RCN launches legal action against safeguarding scheme

Readers' comments (47)

• mike | 8-Jun-2010 2:25 am

  Oh my god, I can't believe the RCN are actually getting up off their backsides and doing something useful! I'm actually quite shocked!
  
  Saying that I am really glad they are, this draconian measure is extremely frightening, not simply for the fact that it treats every one of us as a potential criminal just for trying to do our jobs.

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  yangqing | 8-Jun-2010 10:38 am

  I'm surprised that RCN finally decide to stand up for nurses.

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• Anonymous | 8-Jun-2010 12:56 pm

  I think RCN is doing the right thing So there is no need for the surprise element. The RCN duty to members need to be acknowledged. There is need for a more Proactive approach than reactive as it is in this case in my own opinion.

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• Anonymous | 8-Jun-2010 1:09 pm

  unstable” or were felt to be suffering from “severe emotional loneliness”.?????????????????????
  
  Please define. I live alone, nearest family is 80 miles, currently off work with LTC and awaiting MRI's and seeing other Consultants as a result have been very low and am having counselling. Am I therefore, included in these groups or deemed a risk after 37 years in public service. If they want to retire me they can. Their loss for not caring for me the way I have cared for my patients.

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• Anonymous | 8-Jun-2010 1:14 pm

  God help you if you get a caution from the Uniformed revenue collectors(police) or if your on demo for something you passionately believe in. or are in the wrong place at the wrong time. The onus will be on you to prove your innocence. Dont talk of 'if you've done nothing wrong etc etc'

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• Anonymous | 8-Jun-2010 1:48 pm

  This sort of legislation is undermining not only the way that nurses work day to day, but is also having a profound effect in the voluntary sector. Who in all good conscience would put themselves in harms way by coaching a kids football team, or get involved with organisations like the Scouts or Cadet forces? One allegation - proven or not - will see you on the way to losing your livelihood. I hate to say it, but it just isn't worth it.

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• Stuart Sorensen | 8-Jun-2010 4:20 pm

  Before we get too dismissive of the scheme it's worth understanding the problem it is designed to solve. It's part of the Safeguarding Vulnerable Groups Act 2006 and is a direct response to situations such as the Soham murders in Cambridgeshire and Miss X in Scotland.
  
  The scheme is vital to close the gap and is very similar to registration anyway. The beauty of it is that it follows the individual like a passport and is continually updated rather than the old, inefficient POVA check system that was full of loopholes.
  
  The scheme works on 'balance of probability' rather than 'beyond reasonable doubt' hence the disparity between it and NMC hearings. But this is a false objection. The old POVA list also has worked on balance of probabilities for years anyway.
  
  Changing legislation because people are frightened of it is the wrong approach. Rather we should educate staff to understand the scheme better.
  
  Or we could keep the abusers' loopholes open instead of bothering to understand.
  
  Cheers,
  
  Stuart

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• Stuart Sorensen | 8-Jun-2010 4:34 pm

  To get a sense of why this is necessary have a look here:
  
  http://stuartsorensen.wordpress.com/2010/03/25/safeguarding-2-a-little-history/
  
  and here:
  
  http://stuartsorensen.wordpress.com/2010/05/11/safeguarding-16-the-safeguarding-vulnerable-groups-act-2006/
  
  Cheers,
  
  Stuart

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• mike | 8-Jun-2010 6:06 pm

  Stuart, I see your point mate I really do, but Anonymous | 8-Jun-2010 1:48 pm has it right.
  
  This system will essentially treat all Nurses as potential criminals, it will assume you are guilty and ask you to prove you are innocent. Nursing in general as well as the universities, are already well known for witch hunting good and valued staff, this will make the situation 10 times worse.
  
  Just to give you one example of where I am coming from outside of the profession, I used to run and teach a Martial Arts club with a childrens class. It was a volunteer, not for profit club and was very successful and we had 30 kids every single lesson to look after ranging from 6 through to 15. Now when we started we were fully insured and licensed to teach, and we always encouraged one or more of the childrens parents to stay and watch. Over the years we were forced to undergo advanced CRBs to work with kids, and legislation, paperwork and so on got so ridiculous it was almost punitive. It even got to the point where we would not teach unless one or more of the parents were there to watch just to cover our own backs. We eventually stopped doing it, much to my regret, because of things like this.
  
