Care Standards Bill [H.L.] - continued        House of Lords

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  PART VI
  PROTECTION OF CHILDREN AND VULNERABLE ADULTS
 
Protection of vulnerable adults
Basic definitions.     69. - (1) This section applies for the purposes of this Part.
 
      (2) "Care worker" means-
 
 
    (a) an individual who is or has been employed in a position which is such as to enable him to have regular contact in the course of his duties with adults to whom accommodation is provided at a care home;
 
    (b) an individual who is or has been employed in a position which is such as to enable him to have regular contact in the course of his duties with adults to whom prescribed services are provided by an independent hospital, an independent clinic or a National Health Service body;
 
    (c) an individual who is or has been employed in a position which is concerned with the provision of personal care in their own homes for persons who by reason of illness, infirmity or disability are unable to provide it for themselves without assistance.
      (3) "Care position", in relation to an individual, means a position such as is mentioned in subsection (2)(a), (b) or (c).
 
      (4) "Employment" has the same meaning as in the Protection of Children Act 1999 (referred to in this Act as the 1999 Act); and references to an individual being employed shall be construed accordingly.
 
      (5) "Supply worker"-
 
 
    (a) in relation to an employment agency, means an individual supplied by the agency for employment in a care position or for whom the agency has found employment in a care position;
 
    (b) in relation to an employment business, means an individual supplied by the business for employment in a care position.
      (6) "Vulnerable adult" means-
 
 
    (a) an adult to whom accommodation and nursing or personal care are provided in a care home;
 
    (b) an adult to whom personal care is provided in their own home under arrangements made by a domiciliary care agency; or
 
    (c) an adult to whom prescribed services are provided by an independent hospital, independent clinic or National Health Service body.
      (7) The persons who provide care for vulnerable adults are-
 
 
    (a) any person who carries on a care home;
 
    (b) any person who carries on a domiciliary care agency which is not an employment agency or an employment business;
 
    (c) any person who carries on an independent hospital, or an independent clinic, which provides prescribed services; and
 
    (d) a National Health Service body which provides prescribed services.
Duty of Secretary of State to keep list.     70. - (1) The Secretary of State shall keep a list of individuals who are considered unsuitable to work with vulnerable adults.
 
      (2) An individual shall not be included in the list unless he has been referred to the Secretary of State under-
 
 
    (a) section 71 or 72; or
 
    (b) section 2 of the 1999 Act.
      (3) The Secretary of State may at any time remove an individual from the list if he is satisfied that the individual should not have been included in it.
 
Persons who provide care for vulnerable adults: duty to refer.     71. - (1) A person who provides care for vulnerable adults ("the provider") shall refer a care worker to the Secretary of State if there is fulfilled-
 
 
    (a) any of the conditions mentioned in subsection (2); or
 
    (b) the condition mentioned in subsection (3).
      (2) The conditions referred to in subsection (1)(a) are-
 
 
    (a) that the provider has dismissed the worker on the grounds of misconduct (whether or not in the course of his employment) which harmed or placed at risk of harm a vulnerable adult;
 
    (b) that the worker has resigned or retired in circumstances such that the provider would have dismissed him, or would have considered dismissing him, on such grounds if he had not resigned or retired;
 
    (c) that the provider has, on such grounds, transferred the worker to a position which is not a care position;
 
    (d) that the provider has, on such grounds, suspended the worker or provisionally transferred him to a position which is not a care position but has not yet decided whether to dismiss him or to confirm the transfer.
      (3) The condition referred to in subsection (1)(b) is that-
 
 
    (a) in circumstances not falling within subsection (2), the provider has dismissed the worker, he has resigned or retired or the provider has transferred him to a position which is not a care position;
 
    (b) information not available to the provider at the time of the dismissal, resignation, retirement or transfer has since become available; and
 
