SCIE Guide 12: Making referrals to the POVA list
Please note: The information contained in this guide is now out of date and it should be used for reference purposes only. For current information about the Vetting and Barring scheme please visit the Independent Safeguarding Authority website.
Deciding to make a POVA list referral
Practice point: When to make a POVA referral
There are two key times when employers and managers must make a POVA referral after they have come to believe that a worker or carer is guilty of causing harm to a vulnerable adult:
- when the worker or carer has been suspended or transferred to a non-care position on the relevant grounds of misconduct and
- when the worker or carer has been dismissed– or would have been dismissed or considered for dismissal on those grounds if they had not already left the employment.
Employers and managers should address issues of harm to vulnerable adults directly through their disciplinary processes. If they are not tackled in this way, the grounds for a POVA referral may be undermined. . If the employer is unclear about whether the allegation has substance but has suspended/provisionally transferred the worker while more evidence is obtained, a referral should be made only if the suspension/transfer is on grounds of misconduct harming or placing at risk of harm a vulnerable adult. This will not be the case where the employer is simply operating a policy of suspension pending a hearing whenever allegations of misconduct are made (i.e. a ‘neutral’ suspension policy). In those circumstances a referral should be made IF and WHEN (following investigatory and disciplinary processes) a decision is made to dismiss, suspend or transfer the worker on grounds of misconduct harming or placing at risk of harm a vulnerable adult. The employer should make it clear to the worker if the grounds for the suspension/transfer change.
Suspension of the worker or carer
A referral must be made where the employer, being satisfied that the worker is guilty of relevant misconduct, suspends the care worker on those grounds pending consideration of dismissal or transfer. Employers should keep the POVA/ISA informed of the outcome of the investigation and any disciplinary measures taken as this will inform the decision whether or not to bar the person.
Where the employer has suspended on ‘neutral’ grounds and has not reached a view on the facts a referral should be deferred until after the facts have been established. This will usually be after an investigation has taken place and any disciplinary measures taken but it may be sooner. A referral should be made at any point in the investigation where evidence of misconduct that harmed (or risked harm to) a vulnerable adult is found.
Examples
- Appropriate referral: When there was a spate of thefts from residents at a care home, carer Ms G was suspended because she was the only carer on duty during the shifts when the thefts occurred. The home immediately called in the police, and also submitted a referral with very little more information than the details given above. Because of the uncertainty, a decision was taken to seek more information before putting Ms G on the POVA list. When the police investigation eventually revealed that Ms G was not the culprit, the POVA case was closed. Despite the lack of evidence this was an appropriate referral given the seriousness of the allegations
- Appropriate referral at suspension: A domiciliary care agency made a referral about a care worker who was suspected of financial abuse and had been suspended as a result. A preliminary investigation and local strategy meeting had been undertaken by that stage, and the case was moving towards a full investigation and disciplinary action. The referral included sufficient information to enable the worker’s case to be processed quickly. The full investigation, resulted in dismissal and the individual was confirmed on the POVA list.
Some employers will alert the POVA/ISA team that they are about to make a serious referral, particularly if it is an early referral at suspension. The team can then respond to it urgently. However, this information must be followed up with a formal referral, which can only be made in writing, using the referral form and enclosing written evidence and supporting material.
Some employers fear they will face litigation if they refer a care worker to the POVA list when they have been suspended, if it is later found there is no case to answer. This has not been the experience of either the POVA or POCA team so far. In making appropriate referrals, employers are taking the action that is required by law.
Disciplinary proceedings and dismissal
Many referrals will be made following the employer’s investigations, when their decisions about the misconduct and the employment status of the care worker are completed and all of the appropriate disciplinary proceedings have been concluded. The employer is then able to send appropriate information and evidence to the POVA team or to the ISA.
Example
As a matter of policy a care home suspended carer Mr K on ‘neutral’ grounds following allegations that he physically and verbally abused two residents. The abuse did not cause serious injuries and the home was aware that Mr K did not work elsewhere. The home, therefore, made the judgement to hold off making a referral to the POVA team until the disciplinary process was complete. Following full investigation, Mr K was dismissed, and a full referral submitted. This followed the format of the standard referral form, and included signed witness statements from every staff member involved, full transcripts of the investigatory and disciplinary meetings held, and details of training received by Mr K. These showed that all angles had been considered and that a pattern of behaviour, which showed Mr K to be an ongoing risk to vulnerable adults, was involved. The quality of the referral allowed the POVA team to progress the case swiftly. After Mr K had been given the opportunity to comment on the content of the referral, which he declined to do, he was promptly confirmed on the POVA list.
