community or district nurse,chiropodist or a personwho provides services to a vulnerable adult in thatappearance or mobility andany person who carries on a private hospital whicha health services body which provides pre

scribedervices.were commenced on 1 April
scribedervices.were commenced on 1 April 2005.)Childcare organisationsAn organisation which provides accommodation,health services or personal social services to childrenor is concerned with the supervision of children andthose activities are regulated by statute.Examples of this are:childrenÕs homes,early yearsplaygroups,childminders,trust family and child careservices.The provisions of POCVA apply to all childcaremaximum protection for children.However,it will onlyChildcare positionA regulated position as defined by Article 31 of POCVAand includes those who work in a range ofincluding childrenÕs homes,detention centres,childrenÕs hospitals,schools,further educationday care centres.It also includes those who,in the course of their normal duties,care for,train,advise,counsel,or supervise,or are in sole charge ofted positions.Management boardand governing bodies or organisations involved withchildren are now also included.Non-childcare organisationsMany organisations and groups working with childrenlude voluntary and community groups,church-based organisations and sports clubs.Personal careacquire the skills necessary to achievepersonal assistance,which includes assistance toget up and go to bed,assistance with dressing and24ndressing,surgical appliances,prosthesis andorthoses,mechanical and manual aids andtransfers including use of a hoistpersonal hygiene,which includes bathing,showering,hair washing,shaving,oral hygiene andcontinence care,which includes assistance withtoileting,catheter or stoma care,skin care,laundryand bed changing directly related to continenceassistance with eating,assistance with specialappropriate professional and assistance withpreparation of food where thi

s is necessary tomake sure that the pers
s is necessary tomake sure that the person eats regularly and safelyassistance with mobility,which includes dealingso far as it impacts on the individualÕs ability topersonal safety and well-being,which includesmanagement of reminding and safety devices,supervision to reduce or eliminate risk andassistance with the management of behaviourstments,which includes assistance withthe administration of medication,application ofcreams and lotions,simple dressings and oxygenpy,emotional and psychological support,including counselling,advice,encouragement andsupervision,the promotion of social functioningincludes speech,physical and occupationaltherapy.Vulnerable adultAccommodation and nursing or personal care areprovided in a residential care home or nursinghomethe provision of personal care,or the assessment ofcare agency or by one of the following persons:a social worker or care managera community or district nursea chiropodista person who provides services to a vulnerableadult in that vulnerable adultÕs own home to assistith their sight,sound,speech,appearance orprescribed services are provided by a healthservices body or at a private hospital.commenced on 1 April 2005)ScotlandThe ActThe ScotlandScotlandCare providerorganisations,businesses and agencies whoinclusion on the List in certain circumstances.Care workerFor the purposes of the booklet a care worker means:or has been employed in aThis will also apply for any existingorganisation.Examples of this are health care staff(all medical,nursing,midwifery,therapy staff andthose who have regular contact with vulnerableChildcare positionFor the purposes of the Act a Ôchildcare positionÕ is aposition that:that means:an institutio

n which is exclusively or mainly for the
n which is exclusively or mainly for thea hospital which is exclusively or mainly for thean educational establishmenta home which is exclusively or mainly for childrenA UNISON GUIDE TO UNDERSTANDING POVA/POCA25other establishments) of the Social WScotlandScotlandauthorities of residential accommodation forScotlandScotlandc.36c.36Whose normal duties include:providing,or working for,an organisation whichprovides a care home service or an independenthealthcare service which is provided exclusively orcaring for,training,supervising or being in solecharge of children in the course of the childrenÕsemploymentof the childrenÕs employment;Whose normal duties include work on day carepremisesÑthis can be treated as not being done onday care premises to the extent that it is done:in a part of the premises in which children are notlooked afterat times when children are not looked after there.Whose normal duties include caring for,trainingsupervising or being in sole charge of childrenwhose normal duties involve unsupervised contactge of 16 in the course of the childrenÕsemploymenta substantial part of whose normal duties includes employment.lude supervising or managingan individual in the individualÕs work in any positionmanager of an educational establishmentmember of a committee,including joint committee,of a local authority (or any sub-committee thereof)which is concerned with the provision of education,services to childrenchief social work officer of a local authoritydirector of education of an education authoritytrustee of a childrenÕs charitysection 39(1) (formation of childrenÕs panels) of theanel Advisory Committeeincluding a member of a sub-committee of suchmember of a jo

