Notification of Concern to National Vetting Bureau – Balance of Rights

Case Title: M.P. v Teaching Council of Ireland, [2019] IEHC 102 (2019)

Introduction

This review features a recent High Court application for an injunction brought by a teacher to restrain the Teaching Council of Ireland from making a notification of concern to the National Vetting Bureau relating to potential harm to a child or vulnerable person.

In the course of this judgment, these aspects of the provisions and objectives of the National Vetting Bureau (Children and Vulnerable Persons) Act 2012-2016 are considered in detail. This piece of legislation is clearly one that engages the kind of balance that the law is often required to weigh. In this case, it is the public interest of seeking to prevent harm being caused to children or vulnerable adults in the course of the provision of relevant services against the right of the individual to his or her good name and the right to earn a living.

When making such legislative interventions, the State is obliged to adhere to the rules of natural justice and to act in a proportionate manner. To achieve this, there must be a system that provides the necessary checks and balances to ensure that the rights of individuals and rules of fair procedures are observed.

In a long and complex judgment, the Court considers, amongst a number of other matters, whether that standard has been met with this piece of legislation.

Summary of the Act

The National Vetting Bureau (Children and Vulnerable Persons) Act 2012-2016 was signed into law by the President on 26^th December 2012, but only came into operation on 29^th April 2016. This delay was mainly due to the necessity to amend that legislation in light of the introduction of the subsequent Criminal Justice (Spent Convictions and Certain Disclosures) Act 2016, and the time it took to replace the existing Garda Central Vetting Unit with an expanded National Vetting Bureau within An Garda Síochána.

Broadly speaking, the Act obliges all ‘relevant organisations’ (including employers and employment agencies) who undertake ‘relevant work or activities’ relating to children under 18 years of age or ‘a vulnerable person’ (defined to include a wide range of disabilities and disorders) to carry out vetting and disclosure checks with the Bureau in respect of intending employees, contractors, interns and volunteers.

All relevant organisations had first to register with the Bureau or have already been registered with the Garda Central Vetting Unit so that their registration could transfer to the Bureau. Employers then had to nominate a ‘liaison person’ to co-ordinate applications under the legislation. Any new staff recruited from April 29^th 2016 are required to be vetted and, in addition, a retrospective vetting procedure applies to existing staff from that date.

Once the application for a ‘vetting disclosure’ is made, the Bureau must:

1)    check with An Garda Síochána for any criminal record

2)    undertake an examination of its national database for any ‘specified information’ 

relating to the person concerned.

The term ‘specified information’ means information concerning a finding or allegation of harm to another person that is received by the Bureau in respect of the subject of the application

1)    from the Gardaí, pursuant to an investigation it has conducted or

2)    received from a ‘scheduled organisation’.

which is of such a nature to reasonably give rise to a bona fide concern that the person may harm, cause to be harmed, put at risk of harm, attempt to harm or incite another person to harm, any child or vulnerable person. Note that the allegation of harm to the other person does not have to have involved a child or vulnerable person.

A list of scheduled organisations is set out at the back of the Act and includes a wide range of statutory agencies such as the Health Services Executive (HSE), Tusla (the Child and Family Agency) and the Health Information and Quality Authority (HIQA), in addition to the Medical, Dental and Teaching Councils and the Mental Health Commission. Where such an organisation carries out an investigation, inquiry or regulatory process in respect of a person and, as a result, has a bona fide concern that any child or vulnerable adult may be harmed, it is obliged to notify the Bureau in writing of its concern, giving reasons in writing for it.

When the Bureau has completed its enquiries, it must make the vetting disclosure to the liaison person who made the application for it and this must include particulars of any criminal record relating to the person (subject to the exceptions set out in the spent convictions legislation). The relevant employer must in turn also provide a copy of any vetting disclosure it receives to the vetting subject if it consists of criminal records or specified information.

In the case of ‘specified information’, however, that information must be first referred to the Chief Bureau Officer for assessment and determination as to whether it should be disclosed in the first place. The CBO is then obliged to inform the subject of the application that specified information has been received that is subject to the assessment and determination process.

A summary of that information must be provided and the person affected is entitled to make written submissions in relation to the information in the summary within 14 days. The CBO must not make a determination that the information be disclosed unless s/he reasonably believes that it gives rise to a bona fide concern that harm could be potentially done to a child or vulnerable adult otherwise. The person must be informed the person of the CBO’s decision and this decision may in turn be appealed to specially appointed ‘Appeals Officers’.

Apart from employees, potential employees and other staff subject to the vetting disclosure process, the impact of the introduction of this legislation on employers has also been profound.

Where information is disclosed that may affect the suitability of the person to work for the relevant organisation, the employer may have a decision to make on whether to withdraw a job offer. In this regard, the Act allows a relevant organisation to ‘consider and to take into account the information disclosed in the vetting disclosure when assessing the suitability of the person who is the subject of the disclosure to undertake relevant work activities’.

