A change afoot for self-employed healthcare practitioners and enhanced DBS checks?

Safeguarding all patients, including children and vulnerable adults, is of paramount importance. Accordingly, all registered healthcare practitioners accept that they will be subject to Disclosure and Barring Service (“DBS”) checks, usually enhanced or enhanced with barred list checks, when employed or contracting with certain organisations. This not only provides the required assurances to those employing or contracting with healthcare practitioners but also to those in receipt of care or treatment from them.

Although enhanced or enhanced with barred list DBS checks are available to employers, they are not directly available to self-employed healthcare practitioners. Self-employed healthcare practitioners are only eligible to personally apply for a basic DBS check (see below for the difference). This is due to the DBS’ mission being to ‘provide information for employers and organisations to help them make safer recruitment decisions in respect of employees and volunteers’ (emphasis added). 

Whilst it is accepted that some self-employed healthcare practitioners may be able to obtain an enhanced or enhanced with barred list DBS check via an alternate means (e.g. being a sports coach in their spare time etc), the fact remains that it is not necessitated for their own self-employed practice. The findings from the Bailey Review, and the Professional Standards Authority’s (“PSA”) recent consultation have recognized this “potential safeguarding gap for patients and service users seeking treatment from self-employed practitioners” and have made recommendations for future change.

DBS checks

As a quick recap, there are four types of DBS checks:

• Basic – This shows unspent convictions and conditional cautions.
• Standard – This shows spent and unspent convictions and cautions.
• Enhanced – This shows the same as a standard check plus any information held by local police considered relevant to the role.
• Enhanced with Barred list– This shows the same as an enhanced check plus whether the applicant is on the list of people barred from carrying out the role. The barred list is maintained by the DBS.

Further, and as a reminder to employers, DBS checks only capture the information present at the time the check was undertaken. However, and in connection with standard and enhanced DBS checks alone, this is where the DBS’ Update Service comes into play. For those that are not aware, the DBS’ Update Service (“Service”) is an online subscription where applicants can keep their DBS certificates current, for the annual fee of £13, and employers/contracting agencies, with the applicants consent, can check to see whether anything has changed on their DBS certificate. According to the Service, this benefits all applicants as it “reduces the need to apply for multiple [DBS checks] when you move from one job to another in the same workforce or when a recheck is required”.

Bailey Review

Simon Bailey CBE’s ‘Independent Review of the Disclosure and Barring Regime’ (“Review”) – colloquially known as the ‘Bailey Review’ – was commissioned by the Home Office to review the current DBS regime, identify keys issues of concern, and recommend improvements. Of import and interest to those within the healthcare sector, the Review made the following recommendations:

• Amendment of the definition of regulated activity to remove the supervised activity exemption – Currently, those subject to ‘day to day supervision’ by another person engaging in regulated activity are excluded from the definition of regulated activity. As such, the Review recommends this exemption be removed and those subject to supervision fall within the regulated activity definition and be subject to enhanced with barred list DBS checks.
• Consideration be given to amending, and simplifying the definition of regulated activity – Currently, the definition of ‘regulated activity’, specifically in relation to children, is generic and difficult to understand. The Review recommends the definition be amended “making it more easily understood by those who must apply it” g. those in charge of deciding a person’s suitability for a role.

• Self-employed persons seeking to work with children or vulnerable adults are eligible to apply for enhanced with barred list DBS checks – As stated above, self-employed practitioners are only directly eligible to apply for a basic DBS check. Therefore, there are some self-employed healthcare practitioners working with patients, some of whom may be children or vulnerable adults, within the meaning of regulated activity, who are not subject to a DBS check or the scrutiny of a healthcare regulator (“Anomaly”). Whilst accepted that healthcare regulators do not conduct DBS checks of their prospective applicants (the General Osteopathic Council being the exception to the rule when applicants first apply to join the register) they do require prospective applicants to declare criminal history at the point of entry to the register and thereafter, to make declarations as and when they fall due. This provides a level of character scrutiny and in doing so, upholds the public’s reputation of the profession.

In connection with this Anomaly, the Review confirms that “the ineligibility of the self-employed to apply for an enhanced certificate with barred list check is a vulnerability in the safeguarding regime” and the Review supports the Government’s finding that “that eligibility [should be] determined by the nature of the role carried out rather than by employment status”.

