The Disclosure and Barring Service (DBS) was created by the merger of the Criminal Records Bureau and the Independent Safeguarding Authority.
The DBS deals with criminal records checks (now known as DBS checks) and is responsible for maintaining the Barred Lists for both children and vulnerable adults. Inclusion on the barred list precludes an individual from participating in a “regulated activity” with the relevant group. For the purposes of this scheme dentistry is considered to be a regulated activity and all adult patients are considered to be vulnerable. Thus inclusion on either or both lists would effectively bring an end to a dentist’s or dental care professional’s practice.
Inclusion
There are a number of routes through which individuals may be considered for inclusion on either or both Barred Lists. The relevant legislation identifies a number of criminal offences and convictions which will result in automatic inclusion on the Barred List(s). Those offences fall into two broad categories. A conviction or caution for an offence in the first category will result in inclusion on the Barred List without a right for the individual to make representations to the DBS. Individuals convicted of, or cautioned for, one of those offences will be included on the List(s) irrespective of whether they work in a regulated activity, such as dentistry. The first category of offences includes a variety of sexual offences.
Conviction
A conviction or caution in respect of an offence in the second category will result in automatic inclusion on the Barred List(s) subject to a right to make representations to the DBS. That category of offences includes murder, kidnapping, infanticide and child cruelty. The DBS will seek and consider representations from the individual before deciding whether to include them on either or both lists. Individuals in that category will only be included on the Barred List if they have worked in a regulated activity, or may do so in the future, and if their representations to the DBS are unsuccessful. For any healthcare professional the potentially significant implications serve to emphasise the importance of obtaining legal advice before accepting a caution.
Discretion
In addition to those categories, the DBS has a discretion to bar individuals where there is evidence of conduct (acts or omissions) which have caused, or may cause, harm or where a risk of harm is established. Once the DBS has gathered the relevant evidence the individual has the right to make representations before the DBS make a final decision in relation to inclusion on one or both barred lists. The process is one of risk assessment and an individual may be barred without having received a caution or being convicted of any offence.
The Process
Such cases arise through two main routes. The first is where an individual applies to the DBS seeking an enhanced DBS check, with a view to working with children or vulnerable adults, and that criminal records check identifies a history which suggests a risk of harm. The second route is where a referral is made by an employer or other regulator. “Regulated activity providers” are under a duty to report individuals to the DBS where they are dismissed or removed from working in a regulated activity following harm, or risk of harm, to either children or vulnerable adults. The duty applies where an individual resigns, or is made redundant, but would otherwise have been dismissed or removed from the regulated activity. The definition of a regulated activity provider includes an organisation or individual responsible for the management or control of regulated activity. Any healthcare professional providing health care to an adult or child is engaging in a “regulated activity”. In addition to the duty on employers, statutory regulators such as the GDC have a power to refer cases to the DBS for consideration.
The current scheme reflects a significant change to the original scheme, which provided for the inclusion of individuals on a Barred List before representations were made and considered with a right to apply to be removed from the Barred List. Under the present scheme, the only individuals who will be included on one or other Barred List without first having the right to make representations to the DBS will be individuals who accept a caution for, or are convicted of, one of the specified in the statute.
Note: The regulatory regime governing the Barred Lists is complex and this piece is intended merely as an broad overview. This content has been supplied by RadcliffesLeBrasseurs.