  This scheme for professionals will be a lot worse than that. It will become almost punitive to want to work in a caring, public service profession.

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• Stuart Sorensen | 8-Jun-2010 7:02 pm

  Hi Mike,
  
  there's no witch hunt here. This is my argument anyway:
  
  The Royal College of Nursing (RCN) has written to the Home Secretary, Theresa May, formally protesting about the new ‘vetting and barring’ scheme. The scheme came into being as part of the Safeguarding Vulnerable Groups Act 2006 and is designed to prevent abusers from working in health and social care. It also provides for the criminal prosecution of employers who do not report suspected abusers to the appropriate authorities.
  
  It’s perhaps not too surprising that the RCN, which represents many NHS nurses, objects to this given the appalling record of NHS nurses in failure to report abuse.
  
  In 2005 Kings College London produced a report analysing the first 100 referrals to the old POVA list. Their findings were significant and in parts very worrying. The document can be viewed online at the address below:
  
  http://www.dh.gov.uk/dr_consum_dh/groups/dh_digitalassets/@dh/@en/documents/digitalasset/dh_4116574.pdf
  
  Firstly it was clear that the vast majority of referrals came from the independent sector with only around 5% of referrals generated by the NHS. This is unlikely to be because the NHS does not have any abuse issues – in fact it is more likely to demonstrate a culture of neglect and ‘turning a blind eye’ that needs to be addressed as a matter of urgency. When abuse in the NHS does come to light it is often extreme and systemic as was demonstrated in the North Cornwall scandal of 2006
  
  http://news.bbc.co.uk/1/hi/england/5148154.stm
  
  The report also noted that in many cases abusive practice had been tolerated and left to continue for long periods. This was especially true in smaller establishments. The vast majority of abuse involved front line workers.
  
  Perhaps most worryingly several workers had actually been convicted of relevant offences and yet continued to work in health or social care. However we look at it there is a major issue to be addressed and the RCN does the reputation of nurses no favours by opposing legislation designed to deal with it.
  
  The RCN argues that many nurses will be frightened to deliver basic care such as touching patients. They seem to believe that if a nurse does not understand the reality of what constitutes abuse then we should change the law to accommodate that nurse’s ignorance rather than require them to learn the truth. This seems to me to be entirely inappropriate. It’s like saying that we’ll stop trying to catch abusers because non-abusive staff haven’t bothered to understand what good practice means.
  
  Many care providers seem to believe that every slight misdemeanour will result in them being prevented from working with vulnerable groups. This media-driven view is inaccurate and more than a little melodramatic.
  
  The reality is that in order for someone to be barred from working with vulnerable groups there must be reasonable evidence on balance of probabilities. This represents no change from the system that has operated in England & Wales for several years already. In order to make sense of the reality we need to look at what the courts call the ‘burden of proof’.
  
  Before the CPS (PF in Scotland) can secure a criminal conviction there must be evidence of guilt ‘beyond reasonable doubt’. This is a high burden of proof. I’m going to call this (not a legal definition – just a way to describe it) 95% probability of guilt.
  
  This means that it is notoriously difficult to get a conviction, not least because abuses of vulnerable people tend to happen ‘behind closed doors’ and the victims themselves may not be the most reliable witnesses to appear before the courts. Very often the victims are targeted precisely because they are psychologically vulnerable and so unlikely to cope well with the discrediting onslaught from a defending barrister.
  
  All of this has meant that many, many abusers have managed to carry on for years without ever being brought to book because there was too little evidence to bring them to court in the first place, let alone secure a conviction. As a result countless vulnerable people of all ages have been victimised by the very people who were supposed to be caring for them.
  
  Clearly this loophole in the system needed to be closed.
  
  There is another type of burden of proof that is used by the courts. This is the civil burden of proof and it does not rely upon establishing guilt beyond reasonable doubt. Rather it is based upon ‘balance of probabilities’. I want to describe this as 51% probability (again not a legal definition). In other words it has to be ‘more likely than not’ that the person is liable. This is the burden of proof used in civil lawsuits where one individual sues another for damages.
  
  The difference between the civil and criminal burdens of proof (51 – 95% probability) is what the Scottish courts call ‘not proven’. This is the area that raises so many objections throughout UK because people not convicted of crime can be barred from working with vulnerable people so long as ‘on balance of probabilities’ they are deemed most likely to have abused their charges.
  
