SCIE Practice guide 7: Making referrals to the POVA list
Deciding to make a POVA list referral
Practice point: When to make a POVA referral
There are two key times when employers and managers should consider making 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
- when the worker or carer has been dismissed.
The timing of the POVA referral will depend on the seriousness of the misconduct and whether the provider has reasonable evidence to support the allegation. If the allegation is serious and is believed to have substance and the worker is suspended because of it, then a referral may be made at the earliest possible moment. If the employer is unclear about whether the allegation has substance but has suspended the worker while more evidence is obtained, the referral should wait until this information is available.
Employers and managers must 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.
When the worker or carer is suspended
The criteria for deciding whether to make a referral at suspension stage are:
- the seriousness of the alleged abuse
- whether the employer has reasonable evidence that harm or a risk of harm was caused.
In the first year of the POVA scheme's operation, employers have been able to refer individuals who are suspended pending further investigation into their alleged misconduct. This has been to ensure that potential abusers do not move around the care sector while suspended, pending an investigation.
Experience shows that, at this stage, there is often very little information with which to evidence the referral, and the POVA team can usually only make a provisional listing and then wait until the disciplinary investigation is concluded.
In a large proportion of suspended cases, the allegations are subsequently unproven. While that should not deter care organisations from making a referral where suspension is involved, it does reinforce the need to consider carefully the timing of the referral.
There is no hard and fast solution, but experience suggests that an early referral should be made only:
- where there is reasonable evidence that the carer is guilty of misconduct that harmed a vulnerable adult, and it appears that the carer is an ongoing or serious risk to vulnerable adults, and
- where the alleged abuse is very serious (for example, cases involving sexual assault and/or rape, physical assault or harm, deliberate cruelty or withholding of care).
Reasonable evidence might include video footage, clear witness statements or clear evidence of harm, for example wounding. A decision by the police to investigate the matter is not in itself an indicator of guilt. In judging this, employers should consider all the circumstances with particular regard to the vulnerability of the adult involved and its impact on them.
Examples
- Inappropriate referral at suspension: A care home made a referral following the suspension of a care worker for verbally abusing a resident. The referral was made immediately following the suspension, and included very little information on the incident, and the worker's past history and so on. As a result, the DfES POVA team needed more information and wrote to the care home about that. In the meantime, the care home completed an investigation of the allegation, and reinstated the worker when it became clear that the allegation was not proven. On hearing of this, the POVA team closed the case, but not before significant and fruitless extra work had been put in by the team and the care home.
- 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 to be provisionally listed quickly. The worker was subsequently confirmed on the list following the full investigation, which resulted in dismissal. As a result the worker had been stopped from working (and thus from posing a risk to others) promptly, and when it became clear that it was appropriate.
Some employers will inform the POVA 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 the POVA team so far, nor of the POCA team. In making appropriate referrals, employers are taking the action that is required by law. However, unless the circumstances are particularly serious, the referral will be stronger and better evidenced if it is made after the disciplinary proceedings and final decisions.
Referral following disciplinary proceedings and dismissal
Most 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. All of the appropriate disciplinary proceedings have been held and concluded, and the employer is able to send appropriate information and evidence to the POVA team.
Example
A care home suspended carer Mr K 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 referring the matter to the DfES 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 DfES 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.
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 team as soon as possible.
In these cases, the employers and managers are appropriately informing the POVA 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 Secretary of State 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.
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 team still need comprehensive evidence and information to support such a referral.
When there is a police investigation, the POVA team has the option to list individuals provisionally and then wait until the investigation is completed.
However, the POVA team have received many referrals where the police are involved but there is little or no evidence to support the referrals. Experience shows that a large number of these eventually result in the individual not being confirmed 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.
Examples
- Inappropriate 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 had 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 provisionally. When the police investigation eventually revealed that Ms G was not the culprit, the POVA case was closed.
- 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.
