Vetting

Purpose of Act

The purpose of the National Vetting Bureau (Children and Vulnerable Persons) Act 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 Act will make this vetting mandatory.

The Act will not apply to:

any work or activity undertaken in the course of a family
any unpaid work or activity undertaken in the course of a personal relationship.
persons who assist occasionally and on a voluntary basis in certain activities or events be they school, sport or community related. This provision recognises the occasional but necessary involvement or assistance of parents or other persons in certain activities in which children or vulnerable persons are participating. However, the Act does apply where such involvement includes coaching, mentoring, counselling, teaching or training of the children or vulnerable

Key Definitions

“ Family relationship ” includes a relationship between two persons who live in the same household and treat each other as though they were members of the same family;

“Personal relationship ” means a relationship between or among friends and a friend of a member of an individual’s family shall be regarded as being a friend of the individual also.

“Specified information”, in relation to a person who is the subject of an application for vetting disclosure, means information concerning a finding or allegation of harm to another person that is received by the Bureau from—

the Garda Síochána pursuant to an investigation of an offence or pursuant to any other function conferred on the Garda Síochána by or under any enactment or the common law, or
a scheduled organisation
in respect of the person and which is of such a nature as to reasonably give rise to a bona fide concern that the person may—
harm any child or vulnerable person,
cause any child or vulnerable person to be harmed,
put any child or vulnerable person at risk of harm,
attempt to harm any child or vulnerable person, or
incite another person to harm any child or vulnerable person;

“ Vetting procedures ” means the enquiry and examination undertaken by the Bureau, assessment by the Chief Bureau Officer of specified information in relation to an application for vetting disclosure in respect of a person who wishes to undertake relevant work or activities;

A“ vulnerable person ” means a person, other than a child, who—

is suffering from a disorder of the mind, whether as a result of mental illness or dementia,
has an intellectual disability,
is suffering from a physical impairment, whether as a result of injury, illness or age, or
has a physical disability,

which is of such a nature or degree—

as to restrict the capacity of the person to guard himself or herself against harm by another person, or
that results in the person requiring assistance with the activities of daily living including dressing, eating, walking, washing and bathing.

The Minister for Justice and Equality may make regulations to prescribe such matters as the Act requires. Every regulation under the Act must be laid before the Houses of the Oireachtas as soon as may be after it is made.

National Vetting Bureau (Children and Vulnerable Persons) Database System

This 2012 Act provides that the Chief Bureau Officer is to establish a database containing information relevant for the purpose of vetting of persons seeking positions working with children or vulnerable persons, known as ‘‘covered work or activities’’. The type of work or activities that require vetting is set out in the Schedule to the Act below.

The Chief Bureau Officer has established a database known as the National Vetting Bureau (Children and Vulnerable Persons) Database. The database contains the register of specified organisations, the register of specified information and the register of vetted persons.

The database may only be used in connection with the provision of vetting disclosures in accordance with the Act, or otherwise as provided for by law.

Functions of Bureau in relation to database, etc.

The Bureau is responsible for the maintenance of the database. The Bureau provides vetting services to specified organisations in respect of covered work or activities relating to children or vulnerable persons.

The functions concerned include:

the consideration and processing of applications for vetting disclosures;
the making of enquiries to determine if there is any criminal record or specified information relating to a person;
to establish the identity of the person being vetted;
the assessment of specified information; and, ultimately,
the making of vetting disclosures.

The Bureau has such powers as are necessary for the performance of its functions under the Act.

Register of specified organisations

The Chief Bureau Officer has established and maintains a register of specified organisations. Specified organisations are required to apply to the Bureau to be registered. Organisations already registered with the Bureau before commencement of the Act are deemed to be on the register following the commencement of the Act.

A covered organisation is not required to comply with the requirement to register where another covered organisation, which is registered with the Bureau, submits, on behalf of the first organisation, applications for vetting disclosures. This enables organisations such as schools or crèches to submit applications through a representative body without requiring each and every school or crèche to register individually.

The covered organisation which submits the application on behalf of another organisation must furnish the Bureau with the name and address of that other organisation. There is a procedures for applying for registration. The Bureau may refuse an application for registration or remove an organisation from the register where the applicant is not, or is no longer, a covered organisation for the purpose of the Act.

