Part 1The lists
Duty to keep lists
I151Duty of Scottish Ministers to keep lists
1
Ministers must keep—
a
the children's list, and
b
the adults' list.
2
An individual may be listed in—
a
the children's list,
b
the adults' list, or
c
both lists,
only in accordance with this Part.
3
In this Act, “listed”, in relation to an individual, means included in the children's list or, as the case may be, the adults' list, and references to listing an individual are to be construed accordingly.
Referrals
I162Referral ground
The referral ground—
a
in relation to an individual who is or has been doing (or has been offered or supplied for) regulated work with children, is that the individual has, whether or not in the course of the individual's work—
i
harmed a child,
ii
placed a child at risk of harm,
iii
engaged in inappropriate conduct involving pornography,
iv
engaged in inappropriate conduct of a sexual nature involving a child, or
v
given inappropriate medical treatment to a child,
b
in relation to an individual who is or has been doing (or has been offered or supplied for) regulated work with adults, is that the individual has, whether or not in the course of the individual's work—
i
harmed a protected adult,
ii
placed a protected adult at risk of harm,
iii
engaged in inappropriate conduct involving pornography,
iv
engaged in inappropriate conduct of a sexual nature involving a protected adult, or
v
given inappropriate medical treatment to a protected adult.
3Reference following disciplinary action etc.
I1I171
An organisation must give Ministers any prescribed information which it holds in relation to an individual who is or has been doing regulated work if—
a
it has, on the referral ground—
i
dismissed the individual, or
ii
transferred the individual to a position which does not involve that type of regulated work, or
b
it would or might have dismissed or so transferred the individual on the referral ground if the individual had not—
i
otherwise stopped doing regulated work, or
ii
been working for the organisation for a fixed term.
I1I172
An organisation must give Ministers any prescribed information which it holds in relation to an individual who has been doing regulated work if—
a
the individual stops doing the regulated work in circumstances not falling within subsection (1),
b
the organisation subsequently becomes aware of information which it was unaware of when the individual stopped doing regulated work, and
c
the organisation considers that, if—
i
it had been aware of that information at that time, and
ii
the individual had not stopped doing regulated work,
it would or might have dismissed the individual on the referral ground.
I183
In subsections (1) and (2)—
a
an individual suspended from regulated work is not to be treated as having stopped doing that work, and
b
the duty to give Ministers information in relation to the temporary transfer of an individual to another position applies only if the organisation subsequently makes a final decision not to permit the individual to resume the type of regulated work from which the individual was transferred.
I184
This section does not apply to personnel suppliers (see sections 4 and 5).
I2I194Reference by employment agency
A personnel supplier which carries on an employment agency must give Ministers any prescribed information which it holds in relation to an individual who is or has been doing regulated work if it has, on the referral ground, decided—
a
not to do any further business with the individual, or
b
not to—
i
find the individual further regulated work, or
ii
offer or supply the individual for such work.
I3I205Reference by employment business
A personnel supplier which carries on an employment business must give Ministers any prescribed information which it holds in relation to an individual whom it has offered or supplied for regulated work if—
a
it has dismissed the individual on the referral ground,
b
the individual has otherwise stopped doing regulated work in circumstances in which it would or might have dismissed the individual on the referral ground if the individual had not so stopped, or
c
it has, on the referral ground, decided not to offer or supply the individual for further regulated work.
6Reference relating to matters occurring before provisions come into force
I211
The duties in sections 3 to 5 do not apply where the individual stopped doing the regulated work (or, as the case may be, the organisation's opinion was formed) before the date on which the provisions imposing the duties come into force.
I4I222
But an organisation may give Ministers any prescribed information which it holds in relation to such an individual if it wishes to do so.
7Reference by court
I5I231
Where a court convicts an individual of a relevant offence, it must give Ministers any prescribed information that it holds in relation to the convicted individual.
I242
Subsection (3) applies where a court—
a
convicts an individual of an offence (other than a relevant offence), and
b
is satisfied that it may be appropriate for the individual to be listed in the children's list or in the adults' list (or in both lists).
I5I233
Where this subsection applies, the court may give Ministers any prescribed information that the court holds in relation to the convicted individual.
I244
This section applies in relation to offences committed before and after this section comes into force.
8Reference by certain other persons
I6I251
A person to whom this section applies may give Ministers any prescribed information that the person holds in relation to an individual who is or has been doing regulated work if—
a
on the basis of information obtained by the person in the exercise of relevant functions, the person considers that the referral ground is met (regardless of whether the conduct to which the information relates occurred before or after this section comes into force), and
b
prescribed information in relation to the individual has not been given to Ministers under sections 3 to 6 in respect of the conduct to which the information relates.
