"adult" means a person who is not a child;

"child" means a person under the age of 18;

"the Children Order" means the Children (Northern Ireland) Order 1995 (NI 2);

"the Department" means the Department of Health, Social Services and Public Safety;

"director of social services" means - 

(a) a director of social services of a Health and Social Services Board; or

(b) an executive director of social work of a Health and Social Services trust;

"employment" (except in Article 31) - 

(a) means any employment, whether paid or unpaid and whether under a contract of service or apprenticeship, under a contract for services, or otherwise than under a contract; and

(b) includes an office established by or by virtue of a prescribed statutory provision,

and references to an individual being employed shall be construed accordingly;

"employment agency" and "employment business" have the same meanings as in the Employment (Miscellaneous Provisions) (Northern Ireland) Order 1981 (NI 20); but no business which is an employment business shall be taken to be an employment agency;

"nursing agency" has the same meaning as in Part II of the Nursing Homes and Nursing Agencies Act (Northern Ireland) 1971 (c. 32);

"nursing home" has the meaning given by Article 16 of the Registered Homes (Northern Ireland) Order 1992 (NI 20);

"organisation" means a body corporate or unincorporate or an individual who employs others in the course of a business;

"the Pre-Employment Consultancy Service Register" means the list kept under that name by the Department;

"prescribed" means prescribed by regulations;

"private hospital" has the meaning given by Article 90(2) of the Mental Health (Northern Ireland) Order 1986 (NI 4);

"regulations" means regulations made by the Department subject to negative resolution;

"residential care home" has the meaning given by Article 3 of the Registered Homes (Northern Ireland) Order 1992;

"statutory provision" has the meaning given by section 1(f) of the Interpretation Act (Northern Ireland) 1954 (c.33).

    (3) For the purposes of this Order, an individual is made redundant if - 

(a) he is dismissed; and

(b) for the purposes of the Employment Rights (Northern Ireland) Order 1996 (NI 16) the dismissal is by reason of redundancy.

(a) any of the conditions mentioned in paragraph (2); or

(b) the condition mentioned in paragraph (3).

    (2) The conditions referred to in paragraph (1)(a) are - 

(a) that the organisation has dismissed the individual on the grounds of misconduct (whether or not in the course of his employment) which harmed a child or placed a child at risk of harm;

(b) that the individual has resigned, retired or been made redundant in circumstances such that the organisation would have dismissed him, or would have considered dismissing him, on such grounds if he had not resigned, retired or been made redundant;

(c) that the organisation has, on such grounds, transferred the individual to a position within the organisation which is not a child care position;

(d) that the organisation has, on such grounds, suspended the individual or provisionally transferred him to such a position as is mentioned in sub-paragraph (c), but has not yet decided whether to dismiss him or to confirm the transfer.

    (3) The condition referred to in paragraph (1)(b) is that - 

(a) in circumstances not falling within paragraph (2), the organisation has dismissed the individual, he has resigned, retired or been made redundant or the organisation has transferred him to a position within the organisation which is not a child care position;

(b) information not available to the organisation at the time of the dismissal, resignation, retirement, redundancy or transfer has since become available; and

(c) the organisation has formed the opinion that, if that information had been available at that time and if (where applicable) the individual had not resigned, retired or been made redundant, the organisation would have dismissed him, or would have considered dismissing him, on such grounds as are mentioned in paragraph (2)(a).

    (4) If it appears from the information submitted with a reference under paragraph (1) that it may be appropriate for the individual to be included in the list kept under Article 3, the Department shall - 

(a) determine the reference in accordance with paragraphs (5) to (7); and

(b) pending that determination, provisionally include the individual in the list.

    (5) The Department shall - 

(a) invite observations from the individual on the information submitted with the reference and, if it thinks fit, on any observations submitted under sub-paragraph (b); and

(b) invite observations from the organisation on any observations on the information submitted with the reference and, if it thinks fit, on any other observations under sub-paragraph (a).