There are procedures for decisions on applications for registration. A person who fails to comply with the requirement to register is guilty of an offence. It is a defence to show that the accused person did not know nor could be reasonably expected to know that the organisation was a covered organisation for the purpose of the Act. A covered organisation must notify the Bureau if particulars entered in the register are incorrect.

Nomination and registration of liaison persons

Liaison persons must be registered. A liaison person is nominated by their organisation in order to apply for and receive vetting disclosures. There are arrangements for nomination of additional liaison persons. Specifed information relating to a liaison person must be submitted by a organisation when nominating a liaison person.

A liaison persons is subject to prior vetting. The Bureau may refuse to register a person as a liaison person on the grounds that they are unsuitable or where an excessive number of persons are proposed. Persons who are accepted as liaison persons are registered by the Bureau. Persons already registered with the Bureau as liaison persons (prior to the commencement of the Act) are deemed to be registered . The organisation is to notify the Bureau if particulars entered are incorrect.

Register of specified information

There is a register of specified information. This is information held by the Garda Siochána or an organisation which is listed in Schedule 2 of the Act where such information gives rise to a bona fide concern that a person may harm a child or vulnerable person.

The Chief Bureau Officer establish and maintain a register of specified information. Specified information in the possession of the Bureau prior to the commencement of the Act is deemed entered in the register of specified information following the commencement of the Act.

Register of vetted persons

There is a register of vetted persons. The Chief Bureau Officer establish and maintain a register of vetted persons, i.e. persons who are vetted in accordance with the Act.The register of vetted persons shall contain the following information in respect of each vetted person:

his or her name and, where he or she also uses one or more other names, each of those names;
in a case where he or she has a former name, including where appropriate, a maiden name, that name or each of them, as the case may be;
his or her gender;
his or her mother’s maiden name;
his or her address;
his or her previous addresses (if any);
his or her date of birth;
his or her place of birth;
his or her nationality (if known);
his or her Passport Number (if available);
his or her personal identification number (if any);
the date of application for vetting disclosure and the outcome of the application;
the name and particulars of the relevant organisation making the application for vetting disclosure;
the relevant work or activity, and relevant organisation (if different from the relevant organisation making the application for vetting disclosure), to which the application relates;
a declaration of consent;
particulars of the vetting disclosures made in respect of the vetted person;
such other information as the Bureau may reasonably require for the performance of its functions under this Act.

Any information in respect of a person who was or is the subject of an application for vetting disclosure that, immediately before the Act is in the possession of the Garda Central Vetting Unit is deemed to be entered in the register of vetted persons.

Requirement for vetting disclosure in respect of certain work or activities

It is prohibited to engage a persons to do covered work or activities relating to children or other vulnerable persons, unless that person has been subject to the vetting procedures under the Act. To do so is an offence. It is a defence for a person to show that he or she did not know, nor could be reasonably expected to know, that the work for which a person was engaged constituted covered work or activity. The requirement does not apply to employment or activities which preceded the commencement of the Act.

Applications for vetting disclosure

There is a procedure for the making of applications for vetting disclosures. It is the responsibility of liaison officers to submit applications for vetting disclosures on behalf of a covered organisation. An application from a covered organisation for a vetting disclosure may be on its own behalf or on behalf of another covered organisation that it represents for the purpose of the vetting procedures.

There are application procedures in respect of a self-employed person. It sets out the information which must be included in an application for a vetting disclosure. This includes a declaration by the subject of the vetting disclosure that he or she consents to the making of the application and consents to any disclosure. There is specified information relating to the vetting subject which must be included in the application. If the applicant is under 18 years of age a declaration may be made by a parent or guardian on his or her behalf.

Consideration by Bureau of application

There are procedures to be followed by the Bureau in considering an application for a vetting disclosure. Following the receipt of an application for vetting disclosure the Bureau undertakes an examination of its own database and Garda Síochána records for the purpose of establishing whether any criminal records or any specified information relates to the applicant.

The release by the Bureau of a vetting disclosure upon completion of all necessary enquiries and procedures is provided for under the Act. Where a member of the Bureau staff considers that there is specified information in regard to the applicant it is referred to the Chief Bureau Officer for assessment as to whether the information should be disclosed. The disclosure includes details of any criminal record(s) relating to the vetting subject and a statement of any specified information which the Chief Bureau Officer has determined should be disclosed. Alternatively, the disclosure is to state that there is no criminal record or specified information relating to the applicant. There are circumstances under which a vetting disclosure may not be made, including a pending appeal.

