Government reveals it has no plans to set up ‘negative register’ of social care staff in England

The Department of Health (DH) has revealed it has no plans to introduce a “negative register” for social care staff in England, despite strong support for this approach from the Health and Care Professions Council (HCPC).

In 2012, after it took over the regulation of social workers in England, the HCPC proposed setting up a negative register of care staff found to have a committed a serious breach of a new code of conduct, which would be introduced alongside it.

The Law Commission bill, which is likely to come before Parliament in the months leading up to the 2015 general election, is expected to give regulators the power to establish such registers, but the HCPC would still need the approval of government to set it up.

However, a spokeswoman for the DH told Community Care: “We are aware of and monitoring the ongoing debate relevant to negative registers. We have no specific plans to implement one for social care support workers.”

The DH’s statement came after it emerged that the Professional Standards Authority (PSA), which oversees regulators including the HCPC, is sceptical about the idea of a negative register.

At a House of Commons Health Committee hearing on 7 January, MP Andrew George said the PSA did not appear to be “terribly enamoured with or convinced by” the proposal.

It transpired that, in written evidence to the committee, the PSA had said it was not clear who would pay for the scheme and expressed concerns over whether employers would refer cases to the body in charge of the negative register, given the potential risk of reputational damage associated with employing people unfit to provide social care.

A cheap and effective option

The HCPC believes a negative register is needed because it is cheaper than registering all social care workers and more likely to be effective than voluntary registration or self-regulation.

In response to the DH’s statement, Jacqueline Ladds, director of communications at the HCPC, said: “It is disappointing and we would have been very willing to undertake further work on looking at viability of it, but if that is the government decision, that is their position.”

She said the HCPC would have done a lot more work to develop the negative register proposal had the government wanted to go ahead with it, which would have included addressing some of the questions raised by the PSA.

She said: “In our view a negative register would be a very effective way of regulating an occupational group without having to go through full blown statutory regulation and would complement other mechanisms already in place.”

In relation to funding, Ladds said the scheme would most likely to be paid for by a levy on employers or by the government. She said the feedback from employers was “people would welcome a negative register and would refer [cases] to it”.

However, Martin Green, chief executive of Care England (formerly the English Community Care Association), said providers “would need to see really significant benefits for it to be worth their while funding it”.

During the Health Committee hearing, HCPC chief executive Marc Seale admitted this was one of the “biggest problem with our scheme”.

PSA questions whether new system is needed

The PSA had also said the existence of the Disclosure and Barring Service (DBS) meant “it could be argued that there is already a system of negative registration in place for this particular group”.

The HCPC argued that the DBS does not stop all “serial offenders” from working in social care. In the Health Committee hearing, Anna van der Gaag, chair of the HCPC, said only 36% of the cases the regulator refers to the DBS result in the offender being barred.

Jacqueline Ladds, director of communications at the HCPC, added: “If you have a negative registration scheme, you would be stopping those people from hopping to other employers. With the DBS at the moment that threshold is too low and does not stop those serial offenders from doing that.”

But the PSA’s chief executive, Harry Cayton, told Community Care it was unclear how many additional offenders the negative register would weed out that are not covered by the DBS.

He said: “How many adult social care workers are harming people and then moving [to other jobs] despite the fact they have probably been dismissed by their previous employers and do have references to be taken up by a new employer?

“We do not know enough about the size of the problem and until we do we cannot decide if a negative register is adequate response. And if we need a different threshold, why not change the threshold for the DBS, rather than set up a new scheme?”

He added that the there should be a greater onus on employers to refuse to provide references for anyone they dismissed and feel should not be working in care, and an obligation on care providers to take up references for new recruits.

Employers and regulators have a duty to report offenders to the DBS, but Cayton said they do not do so enough because the guidance on the situations when they should was unclear.

Any new system would also need to take into account the rights of the accused care worker, particularly since it could ban them from working in the sector, he said. “One reason they have elaborate fitness to practice proceedings in regulated occupations is you are removing someone’s right to work.”

He added: “I am not saying any of this is insurmountable, but there are practical issues of real concern.”