Various professional regulators are obliged to report bona fide concerns that any person the subject of an investigation, inquiry or regulatory process may harm or put at risk of harm a child or vulnerable person, to the National Vetting Bureau. The obligation arises under s19 of the National Vetting Bureau (Children and Vulnerable Persons) Act 2012-2016 and a failure to report is an offence. A teacher recently brought an unsuccessful challenge against the Teaching Council’s decision to notify a concern about him to the Bureau.
The teacher was a housemaster in a male boarding school and an allegation was made that he had consumed alcohol with a student and attempted to sexually assault him. The student was not willing to give evidence before the inquiry and so much of the case against the teacher could not be pursued. However, the Teaching Council informed the teacher of its intention to notify the Bureau of its concern, in accordance with s19. The teacher sought an injunction restraining the Council from making the notification.
Challenge brought by teacher
The teacher challenged the Council’s decision to notify the concern on various grounds, including that the notification was not made “as soon as may be” and was made in bad faith. It was also argued that the Council relied on the student’s untested/unchallenged allegations which he refused to stand over and that, as the student was 19 years old at the time, the allegation could not give rise to a bona fide risk of harm to children. An argument was also made that the information should be of such nature as to ‘reasonably’ give rise to a “bona fide” concern.
High Court decision
In the judge’s view, the obligation under s19 does not arise upon or by reason only of the conclusion of the investigation, inquiry or regulatory process, but rather it arises when the relevant organisation forms a bona fide concern. Therefore, there is potential for a concern to arise from a complaint, or before the conclusion of a process. The judge rejected the teacher’s argument that the concern was reported “following” rather than “as a result” of the process, holding that a concern will be based on the quality of information and not the process. However, the process may be relevant in considering the quality of information and regulators should consider whether allegations were proven, rejected, withdrawn or not pursued.
The judge also held that any delay in making a notification does not prevent an organisation from later making the notification.
The reported concern must be “bona fide” but not necessarily reasonable. The judge noted the safeguards in the Vetting Act, providing that any disclosure by the National Vetting Bureau must be necessary, proportionate and reasonable, thereby protecting the person’s rights and upholding the requirements of fairness and justice. The judge noted that a lower threshold applies to the collection of information than to its disclosure.
Finally, the judge held that an allegation does not need to relate to a child to result in a bona fide concern that the person might harm a child.
Regulators should implement procedures for considering how and when to notify concerns under s19 of the Vetting Act. This judgment confirms that concerns become notifiable when they arise and not necessarily at the conclusion of a process. However, regulators should be mindful of the process and should consider whether allegations are withdrawn or not pursued.