  Let’s put this into context.
  
  When delivering training on adult protection and safeguarding I almost always come across objections when I make this point. This is understandable because it appears to fly in the face of the long-standing legal principle of the presumption of innocence: the idea that we are innocent until proven guilty.
  
  My response to this is always to put forward the following hypothetical scenario from the world of child protection:
  
  Imagine that I’m not really Stuart the nurse or Stuart the trainer. Actually I’m Stuart the teacher – and I’m a good teacher. I’ve been in the job for many years and get great academic results for most of the children I teach. I specialise in the 7 – 11 year old age bracket.
  
  Some of the children I teach tend to do very badly academically though. They tend to be little boys with blonde hair and they often become withdrawn and emotionally needy shortly after joining my classes. I don’t think I need to be too specific here – the results of paedophilia are well known and the above scenario illustrates the point well enough.
  
  Now imagine that I’ve been working in a particular school here in West Cumbria (my home county) for a few years when I notice that some of the parents have taken to ignoring me. I also notice that when they’re waiting for their children at the school gates they tend to bunch together and seem to become rather conspiratorial whenever they see me. I’m no fool and I know what’s about to happen. It won’t be very long before I’m formally reported to the local police.
  
  So I apply for jobs in other schools out of the area. My overall academic record is good and the head will give me a good reference (not least because she’s heard the rumours too and wants rid of me). I leave Cumbria and take up a post in a school in the neighbouring county of Lancashire. There’s no conviction and so no information follows me. I’m in a different education authority with a clean slate.
  
  A couple of years later, having continued my abuses with a fresh group of Lancastrian children, I move again, perhaps to Lincolnshire this time. And then a year or two later I move once more – this time to your home town. Now I’m teaching your children.
  
  That’s OK isn’t it?
  
  It doesn’t take a genius to understand that if we can only use convictions to identify abusers we will fail more often than we succeed. But this gives us a dilemma as a nation. Whatever we do we cannot have a perfect system – mistakes will be made. The choice we have had to make as a society is what the price of our mistakes will be.
  
  If we rely upon convictions only then the price will be countless abused children. Imagine how many youngsters a paedophile teacher will come across in the space of a career. How many vulnerable elderly residents might an abusive ’carer’ come into contact with too?
  
  If we use wider sources of information the price of our mistakes will be some people having to get a different job. Neither outcome is ideal but then it’s not an ideal world. Which price do you consider to be the lesser of two evils? I think – and the government thinks – that the lesser price is the fact that some people will need to get a different job.
  
  So child protection systems solved the problem, at least in part, by considering wider information and adult protection has followed suit – hence the familiar enhanced CRB check. The new registration scheme and the vetting and barring list is a more effective way of administering that familiar system.
  
  It seems to me that the RCN is arguing for a system that will make it much more difficult to prevent abuse.
  
  Only in the more extreme cases are people actually prevented from working with vulnerable adults and that was what the old POVA list was about. People whose names ended up on the POVA list were legally barred from working in social care. One of the objections from the RCN is that nurses who are convicted of or cautioned for ‘relevant offences’ (offences involving abuse of others) will be unable to work with vulnerable people. Maybe I’m being silly but I really don’t see the problem with that.
  
  There is a downside but then there is to everything. The downside to this, as I see it, is as follows…..
  
  I have no doubt that ‘good’ people will almost certainly end up on the vetting and barring list because balance of probability is not the same as criminal proof. However, the other side of this argument involves the obvious fact that not proven does not mean not true.
  
  Whatever system is used mistakes will be made. The Independent Safeguarding Authority, in conjunction with the local ‘Adult Protection Committees’ will get things wrong from time to time. The question a civilised society has to ask itself is this:
  
  What do we want the price of those mistakes to be?
  
  If we want the price of mistakes to be continued abuse of vulnerable people then we would go with the criminal (95%) burden of proof.
  
  If we want the price of our mistakes to be someone finding a different job then we will go with the civil (51%) burden of proof.
  
  The question we as individuals need to ask ourselves (and the RCN) is this:
  
  Since our society can’t have a perfect system do we want the government to opt for one that protects the vulnerable or one that allows abusers to slip through the net?
  
  Can we, in all conscience support what amounts to an abusers’ charter?
  
