Disclosure and Barring Service (DBS) Decisions and Appeals
Legal Advice on DBS Law and Appeals for Doctors
Doctors Defence Service can advise doctors on Disclosure and Barring Service (DBS) barring decisions and appeals from barring decisions. See also: How to Make a Barring Referral
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:
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explanation of your offending behaviour
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mitigating factors for your offending behaviour
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insight into, or remorse for your offending behaviour
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action taken by you, or courses completed to address your offending behaviour
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pre-sentence reports (e.g. OASys reports, judge’s sentencing remarks, probation service reports, or social services assessments)
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relevant medical reports or assessments from medical experts
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relevant specialist assessments by other professionals
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career history/details
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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]
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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]
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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::
Barring Decision Tree Process – Questions and Assessment of Risk
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.
Appeals to Upper Tribunal
SD v Disclosure and Barring Service [2024] UKUT 249 (AAC) – a barred person sought to overturn the First Tier Tribunal’s barring decision by advancing new evidence (of insight and remediation) that post-dated the FTT’s original decision. The UTT rejected the appeal holding:-
“1. This case raises an issue on the scope of an appeal against decisions made by DBS. The issue is: can an appellant show a mistake of fact for the purposes of section 4(2)(b) by proving something that has happened since DBS made its decision but did not obtain at that time? Our answer is: no. Whether DBS made a mistake of fact has to be decided on the circumstances at the time of DBS’s decision.”
(August 2024)
SV v DBS (Safeguarding vulnerable groups – Adults’ barred list, Safeguarding vulnerable groups – Children’s barred list) [2022] UKUT 55 (AAC) – healthcare worker DBS barring decision overturned and case remitted to be reconsidered by Disclosure and Barring Service (DBS). Issues relating to ultra vires decision-making, mistaken approach to facts, and legitimate expectation covered in judgment. The jurisdiction of the upper tribunal is also stated to be as follows, at para 69:
69. Given the limited jurisdiction of the Upper Tribunal under the 2006 Act, we need to consider not whether we would have made the same findings ourselves if conducting a full merits review, but rather whether DBS was entitled to make those findings on the evidence before it, or whether its decision was based on a mistake of fact or a mistake on a point of law.
(February 2022)
Other Upper Tribunal Cases
JT v Disclosure and Barring Service (Safeguarding vulnerable groups – Adults’ barred list) [2022] UKUT 29 (AAC) – decision of barring service to list a person was quashed and a direction to remove individual from the list was given, due to factual basis for listing being unfounded. (Mistake of Fact) (February 2022)
CB v Disclosure and Barring Service (Safeguarding vulnerable groups) [2022] UKUT 30 (AAC) – Personal conduct outside of work and its relation to regulated activities and barring decisions. The following extract from the judgment explains what evidence the Upper Tribunal was looking for and which appeared to be absent. It helps to understand the types of evidence that might make a difference in other cases:
“36. There was no continuity in CB’s work with children and young person from the age of 16. For part of that time, she was caring for her grandmother with no involvement with children or young persons. For another part of the time, she was working in events with only incidental involvement with children or young persons. In total, those periods account for about five years. For the rest of the time, we heard a plethora of detail about things that CB had done, but did not hear a clear account of: exactly what was involved in the formal roles she undertook; whether they were full or part time; whether they were paid or voluntary; the extent to which she was working with or supervised by others. Most important, we did not have information to show that CB was significantly tested in her ability to remain detached when her authority was challenged or when she felt disrespected or if she became emotionally attached to someone under her care. That limits the extent to which the work she undertook can show an ability to compartmentalise her behaviour.
37. CB’s behaviour can be impulsive and beyond her ability to control. It is not limited to personal relationships and can occur in other environments, even when the origin lies in her personal life. Those factors allow it to be read across into regulated activity. Her experience in working with children and young persons is too uncertain to allow us to come to a firm conclusion that she has any experience that would show an ability to confine her behaviour to her personal life. Taking those together provides a sound basis on which DBS could decide that it was appropriate to include CB in its lists.
