Occupations and Exclusion

The De-Licensing of Occupations in the United States by Robert J. Thornton and  Edward J. Timmons in (2015)  Monthly Labor Review comments

Occupational licensing directly affects nearly 30 percent of U.S. workers today and continues to grow in density and scope. In this article, we identify and analyze those rare instances when occupational licensing laws have been eliminated — what we refer to as “de-licensing.” We also discuss recent examples in which courts decided to limit the scope of occupational licensing laws, and we analyze recent efforts (almost uniformly unsuccessful) of a few states to de-license groups of occupations. The reason proposed for most of these efforts is that excessive levels of licensing have hindered job creation, especially for people with lower levels of education. We argue that the paucity of successful de-licensing efforts is due to intense lobbying by associations of licensed professionals as well as the high costs of sunset reviews by state agencies charged with the periodic review of licensing and its possible termination. ...Addressing de-licensing is important because it raises several questions. Once an occupation is licensed, is it likely to remain licensed, or do effective mechanisms exist to periodically reevaluate whether the continued licensing of the occupation is in the public interest? What effects has de- licensing had or could be expected to have on the numbers of practitioners and earnings levels in the de-licensed occupation? Various studies have found that licensing, much like unions, can reduce practitioner numbers while increasing earnings. Does de-licensing cause converse effects? That is, would de-licensing increase the number of practitioners while decreasing earnings? If so, how sizable are these effects and how rapidly would they occur? These questions are particularly important because the extent to which job regulation (such as licensing) inhibits job growth and the potential for deregulation to promote job growth have recently become important national issues.

'Preventing abuse through pre-employment checks: an international review' by Jill Manthorpe and Valerie Lipman in (2015) 17(6) The Journal of Adult Protection 341-350 comments

The purpose of this paper is to summarise the findings of a desk-based international review investigating the checking of staff and volunteers working with adults who are vulnerable or at risk (or similarly defined) receiving social care in their own homes, or in day centres or residential care. Design/methodology/approach – In England, as part of the government’s attempts to prevent harm to vulnerable people, employers must check if their staff or volunteers are barred from working with vulnerable adults in the health and care sectors or if they have a relevant criminal record. This review sought to explore practices elsewhere, with a view to informing policy and practice debates. The review was undertaken in winter 2014-2015. It mainly involved a search of internet-based material and databases. This was further informed by communications with experts and practitioners from different countries. Findings – The review found a variety of practices, ranging from no checks to substantial checks involving fingerprinting. Reasons for checks identified in different national contexts extend from efforts to stop fraudulent use of government subsidies to minimising the risk of harm to vulnerable adults, and more positively to enhance user and public trust in care providers. A small number of countries place particular emphasis on the rights of individuals to privacy and rehabilitation and this moral imperative overrides other policy goals. This review highlighted a lack of clarity in publicly available documents about the potentially multiple policy goals of different schemes and suggests that there may be advantages to clarifying the options available from other countries. Research limitations/implications – This review was confined to English language material and to material located through internet searching. Some material may not have been updated on internet sites. Originality/value – The details of the processes have not previously been collated to the best of the authors’ knowledge.

The authors cover

 the findings of a literature review undertaken to identify the value for English policy and practice communities of learning from international approaches to pre-employment checks in care work with adults. The review collected information on the procedures, aims and outcomes of such checks and searched for evidence on the effectiveness of different approaches taken. The review process was one of systematically searching for evidence concerning social care employment practices outside England but from English language sources. In England the system of pre-employment and similar checks for people working with or volunteering with “vulnerable adults” and children is administered by the Disclosure and Barring Service (DBS) on behalf of the government. 

Following the Savile Inquiry report into the abuse of vulnerable children and adults by the media celebrity Jimmy Savile (see Lampard, 2014), the DBS scheme was recently cited by the Secretary of State for Health, Jeremy Hunt MP (Hunt, 2015), as an example of current processes, policies and laws that “have made it much less likely that a predator like Savile would be able to perpetrate these crimes today”. While the Secretary of State rejected the Lampard report’s recommendations for DBS checks to be extended to all volunteers in hospitals, he voiced his support for them as part of systems of prevention whereby volunteers who are carrying out regulated activity such as being in close contact with patients are now required to undergo such checks, as well as members of staff. 

