The National Vetting Bureau (Children and Vulnerable Persons) Bill 2012 (the Bill) is part of a suite of complementary legislative proposals to strengthen child protection. This Briefing is intended to outline the main provisions of the Bill for employers, it does not pretend to ask all the questions or provide all the answers, but we hope it is helpful. Employers are advised to seek legal advice.
What is the National Vetting Bureau (Children and Vulnerable Persons) Bill 2012
The purpose of the Bill, published on 20 July 2012, is to provide a legislative basis for the vetting of persons who seek positions of employment relating to children or vulnerable persons. Currently persons applying for such positions are vetted on a non-statutory basis. This Bill will make this vetting mandatory. The Garda Central Vetting Unit, established in 2002, will be renamed the National Vetting Bureau (the Bureau).
Making vetting a statutory obligation, with accompanying statutory rights for persons being vetted, opens up new avenues of possible litigation in public law and/or for breach of statutory duty. Employers would be wise, therefore, to ensure that the new provisions, when enacted, are reflected appropriately in staff handbooks and contracts of employment and that appropriate training is given. Once the new law is enacted, any employer who fails to ensure vetting is carried out will face criminal penalties.
Who is affected
Every 'relevant organization' ie any person, incorporated or unincorporated, and any employment agency, which provides employment (whether under a contract of employment, for services, or otherwise) relevant to children or vulnerable persons. A child is someone under 18 years. A vulnerable person is someone suffering from a disorder of the mind, intellectual disability or physical impairment, as defined. The Bill does not apply to an individual who does work in the course of a private arrangement for their own benefit, or for a child or vulnerable person who is a member of the individual's own family.
Relevant employer duties under the Bill
To register as a 'relevant organisation'
Employers must apply to the Bureau to be registered as a 'relevant organisation' unless already registered or another registered relevant organization submits an application on their behalf.
To nominate liaison persons
Employers will have to nominate a liaison person to apply for and receive vetting disclosures under the Act and s/he will be subject to prior vetting.
To nominate 'appropriate persons'
Employers specified in the Bill, see 'specified information' below, will have to nominate an 'appropriate person' for the purpose of making notifications of 'specified information' to the Bureau and s/he will be subject to prior vetting.
To vet applicants or employees doing "relevant work or activities"
The Bill prohibits the engagement of persons to do "relevant work or activities" relating to children or other vulnerable persons, unless that person has been subject to its vetting procedures. Relevant work or activities relating to children are comprehensively detailed and include pre-schools, schools, hospitals, health care centres, counselling, residential and special care units, detention centres, drivers, ministers, researchers, and so on. Equally comprehensively, and often similarly, the Bill defines relevant work or activities relating to vulnerable persons. Charities providing activities or welfare, advice, guidance or other services for vulnerable persons, as set out, are within the Bill.
To re-vet
Persons previously vetted for their current position must be re-vetted.
To vet retrospectively
Persons currently in positions which would be subject to vetting under the Bill but who have not previously been vetted must be retrospectively vetted.
Exclusions from the Bill
The Bill does not apply to any work or activity undertaken in the course of a family relationship or to persons who assist occasionally and on a voluntary basis in certain activities or events be they school, sport or community related. This recognizes the occasional but necessary involvement or assistance of parents or other persons but the Act will apply where such involvement includes coaching, mentoring, counselling, teaching or training of the children or vulnerable persons.
Register of 'specified information'
Specified information is information 'concerning a finding or allegation of harm to, or neglect of, a child or vulnerable person' that gives rise to a bona fide concern that a person may harm a child or vulnerable person. It is information received by the Bureau from the Garda Siochána, Health Service Executive, Teaching Council, Medical Council, Nursing and Midwifery Board of Ireland, Dental Council, Health and Social Care Professionals Council, Mental Health Commission, Pharmaceutical Society of Ireland, Pre-Hospital Emergency Care Council, Health Information and Quality Authority, or National Transport Authority.
Specified information is restrictively defined. The information must arise following an investigation, inquiry or regulatory process for the employers listed above. For example, if, as a result of a fitness-to-practise process, a scheduled organisation has a bona fide concern, it must inform the Bureau of the information giving rise to the concern. A similar obligation is placed on the Health Service Executive in regard to its powers and functions under the Child Care Act 1991. The employer is also required to notify the person in respect of whom there is such a concern that it is notifying the Bureau of that concern.
Procedure for vetting applications
Following the receipt of an application for vetting disclosure by a liaison person the Bureau will undertake an examination of its own database and Garda Síochána records to establish whether any criminal records or any specified information relates to the applicant. The Bureau will release a vetting disclosure upon completion of all necessary enquiries and procedures as required. It may state that there is no criminal record or specified information relating to the applicant. Alternatively, where a member of the Bureau staff considers that there is 'specified information' in regard to the vetting subject it will be referred to the Chief Bureau Officer for assessment as to whether the information should be disclosed. The Chief Bureau Officer will notify the vetting subject of the referral, provide a summary of the information, and inform him or her of their right to make a written submission in relation to the information.
The Bill provides statutory constraints. Firstly, a decision to disclose the specified information can be made only if the Chief Bureau Officer, on assessment, believes the information in question is of such a nature as to give rise to a bona fide concern that the vetting subject may harm, attempt to harm or put at risk of harm a child or vulnerable person. Secondly, the Chief Bureau Officer must be satisfied that the disclosure is necessary, proportionate and reasonable in the circumstances in order to protect children or vulnerable persons. The vetting subject must be informed of the intention to disclose the information and informed that he or she may appeal the decision.
Where an employer receives a vetting disclosure containing details of criminal records or specified information it must provide a copy of the disclosure to the vetting subject. It may consider and take into account the information disclosed in assessing the suitability of the person to do relevant work or activities. This is an important legal provision in so far as an employer's decision in this respect may give rise to legal proceedings, eg, for dismissal.
Compliance
The Chief Bureau Officer may assign members of staff as compliance officers. Their powers and functions include entering and inspecting premises occupied by registered organisations and inspecting and taking copies of records found in the course of such inspection. A compliance officer may be accompanied by other compliance officers or Gardaì when carrying out their functions under the Act.
Penalties
The penalty for an offence by any person under the Bill on summary conviction is a Class A fine or imprisonment for a term of up to 12 months or both and on conviction on indictment to a fine of up to â,¬10,000 or imprisonment for up to five years or both. A person guilty of an offence of obstructing or interference with a compliance officer is liable to a Class A fine or up to 6 months imprisonment. Where an offence is committed by a corporate body, but with the connivance or consent of an officer of that body, the person concerned is guilty of an offence. Likewise in regard to a person who is a member of a corporate body managed by its members.
This article contains a general summary of developments and is not a complete or definitive statement of the law. Specific legal advice should be obtained where appropriate.