    (6) Where - 

(a) the Department has considered the information submitted with the reference, any observations submitted to it and any other information which it considers relevant; and

(b) in the case of a reference under paragraph (2)(d), the organisation has dismissed the individual or, as the case may be, has confirmed his transfer on such grounds as are there mentioned,

the Department shall confirm the individual's inclusion in the list if paragraph (7) applies; otherwise it shall remove him from the list.

    (7) This paragraph applies if the Department is of the opinion - 

(a) that the organisation reasonably considered the individual to be guilty of misconduct (whether or not in the course of his employment) which harmed a child or placed a child at risk of harm; and

(b) that the individual is unsuitable to work with children.

    (8) The reference in paragraph (6)(b) to the organisation dismissing the individual on such grounds as are mentioned in paragraph (2)(d) includes - 

(a) a reference to his resigning, retiring or being made redundant in circumstances such that the organisation would have dismissed him, or would have considered dismissing him, on such grounds if he had not resigned, retired or been made redundant; and

(b) a reference to the organisation transferring him, on such grounds, to a position within the organisation which is not a child care position.

    (9) This Article does not apply where - 

(a) the organisation carries on an employment agency, nursing agency or employment business; and

(b) the individual in question is a supply worker in relation to it.

(a) the decision to include him in the list; or

(b) with the leave of the Tribunal, any decision of the Department not to remove him from the list under Article 3(3).

    (2) Subject to paragraph (5), an individual who has been provisionally included for a period of more than nine months in the list kept by the Department under Article 3 may, with the leave of a Social Care Tribunal, have the issue of his inclusion in the list determined by the Tribunal instead of by the Department.

    (3) If on an appeal or determination under this Article a Social Care Tribunal is not satisfied of either of the following, namely - 

(a) that the individual was guilty of misconduct (whether or not in the course of his employment) which harmed a child or placed a child at risk of harm; and

(b) that the individual is unsuitable to work with children,

the Tribunal shall allow the appeal or determine the issue in the individual's favour and (in either case) direct his removal from the list; otherwise it shall dismiss the appeal or direct the individual's inclusion in the list.

    (4) Where an individual has been convicted of an offence involving misconduct (whether or not in the course of his employment) which harmed a child or placed a child at risk of harm, no finding of fact on which the conviction must be taken to have been based shall be challenged on an appeal or determination under this Article.

    (5) Where the misconduct of which the individual is alleged to have been guilty is the subject of any civil or criminal proceedings, an application for leave under paragraph (2) may not be made before the end of the period of six months immediately following the final determination of the proceedings.

    (6) For the purposes of paragraph (5), proceedings are finally determined when - 

(a) the proceedings are terminated without a decision being made;

(b) a decision is made against which no appeal lies;

(c) in a case where an appeal lies with leave against a decision, the time limited for applications for leave expires without leave being granted; or

(d) in a case where leave to appeal against a decision is granted or is not required, the time limited for appeal expires without an appeal being brought.

     "  - 
(i) on medical grounds;

(ii) on the grounds of misconduct;

(iii) on the grounds that the persons concerned are unsuitable to work with children;

(iv) on the grounds that the persons concerned are included (other than provisionally) in the list kept by the Department of Health, Social Services and Public Safety under Article 3 of the Protection of Children and Vulnerable Adults (Northern Ireland) Order 2003; or

(v) on educational grounds".

    (3) In Article 88A(2)(b) (regulations for prohibiting or restricting the employment or further employment of non-teaching staff) for the words from "on medical grounds" to the end there shall be substituted

     "  - 
(i) on medical grounds;

(ii) on the grounds of misconduct;

(iii) on the grounds that the persons concerned are unsuitable to work with children; or

(iv) on the grounds that the persons concerned are included (other than provisionally) in the list kept by the Department of Health, Social Services and Public Safety under Article 3 of the Protection of Children and Vulnerable Adults (Northern Ireland) Order 2003".

