Legalize / United Kingdom / Scotland / Act of the Scottish Parliament

Protection of Vulnerable Groups (Scotland) Act 2007

Type Act of the Scottish Parliament

Publication 2007-04-18

State In force

Jurisdiction Scotland

Department Statute Law Database

Source legislation.gov.uk

Reform history JSON API

Part 1 — The lists

Duty to keep lists

Duty of Scottish Ministers to keep lists

1

(1) Ministers must keep—

(a) the children's list, and

(b) the adults' list.

(2) An individual may be listed in—

(a) the children's list,

(b) the adults' list, or

only in accordance with this Part.

(3) In this Act, “listed”, in relation to an individual, means included in the children's list or, as the case may be, the adults' list, and references to listing an individual are to be construed accordingly.

Referrals

Regulated work

2

The referral ground—

(a) in relation to an individual who is or has been carrying out (or has been offered or supplied for) a regulated role with children, is that the individual has, whether or not in the course of the individual carrying out that role—

(i) harmed a child,

(ii) placed a child at risk of harm,

(iii) engaged in inappropriate conduct involving pornography,

(iv) engaged in inappropriate conduct of a sexual nature involving a child, or

(v) given inappropriate medical treatment to a child,

(b) in relation to an individual who is or has been carrying out (or has been offered or supplied for) a regulated role with adults, is that the individual has, whether or not in the course of the individual carrying out that role—

(i) harmed a protected adult,

(ii) placed a protected adult at risk of harm,

(iii) engaged in inappropriate conduct involving pornography,

(iv) engaged in inappropriate conduct of a sexual nature involving a protected adult, or

(v) given inappropriate medical treatment to a protected adult.

Reference following disciplinary action etc.

3

(1) An organisation must give Ministers any prescribed information which it holds in relation to an individual who is or has been carrying out a regulated role if—

(a) it has, on the referral ground—

(i) dismissed the individual, or

(ii) transferred the individual to a position which does not involve that type of regulated role, or

(b) it would or might have dismissed or so transferred the individual on the referral ground if the individual had not—

(i) otherwise stopped carrying out the regulated role, or

(ii) been working for the organisation for a fixed term.

(2) An organisation must give Ministers any prescribed information which it holds in relation to an individual who has been carrying out a regulated role if—

(a) the individual stops carrying out the regulated role in circumstances not falling within subsection (1),

(b) the organisation subsequently becomes aware of information which it was unaware of when the individual stopped carrying out the regulated role, and

(i) it had been aware of that information at that time, and

(ii) the individual had not stopped carrying out the regulated role,

it would or might have dismissed the individual on the referral ground.

(3) In subsections (1) and (2)—

(a) an individual suspended from a regulated role is not to be treated as having stopped carrying out that role,

(b) the duty to give Ministers information in relation to the temporary transfer of an individual to another position applies only if the organisation subsequently makes a final decision not to permit the individual to resume the type of regulated role from which the individual was transferred.

(4) This section does not apply to personnel suppliers (see sections 4 and 5).

Reference by employment agency

4

A personnel supplier which carries on an employment agency must give Ministers any prescribed information which it holds in relation to an individual who is or has been carrying out a regulated role if it has, on the referral ground, decided—

(a) not to do any further business with the individual, or

(b) not to—

(i) find the individual another regulated role, or

(ii) offer or supply the individual for another regulated role.

Reference by employment business

5

A personnel supplier which carries on an employment business must give Ministers any prescribed information which it holds in relation to an individual whom it has offered or supplied for a regulated role if—

(a) it has dismissed the individual on the referral ground,

(b) the individual has otherwise stopped carrying out the regulated role in circumstances in which it would or might have dismissed the individual on the referral ground if the individual had not so stopped, or

Reference relating to matters occurring before provisions come into force

6

(1) The duties in sections 3 to 5 do not apply where the individual stopped carrying out the regulated role (or, as the case may be, the organisation's opinion was formed) before the date on which the provisions imposing the duties come into force.

(2) But an organisation may give Ministers any prescribed information which it holds in relation to such an individual if it wishes to do so.

Reference by court

7

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Reference by certain other persons

8

(1) A person to whom this section applies may give Ministers any prescribed information that the person holds in relation to an individual who is or has been carrying out a regulated role if—

(a) on the basis of information obtained by the person in the exercise of relevant functions, the person considers that the referral ground is met (regardless of whether the conduct to which the information relates occurred before or after this section comes into force), and

(b) prescribed information in relation to the individual has not been given to Ministers under sections 3 to 6 in respect of the conduct to which the information relates.