Although not healthcare related, the Review also suggests the following:

• Amendment of legislation governing enhanced checks with barred lists so that aid workers, who are nationals or residents in the UK, and whose contracts of employment are made in the UK, are eligible for enhanced with barred list DBS checks.
• Enhanced criminal record checks be made mandatory for all councillors in unitary and single tier authorities who are being considered for appointment to any committees involved in decisions regarding the provision of children’s services or services for vulnerable adults.
• Enhanced with barred list DBS checks be made mandatory for the grant or renewal of door supervisors and close protection licences.
• The Home Office and DBS continue to assess whether further steps can be undertaken to mitigate means of circumventing the DBS identification validation process, including the consideration of mandating the provision of a birth certificate as one of the documents establishing identity.
• The DBS to continue assessing the feasibility and cost of redesigning the Service.

Professional Standards Authority

Recognising this Anomaly, the Professional Standards Authority (“PSA”) launched a pilot scheme in March 2022 with the Association of Child Psychotherapists (“ACP”), a PSA voluntary Accredited Register, and the DBS. This pilot scheme involved a small, randomly selected sample of ACP self-employed practitioners who agreed to participate and be subject to enhanced with barred list DBS checks. In doing so, the PSA hoped to “understand [the] eligibility and practical implications of other Accredited Registers making these checks”.

In conjunction with this scheme, the PSA also launched a consultation in November 2022 to canvas whether Accredited Registers should include access to criminal record checks as part of their registration process in the future. On 8 August 2023, the PSA released its findings on the consultation and highlighted the following:

• Given the vulnerability of patients and service users, 64% of those that responded agreed that a clearer requirement for Accredited Registers to request enhanced with barred list DBS checks for self-employed registrants was important to ensure public protection.
• The remaining respondents, who either answered in the negative or were uncertain, had the following concerns regarding the requirement for mandatory enhanced with barred list DBS checks as part of the Accredited Registers registration process:
• Cost
• Additional administration and bureaucracy.
• How the information disclosed by a DBS check would be used.
• DBS checks “providing a false sense of security for the public or employers [as they] only reflect the past”. The PSA determined that some of the respondents were not aware of the Service.
• Hindering the diversity of healthcare practitioners.
• Deterring “otherwise qualified prospective registrants from applying to accredited registers or even the profession”.
• Of interest, some of the respondents believed that “statutory regulators already accessed criminal records checks for the healthcare professionals they register”. As noted above, this is incorrect except for the General Osteopathic Council.

Whilst the above is not an exhaustive list of the consultation findings, it does show a somewhat polarizing view of enhanced with barred list DBS checks from those that responded to the consultation. The PSA have since confirmed that they will await the Government’s response to the Review as this will be a “key factor in future decisions about criminal records checks”. In the meantime, the PSA have confirmed they will “widen [their] work on safeguarding beyond Accredited Registers to the wider regulatory landscape, so [they] can gain a better understanding of the risks this may present. [Its] focus will be on arrangements for self-employed registrants.”

These discussions surrounding DBS checks being a potential requirement for healthcare practitioners appear to be gaining traction. Within the General Optical Council’s (“GOC”) June 2023 Council meeting, the Council discussed the requirement for DBS checks, presumably enhanced with barred lists from prospective registrants at the point of registration with the GOC. The Council agreed, however, to reserve their position until the Government’s response to the Review has been released in combination with the PSA’s updated position.

The benefit of a DBS check

Self-employed healthcare practitioners reading this article may question the benefit of obtaining a DBS check. The plain answer is that it provides assurances to patients, and those to whom you may work with that you do not have undisclosed criminal cautions or convictions, and are not barred from working with children or vulnerable adults (where an enhanced with barred list DBS check is obtained). Whilst the majority of patients may not ask a healthcare practitioner whether they have a current DBS check, there are always some patients who will ask this question and this could provide you with a commercial advantage.

Going forward

Whilst the DBS check position currently remains the same, it would appear from the Review and the PSA’s consultation findings that momentum for self-employed practitioners to receive enhanced with barred list DBS checks, whether of their own volition or by their regulator, accredited or statutory, is growing. The overwhelming argument advanced is one of public protection, namely ensuring children and vulnerable adults remain safe at all times within the confines of the healthcare practitioner/ patient relationship. However, and only once the Government’s response to the Review is publicised, will we understand the proposed direction and when such definitive action(s), if any, are set in motion and the impact this will have on self-employed, and potentially all, healthcare practitioners.

If you are a self-employed healthcare practitioner and require assistance with any of the issues raised in this article, please contact Ridouts at info@ridout-law.com or 0207 317 0340.