Assessment of specified information

There are procedures to be followed by the Chief Bureau Officer in assessing specified information for the purpose of its inclusion in a vetting disclosure. The Chief Bureau Officer, on the referral of specified information to him or her, must notify the vetting subject of the referral, provide the subject with a summary of the information and inform him or her of their right to make a written submission in relation to the information. The written submission must be made within 14 days from the date of notification.

The Chief Bureau Officer may allow a period of more than 14 days for receipt of written submission. The CBO must assess the specified information. A decision to disclose the specified information requires the Chief Bureau Officer to believe that 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.

The Chief Bureau Officer must also be satisfied that the disclosure is necessary, proportionate and reasonable in the circumstances in order to protect children or vulnerable persons. The Chief Bureau Officer may request further information from the Garda Síochána or the organisation which provided the information to the Bureau.

The Chief Bureau Officer must notify the vetting subject of the intention to disclose the information and must inform the subject that he or she may appeal the decision to disclose within 14 days or such longer period as the Chief Bureau Officer may determine. The disclosure must not be made until the period for appeal has elapsed or, if appealed, until the conclusion of an appeal.

A person may appeal a determination after the expiry of the 14 days if allowed to do so by an appeals officer but this shall not delay the making of a disclosure.

Assessment and use by specified organisations

Where a vetting disclosure contains details of criminal records or specified information the covered organisation must provide a copy of the disclosure to the vetting applicant. The organisation may consider and take into account the information disclosed in assessing the suitability of the person for the position for which they have applied.

The organisation may not disclose that information otherwise than in accordance with the Act. To do so will be an offence.

Appeals

The Minister may appoint one or more persons to be an appeals officer. An appeals officer must be a practising barrister or solicitor of at least 7 years. There are set periods of office, provision for the independence and the remuneration and expenses of an appeals officer. There is provision for resignation or removal from office of an appeals officer.

A person may make an appeal not later than 14 days after the date of notification. The period may be extended if it is found by the appeals officer that there is good and sufficient reason to do so.

The manner of an appeal which shall be in writing, be accompanied by grounds for appeal and indicate whether an oral hearing is sought. The Minister may prescribe the procedures to be followed regarding the conduct and consideration of appeals which the appeals officer must follow. The appeals officer may affirm, in whole or part, the decision of the Chief Bureau Officer or may set aside that decision, in whole or part.

The appeals officer may inform the appellant and the Chief Bureau Officer of his or her decision and the reasons for it. An appellant may withdraw an appeal at any time by notice to the appeals officer who will notify the Bureau. An appeal to the High Court on a point of law is provided for determination is final and conclusive.

Scheduled organisations

The Act requires the scheduled organisations (listed in Schedule 2 to the Act) to notify the Bureau of specified information in respect of a person. For example, if, as a result of a statutory inquiry or a fitness-to-practice process, a scheduled organisation has a bona fide concern that a person may harm a child or vulnerable person, that organisation is required to inform the Bureau of the information giving rise to that concern.

There is a similar obligation on the Health Service Executive in regard to its powers and function under the Child Care Act 1991. The scheduled organisation is to notify the person in respect of whom there is such a concern that it is notifying the Bureau of that concern. The scheduled organisation is to notify the Bureau of any incorrect or inaccurate specified information.

Scheduled organisations are to nominate a person (to be known as an ‘‘appropriate person’’) for the purpose of making notifications to the Bureau. There is the possibilty of the nomination of more than one ‘‘appropriate person’’.

The ‘appropriate persons’ is to be vetted in accordance with the procedures under the Act. It is an offence to fail to comply with the obligations , which are in addition to any other obligation the person may have to disclose that information to the Garda Síochána or any other person.

Re-vetting

There is provision for the re-vetting of persons previously vetted for their current position. The re-vetting shall occur after the expiry of a specified period to be prescribed by the Minister.

There is an obligation for specified organisations to undertake re-vetting. The Minister for Justice and Equality is to set out the frequency of re-vetting.

It is an offence to fail to conduct re-vetting, where required. There are procedures for vetting disclosures in relation to re-vetting are the same as those which apply to ordinary vetting applications.

