Disclosure and Barring Service (DBS) Decisions and Appeals
Legal Advice on DBS Law and Appeals for Doctors
If a doctor is barred from working with children or vulnerable adults (because the doctor is deemed a risk to such persons), the doctor will struggle to find suitable work in the healthcare sector and be limited in what they can do to apply for restoration to the GMC Medical Register, if their name has been erased from the register. A doctor who is on the barring list would likely be deemed unfit to practise medicine, for that status alone.
DBS Notice to Bar
A doctor who receives a Notice to Bar letter from the DBS, should not delay in instructing a lawyer to assist them in responding. A failure to promptly reply could lead to a situation where the DBS moves to make a decision that is adverse to the doctor. Depending on the factual history, a response letter will need to be detailed and deal with the concern and the risk of repetition.
Doctors should act promptly in response to DBS letters, as there are various stages during which a doctor can seek to persuade the DBS that they should not be put on the barred list. A failure to submit the right evidence and make written challenges will likely lead to barring. The decision is on paper and an administrative one, with no oral hearing. As a consequence, many untested allegations might be relied upon by the DBS to come to a decision on the balance of probabilities. For that reason, and to protect a doctor on appeal, a fully evidenced argument should be made to the DBS to show that that the doctor has not done what is alleged, or they have taken sufficient steps to remediate any shortcomings, and show insight.
In some instances, there may be a route to ask the DBS to review their decision prior to the passage of 10 years, if there is new information or a change of circumstances of sufficient import to impact on the original DBS decision of fact and decision to bar. Some examples might include, new evidence comes to light that was not hitherto available, or a conviction has been quashed on appeal within the criminal justice system – where a criminal matter had led to a bar. See: Report a Problem about an Existing Barring Decision. However, where there is an appeal route still open to the Upper tribunal, within three months of the decision to bar, this should not be missed.
The DBS has produced a number of fact sheets that can assist doctors to navigate the DBS barring decision process:-
How to Respond to a DBS Notice to Bar (What should I Reply to the DBS?)
Any response will need to be extremely detailed, dealing with the factual history and the weight of the evidence. There also needs to be evidence of remediation and insight, with evidence that any risk of repetition is low.
Each case turns on its own facts and it is not a simple matter to set out here in this article the points that need to be advanced. Nevertheless, the DBS is looking at the specific issues relating to vulnerability, infirmity, and age.
The DBS has produced some guidance on making representations: DBS Guidance on Making Representations. The guidance explains that the following may be useful:
explanation of your offending behaviour
mitigating factors for your offending behaviour
insight into, or remorse for your offending behaviour
action taken by you, or courses completed to address your offending behaviour
pre-sentence reports (e.g. OASys reports, judge’s sentencing remarks, probation service reports, or social services assessments)
relevant medical reports or assessments from medical experts
relevant specialist assessments by other professionals
professional references [that include the authors’ knowledge of the potential for being barred and the alleged or established conduct that has led to the referral to DBS]
testimonials (character statements) [that also include the authors’ knowledge of the potential for being barred, and the alleged or established conduct that has led to the referral to DBS]
errors of fact in evidence
It is also useful for a doctor to present a personal development plan for how they will continue self-improvement over time. This will often need to include a commitment to further steps of remediation, and ongoing peer evaluation and feedback. The focus should be that of the DBS: to protect vulnerable adults and children.
The DBS will weight the evidence against a doctor and look at the evidence and submissions of the doctor, and then weight it as they see fit.
The DBS seems to have a low benchmark when it comes to the assessment of future risk, in our experience, holding against a doctor any perceived lack of (full) insight, and insufficient evidence of remediation.
How does the DBS evaluate risk?
See the published barring decision process form, which case decision-makers are required to follow the Structured Judgement Process (SJP) risk assessment tool::
The DBS is not an investigatory body and must rely on other decision-making bodies to provide relevant evidence.
What facts can the DBS rely on?
The Disclosure and Barring Service (DBS) is required to use the ‘findings of fact’ of the General Medical Council (or similar statutory competent bodies), as reliable facts when making barring decisions.
There are of course certain classes of case where it will be close to impossible to avoid being barred but suitable submissions can be made to seek to avoid a doctor being barred. Many doctors are successful in avoiding being barred from working with vulnerable adults and children.
Length of Bar (and Applications to Lift the Bar)
A barring order is for a minimum of 10 years for anyone 24 years of age or older (and of shorter duration for those who are younger), and will continue for a lifetime unless the DBS agrees to lift the bar. A doctor can apply for a review after that time, if there is evidence that the doctor no longer poses a risk. Cogent evidence will be required and we can advise barred doctors on such applications at the 10 year point.
DBS Barring Appeals
Appeals lie to the Upper Tribunal (administrative Appeals Chamber) in England and Wales, where a doctor has been barred. See the: DBS Barring Appeals Guidance for more information.
A strict three month time limit applies to lodge an appeal. Out of time applications will seldom be entertained. Permission to appeal is required. Permission must be sought in writing, supported by evidence, from the Upper Tribunal. The appeal is usually on points of law and process. Some examples of appeals are set out in the case law below. The summary is not exhaustive of potential appeal grounds. We recommend that legal advice is obtained promptly, enabling a lawyer to properly assess the merits and advise on evidence, grounds of appeal and written submissions. We can draft such documents for a barred doctor, in DBS appeal cases.
Our lawyers have expertise and experience in this area of barring law and appeals, and can provide legal advice and representation to doctors in DBS law matters.
For more information, contact us on 0800 10 88 739