Delay between suspension and making the referral should only be where suspension is an automatic measure in allegations of misconduct (as opposed to suspension etc on grounds of misconduct harming or placing at risk of harm a vulnerable adult; it is not discretionary in these other circumstances).
Where people resign before the disciplinary process has begun, it is essential to carry out and conclude the disciplinary hearing, gathering all of the material as if the person were there. This ensures that the evidence base exists for a POVA referral in order to protect vulnerable people in future.
The POVA referral should be made before any appeals against the disciplinary proceedings for unfair dismissal are heard. For adult placements this is the equivalent of appeal against panel decisions. New information arising from the appeal should be forwarded to the POVA/ISA team as soon as possible.
In these cases, the employers and managers are appropriately informing the POVA/ISA team where they have dismissed a care worker for misconduct or terminated an adult placement carer’s approval. The POVA referral process is quite separate from the disciplinary process and focused entirely on informing the POVA team/ISA about the disciplinary decisions and outcomes.
Example
In its dismissal letter, one employer includes the following statement: 'We will be considering referring you to the Secretary of State's list of care workers who are unsuitable to work with vulnerable adults. Please note that referrals to POVA are a statutory requirement and do not form part of this organisation's internal disciplinary and grievance procedure.'
Police investigations
Referrals should be made when a care worker has been suspended or dismissed or has resigned after having being charged by the police with offences against vulnerable adults and is awaiting the outcome of a criminal investigation or a trial (assuming the suspension/dismissal is on grounds of such misconduct).
The responsibilities of employers and managers remain in place even when the police are involved and they should keep copies of any written material given to the police. The POVA/ISA team will still need comprehensive evidence and information to support such a referral.
The POVA team have received many referrals where the police are involved but where there is little or no evidence to support the referrals. A large number of these eventually result in the individual not being placed on the list because there is no substance in the allegations. Instead, where the referring organisation retains ownership of the issue (in terms of the particular employment issues) and makes a reasoned judgement of whether an allegation is valid, the referral is far more likely to result in a POVA listing.
Example
- Appropriate referral: Carer Mr S was accused of having sexual intercourse with a care home resident who had learning difficulties – something that is illegal and tantamount to rape. Although there was no physical proof, the vulnerable adult, who had no prior record of sexualised behaviour or of making false allegations, was clear and consistent about Mr S’s alleged actions. Furthermore, what was known of Mr S’s previous behaviour supported the case for considering the allegations valid. The home, therefore, made a prompt referral, including the above details, even though the matter was still being investigated by the police, and Mr S was provisionally placed on the POVA list. The police investigation ultimately failed to result in a criminal conviction, largely because it was felt that the resident would not be able to stand up to a trial and Mr S had ensured that there was no DNA evidence. Nevertheless, it was concluded that the civil standard of proof (that is, the balance of probability) had been met and Mr S was confirmed on the POVA list.
Misconduct outside of employment
Referrals can be made of staff who have been convicted of offences outside their employment if the incidents have placed vulnerable adults at risk of harm.
Examples
- The support worker supplied to a registered care home one day a week by local social services had been charged with sexual assault of vulnerable adults in another setting. Social services could not refer him to the POVA list as his employment with them was not CSCI registered. However, the care home was registered and so could refer him, as under the legal definition, employment 'means any employment, whether paid or unpaid and whether under a contract of service or apprenticeship, under a contract for services, or otherwise than under a contract', and the harm to a vulnerable adult does not have to be in the course of his employment.
- A domiciliary care worker was, unknown to the agency which employed her, visiting a client outside her normal working hours, and on several of these visits, she removed property from the client's home. Knowledge of the thefts came to light only when the client's daughter complained. The agency was able to make a POVA referral because the worker was in a 'care position' and had caused harm to a vulnerable adult.
Employment tribunals
In cases where an employment tribunal becomes involved, this should not in any way affect the decision to make a referral to the POVA list, which is an entirely separate process.
If an ex-employee loses a case at an employment tribunal, that will be taken into account in the decision to list the individual. If the ex-employee wins the employment tribunal case, however, the decision about their listing will depend on the tribunal's reasoning. A person will be removed from the list only if it can be shown that they have not been guilty of misconduct that harmed a vulnerable adult.
Out-of-court settlements
If an out-of-court settlement is reached between parties in an employment dispute, a listed individual will remain provisionally listed until such time as the evidence has been collected and reviewed. A decision will then be made about their listing.