    (c) the provider has formed the opinion that, if that information had been available at that time and if (where applicable) the worker had not resigned or retired, the provider would have dismissed him, or would have considered dismissing him, on such grounds as are mentioned in subsection (2)(a).
      (4) If it appears from the information submitted with a reference under subsection (1) that it may be appropriate for the worker to be included in the list kept under section 70, the Secretary of State shall-
 
 
    (a) determine the reference in accordance with subsections (5) to (7); and
 
    (b) pending that determination, provisionally include the worker in the list.
      (5) The Secretary of State shall-
 
 
    (a) invite observations from the worker on the information submitted with the reference and, if he thinks fit, on any observations submitted under paragraph (b); and
 
    (b) invite observations from the provider on any observations on the information submitted with the reference and, if he thinks fit, on any other observations under paragraph (a).
      (6) Where-
 
 
    (a) the Secretary of State has considered the information submitted with the reference, any observations submitted to him and any other information which he considers relevant; and
 
    (b) in the case of a reference under subsection (2)(d), the provider has dismissed the worker or, as the case may be, has confirmed his transfer on such grounds as are there mentioned,
  the Secretary of State shall confirm the worker's inclusion in the list if subsection (7) applies; otherwise he shall remove him from the list.
 
      (7) This subsection applies if the Secretary of State is of the opinion-
 
 
    (a) that the provider reasonably considered the worker to be guilty of misconduct (whether or not in the course of his employment) which harmed or placed at risk of harm a vulnerable adult; and
 
    (b) that the worker is unsuitable to work with vulnerable adults.
      (8) The reference in subsection (6)(b) to the provider dismissing the worker on such grounds as are mentioned in subsection (2)(d) includes-
 
 
    (a) a reference to his resigning or retiring in circumstances such that the provider would have dismissed him, or would have considered dismissing him, on such grounds if he had not resigned or retired; and
 
    (b) a reference to the provider transferring him, on such grounds, to a position which is not a care position.
      (9) Nothing in this section shall require a person who provides care for vulnerable adults to refer a worker to the Secretary of State in any case where the dismissal, resignation, retirement, transfer or suspension took place or, as the case may be, the opinion was formed before the commencement of this section.
 
Employment agencies and businesses: duty to refer.     72. - (1) A person who carries on an employment agency or an employment business ("the provider") shall refer a supply worker to the Secretary of State if there is fulfilled-
 
 
    (a) in the case of an employment agency, any of the conditions mentioned in subsection (2); or
 
    (b) in the case of an employment business, any of the conditions mentioned in subsection (3).
      (2) The conditions referred to in subsection (1)(a) are-
 
 
    (a) that the provider has decided not to do any further business with the worker on grounds of misconduct (whether or not in the course of his employment) which harmed or placed at risk of harm a vulnerable adult;
 
    (b) that the provider has decided on such grounds not to find the worker further employment, or supply him for further employment, in a care position.
      (3) The conditions mentioned in subsection (1)(b) are-
 
 
    (a) that the provider has dismissed the worker on the grounds of misconduct (whether or not in the course of his employment) which harmed or placed at risk of harm a vulnerable adult;
 
    (b) that the worker has resigned or retired in circumstances such that the provider would have dismissed him, or would have considered dismissing him, on such grounds if he had not resigned or retired;
 
    (c) that the provider has, on such grounds, decided not to supply the worker for further employment in a care position.
      (4) If it appears from the information submitted with a reference under subsection (1) that it may be appropriate for the worker to be included in the list kept under section 70, the Secretary of State shall-
 
 
    (a) determine the reference in accordance with subsections (5) to (7); and
 
    (b) pending that determination, provisionally include the worker in the list.
      (5) The Secretary of State shall-
 
 
    (a) invite observations from the worker on the information submitted with the reference and, if he thinks fit, on any observations submitted under paragraph (b); and
 
    (b) invite observations from the provider on any observations on the information submitted with the reference and, if he thinks fit, on any other observations under paragraph (a).
      (6) Where the Secretary of State has considered the information submitted with the reference, any observations submitted to him and any other information which he considers relevant, the Secretary of State shall confirm the worker's inclusion in the list if subsection (7) applies; otherwise he shall remove him from the list.
 
