National Vetting Bureau (Children and Vulnerable Persons) Act, 2012

Thursday, 8 August 2013

The National Vetting Bureau (Children and Vulnerable Persons) Act, 2012 was enacted in December 2012 however the commencement of the Act has been delayed as elements of the Act are under review having regard to a Supreme Court decision in the UK. This means that the Act is not yet law. 

When the Act becomes law it will provide clarity in relation to the use of 'soft' information and it will establish on a statutory basis vetting and disclosure procedures. The Act will make the vetting of persons who seek positions of employment relating to children or vulnerable persons mandatory for the first time. 

The Act seeks to "make provision for the protection of children and vulnerable adults" by putting in place a national vetting process which must have access to what is called 'soft' information. In the Act 'soft information is referred to as 'specified information' and is defined as information that 'reasonably gives rise to a bona fide concern that a person may harm a child or vulnerable person'. An example of 'soft' information includes information which has come to the attention of a State authority but falls short of conviction of a relevant offence, such as an allegation of abuse. 

The Act imposes obligations on 'relevant organisations'. 'Relevant organisations' are organisations with employees who work with children or vulnerable persons. The relevant organisation must:  

  1. Apply to register with the National Vetting Bureau (note: if the organisation is already registered with the pre-existing Garda Vetting Scheme then it is deemed to be registered).
  2. Nominate a liaison person who themselves must be vetted in advance of their appointment.
  3. Seek vetting disclosures before employing someone to do relevant work.
  4. Use any disclosed information appropriately.

The Act also imposes responsibilities on what are called 'scheduled organisations'. Scheduled organisations include the HSE, various Medical Councils, HIQA and the National Transport Authority. The Act imposes an obligation on these organisations to notify 'specified' or 'soft' information to the Bureau in certain circumstances. 

Scheduled organisations must share 'soft' information which has been the subject of an investigation/ inquiry/ process. Where a scheduled organisation following an investigation/ inquiry/ process in respect of a person has, as a result of said investigation/ inquiry/ process, a bona fides concern that the person who is the subject of that investigation/ inquiry/ process may;  

     (a)   Harm any child or vulnerable person;

     (b)   Cause any child or vulnerable person to be harmed;

     (c)   Put any child or vulnerable person at risk of harm;

     (d)   Attempt to harm any child or vulnerable person; or

     (e)   Incite another person to harm any child or vulnerable person; 

that organisation shall as soon as may be notify the National Vetting Bureau in writing of that concern and shall state the reasons for it. A scheduled organisation must appoint an "appropriate person for the purposes of notifications to the National Vetting Bureau". 

The Act specifically references the HSE in its exercise of its powers pursuant to the Child Care Act, 1991.  Section 3 of that Act has been interpreted by the High Court as imposing a proactive duty on the HSE to "not stand idly by" but to consider whether or not there is a risk in certain circumstances.  

Due to the fact that all information collated, gathered, assessed and concluded upon by the HSE will have to be furnished to the National Vetting Bureau as specified information, it is critical that any investigation requiring a regulatory process conducted by a scheduled organisation must be conducted in accordance with fair procedures.   

For more information on this topic please contact:   

Sinead Kearney, Diego Gallagher,or  Lidia Levingstone in our Health Services Department.