Praxis Care Conference 2017 Ensuring the Safety of Vulnerable Adults Safeguarding: The Legal Context Patricia T Rickard-Clarke 10 November 2017 Chair: National Safeguarding Committee

Overview National Intersectoral Safeguarding Committee The need for a legislative framework Adult Safeguarding Bill 2017 Issues for debate Conclusion

National Safeguarding Committee (NSC) Established in December 2015 Independent Intersectoral committee – safeguarding vulnerable adults is not nor should it be the responsibility of one agency – societal obligation to combat abuse *25 + organisations Key players in public services, legal and financial services, health and social care professionals, regulatory authorities and NGO’s representing older people, people with disabilities and carers

NSC – Terms of Reference Promote zero tolerance for abuse of adults who are vulnerable. Provide strategic guidance to the Government, HSE and other National Stakeholders, in relation to the promotion of the rights and independence of all vulnerable adults. Promote the rights of adults who may be vulnerable through public awareness and through the activities of the National Safeguarding Committee. Develop a national plan for the promotion of the welfare and safeguarding from abuse of adults (to include protection from abuse by persons and institutions). Provide oversight, guidance and influence on legislation, policies and procedures, when required, in order to ensure that the promotion of safeguarding principles are enshrined in policies and procedures and that complaints and concerns are addressed appropriately.

NSC – Terms of Reference Ensure that information gathering and analysis systems operate to inform effective management and learning in all organisations. Explore and propose options for the commissioning of research, public awareness campaigns and training aimed at promoting the rights of adults who may be vulnerable. Report, on an agreed basis, to the HSE National Director Social Care in liaison with the Director of Decision Support Service (when established). Contribute to the review of the Safeguarding Vulnerable Persons at Risk of Abuse – National Policy and Procedures. Develop a five year plan of activities by the National Safeguarding Committee to promote the welfare, empowerment and independence of adults who may be vulnerable.

NSC – Strategy 2017 - 2021 Objectives To raise public understanding of attitudes, behaviours, circumstances and systems that create vulnerability that may result in abuse and that may require a safeguarding response To promote the protection and rights of people who may be vulnerable by encouraging organisations and services to recognise, prevent and deal with exploitation and abuse effectively To inform and influence Government policy and legislation to safeguard the rights of people who may be vulnerable The Committee dedicates itself to optimise its collective capacity and available external resources to achieve its aims and objectives

Working Groups Working Groups to date Research Strategy and Resources Public Awareness State Payments Research Wards of Court project Application for collaborative research

NSC – Raising Public Awareness + Understanding Safeguarding of Vulnerable Adults: Public Attitudes Survey Results informed public awareness campaign 50% of all adults say they have experienced the abuse of vulnerable adults either through being abused themselves or seeing somebody close to them abused 2 in 5 people think vulnerable adults are badly treated 1 in 3 believes vulnerable adult abuse to be widespread Lack of clarity over where to report vulnerable adult maltreatment Developed 2 stage campaign June – general themes October – focus on Financial Abuse Membership of NSC – Intersectoral approach/consistent message

NSC – State Payments State payments in 2017 Pension payments €7.2 billion to 667,000 Illness/Disability/Carers payments €3.55 billion ++ DSP expenditure circa 30% of gross government expenditure Pensions received Oct 2017 HSE Persons who lack capacity = 75/80%

HSE Figures 2016 Concerns reported = 7,884 Alleged Abuse Categories Gender/Age differentiation – abuse categories Alleged Abuse Categories Physical Psychological Sexual Financial Neglect Discriminatory Institutional Self Neglect