    (4) The power to make regulations under Article 70 or Article 88A includes power to provide that a person may appeal to a Social Care Tribunal against - 

(a) a decision to prohibit or restrict the person's employment or further employment on the grounds mentioned in Article 70 (2)(e)(iii) or (iv) or (as the case may be) Article 88A(2)(b)(iii) or (iv); or

(b) a decision not to revoke or vary such a decision as is mentioned in sub-paragraph (a).

    (5) Those regulations may - 

(a) make provision as to the circumstances in which a Social Care Tribunal shall allow an appeal under the regulations and as to the powers available to it on allowing such an appeal;

(b) provide that, where a person has been convicted of an offence involving misconduct, no finding of fact on which the conviction must be taken to have been based shall be challenged on an appeal under the regulations.

    (6) The power to make regulations under Article 70 or Article 88A also includes power to make provision for a person who has been subject, for a prescribed period, to a prohibition or restriction imposed on the grounds mentioned in Article 70(2)(e)(iv) or 88A(2)(b)(iv) to apply, with the leave of a Social Care Tribunal, for a review of the prohibition or restriction.

    (7) Those regulations may make provision as to  - 

(a) the circumstances in which an application for leave, or a review, under the regulations shall be determined in the person's favour;

(b) the powers available to the Tribunal on determining a review in the person's favour.

Effect of inclusion in either list

(a) provide for the making of applications for accreditation by organisations and for the information to be provided with such applications;

(b) provide for such applications to be accompanied by such other documents as are prescribed;

(c) prescribe the conditions under which organisations may become or remain accredited;

(d) provide for fees to be payable by organisations in connection with becoming or remaining accredited;

(e) provide for the inspection of accredited organisations (including the power to enter premises);

(f) provide for accreditation to be refused or withdrawn on such grounds as may be prescribed;

(g) provide for organisations to appeal to a Social Care Tribunal against a decision of the Department to refuse or withdraw accreditation.

(a) he commits any offence mentioned in paragraph 1 of the Schedule,

(b) he commits against a child any offence mentioned in paragraph 2 of the Schedule, or

(c) he falls within paragraph 3 of the Schedule,

(a) offers work in a regulated position to, or procures work in a regulated position for, an individual who is disqualified from working with children, or

(b) fails to remove such an individual from such work.

    (3) It is a defence for an individual charged with an offence under paragraph (1) to prove that he did not know, and could not reasonably be expected to know, that he was disqualified from working with children.

    (4) An individual is disqualified from working with children for the purposes of this Chapter if - 

(a) he is included (otherwise than provisionally) in the list kept under Article 3;

(b) he is included in the list kept for the purposes of regulations under sub-paragraph (e) of Article 70(2) or sub-paragraph (b) of Article 88A(2) of the Education and Libraries (Northern Ireland) Order 1986 (NI 3) on the grounds mentioned in head (iii) of the sub-paragraph in question; or

(c) he is subject to a disqualification order.

    (5) An individual who is guilty of an offence under this Article is liable - 

(a) on summary conviction, to imprisonment for a term not exceeding 6 months, or to a fine not exceeding the statutory maximum, or to both,

(b) on conviction on indictment, to imprisonment for a term not exceeding 5 years, or to a fine, or to both.

"children's home" has the meaning which would be given by Article 90(1) of the Children Order if, in Article 91(2) of that Order, sub-paragraphs (a), (f) and (g) and the words after sub-paragraph (h) were omitted,

"day care premises" means premises - 

(a) in respect of which a person is registered under Part XI of the Children Order for providing day care, or

(b) in which an authority provides day care under Article 19 of that Order,

"disqualification order" has the meaning given by Article 25,

"educational institution" means an institution which is exclusively or mainly for the provision of full-time education to children,

"hospital" has the meaning given by Article 2(2) of the Health and Personal Social Services (Northern Ireland) Order 1972 (NI 14),

"work" includes - 

(a) work of any kind, whether paid or unpaid and whether under a contract of service or apprenticeship, under a contract for services, or otherwise than under a contract, and

(b) an office established by or by virtue of a statutory provision,

and "working" is to be read accordingly.

