Dept of Health Adult Safeguarding consultation

There is a government consultation about adult safeguarding in the health and social care sector happening at the moment. This is an extremely important issue, which is relevant for us all.

This consultation is in the form of a survey about a new policy which has been proposed. You can find out more and access the consultation here: https://www.gov.ie/en/consultation/2a1ce-public-consultation-on-policy-proposals-for-adult-safeguarding-in-the-health-and-social-care-sector/#how-to-participate-in-the-public-consultation

While we support the overall vision and aims of the policy, we have serious concerns about some of the details, and about how the policy will be implemented.
Together with the Disability Federation of Ireland, we have requested more active engagement about this matter, as we believe a survey is not sufficient for such an important issue.

We welcome the overarching aim of strengthening the culture of safeguarding, however, we have questions and concerns regarding several aspects of the policy.

We have concerns about how the visions and aims will be achieved. We have all experienced examples of excellent policies with admirable goals, which are ultimately undermined by lack of resourcing for implementation.

‘Safeguarding is everyone’s responsibility’ is a laudable statement, however, front-line care staff are limited in what can be achieved without full support from funding agencies. While safeguarding is everyone’s responsibility, it is essential that adequate resources are put in place to support the implementation of the policy and any measures identified in individual safeguarding plans.

Under these proposals, the HSE will essentially be policing itself, as care settings for adults who may be at risk are largely directly provided or funded by the HSE. While we acknowledge the challenges of establishing a new independent statutory body, and the stated commitment to avoiding conflicts of interest, we believe that a separate and independent body is required to ensure full accountability, public confidence and integrity of process. 

Article 16.3 of the UNCRPD looks for services designed for people with disabilities to be independently monitored. While HIQA has the remit to do this for some types of service, its scope is limited and does not include investigating individual cases. Improving the safeguarding culture and implementing safeguarding plans will have cost implications, and both expanding the remit of HIQA and mandating the provision of resources needed for safeguarding will be essential if the HSE is to be held to account.

Article 16.1 of the UNCRPD requires the state to: take all appropriate legislative, administrative, social, educational and other measures to protect persons with disabilities, both within and outside the home, from all forms of exploitation, violence and abuse, including their gender-based aspects. Physical/sexual abuse incidents involving people with ID are often carried out by other service users, and this proposal is weak regarding this critical issue of peer abuse. Peer abuse cannot be treated as a purely health and social care matter. While we acknowledge that a person engaging in behaviour which causes harm will also themselves need support, and may lack the capacity to understand the consequences of their actions, this does not negate the legal rights or personal agency of the victim. Research from other countries suggests that in cases of peer abuse, the most common action is to move the abuser to another setting, potentially placing other vulnerable people at risk, as evidenced by the investigations and findings of the Brandon Report. Common sense would suggest that anyone who is a risk to others be placed in an individualised setting, but this has serious cost implications, and the HSE may need to be held to account by an external body or the criminal justice system in order to uphold the rights of the victim and protect others who are potentially at risk.

The lack of a victim’s rights approach is also seen where the proposed policy talks about being able to remove the person who has experienced harm to a temporary place of safety, rather than removing the person causing the harm. Both options must be considered, particularly in settings where there is more than one person at risk, with the preferences and rights of the victim being the priority.

We disagree with the statement: Developing guidance material in an Irish context was seen as the best approach rather than the adoption of a threshold approach at this time without a sufficient evidence and research base. Victim’s rights must be central to any safeguarding policy, with mandatory reporting to the Gardaí if a potentially criminal offence has been observed or reported, regardless of the capacity of the abuser to understand. This would serve multiple purposes. It would promote data collection regarding incidents; it would allow for data to be held regarding individuals who pose a risk to others and should not be in shared accommodation; it would bring an outside perspective on the changes needed to ensure further abuse does not occur; and it would acknowledge and affirm the personhood of the victim, and their equal status before the law.

The policy proposal talks about duties and responsibilities of services regarding safeguarding, but does not address the responsibility of the funding agency to provide the necessary resources. If the changes described in this policy have to be provided within existing resources, then, put bluntly, the policy will fail.  Ensuring that the HSE has a legal responsibility to provide additional resources for the implementation of this policy, as well as ring-fenced resources to allow for full implementation of recommendations in any Individual Adult Safeguarding Plan, will help promote true accountability and safer outcomes.

Proactive data collection should underpin policies, or be happening alongside policy development, to inform likely resourcing issues. While it is good to see the lack of evidence and research being acknowledged, we would like to know what the plans are to address this research gap. Sexual abuse is known to be underreported, even where there are no issues with disability. A study in 2022 using population sampling rather than reported rates found alarmingly high rates of sexual violence in Ireland (34.4% average, though heavily skewed towards women 50/20). This research excluded people with ID and people in institutions, but international data suggests they are at higher risk than the typical population. While incident reports to HIQA are a potential source of information, HIQA’s remit is limited to certain settings, and does not investigate individual cases. Mandatory reporting to An Garda Síochána when an incident occurs which would be regarded as a criminal action in any other setting would help with both data collection and accountability.

Robust adult safeguarding policy and legislation is welcome, and we look forward to the conclusions of the Law Reform Commission regarding legislative changes. The proposed changes to the law are an important unknown element here, as in the absence of the UNCRPD optional protocol – yet to be ratified and implemented by the Irish state – they will provide the framework whereby individuals can challenge the government regarding breaches of their rights.

Additional Information for context:

Relevant articles of the UNCRPD:

Article 16 – Freedom from exploitation, violence and abuse

1. States Parties shall take all appropriate legislative, administrative, social, educational and other measures to protect persons with disabilities, both within and outside the home, from all forms of exploitation, violence and abuse, including their gender-based aspects.

2. States Parties shall also take all appropriate measures to prevent all forms of exploitation, violence and abuse by ensuring, inter alia, appropriate forms of gender- and age-sensitive assistance and support for persons with disabilities and their families and caregivers, including through the provision of information and education on how to avoid, recognize and report instances of exploitation, violence and abuse. States Parties shall ensure that protection services are age-, gender- and disability-sensitive.

3. In order to prevent the occurrence of all forms of exploitation, violence and abuse, States Parties shall ensure that all facilities and programmes designed to serve persons with disabilities are effectively monitored by independent authorities.

4. States Parties shall take all appropriate measures to promote the physical, cognitive and psychological recovery, rehabilitation and social reintegration of persons with disabilities who become victims of any form of exploitation, violence or abuse, including through the provision of protection services. Such recovery and reintegration shall take place in an environment that fosters the health, welfare, self-respect, dignity and autonomy of the person and takes into account gender- and age-specific needs.

5. States Parties shall put in place effective legislation and policies, including women- and child-focused legislation and policies, to ensure that instances of exploitation, violence and abuse against persons with disabilities are identified, investigated and, where appropriate, prosecuted.

Article 17 – Protecting the integrity of the person

Every person with disabilities has a right to respect for his or her physical and mental integrity on an equal basis with others.