38. That is why we have confirmed DBS’s decision.”
(February 2022)
Court of Appeal
Disclosure and Barring Service v RI [2024] EWCA Civ 95 the Court of Appeal upheld the decision of the upper tribunal to hear evidence and form a view of the evidence. The Upper Tribunal found that there were errors such that the barring could not stand. The DBS, in contrast, had not heard any oral evidence, having made a decision about the facts on the papers alone. At paras and 50
14. The UT allowed RI’s appeal against the decision of the DBS of 25th March 2020 and directed that her name be removed from the Adults’ Barred List. The UT made a finding of fact that “the appellant did not steal any money from RV at any time during the course of her employment and her duties as a key worker and/or support worker” and held that “in deciding otherwise the DBS did make a mistake as to fact”. per Bean LJ
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50. That conclusion is reinforced in the light of the ability of the Upper Tribunal to hear oral evidence, as occurred in the present case. Parliament must have contemplated that an appellant would be able to give evidence to the effect that ‘I did not do it’; that the Upper Tribunal would be entitled to evaluate that evidence, together with all the other evidence in the case; and that if the Upper Tribunal was persuaded accordingly, the appeal would be allowed, without the Upper Tribunal needing to find any other mistake on the part of the DBS. Of course, the evidence might not be believed, but if evidence stands up well to cross examination, that must be a factor which Parliament expected and intended the Upper Tribunal to take into account. It is inconceivable that Parliament intended to place the Upper Tribunal in a position where, having considered all the evidence and despite being satisfied that the finding of the DBS was wrong, the Upper Tribunal was powerless to allow an appeal, for want of being able to identify any other mistake made by the DBS apart from the fact that it had reached the wrong conclusion. per Males LJ.
There was further discussion about when the Upper Tribunal could not come to a different decision, which might be where the tribunal has exactly the same evidence as the DBS (see para 54 on this, and Disclosure and Barring Service v JHB [2023] EWCA Civ 982 (August 2023)).
(In RI, the DBS also came in for some considerable criticism for having not lifted toe barring, as had been ordered by the Upper Tribunal.) (February 2024)
Disclosure and Barring Service v AB [2021] EWCA Civ 1575 – procedure where there is a material factual change. Court of Appeal confirms that the Upper Tribunal is not the forum to determine the appropriateness of a listing. The case should be remitted back to the DBS for a new decision where errors were identified that nullified the first DBS decision. In any event, the upper tribunal erred in making certain findings, and the case was remitted back to a differently constituted upper tribunal. (November 2021)
B v Independent Safeguarding Authority [2012] EWCA Civ 977 – The Upper Tribunal is empowered to consider the proportionality of a DBS decision to bar an individual under Schedule 3. A barring decision that is disproportionate is one that involves an error of law and so is appealable under section 4. The court stated (at para 28):
28. Finally, I acknowledge the difficulty faced by the UT in a case such as this. I can think of no other statutory regime in which a tribunal is expressly prohibited from revisiting “appropriateness” but is obliged to address proportionality. However, the lines have been drawn and, as I have said, they are different lines from those which governed the jurisdiction of the Care Standards Tribunal under the previous legislation. His Honour Judge David Pearl, who presided in the UT in the present case, was formerly a distinguished President of the Care Standards Tribunal. I do not underestimate the difficulty of the transition from that regime, which permitted a full merits review, to the present one.
Costs – Unreasonable Conduct
In Willow Court Management Co Ltd v Alexander [2016] UKUT 290 the Upper Tribunal (paras 22 to 26, with legal principle being adumbrated from para 24) set out how it would consider whether a party had acted unreasonably, a test which needs to be satisfied if costs are to be recovered from another party.
“24. …“Unreasonable” conduct includes conduct which is vexatious, and designed to harass the other side rather than advance the resolution of the case. It is not enough that the conduct leads in the event to an unsuccessful outcome. The test may be expressed in different ways. Would a reasonable person in the position of the party have conducted themselves in the manner complained of? Or Sir Thomas Bingham’s “acid test”: is there a reasonable explanation for the conduct complained of?
25. It is not possible to prejudge certain types of behaviour as reasonable or unreasonable out of context, but we think it unlikely that unreasonable conduct will be encountered with the regularity suggested by Mr Allison and improbable that (without more) the examples he gave would justify the making of an order under rule 13(1)(b). For a professional advocate to be unprepared may be unreasonable (or worse) but for a lay person to be unfamiliar with the substantive law or with tribunal procedure, to fail properly to appreciate the strengths or weaknesses of their own or their opponent’s case, to lack skill in presentation, or to perform poorly in the tribunal room, should not be treated as unreasonable.”
See also our further pages on DBS case law relating to children.
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