  Remember also that balance of probabilities is not easy to establish. There needs to be significantly more evidence than simply an allegation. There is also an appeals process and recourse to the courts too.
  
  Personally I think that this is the best system that society can achieve and although it’s not perfect it is definitely the lesser of two evils in my view. There are no easy answers in the safeguarding of vulnerable people but we all need to remember that this social decision is far bigger and more important than any individual. This is true however unfair it may seem to those who are included on the list in error.
  
  We can sympathise with those individuals. In fact I think it would be extremely callous of us not to. But that doesn’t change the fact that a less stringent system would result in far greater harm to many, many more people in our society.
  
  The greater good is a much bigger concept than the preciousness of a nursing union.

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• Anonymous | 8-Jun-2010 8:45 pm

  I admit some of the developments around this have passed me by but - at what point does the nurse find out they are being investigated and if the decision is favourable at they are not barred are they still informed? Does the fact that there has been an investigation stay on their record even if they dont know about it and is this then predujicial to any future investigations? Where can I find out about this?

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• Anonymous | 8-Jun-2010 8:45 pm

  I admit some of the developments around this have passed me by but - at what point does the nurse find out they are being investigated and if the decision is favourable at they are not barred are they still informed? Does the fact that there has been an investigation stay on their record even if they dont know about it and is this then predujicial to any future investigations? Where can I find out about this?

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• Stuart Sorensen | 8-Jun-2010 9:31 pm

  Nurses and any other workers will know about the investigation either:
  
  When the employer speaks to or suspends them;
  
  When the police investigating officer deems it appropriate.
  
  In that respect nothing has changed.
  
  They will know way before it gets to the adult protection committee. Again no change there.
  
  The only real changes are to do with the admin of the new list to prevent loopholes for abusers', the 'scheme' which is similaor to nursing registration, the definition of 'regulated and cobtrolled' activities and the new offences for allowing abuse to go unreported.
  
  In practice for workers there's no change to what constitutes abuse or to the burden of proof.
  
  The sad truth is that nurses and other workers are very poor at reporting abuse - hence the need for a tighter 'passport'
  style system that will be much more effective than the old POVA list system.
  
  It's also cheaper. Instead of periodically paying to renew POVA based enhanced CRB checks you pay once to join the scheme (£60) and then that's it.
  
  Cheers,
  
  Stuart

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• mike | 8-Jun-2010 9:49 pm

  Stuart, you really believe in this don't you!
  
  Look, I see your point, I really really do. I am in no way condoning abuse in any way shape or form and of course it needs to be investigated.
  
  However, I think this plan is leading us down a very dangerous path indeed. I understand your examples, a little melodramatic themselves? But what if the Nurse in question is innocent of any kind of abuse or misdemeanour or anything else, what if they are 'reported' on nothing more than hearsay, investigated, then suspended and put on some form of register without ever hearing anything about it or given a chance at a fair hearing? There is absolutely nothing at all to stop this from happening if this plan goes through. It will essentially be a witch hunters charter. I have personally seen good Nurses witch hunted and investigated out of jobs they loved and were good at because of the flimsiest of reasons.
  
  I guess what I am saying is where exactly is the protection for the good Nurses?
  
  You admit yourself that this may happen, and I am sorry but that just is not in any way acceptable, even in the pursuit of the very small percentage of 'bad' Nurses. There are better ways to do this.

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• Stuart Sorensen | 8-Jun-2010 10:15 pm

  Hi Mike,
  
  yes I do believe in it. And yes I do acknowledge the possibility of getting it wrong. I don't think I'd use the word 'admit' mind - that implies that I disagree with it and, of course I don't.
  
  The burden of proof required is much more than just hearsay. That isn't affected at all by this. It's been this way since POVA began on the back of the Care Standards Act 2000.
  
  My argument is simple. Whatever system we have there will be mistakes - that's inevitable. So then the question has to be what should be the cost of those mistakes?
  
  I often train people in this issue, including how to make it much less likely that you'll be listed unfairly. The principles won't help if you're guilty but they should prevent the 51% balance of probability if you are innocent.
  
  The problem as I see it is that nurses think they should be protected even if that very protection puts the vulnerable in danger.
  
  I know it takes some ploughing through (because I've had to do it myself to develop training materials) but if you google 'safeguarding vulnerable groups act 2006' and then 'the Roger Singleton amendments' you'll see that there are actually many safeguards to prevent the scenario you outline.
  
