The National Vetting Bureau (Children and Vulnerable Persons) Act 2012 came into force on 29th April 2016. All individuals and organisations working with children and vulnerable persons, or with regular access to or contact with them, should be aware of their obligations under this new legislation.
Who is to be vetted
Under the new legislation, vetting is now mandatory in circumstances where “relevant work or activities” in relation to either children or vulnerable persons, as defined, is carried out by any individual, except in certain limited circumstances. Individuals covered by the legislation include employees, contractors and unpaid volunteers.
“Relevant work or activities” in relation to children includes:
- any work or activity which is carried out by a person, a necessary and regular part of which consists mainly of the person having access to, or contact with children under certain legislation including the Child Care Act 1991, Education Act 1998 and Health Act 2007 or in a hospital or health care centre setting;
- treatment, therapy or counselling provided to a child;
- care or supervision of children;
- the provision of education, training, cultural, recreational, leisure, social or physical activities to children (whether on a commercial basis or not); and
- the provision of advice, guidance or developmental services to children.
This is not an exhaustive list. Roughly equivalent provisions apply in relation to vulnerable persons, who are defined as people, other than children, who:
- are suffering from a disorder of the mind (including dementia);
- have a physical impairment (whether as a result of injury, illness or age); or
- intellectual or physical disabilities; and
which are of such a nature as to restrict the capacity of the person to guard themselves against harm, or that result in their requiring assistance with daily living activities including dressing, eating, walking, washing and bathing.
The Act provides for the establishment of a database system, which is to be operated by the National Vetting Bureau, formerly the Garda Central Vetting Unit. This database will contain registers of:
- Relevant organisations;
- Specified information; and
- Vetted persons.
“Relevant organisation” means any person, including a company, who employs any individual to undertake relevant works or activities, or uses contractors or volunteers to do so (whether or not for commercial or any other consideration). Providers of education or training courses where a necessary part of the placement involves participation in relevant work activities or activities are also included, as are employment agencies, bodies responsible for the regulation of certain professions and representative bodies or those who represent, for the purposes of these vetting procedures, another person, trade, profession or body, organisation or group or other body of persons that undertakes relevant work or activities.
A relevant organisation may not employ or otherwise use individuals to undertake relevant work or activities unless the organisation has received a vetting disclosure from the Bureau in respect of that person. Any person who does so is guilty of an offence, which can lead to a fine of up to €10,000 or imprisonment for up to five years. Arrangements entered into prior to 29th April are excluded from this, but relevant organisations will have to apply to have individuals retrospectively vetted if no vetting has previously taken place.
Employers and those now seeking to contract individuals to undertake work should be careful to ensure that Garda vetting is completed before committing to any employment or contractual arrangements.
An application for vetting disclosure in respect of an individual must be made by a liaison person, notified to the Vetting Bureau as such, for the relevant organisation in question. Vetting will involve searching for convictions as well as for “specified information”. This is information concerning a finding or allegation of harm to another person that is received by the Bureau from the Gardai or certain organisations and which is of such a nature as to reasonably give rise to a bona fide concern that the person may harm or attempt to harm a child or vulnerable person, incite another person to harm them, or cause them to be harmed or put at risk.
Individuals to be vetted must be notified by the Bureau of any intention to disclose specified information to the relevant organisation, and they can appeal the decision if they so wish.
Those vetted prior to 29th April will be entered into the register of vetted persons.
The Bureau will now have compliance officers, who will be permitted to:
- Enter and inspect premises occupied by relevant organisations;
- Inspect and take copies of any books, records, etc relating to vetting procedures;
- Remove them;
- Require any individuals, including the liaison person to give information or assistance or produce books or records;
- Examine any person and require them to answer questions as required and to make a declaration as to the truth of their answers.
In light of these new powers, relevant organisations should make sure that they are sufficiently organised to be able to appropriately deal with an inspection, should one occur, and that everyone who needs to be vetted is.
Our above memo is prepared for general information purposes; it does not purport to provide legal advice. O’Connor solicitors accept no responsibility for losses that may arise from reliance on information contained in this post. It is intended to identify general issues on which you may require legal advice. Full legal advice should be taken from a suitably qualified professional when dealing with particular circumstances.