I6I252
This section applies to—
The General Teaching Council for Scotland
F39 Healthcare Improvement Scotland
The Registrar of Chiropractors
The registrar of dentists and dental care professionals
The registrar of the General Medical Council
The registrar of the General Optical Council
The Registrar of health professionals
The Registrar of nurses and midwives
The Registrar of Osteopaths
F23 The registrar of pharmacists
F26...
The Scottish Social Services Council
F27 Social Care and Social Work Improvement Scotland
Any other person specified in an order made by Ministers
3
For the purposes of this section, “relevant functions” means—
I26a
in relation to the General Teaching Council for Scotland, such functions as are conferred on it by virtue of the F44Public Services Reform (General Teaching Council for Scotland) Order 2011,
I26F40 aa
in relation to Healthcare Improvement Scotland, such functions as are conferred on it by virtue of the National Health Service (Scotland) Act 1978 (c. 29) and any other enactment,
I26b
in relation to registrars mentioned in subsection (2), such functions as are conferred on them by virtue of any enactment,
I26c
F31ca
in relation to Social Care and Social Work Improvement Scotland, such functions as are conferred on it by virtue of the 2010 Act and any other enactment, and
I13d
in relation to a person specified in an order made under subsection (2), such functions as are specified by the order.
I279Failure to refer: offence
An organisation which fails, without reasonable excuse, to comply with a duty imposed by any of sections 3 to 5 within 3 months of the date on which the duty arose is guilty of an offence and liable—
a
on summary conviction, to imprisonment for a term not exceeding 12 months or to a fine not exceeding the statutory maximum, or to both,
b
on a conviction on indictment, to imprisonment for a term not exceeding 5 years or to a fine, or to both.
Consideration whether to list
I2810Consideration whether to list: organisational referrals etc.
1
This section applies
a
F3where—
F4i
prescribed information relating to an individual has been given to Ministers in pursuance of sections 3 to 6 or 8, and
b
where information relating to an individual has been given to Ministers by the F60Disclosure and Barring Service.
2
Where Ministers are satisfied that the information indicates that it may be appropriate for the individual to be included in the children's list, they must consider listing the individual in that list.
3
Where Ministers are satisfied that the information indicates that it may be appropriate for the individual to be included in the adults' list, they must consider listing the individual in that list.
4
For the avoidance of doubt, subsections (2) and (3) apply in relation to an individual regardless of the type of regulated work F6(if any) which the individual is or has been doing.
I2911Consideration whether to list: court referrals
1
This section applies where prescribed information relating to an individual has been given to Ministers in pursuance of section 7.
2
Where the individual has been convicted of a relevant offence, Ministers must consider listing the individual in the children's list.
3
In any other case, Ministers must consider listing the individual in the children's list where they are satisfied that—
a
the information indicates that it may be appropriate for the individual to be included in that list, and
b
the individual does, has done or is likely to do regulated work with children.
4
Ministers must consider listing the individual in the adults' list where they are satisfied that—
a
the information indicates that it may be appropriate for the individual to be included in that list, and
b
the individual does, has done or is likely to do regulated work with adults.
I3012Consideration whether to list: vetting information etc.
1
Ministers must consider listing an individual in the children's list if they are satisfied that—
a
either—
i
vetting information about the individual, or
ii
information received when considering whether to list the individual in the adults' list,
indicates that it may be appropriate for the individual to be included in the children's list, and
b
the individual does, has done or is likely to do regulated work with children.
2
Ministers must consider listing an individual in the adults' list if they are satisfied that—
a
either—
i
vetting information about the individual, or
ii
information received when considering whether to list the individual in the children's list,
indicates that it may be appropriate for the individual to be included in the adults' list, and
b
the individual does, has done or is likely to do regulated work with adults.
I31C313Consideration whether to list: inquiries
1
This section applies where—
a
a relevant inquiry report names an individual who is or has been doing regulated work, and
b
it appears to Ministers from the report that the person who held the inquiry found that the referral ground was met at a time when the individual was doing regulated work (whether that time was before or after this section comes into force).
2
Where it appears to Ministers from the report that it may be appropriate for the individual to be included in the children's list, they may consider listing the individual in the children's list.
3
Where it appears to Ministers from the report that it may be appropriate for the individual to be included in the adults' list, they may consider listing the individual in the adults' list.
4
For the avoidance of doubt, subsections (2) and (3) apply in relation to an individual regardless of the type of regulated work which the individual was doing.
Inclusion in list
14Automatic listing
I321
Ministers must list an individual in the children's list where it appears to them that any of the criteria specified for the purposes of this subsection is satisfied in relation to the individual.