From a recruitment and selection standpoint, too, relevant employers need to be mindful of ensuring that candidates for employment are informed of the parameters of the legislation.

Thus, employers should categorise roles that will require vetting to be carried out, and should ensure that adverts, application forms and other recruitment documentation make reference to the necessity for vetting. Vetting obligations should be mentioned at interview and details of any criminal convictions in other jurisdictions also sought from job applicants. The timeframes for vetting disclosures set by the Bureau have to be met and contracts and staff handbooks revised in case existing employees are aware that their position may be affected by future vetting processes.

The facts of the case

The Plaintiff in this case is a registered teacher and he sought an injunction restraining the Teaching Council (a scheduled organisation as explained above) from providing ‘specified information’ to the National Vetting Bureau (under s.19 of the Act). This proposed notification stemmed from an investigation and disciplinary inquiry carried out by the Council under Part 5 of the Teaching Council Act 2001 into incidents in which he was involved.

His case was that the evidence from the inquiry did not raise a bona fide concern that he might harm a child or vulnerable adult, that the notification was motivated by malice towards him and amounted to ‘misfeasance’ in public office.The events that led to this inquiry are complicated but a short summary is as follows:

• The Plaintiff worked as a teacher in a boarding school and was a Housemaster for a number of students. Late one night, a boarding student at the school was picked up by the Gardaí in a confused state walking on the M50 motorway and apparently making for the airport to get home to Germany
• He was brought back to the school and it emerged that he had spent the evening with the Plaintiff teacher drinking alcohol. There was an allegation made that the Plaintiff had tried to remove the student’s tracksuit bottoms and had become angry when he refused. This caused the student to flee and thus be discovered on the motorway
• An investigation within the school into this and other incidents led to a disciplinary hearing before a panel of three Board members. The panel concluded that the Plaintiff was guilty of gross misconduct and recommended that he be dismissed. Initially the Plaintiff sought to exercise his right of appeal but ultimately decided not to pursue it any further
• The headmaster of the school subsequently filed a complaint under Part 5 of the Teaching Council Act 2001 and sent the contents of his file on this matter to the Council. This triggered an investigation which was assigned to the Council’s Investigating Committee as provided for under the Act.

The sequence of procedural steps

Pending this investigation, the Council applied to the High Court to have the plaintiff’s registration as a teacher suspended in the public interest, as it was empowered to do under the Teaching Council Act 2001. It also sought liberty to disclose to the National Vetting Bureau the terms of any order the Court might make.

Legal argument took place on this issue, resulting in the Council giving an undertaking to give the Plaintiff advance notification of any concern it might make to the Bureau, in accordance with s.19 (3) of the vetting legislation. The Plaintiff in turn undertook not to teach in any school in Ireland or the European Union pending any further order of the court.

The Investigating Committee of the Council also met at this time and requested the Council to make a disclosure to the Vetting Bureau and the Plaintiff was duly notified. At a subsequent meeting the Committee decided that there was a prima facie case to warrant further action and referred the complaint on to the Council’s Disciplinary Committee, again as provided for in the legislation.

Solicitors were retained by the Disciplinary Committee and an attempt to conduct a detailed disciplinary inquiry followed. However, crucially, the student who had been the alleged victim, and a fellow student who had previously given information to the school about other related incidents that were alleged to have occurred, declined to participate in the investigation.

This severely limited the scope of the inquiry which could only therefore arrive at limited conclusions. The Plaintiff then indicated that he was no longer prepared to continue his undertaking. The Council agreed that it would no longer seek a suspension order against him and he was released from his undertaking not to seek further teaching posts.

In July 2018, the Teaching Council decided to make a notification of specified information to the National Vetting Bureau under s.19 of the Act concerning the Plaintiff. The Plaintiff initially challenged the proposed notification on a wide range of grounds. These included that the defendant:

• Failed to act ‘as soon as may be’ as required by s.19
• Acted in bad faith
• Relied on untested and unchallenged allegations made by a 19 year old student who refused to stand over those allegations or give a statement to or evidence at the disciplinary inquiry
• Relied on hearsay evidence from another student set out in a draft document which that student has refused to stand over or sign

In the course of the hearing, Counsel for the Plaintiff accepted that the meaning of ‘specified information’ in the legislation includes allegations as well as findings and, thereafter, the grounds argued were limited to 1) delay and 2) bad faith (mala fides).

For the purpose of this review, the issue of delay and, related to it, the Court’s assessment of the protections set out in the legislation is the primary focus of this review. In passing, it should be said that the Plaintiff’s allegation of bad faith on the part of the defendant failed, with the Court remarking that there was abundant justification for the concern which the Teaching Council decided it should notify to the Bureau and no substance to the allegation of misfeasance in public office.

