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Disclosure (Scotland) Act 2020

Schedule 4: Schedule to be substituted for schedule 3 of the PVG Act

226.This schedule provides for the substitution of the existing schedule 3 of the PVG Act to deal with the change from “regulated work with adults” to “regulated roles with adults”.

Part 1: Preliminary

227.Paragraph 1(1) defines what is meant by a regulated role with adults. A person must be carrying out one or more activities listed in Part 2 of the schedule. The activities must be a necessary part of the role and take place in Scotland (or take place outside the UK, the Channel Islands and the Isle of Man and be carried out by an individual who is ordinarily resident in the UK for an organisation or a personnel supplier with a place of business in Scotland, whose functions in relation to the carrying out the activity by the individual are principally exercised at that place of business – see paragraph 1(4) of the schedule).

228.In addition, the carrying out of the activities must give the individual the opportunity to have “contact with protected adults” (defined in paragraph 3 of the schedule). Contact includes physical contact with protected adults, written or verbal communication and exercising power or influence over protected adults. Paragraph 3(3) provides the definition of “exercising power or influence” over protected adults.

229.A person with day-to-day supervision or management of an individual carrying out a regulated role with adults is also to be treated as being in a regulated role (see paragraph 1(3)(a) of the schedule). Those involved in training or studying in Scotland for the activities listed in Part 2 will also be treated as carrying out a regulated role with adults (see paragraph 1(3)(b) of the schedule) (as will individuals who are ordinarily resident in the UK who are undertaking training or study for a regulated role with adults outside the UK, the Channel Islands and the Isle of Man for an organisation or a personnel supplier with a place of business in Scotland, whose functions in relation to the carrying out the activity by the individual are principally exercised at that place of business – see paragraph 1(5) of the schedule).

230.There are exceptions to regulated roles with adults set out in paragraph 2. An activity carried out in the course of a family relationship (either paid or unpaid) or in the course of a personal relationship where there is no payment is not a regulated role. This preserves the exclusions to what was considered “work” under section 95(3) and (4) of the PVG Act (which is repealed by the Act as a result of the shift from regulated work to regulated roles).

Part 2: Activities

231.Part 2 of schedule 4 lists the activities that give rise to a regulated role with adults.

232.Paragraphs 4 and 5 cover teaching, instructing, training or supervising protected adults, as well as the provision of advice or guidance in relation to education, training or employability.

233.Paragraphs 6 to 12 cover various health professions who are actively practising and are not, for example, on a career break.

234.Paragraph 13 covers domestic service activities that may be provided to a protected adult, for example in a hospital, hospice, care home, day care centre or adult placement setting. This could include such things as cleaning, maintenance and food preparation.

235.Paragraph 14 covers activities where an individual is in charge of protected adults, for instance someone leading a group or one-to-one activity with protected adults.

236.Paragraph 15 makes provision for self-employed individuals providing personal care services.

237.Paragraph 16 makes provision for individuals providing support to a protected adult under a shared lives scheme, as defined by paragraph 24. This captures a shared lives carer, which is an individual who provides, or intends to provide, personal care to a protected adult together with, where necessary, accommodation in the carer’s home. Also covered are individuals recruiting and training shared lives carers, those making arrangements to place protected adults with shared lives carers and individuals supporting and monitoring such placements.

238.Paragraph 17 covers individuals providing counselling, therapy or advice or guidance in relation to health or wellbeing to protected adults. This covers advice or guidance provided to a protected adult on their physical or mental health or welfare. The activities mentioned in paragraph 17 capture individuals providing services related to domestic abuse and homelessness, as referred to in subsection(1)(aa) inserted into section 94 of the PVG Act by section 75(2) of the Act (meaning of protected adult). Services such as shelters, hostels, refuges and other types of accommodation that someone may find themselves in, and where they are offered support or guidance on their situation or experience, are covered. Excluded from scope, however, are individuals providing such services to a fellow prisoner. This exception will enable individuals who may be automatically barred from carrying out regulated roles with protected adults due to the nature of their convictions to take part in peer to peer support services provided to other prisoners.

239.Paragraph 18 covers the Chief Social Work Officer of a local authority and persons who have responsibility for the scrutiny or inspection, on behalf of a statutory body, of medical and healthcare services provided for protected adults. Explicitly excluded are individuals carrying out such a role in the capacity of an “elected representative” which paragraph 24 defines as (a) a member of the House of Commons or (b) a member of the Scottish Parliament. Accordingly, paragraph 18 does extend to councillors of a local authority who have the ability to directly influence the operational delivery of medical or care services for protected adults, for example, due to holding a position on a committee.

240.Paragraphs 19 covers individuals providing leisure, cultural, social or recreational activities for protected adults.

241.Paragraph 20 covers individuals providing sports coaching or other physical activities to protected adults.

242.Paragraph 21 covers, for example, individuals volunteering at church activities or chaplaincy services. This paragraph covers all denominations or religious beliefs.

243.Paragraph 22 makes provision for individuals engaging in the provision of transport services for protected adults but is limited to those driving or escorting protected adults, for example, rather than a depot manager or individual arranging the scheduling for the transport service.

244.Paragraph 23 includes individuals holding a position of responsibility in an organisation whose main purpose is to provide benefits for or to protected adults.

245.Interpretation is provided for certain terms and expressions used in schedule 4 by paragraph 24.

Part 3: General

246.Paragraph 25 allows Ministers by affirmative regulations to modify the substituted schedule. Paragraph 26 clarifies that Ministers’ power to make regulations under paragraph 25 can include provision to disapply or otherwise modify the application of the offence provisions at sections 34 to 37 and sections 45C to 45F of the PVG Act.

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