I322
Ministers must list an individual in the adults' list where it appears to them that any of the criteria specified for the purposes of this subsection is satisfied in relation to the individual.
I7I333
It is for Ministers to specify by order criteria for the purposes of subsections (1) and (2).
I7I334
Criteria which may be so specified include—
a
that an individual has been convicted of, or cautioned in relation to, an offence of a specified description, including offences under—
i
the law of England, Wales, Northern Ireland, the Channel Islands or the Isle of Man,
ii
section 70 of the Army Act 1955 (c. 18),
iii
section 70 of the Air Force Act 1955 (c. 19),
iv
section 42 of the Naval Discipline Act 1957 (c. 53),
v
section 42 of the Armed Forces Act 2006 (c. 52),
b
that an order of a specified description imposing requirements about an individual's conduct has been made.
I3415Inclusion in children's list after consideration
Ministers must list an individual in the children's list if, after considering whether to do so, they are satisfied by information relating to the individual's conduct that the individual is unsuitable to work with children.
I3516Inclusion in adults' list after consideration
Ministers must list an individual in the adults' list if, after considering whether to do so, they are satisfied by information relating to the individual's conduct that the individual is unsuitable to work with protected adults.
Information relevant to listing decisions
I6717Information relevant to listing decisions
1
Ministers must, before making a decision under section 15 or 16—
a
give the individual whom they are considering whether to list an opportunity to make representations as to why the individual should not be listed, and
b
consider any such representations.
2
Ministers may, when deciding whether to list an individual, also consider—
a
any information which caused them to consider listing the individual,
b
any information relating to the individual which they obtain—
i
in pursuance of a requirement made under any of sections 18 to 20, or
ii
by performing their functions in relation to the Scheme, and
c
any other information which they think relevant.
3
An individual who is given an opportunity to make representations under subsection (1) must be given the opportunity to make representations in relation to all of the information on which Ministers intend to rely in deciding whether to list the individual.
4
The opportunity to make representations under subsection (1) does not include the opportunity to make representations that any relevant finding of fact was wrongly made.
5
A relevant finding of fact is a finding of fact—
a
made in legal proceedings,
b
made in a relevant inquiry report (other than a report relating to an inquiry of the type mentioned in sub-paragraph (ii) of section 31(2)(a)),
c
made in proceedings before one of the following bodies or any of its committees—
i
F61the General Pharmaceutical Council,
ii
the General Chiropractic Council,
iii
the General Dental Council,
iv
the General Medical Council,
v
the General Optical Council,
vi
the General Osteopathic Council,
vii
the General Teaching Council for Scotland,
viii
F46 the Health and Care Professions Council ,
ix
the Nursing and Midwifery Council,
F32x
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
xi
the Scottish Social Services Council, F33...
F34xii
Social Care and Social Work Improvement Scotland, or
6
Subsections (1) and (3) do not apply if Ministers do not know and cannot reasonably ascertain the individual's whereabouts.
I3718Police information etc.
1
Ministers may, for the purpose of enabling or assisting them to decide whether to list an individual, require the chief constable F49... to provide them with any information relating to the individual which the chief constable F50... thinks might be relevant in relation to the type of regulated work concerned.
2
3
Ministers must pay the F53 Scottish Police Authority such fee as Ministers think appropriate for information provided under subsection (1).
4
Ministers may, for the purpose of enabling or assisting them to decide whether to list an individual, require—
a
any person who holds records of convictions, cautions or other information for the use of police forces generally to provide them with any information relating to the individual which the record holder thinks might be relevant in relation to the type of regulated work concerned,
b
any person who holds such records to provide them with the information referred to in section 113A(3)(a) of the 1997 Act (prescribed details of every relevant matter relating to the individual which is recorded in central records).
19Information held by public bodies etc.
I381
Ministers may, for the purpose of enabling or assisting Ministers to decide whether to list an individual, require—
a
any person who holds vetting information of a type prescribed under section 49(1)(d) to provide them with any such vetting information relating to the individual,
b
any of the persons set out in subsection (3) to provide them with any information held by the person which Ministers think might be relevant.
I382
Information provided under subsection (1)(b) may, in particular, be information which relates to—
a
the regulated work concerned, or
b
the protection of children or protected adults in general, or of any child or protected adult in particular.
I143
The persons who may be required to provide information under subsection (1)(b) are—
Councils
The General Teaching Council for Scotland
Health Boards and Special Health Boards
F62An integration joint board established by order under section 9 of the Public Bodies (Joint Working) (Scotland) Act 2014
F41 Healthcare Improvement Scotland
Her Majesty's Chief Inspector of Prisons for Scotland
Her Majesty's Inspectors of Schools
The Registrar of Chiropractors
The registrar of dentists and dental care professionals
The registrar of the General Medical Council
The registrar of the General Optical Council
The Registrar of health professionals
The Registrar of Independent Schools in Scotland
The Registrar of nurses and midwives
The Registrar of Osteopaths
F24 The registrar of pharmacists
F35...