  I suspect that we probably aren't so far apart as you might think. It's just that I'm maybe a little more familiar with the safeguards for workers.
  
  Cheers,
  
  Stuart

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• Stuart Sorensen | 8-Jun-2010 10:25 pm

  Incidentally nurses hounded out of jobs on the flimsiest of evidence is a different issue. People get bullied at work anyway but they don't get put on the vetti g and barring list without balance of probabilities. It's inaccurate and misleading to blame the formal system for the informal abuses of bullying managers.
  
  I'm certainly not suggesting that that is OK and I'm sure we'd both be prepared to stand up against such unfair managerial practices.
  
  Cheers,
  
  Stuart

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• mike | 9-Jun-2010 1:26 am

  I am not trying to change Stuarts mind, I am debating with someone who knows about and is passionate about a subject. I may not agree with him, but I am learning about the subject a little and forging my own views by balancing them and comparing them with opposing opinions.
  
  It is called a discussion.
  
  And Stuart, your statement 'The problem as I see it is that nurses think they should be protected even if that very protection puts the vulnerable in danger.' I don't think is exactly accurate. I accept I am not exactly up on the legislation etc as you are, my opinions have been formed so far on my own experiences of what I have seen happen. As far as I see it, Nurses as a profession have very little protection. There are countless patient rights groups, ambulance chasing lawyers, etc all after Nurses blood. I have seen many Nurses suspended pending investigation because of spurious complaints by patients, and consequently witch hunted and put through hell by management and the process of investigation. Many returned to work when complaints etc did not draw out, but came back after being put through hell and a lot were left more than a little bitter as a result. Some left despite being innocent because of the stress.
  
  And yes, bullying by management is slightly different but it is still part of the problem.
  
  I think that the vast vast majority of Nurses are upstanding and professional, and I honestly don't think that it is asking too much for protection. We should be able to go to work, help and treat our patients, without the fear of being witch hunted, without having to look over our shoulders all the time to protect our own arses. Because that is what will happen. I mean, how flimsy will the evidence/complaint whatever have to be before the subversive, secret investigation begins?

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• Doug Langdon | 9-Jun-2010 8:00 am

  No nurse or organisation is going to oppose any legislation that safeguards any vulnerable person, that includes the RCN. Unfortunately, l believe that the debate between Stuart and Mike may be a bit too intense for others, so l do not intend to join in or ctiticise their right to an opinion.
  
  I believe that they both have expressed valid points, but for me the critical issue is to ensure that any nurse who is suspected of any abuse is treated fairly and the "record" that follows them is also "open" and "fair".
  
  They must also have a right to a fair appeal system, which l felt was the main point that Peter Carter and the RCN was making.
  
  As a psychiatric nurse who in the early 1970's was one of the first male members of staff in the hospital to work on an all female ward, l know just how vulnerable staff can also be in such situations.
  
  I also knew that l could trust my managers to treat me fairly, should there be any complaints against me. Unfortunately in todays climate, l am not so sure that there are the managers who have the self confidence to treat any complaint of abuse objectively, without looking over their shoulder at what criticism they might get if they got their decision wrong.
  
  The veil of secrecy associated with potential abusive behaviour must be lifted and rumour and speculation dealt with in an open and fair manner.

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• . . | 9-Jun-2010 8:32 am

  You know, whatever the rights and wrongs of this situation, from an individual nurse's point-of-view the best way of dealing with this threat is to move out of clinical work. If you as a nurse have sufficient experience, ability, and training then it would be wise to look for a transfer to managerial, administrative or project work. Of course it's sad if we have to do that but we have mortgages to pay and children to feed and I'm afraid that defensive career moves will become the wisest course of action with this new legislation.

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• Anonymous | 9-Jun-2010 9:49 am

  Douglas & Herbal Here here,
  
  As a lone working male nurse on the community and often dealing with acutely ill elderly patients from many nationalities I know only too well the risks I am under. I could lose my career just because someone doesn't like me. They could make false accusations, which would be difficult for me to prove my innocence (look at the proven falsely accused teachers). With the present economic situation with many PCT's I doubt they would risk adverse and employ a chaperone to accompany on my rounds. (or would we be deemed as being partners in crime/ having a relationship etc????)

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