    (2) In this Chapter references, in relation to a suspended sentence, to taking effect are to taking effect by virtue of an order under section 19 of the Treatment of Offenders Act (Northern Ireland) 1968 (c.29).

(a) any of the conditions mentioned in paragraph (2); or

(b) the condition mentioned in paragraph (3).

    (2) The conditions referred to in paragraph (1)(a) are - 

(a) that the provider has dismissed the worker on the grounds of misconduct (whether or not in the course of his employment) which harmed or placed at risk of harm a vulnerable adult;

(b) that the worker has resigned, retired or been made redundant in circumstances such that the provider would have dismissed him, or would have considered dismissing him, on such grounds if he had not resigned, retired or been made redundant;

(c) that the provider has, on such grounds, transferred the worker to a position which is not a care position;

(d) that the provider has, on such grounds, suspended the worker or provisionally transferred him to such a position which is not a care position, but has not yet decided whether to dismiss him or to confirm the transfer.

    (3) The condition referred to in paragraph (1)(b) is that - 

(a) in circumstances not falling within paragraph (2), the provider has dismissed the worker, he has resigned, retired or been made redundant or the provider has transferred him to a position which is not a care position;

(b) information not available to the provider at the time of the dismissal, resignation, retirement, redundancy or transfer has since become available; and

(c) the provider has formed the opinion that, if that information had been available at that time and if (where applicable) the worker had not resigned, retired or been made redundant, the provider would have dismissed him, or would have considered dismissing him, on such grounds as are mentioned in paragraph (2)(a).

    (4) If it appears from the information submitted with a reference under paragraph (1) that it may be appropriate for the worker to be included in the list kept under Article 35, the Department shall - 

(a) determine the reference in accordance with paragraphs (5) to (7); and

(b) pending that determination, provisionally include the worker in the list.

    (5) The Department shall - 

(a) invite observations from the worker on the information submitted with the reference and, if it thinks fit, on any observations submitted under sub-paragraph (b); and

(b) invite observations from the provider on any observations on the information submitted with the reference and, if it thinks fit, on any other observations under sub-paragraph (a).

    (6) Where - 

(a) the Department has considered the information submitted with the reference, any observations submitted to it and any other information which it considers relevant; and

(b) in the case of a reference under paragraph (2)(d), the provider has dismissed the worker or, as the case may be, has confirmed his transfer on such grounds as are there mentioned,

the Department shall confirm the worker's inclusion in the list if paragraph (7) applies; otherwise it shall remove him from the list.

    (7) This paragraph applies if the Department is of the opinion - 

(a) that the provider reasonably considered the worker to be guilty of misconduct (whether or not in the course of his employment) which harmed or placed at risk of harm a vulnerable adult; and

(b) that the worker is unsuitable to work with vulnerable adults.

    (8) The reference in paragraph (6)(b) to the provider dismissing the worker on such grounds as are mentioned in paragraph (2)(d) includes - 

(a) a reference to his resigning, retiring or being made redundant in circumstances such that the provider would have dismissed him, or would have considered dismissing him, on such grounds if he had not resigned, retired or been made redundant; and

(b) a reference to the provider transferring him, on such grounds, to a position which is not a care position.

    (9) This Article does not apply where - 

(a) the provider carries on an employment agency, nursing agency or employment business; and

(b) the worker in question is a supply worker in relation to him.

(a) the decision to include him in the list; or

(b) with the leave of the Tribunal, any decision of the Department not to remove him from the list under Article 35(3).

    (2) Subject to paragraph (5), an individual who has been provisionally included for a period of more than nine months in the list kept by the Department under Article 35 may, with the leave of a Social Care Tribunal, have the issue of his inclusion in the list determined by the Tribunal instead of by the Department.

