Key Legislation Covering the Befriending Sector

The following list is intended to be a very general guide to key legislation affecting the befriending sector in Scotland. You can download the full text of any of these Acts by visiting the UK Statute Law Database. As well as accessing content, the SLD also allows you to view legislation as it has changed over time, allows you to see how legislation will be affected by amendments not in force and allows you to scan the text of legislation for words and phrases.

The material contained on this page is a general overview and does not give advice on any particular matter. Site visitors should not act on the basis of the information below without taking appropriate professional advice on their own particular circumstances. No legal liability rests on the authors, publishers or editors of this website for actions taken on its guidance.

Health and Safety

Befriending is a unique type of voluntary work. It often involves befrienders lone-working off-site, often out of office hours, with no direct supervision and often moving between venues with their befriendee. Moreover, the nature of befriending activities can vary widely from week to week. All of these issues (and others such as the risk posed by third parties in the befriendee's home) can present problems for befriending projects trying to assess and minimise any potential risks to befriender and befriendee.

Additionally, health and safety legislation in befriending covers public and employers liability.

The Health and Safety at Work Act 1974

Places a duty on befriending projects to conduct undertakings to ensure as far as is reasonably practicable, that people other than employees (i.e. volunteer befriender and befriendee) are not exposed to risks to their health and safety. The Act acknowledges that employers can only do so much to protect their employees, volunteers and clients. This means that a project should not try to perform a risk assessment on every single activity and venue that a befriender and befriendee may do or visit during the term of their relationship. They should carry out a risk assessment on any venue or activity where they can be reasonably expected to perform one or where they feel there may an unacceptable level of risk to befriender and befriendee. The activities and venues a project chooses to perform a risk assessment on is up to them. They must be satisfied that their decision is justified and that any risks presented by an activity or venue are within an acceptable limit.

Management of Health and Safety at Work Regulations 1999

Places a legal duty on all employers to assess the risks to employees, voluntary workers and clients that may be affected by any work activities being undertaken. Befriending projects must perform risk assessments and ensure that appropriate measures are taken to reduce any identified risks if they are not adequately controlled at present. It is not enough to perform a risk assessment and simply identify potential hazards—any risks must be minimised to within an acceptable limit. Remember, you are responsible for ensuring that risk assessments are performed adequately.

The Smoking, Health and Social Care (Scotland) Act 2005
The Prohibition of Smoking in Certain Premises (Scotland) Regulations 2006

The Act and Regulations above were introduced to save lives and prevent diseases caused by passive smoking. The legislation effectively bans smoking in all wholly or partially enclosed premises, with a few exceptions.

For more information, visit Healthy Working Lives which was set up to address the needs of small and medium enterprises (SMEs).

Data Protection

Freedom of Information (Scotland) Act 2002

The Freedom of Information (Scotland) Act 2002 introduced important new rights to access information held by public authorities and also requires more proactive publication of information.

For more information, visit: http://www.itspublicknowledge.info/home/SICResources/ResourcesCivilQandA.asp

Data Protection Act 1998

Protects the rights of individuals as 'data subjects'. Befrienders, and befriendees have rights concerning how a befriending project collects, stores and processes their personal data. As befriending projects often collect personal data during their contact with befrienders and befriendees, they have legal duties under The Data Protection Act 1998 as 'Data Controllers'. Regardless of whether they are registered or not, befriending projects must follow the eight principles of good practice for data protection which state that personal data must be: fairly and lawfully processed; processed only for specified and lawful purposes; adequate, relevant and not excessive; accurate and up-to-date; not kept longer than necessary for purpose specified; processed in accordance with the rights of the data subject; secure from the point of collection through to disposal; not transferred to countries without adequate protection of data subjects i.e. via the Internet.

For more information, visit: www.scotland.gov.uk/About/FOI

Mental Health

Mental Health (Care and Treatment) (Scotland) Act 2003

Mental health law says that if a person is at risk because of his or her mental illness, and if treatment could help, professionals have a legal duty to provide that care and treatment. The Mental Health (Care & Treatment) (Scotland) Act 2003 says:

  • when a person can be taken to hospital against his/her will
  • when a person can be given treatment against his/her will
  • what rights a person has when they are receiving care and treatment
  • what safeguards are in place to protect that person's rights

The law is based on a set of principles. These principles should be taken into account by anyone involved in a person's care and treatment. The principles say that whenever a professional involved is making a care and treatment decision he or she should:

  • take the past a present wishes of the individual into account
  • make sure the person gets the information and support he or she needs to take part in decisions
  • take the views of the person's carer, named person, guardian or welfare attorney into account
  • look at the full range of care and treatment options that a person may need
  • give treatment that is provides maximum benefit to the individual
  • take account of the person's background, beliefs and abilities
  • make sure that any restrictions on an individual's freedom should be the minimum necessary in the circumstances
  • make sure that individuals receiving care and treatment under the Act are not treated less favourably than other people
  • take the needs of carers into account and ensure that carers get the information and support they need
  • take special care of your welfare if you are under 18 years of age

For more information, see: www.mwcscot.org.uk/advice_and_information/about_mental_health_law

Other/Vulnerable Groups

Community Care and Health (Scotland) Act 2002

Includes the provision of free nursing and personal care, fairer charging; greater choice; more independence; better support for carers; and more effective joint working between the NHS and local authorities. The Act has improved care services by legislating to:

  • provide free nursing and personal care from July 2002 in line with the conclusions of the Care Development Group;
  • expand local joint working and pooled budget arrangements between NHSScotland and local authorities from November 2002;
  • broaden access to direct payments for home care services, giving people greater control by purchasing their own services (became a right from 1 June 2003 and to be extended to other client groups from 1 April 2004);
  • extend the right to assessment for informal carers, from September 2002, including young carers, and ensure that carers are made aware of this right;
  • also from September, enable the contribution of carers and their views, as well as the views of the cared person, to be taken into account by local authorities before deciding which services to provide;
  • allow "deferred payments" from July 2002, where residents can have part of their care home fees paid by their local authority so that they do not need to sell their home (money is eventually repaid to LA);
  • enable local authorities to provide care home places elsewhere in the UK and
  • ensure high standards among non principal GPs.