The Scottish Social Services Council
F36 Social Care and Social Work Improvement Scotland
F43...
Any other person specified in an order made by Ministers
I3920Information held by regulated work providers
1
Ministers may require a person falling within subsection (2) to provide them with any information held by the person which Ministers think might be relevant for the purpose of enabling or assisting them to decide whether to list an individual.
2
A person falls within this subsection if—
a
the individual is doing, or has done, regulated work for the person,
b
the individual has been offered regulated work by the person (whether or not the individual subsequently did the work),
c
it is an employment agency which has offered or supplied, or made arrangements with a view to offering or supplying, the individual to another person for regulated work (whether or not the arrangements are still in place), or
d
it is an employment business which employs or has employed the individual to do regulated work for another person.
3
A person who fails, without reasonable excuse, to comply with a requirement made under subsection (1) is guilty of an offence and liable, on summary conviction, to a fine not exceeding level 5 on the standard scale.
Appeals against listing
I4021Appeals against inclusion in children's list
1
An individual listed under section 15 may appeal to the sheriff against Ministers' decision to list the individual in the children's list.
2
Such an appeal must be lodged—
a
within 3 months of the date on which the individual was listed, or
b
by such later date as the sheriff may, on cause shown, allow.
3
The sheriff must determine an appeal under subsection (1)—
a
where the sheriff is satisfied by information relating to the individual's conduct that the individual is unsuitable to work with children, by confirming Ministers' decision to list the individual in the children's list, or
b
where the sheriff is not so satisfied, by directing Ministers to remove the individual from the children's list.
I4122Appeals against inclusion in adults' list
1
An individual listed under section 16 may appeal to the sheriff against Ministers' decision to list the individual in the adults' list.
2
Such an appeal must be lodged—
a
within 3 months of the date on which the individual was listed, or
b
by such later date as the sheriff may, on cause shown, allow.
3
The sheriff must determine an appeal under subsection (1)—
a
where the sheriff is satisfied by information relating to the individual's conduct that the individual is unsuitable to work with protected adults, by confirming Ministers' decision to list the individual in the adults' list, or
b
where the sheriff is not so satisfied, by directing Ministers to remove the individual from the adults' list.
I4223Further appeals in relation to inclusion in either list
1
The sheriff's determination under section 21 or 22 may be appealed to the sheriff principal by—
a
the individual, or
b
Ministers.
2
The sheriff principal's determination of an appeal under subsection (1) may, with the leave of the sheriff principal, be appealed to the Inner House of the Court of Session on a point of law by—
a
the individual, or
b
Ministers.
3
The decision of—
a
the sheriff principal, or
b
if leave is granted to appeal to the Inner House, that House,
on any appeal is final.
I4324Appeals in relation to listing: supplementary
1
No finding of fact on which any conviction is based may be challenged on an appeal under section 21, 22 or 23.
2
Any court proceedings under section 21, 22 or 23 may take place in private if the court considers it appropriate in all the circumstances.
Removal from list
25Application for removal from list
I441
A listed individual may apply to Ministers for removal from—
a
the children's list, or
b
the adults' list.
I442
References in this section to “the list” are to be read as references to the list from which the individual has applied for removal.
3
An application for removal from the list is competent only if—
I444
A period may not be prescribed under subsection (3)(a) in relation to a particular individual.
F634A
For the purposes of subsection (3)(b), a change in the applicant's circumstances is relevant if it is relevant to the question whether the applicant is no longer unsuitable to carry out regulated roles with children or, as the case may be, regulated roles with adults.
F65I445
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F65I446
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
I4626Determination of application for removal from list
1
Ministers must determine a competent application for removal from the children's list—
a
where they are satisfied that the applicant is no longer unsuitable to work with children, by removing the individual from the list, or
b
where they are not so satisfied, by refusing the application.
2
Ministers must determine a competent application for removal from the adults' list—
a
where they are satisfied that the applicant is no longer unsuitable to work with protected adults, by removing the individual from the list, or
b
where they are not so satisfied, by refusing the application.
F663
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
I4727Appeals against refusal to remove individual from list
1
An individual may appeal to the sheriff against Ministers' decision to refuse an application for removal from the list under section 26.
2
The sheriff must determine an appeal under subsection (1) in relation to removal from the children's list—
a
where the sheriff is satisfied that the applicant is no longer unsuitable to work with children, by directing Ministers to remove the individual from the list, or
b
where the sheriff is not so satisfied, by refusing the application.
