1. Craig Reid Determinations Manager, Protection Unit
PVG and the Duty to Refer
Craig Reid Determinations Manager, Protection Unit
- Welcome everyone along, introduce myself and Andrew.
- Happy to be here and great to be invited along.

2. Session Topics Protecting Vulnerable Groups (Scotland) Act 2007
The duty on employers to make referrals
Barring and the consideration process
We are going to look over 3 main topics during this session.
Firstly a bit of background about the PVG Act, then a bit of time on the duty to refer and lastly I am sure most of you have probably seen PVG certificates or received letters advising individuals are being considered for listing so I will give a quick overview of that process and what this involves.
If at any stage you have questions then please don‘t wait to the end, just ask away and hopefully I can answer them!

3. I am sure we all remember the tragic events in Soham in 2002 where Iain Huntley murdered Holly Wells and Jessica Chapman. At that time he was working as a caretaker in a local secondary school and knew the girls through his partner who was a teaching assistant at their primary school.
While no scheme or safeguarding measures could be designed to fully eradicate such horrible and impulsive behaviour, it was recognised within the 2004 Bichard Enquiry that measures in place at that time could be improved upon and new arrangements should be introduced requiring those who wish to work with children, or vulnerable adults, which would confirm there is no known reason why an individual should not work with these client groups.

4. The Protection of Vulnerable Groups (Scotland) Act 2007
Made provision for a scheme whereby individuals with a known history of harm can be prevented from doing work with children and/or protected adults
Disclosure Scotland manage this scheme – the Protecting Vulnerable Groups (PVG) scheme
Protection Services make decisions on unsuitability to undertake regulated work
The Scottish Government’s response to this recommendation was the PVG scheme, which most of you are now probably familiar with. In February 2011 the PVG scheme replaced the enhanced disclosure process for those doing regulated work with children and protected adults.
The Protection of Vulnerable Groups (Scotland) Act 2007 is the legislation which allows for this scheme.
Disclosure Scotland are responsible for the administration of the PVG scheme and it is the role of the Protection Unit to determine whether individuals are unsuitable to undertake regulated work. Although the Protection Unit make these decisions, this is done on behalf of Scottish Ministers.

5. Eligibility for the PVG scheme
Those undertaking regulated work with children and/or protected adults are eligible to join the PVG scheme;
Further information on what constitutes regulated work can be found at:
Unfortunately there is no exhaustive list of positions which are classed as regulated work.
Instead eligibility for the PVG scheme is based on the activities an individual undertakes as part of their normal duties, the establishment they work in and the position they hold. For example where individuals are teaching, instructing, training or supervising children or protected adults as part of their normal duties, or if they are in sole charge of children or protected adults, they would likely be doing regulated work. Similarly if they worked in a school or a care home for example and they had the opportunity for unsupervised contact with these groups, then again they would likely be eligible to join the PVG scheme.
If anyone has questions about eligibility for the PVG scheme then further guidance can be found by following the attached link. Alternatively you can speak to my colleague Andrew, who will be able to assist further.

6. Suitability and Unsuitability
About 7% of PVG scheme members will have convictions or Other Relevant Information disclosed
Suitability is a matter for employers who must look at a scheme members suitability for a particular post.
Professional Regulators consider suitability to be registered with them
Unsuitability is about regulated work generally and is the preserve of Scottish Ministers
The question for DS: “has this person engaged in conduct that means they should be barred from all regulated work with a group?”
You will notice that we talk about individuals being unsuitable to do regulated work rather than saying that they are suitable.
Employers tend to apply for a PVG certificate as part of the recruitment process when looking for a suitable candidate for a particular post. For example they may apply for a PVG certificate in respect of a school bus driver and receive a certificate which contains details of several historic convictions for drink driving and reasonably conclude that they do not consider that individual to be suitable for the specific post. However, that may not necessarily mean they are not considered suitable by another potential employer for a post in regulated work which does not involve driving.
Where an individual’s past conduct is so serious that they are deemed by Scottish Ministers to be unsuitable for all regulated work, they are added to the lists of those barred from working with children and/or protected adults.

7. Referral Sources New scheme member applications
On-going monitoring of scheme members
Court referrals 1. Automatic listing, 2. Relevant offences
Regulatory body referrals
Employer referrals
There are several ways in which individuals come to the attention of the Protection Unit. The main area of interest for today’s topic are the employer referrals. Important to highlight the legal obligation on employers and that this does not apply to regulatory bodies.
There are other routes for people to be referred – Not relevant for this discussion (Court – Discretionary, Public Inquiries)

8. Organisational Referrals
Referral Grounds (section 2 of PVG Act)
Removal following disciplinary action
How to make a referral
Duty to Refer
Now the bit that matters most to this audience

9. Section 2 of the Protection of Vulnerable Groups (Scotland) Act 2007
Whether or not in the course of the individual’s work:
Harmed a child or protected adult
Placed a child or protected adult at risk of harm
Engaged in inappropriate conduct involving pornography
Engaged in inappropriate conduct of a sexual nature involving a child or protected adult
Given inappropriate medical treatment to a child or protected adult
Must correspond with the type of work the individual is/was doing.

