People In A Position Of Trust

Where an organisation has information relating to the risk posed by a person in a position of trust, they have a responsibility to consider whether this information needs to be shared with other employers, volunteer organisations or student bodies to ensure risks are appropriately considered and managed in those settings too.

The need to share information with an employer/volunteer organisation or student body will be indicated when there is reasonable cause to suspect that a person in a position of trust may pose a risk to adults with care and support needs within another service. This may include situations such as where:

• a member of staff has been suspended pending a disciplinary or safeguarding enquiry, and who is known to be carrying out a similar role working within another organisation where they are assessed as potentially posing an immediate risk to others.
• a member of staff has been dismissed due to their behaviour towards adults with care and support needs, and is also known to be undertaking professional training, for example, as a social worker or as a health professional.
• an employee’s role and responsibilities have been changed in response to dangerous practice, but they continue to have a similar role within another organisation, where they may pose a risk to people who use that service.

Please note the Illustrative examples in Section 9 that help to explain this responsibility.

Unless it is wholly impractical or may place someone at risk there is a need to consult with the person whose information is to be shared, before it is shared with another employer, volunteer manager or student body. This will give them the opportunity to respond to the concerns and make representation on the need to share the information.

If it is assessed as justified and necessary for the employer to be informed of the concerns/allegations, the person in a position of trust may wish to inform their employer/volunteer organisations/student body themselves.  If this is the case, their wish should be respected but it will still be necessary to contact the employer/volunteer organisation/student body subsequently to check that relevant information has actually been passed on. It should be made clear to that person in a position of trust that this is required.

Whilst it is important to work with the person in a position of trust and seek their agreement to share information wherever possible, consent will not always be considered a lawful basis to share information in such situations. Consent must be freely given, specific and informed and the imbalance of power in such situations may mean that it cannot always be relied upon as the legal basis for sharing information. This however, does not mean however that the person does not need to be consulted.

The legal basis for sharing information will usually be as follows:

• Public bodies or organisations commissioned by them should be considered to be undertaking a ‘public task’ as a lawful basis for sharing information. 
• Other agencies should consider relying on ‘legitimate interests’ as a lawful basis for sharing information. 

These terms are explained within the LSAB Information Sharing Policy.  In both cases however, the judgement to be made is the same. In deciding whether sharing information is justified and necessary, it will be necessary to make a professional judgement balancing the rights of adults to be safe with the rights of the person in position of trust to privacy.

To do this, consider: 

1. What might the risks be for adults with care and support needs if the information is not shared?   
2. What might the impact be for the person in a position of trust of sharing the information?

A fair balance must be struck between these competing interests. The risks to adults with care and support needs must be sufficient to justify interfering with the person in a position of trusts’ right to privacy. The consideration is therefore one of proportionality – that is, there should be a need for the disclosure to protect adults with care and support needs.

Reflection points: 

• Ask yourself: Is the sharing of this information fair, i.e. is sharing this information something people would reasonably expect you to do in these circumstances?
• Ask yourself: Am I only sharing information that is necessary to share? You should always ensure you share no more information than is necessary to achieve your purpose.

Deciding whether or not to share information with another employer, volunteer organisation or student body will involve weighing up a range of factors.  It will be important to record your judgement, your reasons for sharing or not sharing the information, the factors you have considered, and why you have given weight to some factors more than others. 

Appendix B: Information Sharing: Record of Decision Making provides a suggested template to help you weigh up relevant factors and assist your decision making and recording.

Example 1:

John and Mary have been married for many years and both work for the same supported living service in Leeds. Mary approaches the manager disclosing that she is experiencing domestic abuse at home and asks for the manager’s help.

Mary identifies that working together with her husband makes her situation worse and asks to be moved to a vacancy in the organisation’s other service. The manager talks to Mary about her situation and makes sure she is fully aware of support services for both of them in Leeds; and agrees to her request to move across to the other service from the end of the month.

Now aware of the allegations of John’s violent behaviour at home, the manager considers if there are any potential risks to tenants at work. John is a longstanding member of staff and the manager is aware that there have never been any concerns about his practice. Quite the opposite, he is considered by tenants to be supportive and helpful.

Having explored Mary’s concerns and allegations, the manager assesses that the alleged incidents at home relate to their particular personal circumstances and current difficulties. As such the manager assesses that there is a low risk of any such occurrence to tenants and decides that they do not need to make changes to the John’s working arrangements.