For more information, see www.scotland.gov.uk/Topics/Health/care/17655/guidance-profesionals/9803

Adult Support and Protection (Scotland) Act 2007

This law is to protect people aged over 16 who cannot look after their own interests and are at risk of being hurt or having their money or property taken. Local authorities will be able to look into cases where they believe or are told someone is being harmed and, if they can't find better ways to stop harm from continuing, they can ask a sheriff for a protection order. There are 3 orders. An assessment order allows the adult to be assessed to see if they are at risk of being harmed, and would allow a local authority to decide if they need to do something more to protect the adult. A removal order would allow the adult to be moved from where they live to another place for a short time to stop them from suffering serious harm. A banning order could prevent the person doing the harm (perpetrator) from staying in the house, or having any contact with the adult, but only if a local authority cannot protect the adult in any other way. Before a sheriff agrees to make any order they must allow an adult to say what they think about it. When a local authority decides they need to do something to protect the adult from harm, they should provide access to independent advocacy or other kinds of support services to help the adult understand what is happening. Local authorities must set up multi agency protection committees and agencies (health boards, police, the Care Commission and others) should work together and share information better in order to protect people at risk of harm.

Read the Easy Guide to the Act: www.scotland.gov.uk/Resource/Doc/1095/0059478.pdf

Protection of Vulnerable Groups (Scotland) Act 2007

The Protecting Vulnerable Groups (Scotland) Act 2007 introduces a new membership scheme for people who work with children and protected adults.  This will replace current disclosure arrangements for people whose post requires an enhanced disclosure.  The Protecting Vulnerable Groups Scheme (PVG Scheme) is expected to be introduced in 2010 (an exact date is still to be determined).  The Scottish Government's aim is for the PVG scheme to:

  • ensure that those who have regular contact with vulnerable groups through the workplace do not have a history of abusive behaviour
  • deliver a fair and consistent system that will be quick and easy for people to use, ending the need for multiple, written disclosure applications.

For more information, visit www.protectingvulnerablegroups.com

The Police Act 1997 (Criminal Records) (Registration) (Scotland) Regulations 2006

Definition of Adult at Risk as contained in The Police Act 1997 (Criminal Records) (Scotland) Regulations 2006 (OPSI/HMSO) Note - definition is contained within Regulation 10(3).

Rehabilitation of Offenders Act 1974

The Rehabilitation of Offenders Act 1974 enables some criminal convictions to become 'spent', or ignored, after a 'rehabilitation period'. A rehabilitation period is a set length of time from the date of conviction. After this period, with certain exceptions, an ex-offender is not normally obliged to mention their conviction when applying for a job or obtaining insurance, or when involved in criminal or civil proceedings. Cautions, reprimands and final warnings are not criminal convictions and so are not dealt with by the Act. So if people with cautions, reprimands or final warnings only are asked whether they have any 'criminal convictions' they can answer 'no'. Sometimes people are asked if they have a 'criminal record'. This is a less precise term, but it is usually understood to mean convictions. So people who are asked if they have a 'criminal record' may also answer 'no' if they have no convictions.

However, people who are specifically asked if they have cautions, reprimands or final warnings should disclose them until they are deleted from police records. Records of cautions should be deleted after five years if there are no convictions on the record. (In practice, some police forces may retain records of cautions for much longer than this or indefinitely.)

For more information, visit www.lawontheweb.co.uk/rehabact.htm

Children

The Protection of Children (Scotland) Act 2003

The Protection of Children (Scotland) Act 2003 aims to improve the safeguards for children by preventing unsuitable people from working with them. The Act allows Scottish Ministers to set up the Disqualified from Working with Children List which came into operation on 10 January 2005. The Act introduces new duties and offences which apply equally to the statutory, private and voluntary sectors and covers work in both paid employment and unpaid voluntary service. For more information, visit www.scotland.gov.uk/Topics/People/Young-People/children-families/17834/10258

Equal Opportunities

Befriending projects are bound by the following European and UK legislation not to discriminate against employees and service users (NB volunteers are not specifically covered under current legislation. However, it is good practice to include volunteers in equal opportunities policies and procedures alongside employees and service users):

The Sex Discrimination Acts 1975 and 1986
The Human Rights Act 1988
The Race Relations Act 1976 and The Race Relations (Amendment) Act 2000
The Disability Discrimination Act (1995)
Equal Pay Act 1970 and the Equal Pay (Amendment) Act 1984
Employment Rights Act 1996

Governance and Finance

The Charities and Trustee Investment (Scotland) Act 2005

The Charities and Trustee Investment (Scotland) Act 2005 establishes a system of charity regulation in Scotland. The Office of the Scottish Charity Regulator was established through Part 1 of the Act and is required to regulate all charities in Scotland.

For more information, visit www.oscr.org.uk/2005Actoverview.stm

The Charities Accounts (Scotland) Regulations 2006

The Scottish Parliament has approved new Accounting Regulations and the Charities Accounts (Scotland) Regulations 2006 apply to financial years starting on or after 1st April 2006.

For more information, visit www.oscr.org.uk/ScottishCharityAccounting.stm

Companies Act 2006 – Charitable Issues

For more information, visit www.scvo.org.uk/scvocms/images/Companies%20Act%2006%20-%20MacRoberts.pdf