10. Section 3 of the Protection of Vulnerable Groups (Scotland) Act 2007
Section 3 - Provides the duty on employers to refer where they have dismissed or permanently removed the person from regulated work BECAUSE OF A REFERRAL GROUND (section 2) or
Would have done so had the person “otherwise stopped doing regulated work” or had “been working for the organisation for a fixed term”.
This duty exists even if there is involvement from the police or professional regulators.
Important to note this final part – Often employers consider their work is done when other bodies have been notified

11. Why Employer Referrals are Important
They may be the first to know what has happened!
The criminal standard of ‘beyond reasonable doubt’ might not be met.
Proceedings might not be taken because of an issue with the witnesses
Having an organisational referral in such cases when referral grounds have been met is crucial in terms of safeguarding.
At the moment, around half of all formally considered organisation referrals result in the individual being included on a list

12. Should you make a referral?
Example 1
A service user suspects money is being stolen from them. They set up a CCTV camera which shows a care at home worker stealing money from their wallet. The matter is reported to the employer and the police. The police advise the employer not to do anything until they conclude their criminal investigation. They suspend the individual immediately but after 9 months they have still been given no further update from the police and the individual remains suspended.
Should you make a referral?
What if you have seen the CCTV footage and are in no doubt the theft took place?

13. Should you make a referral?
Example 2
A newly qualified care at home worker was seen by a relative of the service user to be using their home telephone calls to make personal calls. The relative informed the service who investigate the allegations and find the employee made personal calls to the value of £5.92. over a period of 3 months. As the employee was still on their probation period, the employer lets them go without any formal disciplinary process taking place.
Should you make a referral?

14. Should you make a referral?
Example 3
A service user calls to report that their partner has been assaulted by a carer in their own home. The service user did not see anything directly but heard shouting, saw the carer leave the home and the red cheek of their partner. The carer admitted to her employer that she assaulted the partner by slapping him to the face but that he had touched her inappropriately and feeling threatened she acted without thinking. The carer was dismissed on the grounds of gross misconduct.
Should you make a referral?
Depends on whether there was any harm or risk of harm to the service user.

15. Should you make a referral?
Example 4
A care at home worker becomes very close with a service user and does a number of personal tasks which are not part of their job description including taking the service user out for lunch on her days off and allowing her daughter to attend the home of the service user. The service user also provided the employee with a personal loan. The employee has now left the organisation to take up another post and the service user has made a formal complaint as the money has not been repaid.
Should you make a referral?

16. What to include in a referral, Prescribed Information
The Protection of Vulnerable Groups (Scotland) Act 2007 (Referrals by Organisations and Other Bodies)(Prescribed Information) Regulations 2010:
Personal details of the individual
A description of the conduct and harm caused
Copies of investigations, including witness statements and care plans
Minutes from disciplinary hearings
Lots more……..
PVG Act 2007 – SSI 181 – Referrals by Organisations and other bodies Regulations 2010

17. How to make a referral No facility for online referrals (yet)
Form available at:
Can be sent by , to:
The form states it should be posted but can be sent by .

18. Failure to Refer Section 9 of the PVG Act 2007:
“An organisation which fails, without reasonable excuse, to comply with a duty imposed by any of sections 3 to 5 within 3 months on which the duty arose is guilty of an offence”
On summary conviction, to imprisonment up to 12 months or to a fine not exceeding the statutory maximum (or both)
On conviction on indictment, to imprisonment up to 5 years or a fine (or both).

19. The Protection Unit’s Task
Consider the information provided to us
Using a defensible and structured approach:
Identify individuals who may be unsuitable (stage 1: initial consideration)
Fully consider and make barring decisions on behalf of Scottish Ministers (stage 2: formal consideration)
What do we do with the referral information……..

20. Initial consideration
Note – Window here where DS is aware of conviction or relevant information but the organisation would not be notified

21. Formal Consideration The individual is not barred
Information gathering
Unsuitable/Not unsuitable – What does this mean?

22. Basic Structure of Formal Consideration Process
Comments or further information from referring body;
Further information from individual;
Information from any other person Ministers think appropriate;
Police information;
Information from public bodies;
Information from regulated work provider;
Any other information Ministers have through operating PVG Scheme
Report by expert adviser;
Assessment by Complex Case Advisory Group.
Information is sent to individual
Individual may submit representations within 28 days
What information can be gathered during formal consideration?
Ministers gather further information
Ministers send all information on which they intend to rely to the individual
Explain what happens when an individual is put through to formal consideration. Show examples of notification letters, VIS and reps template.
Individual has final chance to make representations
Ministers decide whether to list 22 22

23. Key Questions in Formal Consideration
What was the harmful or inappropriate conduct including the circumstances surrounding the conduct
Who the victims were and any vulnerabilities
What happened to the victims because of the individual’s conduct
What we know about why the individual behaved in this way
What the potential for harm is if this individual continues in regulated work
This means the quality and completion of employer investigation of the incident/s or harm can be key

26. Further Information Visit our stand outside; General Enquiries
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Protection Unit -
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