John also works part-time for another company in a very similar role. In that the manager has not assessed a risk within their work environment; she decides that it would not be justified and necessary to share this information with another employer.

Example 2:

Tina is the manager of a private leisure centre in Leeds.

David joined the team three months ago, and support and supervises activities in the centre. There have already been several complaints from younger women who use the centre about sexually inappropriate comments, overly tactile and lewd behaviour that has made customers so uncomfortable they have complained.

Despite being challenged about this, these behaviours have persisted. Tina is concerned about David’s lack of boundaries and awareness of the impact of his actions. Tina addresses these issues within their organisations disciplinary processes, and through this decides to end David’s employment with them.

Tina however is aware that David in recent weeks has taken on a second job working with younger women with a learning disability, which involves taking them out on activities on a one-to-one basis. Tina raises her concerns with David as to how he might relate to them. David declines any discussion and declines to speak to his other employer about these issues.

Tina weighs up the potential risk to those women with learning disabilities, people who may not be able to speak up for themselves; and considers the potential impact on David of breaching his privacy. The private leisure centre is not a public body nor is it commissioned by one. However, the manager considers that it is in the legitimate interests of those residents to consider sharing the information.

Upon weighing up the decision, Tina is so concerned that she decides it is justified and necessary to inform the manager of that service of their concerns so that they can assess any potential risk and take actions if needed.

Tina contacts the manager of the learning disability service, who already has feedback from colleagues about suggestive comments towards female staff. They decide to seek advice from their HR manager about how to assess and manage potential risk in their service.

Example 3

Emma is an older person with physical disabilities residing in a care home. Her daughter raises a safeguarding concern in relation to neglect. Adults Social Care ask the Care Home to make enquiries into the concerns raised.

During the enquiry, the care home identifies evidence that a particular member of staff, Karen was turning off Emma’s call alarm and not attending to her needs. This placed her at significant risk due to her epilepsy. A safeguarding plan is put in place to safeguard Emma; and the care home decide within their policies to hold a disciplinary hearing for Karen.

During this process it is identified that this member of staff also works weekends for another care home that support people with similar needs. As part of their employee management process, the care home talk to Karen about the need to share the information with the other care provider.

The care home can be considered to be carrying out a public task, as it is commissioned by a public body. Having spoken to Karen and weighed up the potential risks to other residents and Karen’s right to privacy, the care home manager assesses that on balance that it is justified and necessary to inform the other care home manager, so that they can assess the risk and take appropriate actions.

Karen understands that this will happen but has asked to tell her employer herself. The care home manager explains that she will need to follow up with a call to confirm they have been informed.

Each organisation will have in place policies and procedures in relation to employees, volunteers and students as appropriate and these will be the primary source of guidance. This advisory note should not be read as or used as a substitute for the organisation’s own policies and procedures.

Where organisations have specific Human Resource (HR) departments, they may need to be consulted to ensure practice is in accordance with organisational policies and procedures. However, to support managers in this area the following guidance has been produced to assist good decision making.

Safeguarding Children, Young People and Adults at Risk in the NHS: Safeguarding Accountability and Assurance Framework 2019

This NHS assurance framework sets out specific expectations in circumstances involving members of staff in a CCG or primary care service:

"Where there is an allegation that a member of staff in a CCG or primary care services has abused or neglected an adult in their personal life, the designated professional for safeguarding adults in the CCG should be informed" (Section 3.5.7)

NHS services will need to ensure they have arrangements in place to work in accordance with the NHS Assurance Framework.

On the 1st December 2012 the Criminal Records Bureau (CRB) and the Independent Safeguarding Authority (ISA) merged into the Disclosure and Barring Service (DBS). This means that these same services are now provided by a single organisation rather than two.

The Disclosure and Barring Service can bar a person unsuitable to work with vulnerable people, including children, from working in regulated activity in the future. If a person is barred it becomes an offence for an organisation to knowingly engage that person in regulated activity.

Employers and volunteer managers of people working in ‘regulated activity’ have a legal duty to make referrals to the Disclosure and Barring Service in certain circumstances. The local authority also has a power to make a referral, and should do where it is necessary to ensure the appropriate referral has been made.

