Introduction

UNISON Scotland welcomes the opportunity to respond to the call for evidence from the Scottish Parliament's Education Committee regarding the above Bill.  

UNISON Scotland represents over 160,000 members working in the public sector including staff from the NHS and social services throughout Scotland, many of whom work with children and vulnerable adults.

UNISON Scotland Response

Overview

UNISON Scotland generally welcomes the Bill (particularly Parts 1 and 2) as a further step towards protecting the community and raising confidence in the staff who work with these vulnerable groups.  Experience has shown that people within this sector who have been dismissed from one employer can secure employment with another.  The creation of the lists and the requirement of employers, agencies, etc to inform the Minister of their concerns will help to prevent this happening in future.

We understand the purpose of the provisions that create a duty to share child protection information. In a number of inquiries where information was held by other agencies but not shared with social work departments this has been a key recommendation. However, we have a number of concerns  over this part of the bill as set out below.

Part 1

UNISON Scotland welcomes this part of the Bill. It sits well with improved regulation of the care workforce and the importance of protecting vulnerable persons.

We have some concern that the protections from actions for damages (s38) exemption where an information provider'knowingly or recklessly 'provide misleading information may be an inadequate test. Whilst we recognise the public policy objective of not discouraging the provision of information we have some experience of employers, particularly in the private care sector, making untrue or misleading complaints to regulatory bodies when an employee leaves their employment. By the time the appeals process is completed the employee has lost their new job and potentially damaged their future employment prospects.

The reference requirements (s3) only to apply to 'organisations' (s96) and certain specified businesses. A significant number of carers are employed by individuals not organisations and this appears to be an important loophole in the provisions. The development of direct payments could be relevant in this regard.

Part 2

UNISON Scotland generally welcomes the creation of 'The Scheme' for people who wish to work in this field and believe that the guidance on vetting, notification and disclosure is broadly acceptable. 

However, section 63 is too open when it states that a person is not committing an offence & 'by disclosing information (a) to any of the person's employees etc ''.  We believe that this is too open.  An employer who receives information on a prospective employee should only be allowed to share this information with relevant staff, not any staff.  This would be consistent with good data protection arrangements.

UNISON Scotland has some concerns over the issue of fees to join the scheme.  It is our view that fees are a disincentive to individuals to join the scheme, particularly low paid workers, and therefore these should be waived or a salary limit set below which the fee would be waived.  It is worth noting that social care staff are or will be required to pay a fee for registration and for a disclosure check at this point.  Adding yet another fee to pay for the administration of this scheme is an unfair tax on people working in this field.  There is an additional concern that while volunteers may have their fees waived (or effectively paid by the Scottish Executive) many small voluntary and community organisations will be facing substantial bills for checking employees  suitability to work with either children or protected adults. 

We are unclear as to how the system will deal with workers from outside the UK other than the vague references in the policy memorandum. The free movement of labour within the EU and the extensive use of non-EU overseas workers in the care sector need to be addressed. Equally such provisions should not discriminate against refugees who often have difficulty in establishing past employment records when they have fled from persecution in their home nation state. They can also be the subject of malicious accusations from their home nation state particularly when fleeing from political persecution.

This section does not appear to have any appeal mechanisms. This should cover the relevance and accuracy of the information on which a statement of barred status is based and the failure to correct an inaccurate scheme record.

Part 3

UNISON Scotland recognises the importance of sharing child protection information. There are at present both statutory provisions covering this area as well as many examples of good practice.

The definition of relevant persons in s80 requires further clarification. For example are all independent or private contractors covered by the provisions? Salaried GPs would be covered by Health Boards but are contracted GPs? The voluntary sector is covered when it is providing a 'public function' but there are voluntary organisations that provide similar services without a direct relationship with a public authority.

The definition of 'Child Protection Information' (s73) is also very widely drawn.  When taken with the statutory duty to share could lead to a very large amount of information being transmitted and having to be managed by the council for the area. We have serious doubts over the capacity of councils and other agencies to manage the potential scale of information, particularly in terms of staffing resources and common ICT systems.

There are related issues with regards the threshold of information to be shared and consultation or consent of the child to certain information being shared. This also impacts on other statutory requirements such as the Human Rights Act that don't appear to be fully addressed in the policy memorandum.

There will be concerns that this approach will encourage overly defensive professional practice. Whilst the balance, one way or the other, sometimes needs correction, the Bill may have unintended consequences in this regard.

Equally the duty to cooperate (s75) is very widely drawn and there are concerns over how wide the information requirements made might be, particularly when they impact on other vulnerable clients.

Section 79 of the Bill states that a relevant person need not share child protection information if they consider that to do so would be contrary to the interests of another child.  UNISON Scotland is uncomfortable with this and believes that the relevant person should report but part of that report should include concerns regarding another child. The relevant authority, not individual members of staff, would then be able to decide what would be the appropriate action.

UNISON Scotland would also like further information on who within an organisation would be held responsible for any failure to refer relevant information.

From the above it can be seen that whilst the Bill s objective may be desirable the provisions could be difficult to apply and have other unintended consequences. There is already much good practice in this field developed in partnership with the different agencies that reflect appropriate differences in profession practice and the capabilities of the organisations concerned. A better approach may well be to have a lighter statutory touch in terms of duties and place greater emphasis on development of good practice. This might include a statutory duty on local authorities to develop and maintain such good practice, influenced by the code of practice provisions in the Bill.

Other provisions

UNISON Scotland believes that the meaning of'protected adult' within this Bill is generally acceptable.  However, it does raise questions as to whether adults in receipt of services for care and/or support are necessarily vulnerable and therefore need protection.  If they have a full intellectual capability, they would be able to assess risk even if they are physically in need of support.  However, we would view people who can be at risk of harm from another person due to their physical disability to be vulnerable within the context of this bill.  Therefore, we believe that it is appropriate for the people wishing to work with/for such a person to be subject to the membership of the Scheme.

Conclusion

UNISON Scotland generally welcomes Parts 1 and 2 of the Bill as a further step towards protecting the community and raising confidence in the staff who work with these vulnerable groups.   There are some modest changes required to protect individuals from breach of confidence and from malicious claims as set out above.

With regards Part 3 of the bill the Committee may wish to consider the consequences the bill might have and whether further prescriptive legislation is the right approach.

UNISON Scotland
November 2006

For Further Information Please Contact:

Matt Smith, Scottish Secretary

UNISONScotland
UNISON House
14, West Campbell Street,
Glasgow G2 6RX
Tel 0845 355 0845 Fax 0141 342 2835

e-mail matt.smith@unison.co.uk

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