In 2013-2014, nearly four million (3,948,733) DBS checks were carried out in England and Wales on people working with children and vulnerable adults, of which 843,498 (21 per cent) were on volunteers (Disclosure and Barring Service, 2015). These figures are not disaggregated by whether the applicant is working with children and/or vulnerable adults. The system of disclosure, checking and possibly barring of employees and volunteers in England has changed over the past decade. It has been described variously as draconian (Appleton, 2014) or, in contrast, as one recent newspaper article reported (Lyons, 2014), over-permissive: Thousands of people considered potential abusers are escaping bans on working with vulnerable adults after the Home Secretary eased rules deemed “excessive”. In 2009, 3,582 people were barred from working in care homes, hospitals and other jobs, but bans fell to 1,293 last year, official figures show. Under the old system bans were issued regardless of the job someone was doing when caught committing a crime or the subject of a complaint. Now only those working directly with vulnerable people at the time can be barred (Lyons, 2014). 

According to Appleton, Director of the Manifesto Club civil liberties group, “There is no other country which has a system on this scale, with the objective of checking all those who have a certain kind of contact with children in the public sphere” (Appleton, 2014, p. 37). Our review sought to investigate the evidence behind this claim by exploring what is known about such processes internationally although our focus was on systems covering vulnerable adults, not children, and on social care not health services. 

This paper summarises the findings of our desk-based review investigating the checking of staff and volunteers working with adults who are vulnerable or at risk (or similarly defined) in the context of the DBS in England (for the full report see Lipman and Manthorpe, 2015). In respect of the other countries where such processes operate, it highlights the matters that are taken into consideration and by whom, and the practicalities of undertaking such schemes as well as their broader goals and justifications. While there is little information about the effectiveness of such schemes, outcomes are discussed where presented. 

Methods 

We primarily explored two categories of country. These were Anglophone countries; and countries which have known well-developed social welfare systems, such as in Northern Europe, where one might expect consideration to have been given to vetting-type policies and procedures. The two categories of country were not necessarily mutually exclusive. 

Desk research exploring web-based material in the fields of social care, international recruitment practice and legal advice on vetting procedures, supplemented by rapid review of the published literature and the grey literature, was carried out during winter 2014-2015 (see Table I). The research areas fell into broad two themes: the purpose and aims of vetting paid staff and volunteers and job/volunteer applicants; and the procedures and practicalities of applying vetting schemes. 

A key word approach was taken to this scoping review. The inclusion criteria covered terms relating to checking processes and to the groups of people affected. Specifically they included adult vetting, criminal checks, disclosures, employment screening, police checks, pre-employment checks, protection, safeguarding, social care, vulnerable adults (and protection) and vetting. “International” and “European” were affixed to most of the above terms for search purposes. Exclusion terms included health checks, disability checks, occupational health and UK (the latter as we were familiar with this jurisdiction’s schema). 

The research was further informed by e-mail correspondence and face-to-face meetings with experts and practitioners in different countries to clarify matters, or to provide illustrations of systems in action. A purposive approach was adopted for identifying these additional resources. Data were also examined from a range of International and European bodies: including the European Platform on Ageing (EPA), the European Social Network (ESN), International Labour Organisation (ILO), and the International Network for the Prevention of Elder Abuse (INPEA). These were selected as bodies having experience and knowledge of good practice in employment (ILO) and in promoting best practice in and protection of vulnerable adults in Europe and globally (EPA, ESN, INPEA). 

Only literature written in English was included and, because regulations frequently change, only material produced in the last ten years was reviewed. Because many of the key terms (such as vulnerable, vetting and monitoring) are defined slightly differently by different countries, definitions are given at the relevant point of the paper. 

Findings 

In this section we bring together the review of the literature, the desk research and the contributions from the experts and practitioners. We found a number of Anglophone countries other than England that require organisations, whether private or public with a remit to work with vulnerable adults, to carry out disclosure checks on their staff and volunteers. In the USA and Australia, for example, this is organised at a state/territory level with individual areas having their own processes in place. Several countries were found to have compulsory checks for those working with children, such as Australia, Italy and New Zealand. Little evidence was found of legislative requirement for pre-employment criminal record checks for those working with vulnerable adults in most of the other countries searched. 