      (7) This subsection applies if the Secretary of State is of the opinion-
 
 
    (a) that the provider reasonably considered the worker to be guilty of misconduct (whether or not in the course of his employment) which harmed or placed at risk of harm a vulnerable adult; and
 
    (b) that the worker is unsuitable to work with vulnerable adults.
      (8) Nothing in this section shall require a person who provides care for vulnerable adults to refer a worker to the Secretary of State in any case where the dismissal, resignation or retirement took place or, as the case may be, the decision was made before the commencement of this section.
 
Appeals against inclusion in list.     73. - (1) An individual who is included (otherwise than provisionally) in the list kept by the Secretary of State under section 70 may appeal to the Tribunal against-
 
 
    (a) the decision to include him in the list; or
 
    (b) with the leave of the Tribunal, any decision of the Secretary of State not to remove him from the list under section 70(3).
      (2) Subject to subsection (5), an individual who has been provisionally included for a period of more than nine months in the list kept by the Secretary of State under section 70 may, with the leave of the Tribunal, have the issue of his inclusion in the list determined by the Tribunal instead of by the Secretary of State.
 
      (3) If on an appeal or determination under this section the Tribunal is not satisfied of either of the following, namely-
 
 
    (a) that the individual was guilty of misconduct (whether or not in the course of his duties) which harmed or placed at risk of harm a vulnerable adult; and
 
    (b) that the individual is unsuitable to work with vulnerable adults,
  the Tribunal shall allow the appeal or determine the issue in the individual's favour and (in either case) direct his removal from the list; otherwise it shall dismiss the appeal or direct the individual's inclusion in the list.
 
      (4) Where an individual has been convicted of an offence involving misconduct (whether or not in the course of his employment) which harmed or placed at risk of harm a vulnerable adult, no finding of fact on which the conviction must be taken to have been based shall be challenged on an appeal or determination under this section.
 
      (5) Where the misconduct of which the individual is alleged to have been guilty is the subject of any civil or criminal proceedings, an application for leave under subsection (2) may not be made before the end of the period of six months immediately following the final determination of the proceedings.
 
      (6) For the purposes of subsection (5), proceedings are finally determined when-
 
 
    (a) the proceedings are terminated without a decision being made;
 
    (b) a decision is made against which no appeal lies;
 
    (c) in a case where an appeal lies with leave against a decision, the time limited for applications for leave expires without leave being granted; or
 
    (d) in a case where leave to appeal against a decision is granted or is not required, the time limited for appeal expires without an appeal being brought.
Applications for removal from list.     74. - (1) An individual who has been included (otherwise than provisionally) in the list kept by the Secretary of State under section 70 for a continuous period of at least ten years may make an application to the Tribunal under this section.
 
      (2) On an application under this section the Tribunal shall determine whether or not the individual should continue to be included in the list.
 
      (3) If the Tribunal is not satisfied that the individual remains unsuitable to work with vulnerable adults it shall direct his removal from the list; otherwise it shall dismiss the application.
 
Effect of inclusion in list.     75. - (1) Where a person who provides care to vulnerable adults proposes to offer an individual employment in a care position that person-
 
 
    (a) shall ascertain whether the individual is included in the list kept under section 70; and
 
    (b) if he is included in that list, shall not offer him employment in such a position.
      (2) Where a person who provides care to vulnerable adults ("the provider") proposes to offer employment in a care position to an individual who has been supplied by a person who carries on an employment agency or employment business, there is a sufficient compliance with subsection (1) if the provider-
 
 
    (a) satisfies himself that, on a date within the last 12 months, the other person ascertained whether the individual was included in the list kept under section 70;
 
    (b) obtains written confirmation of the facts as ascertained by that person; and
 
    (c) if the individual was included in the list on that date, does not offer him employment in a care position.
      (3) It is immaterial for the purposes of subsection (1) or (2) above whether the individual is already employed by the provider.
 
 
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