(2) This section applies to—

Councils

The General Teaching Council for Scotland

Healthcare Improvement Scotland

An integration joint board established by order under section 9 of the Public Bodies (Joint Working) (Scotland) Act 2014

The Registrar of Chiropractors

The registrar of dentists and dental care professionals

The registrar of the General Medical Council

The registrar of the General Optical Council

The Registrar of health professionals

The Registrar of nurses and midwives

The Registrar of Osteopaths

The registrar of pharmacists

The Scottish Social Services Council

Social Care and Social Work Improvement Scotland

Any other person specified in an order made by Ministers

(3) For the purposes of this section, “relevant functions” means—

(za) in relation to a council or an integration joint board mentioned in subsection (2), such functions as are conferred on either of them by the Social Work (Scotland) Act 1968, the Children (Scotland) Act 1995, the Adults with Incapacity (Scotland) Act 2000, the Adult Support and Protection (Scotland) Act 2007 or the Children and Young People (Scotland) Act 2014,

(a) in relation to the General Teaching Council for Scotland, such functions as are conferred on it by virtue of the Public Services Reform (General Teaching Council for Scotland) Order 2011,

(aa) in relation to Healthcare Improvement Scotland, such functions as are conferred on it by virtue of the National Health Service (Scotland) Act 1978 (c. 29) and any other enactment,

(b) in relation to registrars mentioned in subsection (2), such functions as are conferred on them by virtue of any enactment,

(c) in relation to ... the Scottish Social Services Council, such functions as are conferred on it by virtue of the 2001 Act and any other enactment, ...

(ca) in relation to Social Care and Social Work Improvement Scotland, such functions as are conferred on it by virtue of the 2010 Act and any other enactment, and

(d) in relation to a person specified in an order made under subsection (2), such functions as are specified by the order.

Failure to refer: offence

9

An organisation which fails, without reasonable excuse, to comply with a duty imposed by any of sections 3 to 5 within 3 months of the date on which the duty arose is guilty of an offence and liable—

(a) on summary conviction, to imprisonment for a term not exceeding 12 months or to a fine not exceeding the statutory maximum, or to both,

(b) on a conviction on indictment, to imprisonment for a term not exceeding 5 years or to a fine, or to both.

Consideration whether to list

Consideration whether to list: organisational referrals etc.

10

(1) This section applies

(a) where—

(i) prescribed information relating to an individual has been given to Ministers in pursuance of sections 3 to 6 or 8, and

(ii) they are satisfied that the information was not given for vexatious or frivolous purposes , or

(aa) where prescribed information relating to an individual has been given to Ministers in pursuance of section 6A, or

(b) where information relating to an individual has been given to Ministers by the Disclosure and Barring Service.

(2) Where Ministers are satisfied that the information indicates that it may be appropriate for the individual to be included in the children's list, they must consider listing the individual in that list.

(3) Where Ministers are satisfied that the information indicates that it may be appropriate for the individual to be included in the adults' list, they must consider listing the individual in that list.

(4) For the avoidance of doubt, subsections (2) and (3) apply in relation to an individual regardless of the type of regulated role (if any) which the individual is or has been carrying out.

Consideration whether to list: court referrals

11

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Consideration whether to list: vetting information etc.

12

(1) Ministers must consider listing an individual in the children's list if they are satisfied that—

(a) either—

(i) vetting information about the individual, or

(ii) information received when considering whether to list the individual in the adults' list,

indicates that it may be appropriate for the individual to be included in the children's list, and

(b) the individual does, has done or is likely to carry out a regulated role with children.

(2) Ministers must consider listing an individual in the adults' list if they are satisfied that—

(a) either—

(i) vetting information about the individual, or

(ii) information received when considering whether to list the individual in the children's list,

indicates that it may be appropriate for the individual to be included in the adults' list, and

(b) the individual does, has done or is likely to carry out a regulated role with adults.

Consideration whether to list: inquiries

13

(1) This section applies where—

(a) a relevant inquiry report names an individual who is or has been carrying out a regulated role, and

(b) it appears to Ministers from the report that the person who held the inquiry found that the referral ground was met at a time when the individual was carrying out a regulated role (whether that time was before or after this section comes into force).