Regulated activity is work – both paid and unpaid – with children or vulnerable adults that meets certain criteria. In relation to vulnerable adults, regulated activity in broad terms includes activities involved in:

• providing health care
• providing personal care
• providing social work
• providing assistance with cash, bills and/or shopping
• providing assistance in the conduct of personal affairs
• conveying the person

There is a duty placed on regulated activity providers and personnel suppliers to make a DBS referral in circumstances where they have permanently removed a person from ‘regulated activity’ through dismissal or permanent transfer (or would have if the person had not left, resigned, retired or been made redundant); because the person has:

• Been cautioned or convicted for a relevant offence; or
• Engaged in relevant conduct in relation to children and/or vulnerable adults [i.e. an action or inaction (neglect) that has harmed a child or vulnerable adult or put them at risk of harm]; or
• Satisfied the Harm Test in relation to children and/or vulnerable adults [e.g. there has been no relevant conduct (i.e. no action or inaction) but a risk of harm to a child or vulnerable adult still exists].

It is also possible to make a referral where this legal duty has not been met. For example, where there are strong concerns but the evidence is not sufficient to justify dismissing or removing the person from working with children or vulnerable adults. Such a referral would need to be compliant with relevant employment and data protection laws.

This is just an overview, the full official up to date guidance and definitions must be referred to when deciding whether to make a Disclosure and Barring Service referral, as guidance may change over time and it can be an offence to make a referral without good reason.

For further information contact the Disclosure and Barring Service (DBS):

• Helpline: 03000 200 190
• Website: www.homeoffice.gov.uk/agencies-public-bodies/dbs
• Email: customerservices@dbs.gov.uk

The fact that a person tenders his or her resignation, or ceases to provide their services, must not prevent an allegation of abuse being reported or addressed within the safeguarding adult procedures, disciplinary procedures or this guidance.

It is important that every effort is made to reach a conclusion wherever there are allegations concerning the welfare of an adult at risk, including any in which the person concerned refuses to co-operate with the process.

By the same token, so-called 'compromise/settlement agreements' – by which a person agrees to resign, the employer agrees not to pursue action, and both parties agree a form of words to be used in any future reference – must not be used in such cases. In any event it cannot override an employer’s statutory duty to make a referral to the Disclosure and Barring Service where circumstances so require.

The possible risk of harm posed by an employee or volunteer to adults with care and support needs will need to be assessed and managed effectively, taking into account the nature and seriousness of any allegation, the particular circumstances and the risk of repeated incidents. In assessing the risk of harm it is important to recognise also the emotional or psychological distress of the patient/service user.

In some cases the employer will need to consider suspending an employee. Suspension should not be viewed as a form of sanction. It is a neutral act and does not imply guilt. People must not be suspended automatically or without careful thought. Employers must consider carefully whether the circumstances of a case warrant a person being suspended until the concerns are resolved. If the person is suspended the employer should also make arrangements to keep the individual informed about developments in the workplace.

Suspension may not be required where there are appropriate alternatives. This may sometimes include changes to working arrangements, such as not working with a particular patient/service user or working in a non-patient/service user contact role whilst the concerns are being investigated. The potential for alternative working arrangements will be determined by the nature of the organisation’s structure and services.

Only an employer has the power to suspend an employee, redeploy them or make other changes to their working arrangements, and so must be responsible and accountable for the decision reached.
 

The need for and timing of a disciplinary hearing is a decision for the relevant employer and will depend on the specific circumstances of the situation. Disciplinary hearings will be focused on the conduct of the individual as an employee. Decisions reached should, however, also give due consideration to the organisation’s responsibility to safeguard adults at risk.

For these reasons, the disciplinary hearing process should:

• Assure itself that it is acting proportionately to the risk of abuse occurring or reoccurring
• Understand the potential impact of disciplinary decisions on the adult at risk and other service users
• Assure itself that the person in a position of trust is safe to work with adults with care and support needs and where needed detail the measures required to provide this reassurance
• Consider the need to seek advice from their organisation’s safeguarding adult lead in relation to the impact of their decisions on an adult at risk
• Understand and act upon responsibilities to refer individuals to professional regulatory bodies and make referrals to the Disclosure and Barring Scheme, where appropriate.

Professional bodies all

• maintain a public register of qualified workers
• sets standards for conduct, performance and ethics
• considers allegations of misconduct, lack of competence or unfitness to practice
• makes decisions as to whether a registered worker can practice

If the member of staff is registered with a professional body and there are concerns about their fitness to practice, the employer/volunteer/student body manager must refer to the professional body’s published guidance and consider the need to raise the concern with that professional body.

A professional body has a range of options where appropriate, these usually include suspending the person from practice, de-registering them or imposing conditions of practice that the person must work under.