int advisory committee establishedunder
int advisory committee establishedunder paragraph 8(1) (arrangements for ChildrenÕsPanel Advisory Committee to be formed for moreAct of 1995 (including a member of a sub-ChildrenÕs charityThe definition of a charity,for the purpose of the Act,is:normally include individuals working in childcarean individual who does work under arrangementsmade by the charitythe main purpose of the charity is to providebenefits for children.DWCL Is the abbreviation for the Disqualified form WorkingHarmThis is not defined in the ChildrenÕs Act other than toHolder of a positionFor the purposes of the Act this means:only supervises an individual if the holder of theonly manages an individual if:the position for the performance of the individualÕsthe older of the position has authority to dismiss theindividual.OrganisationFor the purpose of the ChildrenÕs Act:a body corporate or unincorporatedan individual who,in the course of a business,employs or otherwise gives work to other personsgers of an educational establishment.26Responsible personsor the purposes of Act a responsible person in relationthe childÕs parent or guardian and any person agedthe person in charge of any establishmentaccommodated,is a patient or receives education(and any person acting on behalf of such a person)a person who provides a service which isregistered under Part 1 of the 2001 Act and whichany person holding a position in a body which is achildrenÕs charity.Vulnerable adultor the purposes of the booklet a vulnerable adultmeans:an adult who is aged 18 years or over whom:accommodation and nursing or personal care areprovided in a care servicepersonal care is provided in their own home undera prescribed se

rvices are provided by an NHSboard,or an
rvices are provided by an NHSboard,or an independent hospital,independenty,ortional Health Service body that is registered withA UNISON GUIDE TO UNDERSTANDING POVA/POCA27ANNEX 3England and WalesPOVAWebsite:www.dh.gov.ukGuidance on the application of the Protection ofChildren Act (PoCA) is available on the Department ofwww.doh.gsi.gov.uk/scg/childprotectProtection of Vulnerable Adults List Department for Education and SkillsPoCARoom 134,Wellington House133-135 Waterloo RoadTel:0207 972 1332ChildrenÕs Safeguarding Operations Unit (PoCA)Mowden HallCo.DurhamTel:01325 392030Fax:01325 392178email:mailbox.poca@dfes.gsi.gov.ukare Standards Tribunal18 Pocock StreetGeneral enquiry line 020 7960 0660Fax number 020 7960 0661 or 0662 email CST@CST.gsi.gov.uk Further information about the Criminal Records Bureaumay be found on its website at www.crb.gov.uk.Information about the Disclosures Service is atwww.disclosure.gov.uk.The bureauÕs information lineNorthern IrelandThe service is operated by:POCVA TeamChild Care Policy DirectorateStormont EstateChildcare policyChild Care Policy Directorate can be contacted on:028For further information please visit:http://www.dhsspsni.gov.uk/foi/Prof_advice.aspTraining and adviceThe Volunteer Development AgencVDAVDAService and on good practice in recruitment andselection.VDA will charge for this service.Please visitwww.volunteering-ni.org for further information.28ScotlandProtection of Children Scotland ActAddressed to the ManagerDWCL@scotland.gsi.gov.ukTel:0131 244 1567Fax:0131 244 0709www.scotland.gov.ukA UNISON GUIDE TO UNDERSTANDING POVA/POCA29Printed and published by UNISON,the public service union,1 Mabledon Place,London WC1H9AJ.www.unison.org.uk