(2) Where it appears to Ministers from the report that it may be appropriate for the individual to be included in the children's list, they may consider listing the individual in the children's list.

(3) Where it appears to Ministers from the report that it may be appropriate for the individual to be included in the adults' list, they may consider listing the individual in the adults' list.

(4) For the avoidance of doubt, subsections (2) and (3) apply in relation to an individual regardless of the type of regulated role which the individual was carrying out.

Inclusion in list

Automatic listing

14

(1) Ministers must list an individual in the children's list where it appears to them that any of the criteria specified for the purposes of this subsection is satisfied in relation to the individual.

(2) Ministers must list an individual in the adults' list where it appears to them that any of the criteria specified for the purposes of this subsection is satisfied in relation to the individual.

(3) It is for Ministers to specify by order criteria for the purposes of subsections (1) and (2).

(4) Criteria which may be so specified include—

(a) that an individual has been convicted of, or cautioned in relation to, an offence of a specified description, including offences under—

(i) the law of England, Wales, Northern Ireland, the Channel Islands or the Isle of Man,

(ii) section 70 of the Army Act 1955 (c. 18),

(iii) section 70 of the Air Force Act 1955 (c. 19),

(iv) section 42 of the Naval Discipline Act 1957 (c. 53),

(v) section 42 of the Armed Forces Act 2006 (c. 52),

(b) that an order of a specified description imposing requirements about an individual's conduct has been made.

Inclusion in children’s list after consideration

15

Ministers must list an individual in the children's list if, after considering whether to do so, they are satisfied by information relating to the individual's conduct that the individual is unsuitable to carry out regulated roles with children.

Inclusion in adults' list after consideration

16

Ministers must list an individual in the adults' list if, after considering whether to do so, they are satisfied by information relating to the individual's conduct that the individual is unsuitable to carry out regulated roles with adults.

Information relevant to listing decisions

17

(1) Ministers must, before making a decision under section 15 or 16—

(a) give the individual whom they are considering whether to list an opportunity to make representations as to why the individual should not be listed, and

(b) consider any such representations.

(2) Ministers may, when deciding whether to list an individual, also consider—

(a) any information which caused them to consider listing the individual,

(b) any information relating to the individual which they obtain—

(i) in pursuance of a requirement made under any of sections 18 to 20, or

(ii) by performing their functions in relation to the Scheme, and

(3) An individual who is given an opportunity to make representations under subsection (1) must be given the opportunity to make representations in relation to all of the information on which Ministers intend to rely in deciding whether to list the individual.

(4) The opportunity to make representations under subsection (1) does not include the opportunity to make representations that any relevant finding of fact was wrongly made.

(5) A relevant finding of fact is a finding of fact—

(a) made in legal proceedings,

(b) made in a relevant inquiry report (other than a report relating to an inquiry of the type mentioned in sub-paragraph (ii) of section 31(2)(a)),

(i) the General Pharmaceutical Council,

(ii) the General Chiropractic Council,

(iii) the General Dental Council,

(iv) the General Medical Council,

(v) the General Optical Council,

(vi) the General Osteopathic Council,

(vii) the General Teaching Council for Scotland,

(viii) the Health and Care Professions Council ,

(ix) the Nursing and Midwifery Council,

(x) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(xi) the Scottish Social Services Council, ...

(xii) Social Care and Social Work Improvement Scotland, or

(d) made by any other person, or in any other circumstance, specified by order made by Ministers.

(6) Subsections (1) and (3) do not apply if Ministers do not know and cannot reasonably ascertain the individual's whereabouts.

Police information etc.

18

(1) Ministers may, for the purpose of enabling or assisting them to decide whether to list an individual, require the chief constable ... to provide them with any information relating to the individual which the chief constable ... thinks might be relevant in relation to the type of regulated role concerned.

(2) The chief constable must not provide information to Ministers under subsection (1) if the chief constable thinks that disclosing it to the individual to whom it relates would be contrary to the interests of the prevention or detection of crime.

(3) Ministers must pay the Scottish Police Authority such fee as Ministers think appropriate for information provided under subsection (1).

(4) Ministers may, for the purpose of enabling or assisting them to decide whether to list an individual, require—

(a) any person who holds records of convictions, cautions or other information for the use of police forces generally to provide them with any information relating to the individual which the record holder thinks might be relevant in relation to the type of regulated role concerned,

(b) any person who holds central records to provide them with the prescribed details of every relevant matter relating to the individual that is recorded in those records.

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