The issue of delay

S.19 (1) of the vetting legislation provides that the notification to the Bureau must be made ‘as soon as may be’ and the Plaintiff argued that this obligation had not been adhered to. In particular, it was submitted that the obligation to notify occurred either when the High Court concluded the suspension case in May 2017; when the Investigating Committee requested the Council to make a disclosure to the Bureau also in May 2017 or at the latest when the inquiry of the Disciplinary Committee concluded, in January 2018.

On this question, the Court decided that ‘the scheduled organisation should consider at the end of its process or processes whether a notification should be made’ and that, in general, ‘procedures will have run their course before a decision is made whether a notification is required’. Although it accepted that there may have been a significant lapse of time between the original complaint to the Teaching Council (March 2017) and the decision of the Council to make a notification to the Bureau (July 2018), it considered that this was caused by the need for the Teaching Council’s various statutory committees to exercise their functions, which were not assessments made for the purpose of s.19 of the Act.

On the question of the delay between when the inquiry of the Disciplinary Committee ended, in January 2018, and the actual notification in July 2018, the Court accepted the Council’s argument that it needed to take legal advice before making the decision, as it was not clear as to the precise circumstances in which it was obliged to notify.

Ultimately, the Court concluded that the obligation on a scheduled organisation to notify under s.19 does not arise upon or by reason only of the conclusion of the investigation, inquiry or regulatory process, but rather when scheduled organisation decides there is a bona fide concern.

In the course of arriving at this conclusion, the Court also looked in some detail at the protections that are available to a person who is the subject of a notification under the Act. Broadly speaking, it noted as follows:

• The scheduled organisation (in this case the Teaching Council) is obliged under s.19 (3) of the Act to inform the subject (in this case the Plaintiff) of its intention to notify the Bureau of a concern. Thus the subject is on notice before any possible vetting disclosure can subsequently take place to a potential employer
• The scheduled organisation only reports its concern and the reasons for it to the Bureau. Where there is an application for a vetting disclosure and the Bureau considers that specified information exists in relation to the subject, the Chief Bureau Officer must assess the case and must determine whether that information should be disclosed
• Specific rules then apply to this process. The subject must be notified of the application for the vetting disclosure; a summary of the specified information must be provided to him or her and he or she may make a submission within 14 days
• The Chief Bureau Officer may only decide that the information be disclosed if he or she reasonably believes that the information is of such a nature that it gives rise to a bona fide concern of potential harm to a child or vulnerable person and that it’s disclosure is necessary, proportionate and reasonable. The subject has in turn 14 days to appeal this decision.

Arising out of this analysis, the Court agreed with the defendant’s position that the purpose of s.19 is to collect information and that the function of assessing and analysing it is conferred on the Chief Bureau Officer, subject to an appeal to an appeals officer, and from there, on a point of law, to the High Court.

It also agreed ‘that the Act of 2012 provides for a coherent and proportionate assessment of the quality and reliability of the information collected, and the necessity, proportionality and reasonableness of any disclosure, which takes into account the rights of the subject and the requirements of fairness and justice’

Conclusion

In its concluding remarks, the Court acknowledged that the Act does potentially impact on legal and constitutional rights, but that impact arises from the disclosure rather than the gathering of information. It expressed the view that in the 2012-2016 Act the Oireachtas has put in place elaborate rules and procedures to ensure that information gathered will not be disclosed except for the purposes expressly set out.

In dismissing the Plaintiff’s application for an injunction, it also suggested that a range of rights under the Act still apply to him. Thus, when the Teaching Council notifies the Bureau of its concern in the form of specified information and any subsequent application for a vetting disclosure is made by a relevant organisation, for example, following a job application by the Plaintiff, the Plaintiff will, if necessary, be able to challenge the potential disclosure of that information to the relevant organisation through the Chief Bureau Officer and potentially beyond.

However, on examining the legislation, there does not seem to be any right for the subject to challenge the potential disclosure of the specified information in and of itself, without first triggering an application for a vetting disclosure, for example when he or she applies for a job involving relevant work or activities. Thus, if the subject fails in challenging the disclosure of specified information by the Bureau, an adverse disclosure is likely to follow which is likely to damage his or her employment prospects. A second and related problem may be how long the specified information once disclosed to the Bureau may be retained and may be disclosed by it to relevant employers. If there is no time limit, its disclosure may damage the subject’s employment prospects in the long term.

Of course it is conceivable that what the Chief Bureau Officer may decide to disclose as specified information now may not be as likely to be disclosed into the future, as the alleged conduct that gave rise to the bona fide concern may become more remote in time. One way or another, it is clear that this legislation involves a tricky balancing act of competing rights and further litigation may be in prospect.