3
The sheriff must determine an appeal under subsection (1) in relation to removal from the adults' list—
a
where the sheriff is satisfied that the applicant is no longer unsuitable to work with protected adults, by directing Ministers to remove the individual from the list, or
b
where the sheriff is not so satisfied, by refusing the application.
4
The sheriff's determination may be appealed to the sheriff principal by—
a
the individual, or
b
Ministers.
5
The sheriff principal's determination of an appeal under subsection (4) may, with the leave of the sheriff principal, be appealed to the Inner House of the Court of Session on a point of law by—
a
the individual, or
b
Ministers.
6
The Inner House may, in determining an appeal under subsection (5), by order modify the period prescribed for the purposes of section 25(3) in so far as that period is to apply to any further application by the individual concerned for removal from the children's list or, as the case may be, the adults' list.
7
The decision of—
a
the sheriff principal, or
b
if leave is granted to appeal to the Inner House, that House,
on any appeal is final.
8
Any court proceedings under this section may take place in private if the court considers it appropriate in all the circumstances.
I4828Late representations
1
This section applies where an individual listed under section 15 or 16—
a
was not, because of section 17(6), given an opportunity to make representations as to why the individual should not be listed, and
b
subsequently makes representations to Ministers as to why the individual should not have been listed.
F671A
This section also applies where an individual listed under section 15 or 16 (other than one mentioned in subsection (1))—
a
seeks to make representations to Ministers as to why the individual should not have been listed, and
b
Ministers consider that it is appropriate in all the circumstances to allow the representations to be made.
2
Where this section applies, Ministers must—
a
consider the individual's representations, and
b
if satisfied that the individual should not have been listed, remove the individual from the list.
I4929Removal from list
1
Ministers—
a
must remove an individual from the children's list or adults' list—
i
if directed to do so by the court, or
ii
where section 26 or 28 requires them to do so, and
b
may, at any other time, remove an individual from the children's list or adults' list if.
ii
they are otherwise satisfied that the individual is no longer unsuitable to carry out regulated roles with children or, as the case may be, regulated roles with adults.
2
Where Ministers appeal against a direction to remove an individual from the children's list or adults' list, the duty imposed by subsection (1)(a) does not apply until that appeal is finally determined.
F58Appeals and removals: information powers
29AAppeals and removals: application of sections 18 to 20
1
Sections 18 to 20 apply—
a
for any of the purposes specified in subsection (2) as they apply for the purpose of enabling or assisting Ministers to decide whether to list an individual,
b
with the modifications that are specified in subsection (2) in relation to the purpose.
2
The purposes (and modifications) are—
a
enabling or assisting Ministers to consider, in relation to an appeal under section 21, 22 or 23, whether an individual should have been listed (with references to deciding whether to list an individual being read as references to deciding whether the individual should have been listed),
b
enabling or assisting Ministers to determine under section 26 an application for removal from the children's list or the adults' list (with references to deciding whether to list an individual being read as references to determining whether to remove an individual from the list),
c
enabling or assisting Ministers to consider, in relation to an appeal under section 27, whether an application for removal from the children's list or the adults' list should have been refused under section 26 (with references to deciding whether to list an individual being read as references to deciding whether an application for removal from the list should have been refused),
d
enabling or assisting Ministers to decide under section 28 or 29 whether to remove an individual from the children's list or the adults' list (with references to deciding whether to list an individual being read as references to deciding whether an individual should not have been listed or is no longer unsuitable to carry out regulated roles with children or, as the case may be, regulated roles with adults).”. Confirmation of PVG Scheme membership
Listing: supplementary
I50C1C230Notice of listing etc.
1
Subsection (2) applies where—
a
an individual has been listed under section 14, 15 or 16,
b
Ministers become aware that an individual has otherwise been barred from doing regulated work with children or adults, or
c
Ministers are considering whether to list an individual by virtue of sections 10 to 13.
2
Where this subsection applies, Ministers must notify the persons specified in subsection (3) of the fact—
a
that the individual has been barred from doing regulated work with children or adults, or, as the case may be
b
that they are considering whether to list the individual.
3
Those persons are—
a
the individual concerned,
b
where—
i
the individual has been barred from regulated work with children, or
ii
Ministers are considering whether to list the individual in the children's list,
any organisation for which they know the individual is doing regulated work with children,
c
where—
i
the individual has been barred from regulated work with adults, or
ii
Ministers are considering whether to list the individual in the adults' list,
any organisation for which they know the individual is doing regulated work with adults, and
d
any relevant regulatory body whom Ministers think it would be appropriate to notify of that fact.