Current legislation Health Act 2007 (Protection Disclosure of Information S.103) Protection of disclosure of information by an employee of a ‘relevant’ body Criminal Justice (Withholding of Information on offences against Children and Vulnerable Persons) Act 2012 Offence of withholding information on certain offences against vulnerable adults Common law offence of false imprisonment, rape, sexual assault Protected Disclosure Act 2014 Protection of persons from action in respect of making certain disclosure in the public interest Health Act 2007 (Care and Welfare of Residents in Designated Centres for Older People) Regulations 2013 (SI 415 of 2013) Registered provider must take all reasonable measures to protect residents from abuse Person in charge must investigate any incident or allegation of abuse Person in charge subject of allegation, registered provider must investigate the matter or nominate a person is a suitable person to investigate the matter

Legislative framework for safeguarding? For person over age of 18 years of age who may be in a vulnerable situation there is no clear obligation on either the State, state agencies or organisations to prevent harm and to protect adults who may be vulnerable HSE’s Vulnerable Persons at Risk of Abuse Policy is limited in its scope and has no statutory force to ensure the safety and rights of vulnerable persons Largest prevalence of abuse is in the community – legislation should ensure enhanced awareness of harm and abuse and the responsibility on people and society to report suspected cases of abuse Legal duty to ensure organisational procedures are in place when concerns are identified There should be a legal responsibility to refer concerns to social care services / relevant authority

Adult Safeguarding Bill 2017 Introduced in Seanad in April 2017 All party support and passed second Stage Hearings before Joint Health Committee 4 and 11 October Report of Joint Health Committee to Minister???

Guiding Principles Legislation to be informed by the Guiding Principles The promotion of individual physical, mental and emotional well-being The right to assistance, support and an independent advocate The right to protection from abuse and neglect Interventions in people’s lives must be necessary and proportionate Respect for individual autonomy in decisions and interventions affecting them

Key Provisions Definitions Abuse/Harm Adult at Risk Respecting autonomy and safeguarding where necessary Establishment of Adult Safeguarding Authority Determining if adult needs support and assistance Investigation by Authority Right of entry and inspection to any premises Access to Independent Advocate Mandatory Reporting or not??

Issues identified Scope of the legislation Department/s to lead/sponsor legislation Relationship between new agency with existing service providers and regulators HIQA and MHC Powers of National Safeguarding Authority Mandatory Reporting?

Prevention a key component There must be a statutory requirement to identify need To identify risk To identify the route to services to meet needs To identify the mechanisms for intervening and not simply wait until an urgent safeguarding issue arises

Data Protection Legislation S.2B Processing of personal data shall not be processed by the data controller unless: Consent is explicitly given If by reason of physical/mental incapacity or age, is unable to appreciate the nature of such consent, it is given by [category of family members] of the data subject and the giving of such consent is not prohibited by law. The processing is necessary to prevent injury or other damage to the health of the data subject or serious loss of or damage to property of the data subject or otherwise to protect his or her vital interests of the data subject The processing is necessary ….For the performance of a function conferred on a person by or under an enactment….

Data Protection Legislation S.8 Any restrictions on the processing of personal data do not apply if the processing is required urgently to prevent injury or other damage to the health of a person or serious loss of or damage to property Required by or under any enactment or by a rule of law or court order Furnishing of personal data to and by HSE in certain circumstances HSE may request DSP or Revenue Commissioners to furnish personal data for the purpose of assessing or reviewing the eligibility of persons for services… DSP may request HSE to furnish data …for the purpose of calculating the means of persons to assess or review entitlement of persons to receipt of benefits and services…. Revenue Commissioners may request HSE…..for the purpose of assessing or collecting any tax, duty or other charge payable to the Revenue Commissioners

Interaction with other legislative codes Assisted Decision-Making (Capacity) Act 2015 Mental Health Act 2001

Conclusion - Safeguarding Legislative framework for Safeguarding – essential Key component of legislation is right to have an independent advocate Robust governance and overarching designated body Statutory interaction with other agencies Reform of the Data Protection legislation Use provisions in Assisted Decision-Making(Capacity) Act 2015 where appropriate Apart form legislation – Education and Training at all levels of society Respect for dignity and rights

Patricia T Rickard-Clarke Thank You Q and A Patricia T Rickard-Clarke