The Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 introduced new rules relating to the recruitment of non-executive directors (NEDs) for NHS organisations. Many organisations are also applying the same set of checks to other people being appointed to senior posts.
Regulation 5 para 3(e) of this Act states "none of the grounds of unfitness specified in Part 1 of Schedule 4 should apply to the individual."
It is important to note that the regulations do not say "Carry out a DBS check on everyone"! These regulations do not introduce any new legal exemptions that allow you to carry out a DBS check on a non executive director. If you are going to carry out a check it must be done using an existing exemption, for instance they have additional role that involves regular access to patients or carrying out regulated activities.
This is my interpretation of the new rules. I am not a lawyer and this does not come with any sort of guarantees. It is important that you read all the primary legislation and other available guidance and that if you are in any doubt about any of this that you take legal advice.
Proving a negative
It is impossible to prove that anyone is a fit and proper person. All you can do is to look for evidence that they are not a fit and proper person. Therefore it is important that you carry out a thorough set of tests, in a systematic manner, and that you record everything you find, and more importantly what you don't find, as this will assist your defence if you ever have to justify a recruitment decision.
Good character and unfit person tests
PART 1 - Unfit person test
1. The person is an undischarged bankrupt or a person whose estate has had sequestration awarded in respect of it and who has not been discharged.
2. The person is the subject of a bankruptcy restrictions order or an interim bankruptcy restrictions order or an order to like effect made in Scotland or Northern Ireland.
3. The person is a person to whom a moratorium period under a debt relief order applies under Part VIIA (debt relief orders) of the Insolvency Act 1986(1).
4. The person has made a composition or arrangement with, or granted a trust deed for, creditors and not been discharged in respect of it.
5. The person is included in the children’s barred list or the adults’ barred list maintained under section 2 of the Safeguarding Vulnerable Groups Act 2006, or in any corresponding list maintained under an equivalent enactment in force in Scotland or Northern Ireland.
6. The person is prohibited from holding the relevant office or position, or in the case of an individual from carrying on the regulated activity, by or under any enactment.
PART 2 - Good character
7. Whether the person has been convicted in the United Kingdom of any offence or been convicted elsewhere of any offence which, if committed in any part of the United Kingdom, would constitute an offence.
8. Whether the person has been erased, removed or struck-off a register of professionals maintained by a regulator of health care or social work professionals.
Ideas for checks that can be done:
Part 1, Tests 1 to 4 - Search of insolvency and bankruptcy register
This is free and can be undertaken by visiting the Insolvency Service website: www.bis.gov.uk/insolvency
This includes links to the registers for England and Wales, Scotland and Northern Ireland
Part 1, Test 5 - Search of Spent Convictions and the Vulnerable Adult and Child Barred Lists
If the potential director carries out activities on behalf of the organisation that qualify for a DBS check the certificate can be checked for details of Spent Convictions and listings on the Vulnerable Adult and Child Barred Lists. A DBS check can not be carried out if the applicant is not eligable for one as a result of some other duties they undertake. Being a non-executive director is not currently an eligible criteria for undertaking a DBS check.
The Care Quality Commission say on Page 20 of this document http://www.cqc.org.uk/sites/default/files/20140725_nhs_fppr_and_doc_consultation_final.pdf
That "CQC recognises that it may not always be possible for providers to access a DBS check as an individual may not be eligible"
DBS have confirmed that Trusts can't use the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 as justification, on its own, for doing DBS checks on people who would not otherwise qualify for one.
Part 1, Test 6 (Not barred from holding the relevant office or position)
Carry our a series of "Google" searches to see if anything relevant can be found. Use key words such as the applicant's name and a range of other words such as "conviction", "accused", "penalty" and "barred". Maybe also trying adding in "NHS".
Look at the first 2 or 3 pages of results to see if there is anything relevant relating to the person you are researching. If the applicant has a more common name you may need to review additional pages of search results.
Ensure that you keep an accurate log of the search terms used and anything relating to the applicant that is found.
I would also suggest taking references for posts for a longer period than the usual 3 years for recruitment, possibly going back 10 to 15 years. The key issues will be verifying that the information about past posts is true and, ideally, the reason for leaving the post (in case it was some thing that might mean they are not a "fit and proper person").
Part 2, Test 7 - Search of Unspent Convictions
Requires that the applicant apply for a certificate through Basic Disclosure Scotland - http://www.disclosurescotland.co.uk/basicdisclosureonline/
Part 2, Test 8 - Search of Professional Registers
The potential director is, or ever has been, on any register of professionals maintained by a regulator of health care or social work professionals the register(s) should be searched for any indication that the individual has ever been erased, removed or struck-off.
Part 2, Additional Checks –
Disqualified Company Directors
The Insolvency Service register lists directors disqualified in the last 3 months.
It gives full details of why the director was banned.
The Insolvency Service can also be contacted for details of directors they got disqualified more than 3 months ago via Defendant.Liaison.Team@insolvency.gsi.gov.uk
Disqualified Charity Trustees
Charity Commission -Register of Removed Trustees: http://apps.charitycommission.gov.uk/trusteeregister/search.aspx?RegisteredCharityNumber=&CurrentLanguage=English&SubsidiaryNumber=&=DocType&
Note: This register only lists Trustees who have been removed by the Charity Commission. It does not provide details of those who are disqualified for other reasons (for example, criminal convictions or insolvency).
The Web-site www.duedil.com allows companies and directors to be searched for. It is worth reviewing which organisations the potential director is involved in now or has been involved in at any point in the past. The site allows free accounts to be set-up to carry out a limited number of searches each year.
Remember - Record everything found and, just as important, where you looked and didn't find anything!
New Trac functionality to help record checks
For Trac User organisations you can now use the new "ad-hoc" (blocking) employment checks to help to ensure that you remember to carry out all the required tasks. The checks' you can activate are:
FPP - Charity Commission barred trustees list check
FPP - Companies House barred directors list check
FPP - Financial background check
FPP - Google search completed
FPP - Search of unspent convictions (Basic check with a standard or enhanced check can't be done).
If you want to create a new "Department" for managing Executive appointments, with these checks automatically activated, please let Robin or myself know.