4
Where, after considering whether to list an individual, Ministers decide not to do so, they must give notice of that fact to—
a
the individual,
b
where Ministers have decided not to include the individual in the children's list, any organisation for which they know the individual is doing regulated work with children,
c
where Ministers have decided not to include the individual in the adults' list, any organisation for which they know the individual is doing regulated work with adults, and
d
any relevant regulatory body to whom Ministers gave notice under subsection (2) of the fact that they were considering whether to list the individual.
5
A notice given under subsection (2) or (4) may include—
a
such details as Ministers think appropriate—
i
where the individual has been barred (by being listed or otherwise), about the circumstances in which the individual was barred,
ii
where they have decided not to list an individual, about the circumstances in which the individual was considered for listing, and
b
any other information about the individual which Ministers think appropriate.
6
Where Ministers remove an individual from a list under section 29, they must give notice of that fact to—
a
the individual, and
b
any relevant regulatory body whom they think it would be appropriate to notify of that fact (having regard to the period for which the individual has been listed).
7
8
A notice which this section requires to be given to an individual may be given—
a
by delivering it to the individual,
b
by leaving it at the individual's usual or last known place of abode, or
c
by sending it by post to the individual at that place.
30AF25 Notification of health regulatory bodies etc.
1
Where section 30(2) applies, Ministers must notify any relevant health regulatory body whom they think it would be appropriate to notify of the fact—
a
that the individual has been barred from doing regulated work with children or adults, or, as the case may be,
b
that they are considering whether to list the individual.
2
Where, after considering whether to list an individual, Ministers decide not to do so, they must give notice of that fact to any relevant health regulatory body to whom they gave notice under subsection (1)(b).
3
A notice given under subsection (1) or (2) may include—
a
such details as Ministers think appropriate—
i
where the individual has been barred (by being listed or otherwise), about the circumstances in which the individual was barred,
ii
where they have decided not to list an individual, about the circumstances in which the individual was considered for listing, and
b
any other information about the individual which Ministers think appropriate.
4
Where Ministers remove an individual from a list under section 29, they must give notice of that fact to any relevant health regulatory body whom they think it would be appropriate to notify of that fact (having regard to the period for which the individual has been listed).
5
The following are “relevant health regulatory bodies”—
the General Chiropractic Council
the General Dental Council
the General Medical Council
the General Optical Council
the General Osteopathic Council
F48the Health and Care Professions Council
the Nursing and Midwifery Council
the Pharmaceutical Society of Northern Ireland
the Royal Pharmaceutical Society of Great Britain.
F476
I5131Relevant inquiries
1
This section applies for the purposes of section 13 and 17.
2
A relevant inquiry is any of the following—
a
an inquiry held—
i
by Ministers,
ii
by the Scottish Parliament (including an inquiry held by a committee or sub-committee of the Parliament),
b
an inquiry held under the Inquiries Act 2005 (c. 12),
c
any other inquiry or hearing designated for the purposes of this section by an order made by Ministers.
3
“Relevant inquiry report” means the report by the person who held the relevant inquiry.
32Relevant offences etc.
I521
For the purposes of this Part an individual commits a relevant offence if the individual—
a
commits an offence which falls within paragraph 1 of schedule 1, or
b
falls within paragraph 2 of that schedule,
and references to being convicted of, or charged with, a relevant offence are to be construed accordingly.
I10I532
Ministers may by order modify schedule 1 so as to modify the circumstances in which an individual is to be treated for the purposes of this Part as having committed a relevant offence.
I523
Subsection (4) applies to an individual if—
a
the individual is charged with an offence,
b
either—
i
the individual is acquitted of the charge F45 by reason of the special defence set out in section 51A of the 1995 Act , or
ii
the court makes a finding under section 55(2) of the 1995 Act in respect of the individual, and
c
the court makes any order mentioned in section 57(2)(a) to (d) of the 1995 Act in relation to the acquittal or finding.
I524
An individual to whom this subsection applies is to be treated, for the purposes of sections 7, 17 and 24, as having been convicted of the offence.
I5433Duty to notify certain changes
1
An individual who is listed, or whom Ministers are considering whether to list, must give Ministers notice of—
a
a change in the individual's name or address,
b
the issue of a full gender recognition certificate to the individual under section 4 of the Gender Recognition Act 2004 (c. 7), or
c
any other change in circumstance of a prescribed type.
2
A notice under subsection (1) must be given within 1 month of the date of the change or issue of the certificate to which it relates.
3
An individual who fails, without reasonable excuse, to comply with subsection (1) commits an offence.
4
An individual guilty of an offence under subsection (3) is liable on summary conviction to imprisonment for a term not exceeding 6 months or to a fine not exceeding level 5 on the standard scale, or to both.
