Clear framework
The issues paper notes that there is widespread agreement that there is a need for a clear statutory framework on adult safeguarding.
It has examined what form this might take, building on existing arrangements and parallel policy and legislative developments.
In 2016, a public opinion survey commissioned by Safeguarding Ireland found that:
- One in three of respondents were not clear about who they could report adult mistreatment to,
- Two in three respondents agreed that people suspecting mistreatment were unlikely to report their concerns to an appropriate authority,
- Over 80% said it was unclear to them what financial abuse meant.
Concerns
In 2017, there were 10,000 notifications of safeguarding concerns to the HSE.
In 2018, a survey by the National Centre for the Protection of Older People (NCPOP) found that two in three bank staff surveyed had previously suspected that a customer had experienced some form of financial abuse.
A 2019 survey by Banking and Payment Federation Ireland (BPFI) found that up to one in five adults have experienced financial abuse.
The LRC issues paper notes that the Assisted Decision-Making (Capacity) Act 2015 takes a rights-based approach, consistent with constitutional and international human rights standards.
Presumption
This includes a presumption of decision-making capacity for everyone over 18, and promotes the individual empowerment in decision-making about a range of life events, such as financial as well as health care matters.
The 2015 Act also provides for appropriate protections where a person’s decision-making capacity may be in question about such decisions.
When the 2015 Act is brought fully into force, the Director of the Decision Support Service (DSS) established under the 2015 Act will publish statutory codes of practice for such decision-making, including for assisted decision-making.
The LRC says that while the 2015 act provides an important rights-based reference point, there is still no overall regulatory framework for adult safeguarding in Ireland.
Gaps
Regulatory gaps exist, such as in the context of professional home care.
Where there is statutory regulation, such as in financial services, there is no clear system of coordination or cooperation between the existing regulatory bodies.
Measures
The private members’ Adult Safeguarding Bill 2017 proposed a rights-based regulatory framework for adult safeguarding, with additional preventative and protective measures for those at risk of exploitation or abuse.
The Joint Oireachtas Committee on Health and the Minister for Health agreed that the issues in the 2017 Bill required further research, and the LRC agreed that the project was suitable for inclusion in its Fifth Programme of Law Reform, which was approved by Government in March 2019.
The key elements are:
- A rights-based approach that balances empowerment and protection,
- Prevention and protection against all form of abuse, including physical, psychological and financial,
- Active promotion, supervision and enforcement of a culture of high standards of behaviour.
The issues paper is seeking input from the public on the following 11 key issues:
1. Guiding principles,
2. Defining key terms such as “safeguarding” itself, as well as “abuse”, “harm” and “vulnerable”,
3. Defining abuse and neglect, whether physical, sexual, discriminatory and psychological abuse, to include acts of omission such as ignoring medical or physical care needs, routinely depriving someone of essentials such as food and warmth and failing to provide access to appropriate health, social care or education services. It may also include failure to provide clothing, entitlements, hygiene, intellectual stimulation, supervision and safety, or attention,
4. Financial abuse, including mis-selling of financial products, and also in the context of social welfare payments,
5. Body or bodies to regulate adult safeguarding, including integrating the proposed Authority into existing bodies or conferring additional functions on existing bodies such as Department of Health, Health Information and Quality Authority, Health Service Executive and Mental Health Commission, Central Bank of Ireland and Department of Employment Affairs and Social Protection. The Commission also discusses whether a core set of regulatory powers, along the lines recommended in its 2018 Report on Regulatory Powers and Corporate Offences, should be available,
6. Powers of entry and inspection, notably in connection with powers of entry to private dwellings,
7. Investigative powers, including barring and protection orders,
8. Reporting obligations where suspected or actual abuse or neglect arises and whether such a reporting obligation should be a matter of judgment or mandatory in scope,
9. Advocacy service and whether there should be a statutory independent body,
10. Access to sensitive data and the scope of access to sensitive personal data and data sharing, taking account of the data protection requirements.
11. Multi-agency coordination and collaboration and the extent for which this is currently provided.
Submissions are invited from all interested parties on the LRC Issues Paper and details of the various options to submit your response – whether verbally, by email (direct to: p5p2@lawreform.ie) or by post – can be found here.
Contributors are requested to make their submissions/comments, if possible, before close of business on Thursday, 30 April 2020.