    (3) If on an appeal or determination under this Article the Tribunal is not satisfied of either of the following, namely - 

(a) that the individual was guilty of misconduct (whether or not in the course of his employment) which harmed or placed at risk of harm a vulnerable adult; and

(b) that the individual is unsuitable to work with vulnerable adults,

the Tribunal shall allow the appeal or determine the issue in the individual's favour and (in either case) direct his removal from the list; otherwise it shall dismiss the appeal or direct the individual's inclusion in the list.

    (4) Where an individual has been convicted of an offence involving misconduct (whether or not in the course of his employment) which harmed or placed at risk of harm a vulnerable adult, no finding of fact on which the conviction must be taken to have been based shall be challenged on an appeal or determination under this Article.

    (5) Where the misconduct of which the individual is alleged to have been guilty is the subject of any civil or criminal proceedings, an application for leave under paragraph (2) may not be made before the end of the period of six months immediately following the final determination of the proceedings.

    (6) For the purposes of paragraph (5), proceedings are finally determined when - 

(a) the proceedings are terminated without a decision being made;

(b) a decision is made against which no appeal lies;

(c) in a case where an appeal lies with leave against a decision, the time limited for applications for leave expires without leave being granted; or

(d) in a case where leave to appeal against a decision is granted or is not required, the time limited for appeal expires without an appeal being brought.

(a) shall ascertain whether the individual is included in the list kept under Article 35; and

(b) if he is included in that list, shall not offer him employment in such a position.

    (2) Where a person who provides care to vulnerable adults discovers that an individual employed by him in a care position is included in that list, he shall cease to employ him in a care position; and for the purposes of this paragraph an individual is not employed in a care position if he has been suspended or provisionally transferred to a position which is not a care position.

    (3) Where a person who provides care to vulnerable adults ("the provider") proposes to offer employment in a care position to an individual who has been supplied by a person who carries on an employment agency, nursing agency or employment business, there is a sufficient compliance with paragraph (1) if the provider - 

(a) satisfies himself that, on a date within the last 12 months, the other person ascertained whether the individual was included in the list kept under Article 35;

(b) obtains written confirmation of the facts as ascertained by that person; and

(c) if the individual was included in the list on that date, does not offer him employment in a care position.

    (4) It is immaterial for the purposes of paragraph (1) or (3) whether the individual is already employed by the provider.

    (5) An individual who is included (otherwise than provisionally) in the list kept by the Department under Article 35 shall be guilty of an offence if he knowingly applies for, offers to do, accepts or does any work in a care position.

    (6) An individual is guilty of an offence if he knowingly - 

(a) offers work in a care position to, or procures work in a care position for, an individual who is included (otherwise than provisionally) in the list kept by the Department under Article 35, or

(b) fails to remove such an individual from such work.

    (7) It is a defence for an individual charged with an offence under paragraph (5) to prove that he did not know, and could not reasonably be expected to know, that he was so included in that list.

    (8) An individual who is guilty of an offence under paragraph (5) or (6) shall be liable - 

(a) on summary conviction, to imprisonment for a term not exceeding 6 months, or to a fine not exceeding the statutory maximum, or to both;

(b) on conviction on indictment, to imprisonment for a term not exceeding 5 years, or to a fine, or to both.

(a) an individual who is or has been employed in a position which is such as to enable him to have regular contact in the course of his duties with adults to whom accommodation is provided at a residential care home or nursing home;

(b) an individual who is or has been employed in a position which is such as to enable him to have regular contact in the course of his duties with adults to whom prescribed services are provided by a health services body or at a private hospital;

(c) an individual who is or has been employed in a position which is concerned with the provision of any prescribed service in their own homes for persons who by reason of illness, infirmity or disability are unable to provide it for themselves without assistance.

    (2) In this Part "care position", in relation to an individual, means a position such as is mentioned in paragraph (1)(a), (b) or (c).

    (3) In this