NHS Trusts in England involve many hundreds of volunteers in a wide variety of activities and there is a national NAVSM forum for the staff who manage them. Procedures for selecting, engaging, training and supporting NHS volunteers have been in place for many years, but were given fresh attention after the crimes committed by hospital volunteer Jimmy Savile came to light (see this report by Kate Lampard). The challenge for the NHS volunteer service is to protect patients while being fair and inclusive.
Many would-be NHS volunteers have experienced serious illness or cared for someone who has, and some have personal experience of mental health issues, have committed crime or behaved in a challenging manner. The discussion below raises some questions about how applications from individuals with this sort of troubled past are received, and particular attention is paid to volunteer roles in co-producing research. Before diving into the detail, I need to emphasise two points:
- I fully expect that people who understand this topic much better than me will be able to fully resolve the dilemmas I present, and the end of this learning journey will be a demonstration of the exquisite balance that the NHS so often achieves between competing interests. My questions here are almost certainly no more than temporary stopping points on my personal learning journey. However, learning is slowed by the secrecy surrounding detailed arrangements, as access to the forum’s resources is restricted and there is no public access.
- In this exploration I focus on volunteering in research rather than other aspects of NHS volunteering, yet this is no more than a simple consequence of the work I am engaged in at present, and has no particular significance.
With those things in mind, here are some of the issues as they appear to me.
The Disclosure and Barring Service offer a range of checks which report on what the Police know about a person. I ask myself the following questions:
- No distinction is made between the systems and processes applied to volunteers and those in employment, so how can the NHS make all these employment-related demands on a volunteer without delivering any of the benefits of a contract of employment? It has been suggested that using approaches taken from employment, such as a Disclosure Statement in risk management or having complaints about volunteering managed through the NHS Trust’s Human Resources Department increases the chance that an employment tribunal would consider that a contract of employment was in place. I’d like to see a defence of this ‘no difference in process’ position, and one that shows how such arrangements avoid the risk of inadvertently creating a contract of employment with the volunteer.
- What is the right definition of ‘regulated activity’ and how does this relate to the various roles that an NHS volunteer might take up when co-producing health research? The answer to this question is important as it defines the specific level of DBS check that may be undertaken. Various advice documents are available, including:
- Official Government advice that defines regulated activity in respect of enhanced DBS checks is available here.
- A factual note from the Department of Health is here.
- The NIHR developed a Research Algorithm in 2012 which sets out the correct level of DBS checks needed for different research activities (see it here, pages 5-6).
- However, recent advice given through the NHS Employers DBS Tool incorporates the Basic check for people in positions of trust, and so a judgement is needed about how this meshes with the NIHR Research Algorithm.
- The DBS Basic Check reveals information about unspent convictions and a demand for the official DBS certificate shows that anyone asking for it is not trusting the word of the applicant, but requiring instead a formal, independent confirmation of the facts. It seems odd to me that most application processes go to great lengths to get the applicant to make their own statement about criminal convictions, which is then set aside by the demand for a formal DBS certificate. If the official certificate is needed, why bother to ask the person as well? This seems rather demeaning to me.
- In principle, volunteer managers are forbidden from applying for a DBS certificate without sufficient cause, but they can make presentation of a Basic certificate obligatory, as, for example, is done by the University of Nottingham in its approach to managing volunteers. It is not obvious to me how these two statements abut one another.
- The advent of GDPR has increased awareness of the right to privacy. As a result, UCAS has removed questions about criminal convictions from its application forms, which prompts reflection on the rationale for continuing with these questions for volunteers.
- We might guess that the commentary on the meaning of the term ‘position of trust’ in the NHS Employers DBS Check Tool suggests that NHS Employers is alluding to roles such as Director of Finance or Case Register Manager, rather than an individual researcher, but it would be helpful if the interplay between the advice given by NIHR and NHS Employers was fully explained.
- As it is an offence to seek a more detailed DBS check than the law permits, do NHS Trusts stick to the correct level? Concerns about safeguarding may drive the Trust to set a more stringent level beyond that permitted by the law. It is reassuring to be informed that the majority of NHS bodies simply follow the NIHR Research Algorithm, but we might reasonably ask if there have been any prosecutions under this offence and what has been learnt from them? The UK Government underscored its commitment to this ‘just enough disclosure’ approach in its response to the Lampard review here. Asking for personal data without justification will be a breach of article 6 of the GDPR (there’s a brief introduction to GDPR here), and knowingly asking for a DBS check for a post which is not included in the Exceptions Order 1975 to the Rehabilitation of Offenders Act 1974 constitutes a breach of Part V, section 123 of the Police Act 1997. Finally, the whole process by which DBS releases information about offences has been successfully challenged in the High Court – see here.
- Much of the information that is routinely provided to explain DBS and to list the offences which are spent or filtered out of the DBS report is extremely complex and difficult to interpret (although there is a much more straightforward guide here). Meanwhile, forms emphasise the punishment waiting for anyone who fails to declare anything that they should. This can include summary dismissal from any volunteering role and a report being sent to the NHS Counter Fraud Authority. Does this lead to people declaring items that they should have withheld? If they do so, how do decision makers respond to the extra information that is disclosed – they should not take account of offences which are spent, but do they in fact do so?
Broader risk assessment
The NHS uses other mechanisms in addition to the DBS to try and find out about a person’s troubled past, the most significant of which are the self-declaration forms here. These generate the following questions:
- Why do Model Forms A and B ask the same questions, as shown here? If, as shown above, it is an offence to seek more detailed information from DBS than is justified by the particular volunteering role the person wishes to undertake, is form B asking for too much information?