Retrospective vetting

There is retrospective vetting of persons who are currently in positions which would be subject to vetting under the Act but who have not previously been vetted because they took up that position prior to the availability of vetting in the State. There is an obligation for organisations to make retrospective vetting applications.

An application for retrospective vetting shall be made not later than the period prescribed by the Minister. It is an offence to fail to conduct retrospective vetting, where required.

The Act states that the procedures for vetting disclosures in relation to retrospective vetting are the same as those which apply to ordinary vetting applications.

Chief Bureau Officer and delegation of functions

The Chief Bureau Officer is appointed by the Garda Commissioner. The Chief Bureau Officer may delegate his or her functions under the Act to specified members of staff of the Bureau.

The delegation can be restricted or revoked or varied by the Chief Bureau Officer. Even where a function has been delegated by the Chief Bureau Officer, he or she is not precluded from undertaking that function.

Where a function has been delegated to a specified person, any reference to the Chief Bureau Officer in the Act shall be construed as a reference to that member of staff. Any delegated function has the same force and effect as if done by the Chief Bureau Officer.

Compliance officers

The Chief Bureau Officer may assign one or more members of staff as compliance officers for the purposes of the Act. Compliance officers are to be provided with a warrant of appointment.

The Act out the powers and functions of compliance officers. These 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 Gardaí when carrying out their functions under the Act. A compliance officer may not enter a private home other than with the consent of the owner. It is an offence to obstruct a compliance officer.

It an offence to falsify a vetting disclosure, or to make a false statement for the purpose of obtaining or enabling another person to obtain a vetting disclosure, or to allow a vetting disclosure be falsely used by another person.

The penalty 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 €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.

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. The 2012 Act provides for the change of name of the Garda Central Vetting Unit to the National Vetting Bureau.

The Minister for Public Expenditure and Reform, prescribed fees for the purpose of:

the registration of a covered organisation in the register;
the provision of vetting disclosures;
the provision of re-vetting disclosures, or
the provision of retrospective vetting

Covered Activities

This sets out the covered work or activities relating to children which will be subject to the vetting requirements of this Act.

Covered work or Activities Relating to Children

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 in—
- an establishment which provides pre-school services within the meaning of Part VII of the Child Care Act 1991 ,
- a school or centre of education, both within the meaning of the Education Act 1998 ,
- any hospital or health care centre which receives, treats or otherwise provides services to children,
- a designated centre within the meaning of section 2 of the Health Act 2007 , in so far as it relates to an institution at which residential services are provided in accordance with the Child Care Act 1991 ,
- a special care unit provided and maintained in accordance with section 23K of the Child Care Act 1991 ,
- a children detention school within the meaning of section 3 of the Children Act 2001 ,
- a reception or accommodation centre which provides residential accommodation services to applicants for asylum under contract to the Department of Justice and Equality.
Any work or activity which consists of the provision of home tuition by a person pursuant to the Scheme administered and funded by the Department of Education and known as the Home Tuition Scheme.
Any work or activity which consists of treatment, therapy or counselling provided to a child by a person in the course of that work or activity.
Any work or activity which consists of care or supervision of children unless the care or supervision is merely incidental to the care or supervision of persons who are not children.
Any work or activity which consists of the provision of educational, training, cultural, recreational, leisure, social or physical activities (whether or not for commercial or any other consideration) to children unless the provision of educational, training, cultural, recreational, leisure, social or physical activities is merely incidental to the provision of educational, training, cultural, recreational, leisure, social or physical activities to persons who are not children.
Any work or activity which consists of the provision of advice, guidance or developmental services (including by means of electronic interactive communications) to children unless the provision of the advice, guidance or developmental service is merely incidental to the provision of those services to persons who are not children.
Any work or activity as a minister or priest or any other person engaged in the advancement of any religious beliefs.
Work as a driver of a public service vehicle which is being used only for the purpose of conveying children.
The provision by a person, whether or not for commercial or other consideration, of accommodation for a child in his or her own home.
Any research work or activities (howsoever described) carried out in a university, institute of technology or other establishment at which third level education is provided where a necessary and regular part of the research work or activity involves contact with or access to children.
Any application by a person to carry on or manage a designated centre within the meaning of section 2 of the Health Act 2007 .
Any application by a person for a declaration of eligibility and suitability within the meaning of section 3 of the Adoption Act 2010 .
Any assessment of a person’s suitability to act as a foster carer by or under section 39 of the Child Care Act 1991 .
Any assessment by or under section 41 of the Child Care Act 1991 of a person’s suitability to act as a carer of a child in respect of whom he or she is a relative.
Any work or activity which is carried on by a person, a necessary and regular part of which requires the person to have access to, or contact with, children pursuant to the following enactments:
- Medical Practitioners Act 2007;
- Nurses Act 1985;
- Nurses and Midwives Act 2011;
- Dentists Act 1985;
- Health and Social Care Professionals Act 2005;
- Pharmacy Act 2007;
- Pre-Hospital Emergency Care Council Order 2000 ( S.I. No. 109 of 2000 );
- Pre-Hospital Emergency Care Council (Establishment) Order 2000 (Amendment) Order 2004 ( S.I. No. 575 of 2004 ).