Offences relating to regulated work
I5534Barred individuals not to do regulated work
1
It is an offence for an individual to do, or to seek or agree to do, any regulated work from which the individual is barred.
2
It is a defence for an individual charged with an offence under subsection (1) to prove that the individual did not know, and could not reasonably be expected to have known—
a
that the individual was barred from that regulated work, or
b
that the work concerned was regulated work.
35Organisations not to use barred individuals for regulated work
I561
It is an offence for an organisation to offer regulated work to an individual barred from that work.
I11I572
Ministers may, by regulations, prohibit an organisation from permitting an individual to do, or require an organisation to remove an individual from, regulated work from which the individual is barred.
I11I573
Regulations may in particular—
a
impose prohibitions or requirements—
i
in relation to particular types of organisations only,
ii
in relation to particular kinds of regulated work only, or
b
otherwise limit the purpose for which the prohibition or requirement is to apply (or the area in which it is to apply) in such manner as Ministers think appropriate.
I564
An organisation which fails to comply with regulations made under subsection (2) commits an offence.
I565
An organisation commits an offence under subsection (1) if it offers regulated work to a barred individual who is already working for the organisation.
I566
It is a defence for an organisation charged with an offence under subsection (1) or (4) to prove that it did not know, and could not reasonably be expected to have known, that the individual was barred from doing that regulated work.
I567
For the purposes of subsection (1), an organisation is not to be treated as having offered regulated work to an individual if the offer is subject to the organisation being satisfied (by virtue of information disclosed under Part 2 or otherwise) that the individual is suitable to do that work.
I5836Personnel suppliers not to supply barred individuals for regulated work
1
A personnel supplier commits an offence if it—
a
offers or supplies an individual who is barred from doing regulated work to an organisation, and
b
knows or has reason to believe that the organisation will make arrangements for the individual to do regulated work from which the individual is barred.
2
It is a defence for a personnel supplier charged with an offence under subsection (1) to prove that it did not know, and could not reasonably be expected to have known, that the individual was barred from doing the regulated work.
I5937Penalties for offences relating to regulated work
A person guilty of an offence under section 34, 35 or 36 is liable—
a
on summary conviction, to imprisonment for a term not exceeding 12 months or to a fine not exceeding the statutory maximum, or to both,
b
on conviction on indictment, to imprisonment for a term not exceeding 5 years or to a fine, or to both.
37AF59Offences outside Scotland
1
This section applies where an offence is committed under section 34, 35 or 36 outside Scotland.
2
The person committing the offence may be prosecuted, tried and punished for the offence—
a
in a sheriff court district in which the person is apprehended or in custody, or
b
in a sheriff court district determined by the Lord Advocate,
as if the offence had been committed in that district.
3
The offence is, for all purposes incidental to or consequential on the trial and punishment, deemed to have been committed in that district.
General and supplementary
I6038Police access to lists
1
Ministers must make available to F54the chief constable—
a
the name of each individual included in the children's list,
b
the name of each individual included in the adults' list, and
c
any other information contained in those lists which Ministers consider should be disclosed for any purpose mentioned in subsection (2).
2
I6139Restrictions on listing in children's list
1
Ministers need not list an individual (nor consider an individual for listing) in the children's list if the individual is already barred from regulated work with children F8...
2
Ministers need not consider an individual for listing in the children's list if—
a
b
subsection (3) applies.
3
This subsection applies where—
F10a
the individual’s case has been dealt with in pursuance of relevant corresponding legislation, and
b
Ministers are satisfied that all information relating to the individual which they consider relevant to their decision whether to consider to list the individual was considered F11 before, or when, the individual’s case was last dealt with in pursuance of the relevant corresponding legislation .
4
Where—
a
in pursuance of subsection (2)(a), Ministers do not consider an individual for listing in the children's list, and
section 30 applies (with any necessary modifications) as if Ministers are considering to list the individual in the children's list.
5
Ministers need not list an individual in the children's list under section 14 if F13they consider that it would be more appropriate for the individual’s case to be dealt with by F73DBS—
F14a
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F14b
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F76
Where—
a
in pursuance of subsection (5), Ministers do not list an individual in the children’s list under section 14, and
b
F74DBS deals with the individual’s case,
section 30 applies (with any necessary modifications) as if Ministers had listed the individual in the children’s list under section 14.
7
In this section “relevant corresponding legislation” means—
a
the Protection of Children Act 1999 (c.14) ,
b
the Criminal Justice and Court Services Act 2000 (c.43) ,
c
sections 142 to 144 of the Education Act 2002 (c.32) ,
d
the Protection of Children and Vulnerable Adults (Northern Ireland) Order 2003,
e
the Safeguarding Vulnerable Groups Act 2006 (c.47) ,
f
regulations made under Article 70(1) and (2)(e) or 88A(1) and (2)(b) of the Education and Libraries (Northern Ireland) Order 1986,
g
the Safeguarding Vulnerable Groups (Northern Ireland) Order 2007.