The purpose of vetting 

Different countries define or describe the purpose of vetting schemes in varying ways indicating distinctive emphases of what is important to them (we acknowledge possible changes of meaning arising from translation from the original language to English). For example, New Zealand legislation states the purpose of vetting is “to protect society’s most vulnerable members”, while in Norway it is “to contribute to safety for patients and quality within the health service, as well as to create trust in [...] personnel”. Mission Australia, a voluntary sector provider, adopts a twofold position: arguing for a solid framework that would both protect employing bodies and create a safe place for vulnerable people. This raises critical questions about where the balance of interest lies in developing schemes: between an organisation’s requirement to safeguard its own interests as a service provider, or in protecting those for whom it provides services. Under British Columbia’s legislation in Canada for vulnerable adults the aim of checking is to protect vulnerable people from individuals whose criminal record indicates they pose a risk of physical, sexual or financial abuse (British Columbia, 2014). 

Without exception a history of sexual abuse offences against children appear always to be as viewed as potential grounds for exclusion from care work or other forms of contact with children. In the USA, the Virginia Code contains a list of what it terms “Barrier Crimes, that automatically barred working in given circumstances”, and unusually this clearly identifies what constitutes such crimes. Of particular note is “abuse and neglect of incapacitated adults”, alongside such crimes as murder, manslaughter and extortion by threat. In Australia the types of harm that could be imposed on a vulnerable person are classified as sexual, physical, emotional and financial. In England automatically barred offences also include sexual abuse – the “autobars” (see McKenna et al., 2012). 

Who is being protected? 

Defining who is to be protected reveals another area for deliberation. The status of a child does not appear to be generally questioned as indicating vulnerability, but an adult’s vulnerability is defined variously by their physical, mental or intellectual health status (as in the Republic of Ireland and in Norway); whether their condition is long-term or temporary (Canada); by the health and care services they are using, such as domiciliary or hospital care; by the nature of their accommodation, such as residential care, sheltered housing, nursing home, hospital (see Northern Ireland); or by the type of contact with that agency. Additionally, some jurisdictions specify the need for assistance in the conduct of a person’s financial or other affairs (Northern Ireland and Tasmania) as denoting vulnerability. Australian Capital Territory (ACT) and Tasmania share a common definition with England in defining a “vulnerable person” in relation to their use of a regulated activity. Under the National Vetting Bureau (Children and Vulnerable Persons Act, 2012), the Republic of Ireland defines the person first: as being someone over 18 years of age who is suffering from a mental or physical condition, that necessitates their having a service that guards them against harm by another person, and/or because they need assistance with the activities of daily living, such as dressing, eating, walking, washing and bathing. It seeks to balance the rights of vetting subjects to protecting their good name, with the rights of children and vulnerable adults to be protected from persons who are likely to cause them harm. “Harm” under the Children and Vulnerable Persons Act 2012 includes physical, sexual or emotional exploitation of abuse of the person. Under British Columbia’s Criminal Records Review Act (RSBC, 1996) a vulnerable adult is defined as “an individual 19 years or older who receives health services, other than acute care, from a hospital, facility, unit, society, service, holder or registrant”. Subsequent guidance from British Columbia adds a relative or a person in a position of authority or trust as a person who should be scrutinised (British Columbia, 2014). 

Most of the legislation and guidance on safeguarding is declared to be in an attempt to protect vulnerable adults, usually in receipt of a care service, and children. However, there are other groups to whom the legislation applies in some jurisdictions. Examples include migrants, refugees and asylum seekers (in Tasmania under the Registration to Work with Vulnerable People Act, 2013) or those “detained in lawful custody” (in Northern Ireland, under The Safeguarding Vulnerable Groups Order, 2007). This adds a further dimension to the debate because of the form of guidance and training needing to be in place to ensure the law protects vulnerable people individually or as a group. 

While the purpose of vetting, as shown above, is about the protection of vulnerable people, judicial systems in some countries give more weight to considering the impact of such investigations on those who are required to disclose their criminal records. In such countries importance is placed on the rehabilitation prospects of offenders, and the impact that disclosure of their criminal history may have on their reintegration into society (Morgenstern, 2011).