Covered work or Activities Relating to Vulnerable Persons

This schedule sets out the covered work or activities relating to vulnerable adults which will be subject to the vetting requirements of this Act.

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, vulnerable persons in—

- a school or centre of education, both within the meaning of the Education Act 1998 , unless, in the case of a centre of education, the work or activity is merely incidental to work or activities undertaken in relation to persons who are not vulnerable persons,
- any hospital or care centre which receives, treats or otherwise which provides services to vulnerable persons,
- a designated centre within the meaning of section 2 of the Health Act 2007 , in so far as it relates to an institution at which residential services are provided to vulnerable persons,
- an approved centre within the meaning of Part 5 of the Mental Health Act 2001 .
Any work or activity which consists of treatment, therapy or counselling provided to a vulnerable person by a person in the course of that work or activity.
Any work or activity which consists of the care (including the provision of health and personal social services and essential domestic services) of vulnerable persons unless the care is merely incidental to the care of persons who are not vulnerable persons.
Any work or activity which consists of the provision of educational, training, cultural, recreational, leisure, social or physical activities (whether or not for commercial or any other consideration) to vulnerable persons unless the provision of educational, training, cultural, recreational, leisure, social or physical activities is merely incidental to the provision of educational, training, cultural, recreational, leisure, social or physical activities to persons who are not vulnerable persons.
Any work or activity which consists of the provision of advice, guidance or developmental services (including by means of electronic interactive communications) to vulnerable persons unless the provision of the advice, guidance or developmental service is merely incidental to the provision of those services to persons who are not vulnerable persons.
Work as a driver of a public service vehicle which is being used only for the purpose of conveying vulnerable persons.
Any work or activity as a minister or priest or any other person engaged in the advancement of any religious beliefs.
The provision by a person, whether or not for commercial or other consideration, of accommodation for a vulnerable person in his or her own home.
Any research work or activities (howsoever described) carried out in a university, institute of technology or other establishment at which third level education is provided where a necessary and regular part of the research work or activity involves contact with or access to vulnerable persons.
Any assessment of a person’s suitability to act as a care representative under section 21 of the Nursing Homes Support Scheme Act 2009 .
Any application by a person to carry on or manage a designated centre both within the meaning of section 2 of the Health Act 2007 .
Any work or activity which is carried on by a person, a necessary and regular part of which requires the person to have access to, or contact with, vulnerable persons pursuant to the following enactments:
- Medical Practitioners Act 2007;
- Nurses Act 1985;
- Nurses and Midwives Act 2011;
- Dentists Act 1985;
- Health and Social Care Professionals Act 2005;
- Pharmacy Act 2007;
- Pre-Hospital Emergency Care Council (Establishment) Order 2000 ( S.I. No. 109 of 2000 );
- Pre-Hospital Emergency Care Council (Establishment) Order 2000 (Amendment) Order 2004 ( S.I. No. 575 of 2004 ).

Organisations Required to Notify Specified Information to Bureau

This schedule sets out the organisations which will be required to disclose specified information to the Bureau in accordance with section 19 of the Act.

The Health Service Executive.
The Teaching Council.
The Medical Council.
The Nursing and Midwifery Board of Ireland.
The Dental Council.
The Health and Social Care Professionals Council.
The Mental Health Commission.
The Pharmaceutical Society of Ireland.
The Pre-Hospital Emergency Care Council.
The Health Information and Quality Authority.
The National Transport Authority.