I6240Restrictions on listing in adults' list
1
Ministers need not list an individual (nor consider an individual for listing) in the adults' list if the individual is already barred from regulated work with adults F16...
2
Ministers need not consider an individual for listing in the adults' list if—
a
b
subsection (3) applies.
3
This subsection applies where—
F18a
the individual’s case has been dealt with in pursuance of relevant corresponding legislation, and
b
Ministers are satisfied that all information relating to the individual which they consider relevant to their decision whether to consider to list the individual was considered F19before, or when, the individual’s case was last dealt with in pursuance of the relevant corresponding legislation.
4
Where—
a
in pursuance of subsection (2)(a), Ministers do not consider an individual for listing in the adults' list, and
section 30 applies (with any necessary modifications) as if Ministers are considering to list the individual in the adults' list.
5
Ministers need not list an individual in the adults' list under section 14 if F21they consider that it would be more appropriate for the individual’s case to be dealt with by F77DBS.
F22a
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F22b
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F156
Where—
a
in pursuance of subsection (5), Ministers do not list an individual in the adults’ list under section 14, and
b
F78DBS deals with the individual’s case,
section 30 applies (with any necessary modifications) as if Ministers had listed the individual in the adults’ list under section 14.
7
In this section “relevant corresponding legislation” means—
a
Part 7 of the Care Standards Act 2000 (c.14) ,
b
the Protection of Children and Vulnerable Adults (Northern Ireland) Order 2003,
c
the Safeguarding Vulnerable Groups Act 2006 (c.47) ,
d
the Safeguarding Vulnerable Groups (Northern Ireland) Order 2007.
I6341Protection from actions for damages
1
No proceedings are competent in respect of any loss or damage incurred by any person because of—
a
the fact that an individual is or is not listed,
b
the fact that Ministers have or have not considered whether to list an individual,
c
the provision of information in pursuance of any of sections 3 to 8 and 18 to 20 F1(or of any other power or duty to provide information to Ministers in relation to their functions under this Part).
2
Subsection (1)(c) does not apply if the provider of the information—
a
knew, or was reckless as to whether, it was untrue or misleading in a material respect, and
b
provided it—
i
in purported compliance with any of sections 3 to 8 and 18 to 20F2(or of any other power or duty to provide information to Ministers in relation to their functions under this Part), or
ii
in other circumstances in which the provider knew, or could reasonably be expected to have known, that it would be used by Ministers, or provided to them for use, in connection with the performance of their functions under this Part.
42Power to regulate procedure etc.
1
Ministers may, by regulations, make further provision about—
I64a
the information about listed individuals which is to be included in the children's list and adults' list,
I64b
the maintenance of those lists, and
I12I652
The regulations may, in particular, make provision in relation to the time within which anything has to be done.
I6643Transfer from 2003 Act list
1
Ministers must list in the children's list each individual who was included (otherwise than provisionally) in the list kept under section 1 of the Protection of Children (Scotland) Act 2003 (asp 5) (“the 2003 Act”) immediately before that section was repealed.
2
Ministers must give notice of listing under subsection (1) to each individual listed under that subsection.
3
An individual who is listed under subsection (1) is to be treated for the purposes of this Act as having been so listed—
a
under the provision of this Part which most closely corresponds to the provision in the 2003 Act under which the individual was included in the list kept under section 1 of that Act, and
b
on the day on which the individual was included in the list kept under section 1 of the 2003 Act.
4
The provisions of this Part are accordingly to apply in relation to such an individual with any necessary modifications.
5
Section 29(1)(b) is not to be read as requiring or authorising Ministers to remove such an individual from the children's list where it appears to them that the individual—
a
would not have been listed under the provision of this Part which most closely corresponds to the provision in the 2003 Act under which the individual was included in the list kept under section 1 of the 2003 Act, but
b
should have been included in the list kept under the 2003 Act under the provision of that Act which corresponds most closely with the provision of this Part under which the individual is to be treated as having been listed.
6
A notice required by subsection (2) may be given—
a
by delivering it to the listed individual,
b
by leaving it at the listed individual's usual or last known place of abode, or
c
by sending it by post to the listed individual at that place.
S. 29A and cross-heading inserted (10.12.2021) by Disclosure (Scotland) Act 2020 (asp 13), ss. 85(3), 97 (with s. 96); S.S.I. 2021/380, reg. 2, sch. (with reg. 4)