- The introduction to Model Form B provided by NHS Employers (here) suggests that, where the position applied for is not one requiring a standard or enhanced DBS check, employers may still ask the candidate to disclose information about unspent convictions (which they do using Form B), but the employer may not obtain verification of the candidate’s self-declaration from the DBS. This had the beauty of a two step system in which responsibility and accountability was graded in response to the risk involved. Att the higher level of risk, items that must not be missed were disclosed through a formal DBS check, without relying solely on the honesty of the individual, while at the lower level of risk responsibility is relocated back on to the person and their trust relationship with the potential employer. However, as we saw above, the DBS has, from January 2018, snatched responsibility back from the candidate and the employer by providing a Basic Check service. The previous step-down option has been destroyed, and we can expect that from now, people will be routinely disbelieved and proof from the independent DBS service will be required, eroding the accountability of mutual relationships at the local level.
- These forms ask for a wide range of information about the person, including investigations by the NHS Counter Fraud Authority, dismissals from employment or volunteering by reason of misconduct, investigations by fitness to practice panels or other procedures by a regulatory or licensing body or other prohibitions, limitations or restrictions. Some of this material is in the public domain (for example, HCPC fitness to practice tribunals), but we might inquire if all of this detail is legitimate to ask about under GDPR. Secondly, we recognise that misdemeanours in these areas are less serious than criminal offences (both in terms of the act itself and the burden of proof required for an adverse judgement) and so it seems unethical to include these smaller matters when some offences that are dealt with by the criminal justice system are ‘wiped off the slate’ and must be ignored. Where the professional bodies or other regulatory bodies uncover serious misdemeanours, they refer to the Police anyway.
- In particular, why do these forms ask about dismissals from volunteering roles? We know that formal protection and appeal procedures are provided for employees and professionals through employment tribunals and fitness to practice panels, but there is no similar level of accountability for volunteering roles. As a result, a volunteer might be dismissed unfairly at the whim of a voluntary organisation and have no recourse to appeal that decision. So by asking about this, the NHS may be giving these events greater credence than is warranted. The risk is heightened where the information is judged by staff from the Human Resources Department, who may be more likely to treat the disclosure as if it was dismissal from employment.
- Why has the NHS bundled together the questions about crime (which jobseekers and would-be volunteers must answer) with the questions about other matters (which are entirely discretionary on both sides)? Forms A and B give the impression that all questions have the same authority, all are covered by the same legal framework, and the obligation to answer them all has the same weight. This is misleading. Furthermore, if these questions are asking for more detail than is justifiable, and the person feels obliged to disclose for fear of their application to volunteer being rejected, then this is not freely given consent and article 7 of GDPR is breached.
The forms do not ask about challenging behaviour taking place in mental health units where the police are not involved, and perhaps they should not do so. This needs a section in itself, which is set out below.
Involvement with the Police
- In the past, habitual or significant aggression might have been tolerated in mental health units without this being brought to the attention of the Police. This should have become less common as (i) the NHS adopted a ‘zero tolerance‘ stance in 1999; (ii) staff are more aware of their safeguarding duties for other patients; (iii) staff have a stronger sense of protecting their own safety; and (iv) the therapeutic ethos is clearer that people with mental health issues should often be held to account for their conduct. However, it remains a possibility that the Police will be unaware of some challenging behaviour. I do not know how large this group of people is (it is certainly a significant factor in Accident and Emergency settings, as shown by recent research here) and nor do we know whether their conduct in such settings is a predictor of future risk in a volunteering placement. We do know that the number of NHS staff being assaulted is increasing.
- Guidance was issued to the Police in 2015 indicating that mental illness in itself is not a sufficient reason for disclosure, and so the DBS check does not list episodes of detention under the Mental Health Act. So this means that if the Police are involved in a detention under s.135(1) or s.136 of the Mental Health Act 1983 or they are called to a mental health unit to assist, then this would not appear in the Police records as reported through the DBS system. However, if police records show that the person’s behaviour presented a particular risk of harm to others, was recent and repeated, and the chief officer believes that the users of the certificate should be aware of that risk, then they may include it. The guidance is at paragraphs 36-41 here.
- It is worth remembering that information which properly belongs in the health file could be part of the disability characteristic protected under the Equalities Act 2010 – and so discrimination based on the presence of this characteristic would be an offence.
Risk mitigation plans
- It is notable that the proforma from one NHS Trust purporting to be a template for a risk mitigation plan in fact turned out to be merely a tool to support a single decision to offer the person the volunteering role or to exclude them. There was no provision whatsoever on the form itself to design, describe, monitor or amend a risk mitigation plan. Other NHS Trusts may have adopted a different approach.
- One NHS Trust has appointed a ‘DBS Panel’ to make the final decision about whether the person is to be offered the opportunity to serve as an NHS volunteer or not. In this case, the person themselves is not routinely invited to attend this panel. Why has this panel set aside a core principle of risk management – that it should be co-designed and monitored in partnership with the person wherever possible, as set out in the Department of Health guidance Positive and Proactive Care? At the very least, the Panel should invite the person to submit a ‘Disclosure Statement’ where they offer their own explanation about what happened and propose a risk mitigation plan for the role. Advice is available from NACRO on drafting a Disclosure Statement.