Joint Committee on Health debate -
Wednesday, 4 Oct 2017

Adult Safeguarding: Discussion

Chairman

I thank members for their patience. The purpose of this morning's meeting is to engage with representatives of the Health Service Executive, HSE, the national safeguarding committee and Sage on the subject of adult safeguarding and the matters that might be considered in the context of drafting legislation in this area. On behalf of the committee I welcome from the HSE Mr. Pat Healy, national director of the social care division; Mr. Michael Fitzgerald, head of operations and service improvement for older people; and Mr. Tim Hanly, general manager of the national safeguarding office. From Inclusion Ireland and the national safeguarding committee we welcome Ms Patricia Rickard-Clarke and Ms Sarah Lennon. From Sage we welcome Mr. Mervyn Taylor and Ms Eileen O'Callaghan.

I draw attention to the fact that by virtue of section 17(2)(l) of the Defamation Act 2009, witnesses are protected by absolute privilege in respect of their evidence to this committee. However, if they are directed by the committee to cease giving evidence on a particular matter and they continue to so do, they are entitled thereafter only to a qualified privilege in respect of their evidence. They are directed that only evidence connected with the subject matter of these proceedings is to be given and they are asked to respect the parliamentary practice to the effect that, where possible, they should not criticise or make charges against any person, persons or entity by name or in such a way as to make him, her or it identifiable. Any submission or opening statement made to the committee may be published on the committee's website after this meeting. Members are reminded of the long-standing parliamentary practice to the effect that they should not comment on, criticise or make charges against a person outside the Houses or an official either by name or in such a way as to make him or her identifiable. I ask those present to switch off mobile phones or switch them to airplane mode.

I ask Mr. Pat Healy of the HSE to make his opening statement.

Mr. Pat Healy

I thank the committee for the invitation to attend this morning to discuss the subject of adult safeguarding.

I am joined today by my colleagues, Michael Fitzgerald, head of operations and service improvement in services for older people, and Tim Hanly, general manager in the national safeguarding office.

Abuse of vulnerable persons is, unfortunately, a disturbing reality. However, there is now greater public awareness about the existence of abuse of older persons and people with disabilities within society. Indeed there is now a strong expectation on legislators, policymakers and service providers to take adequate measures to combat abuse. The impact of well-publicised reports and regulatory inspection findings into failings to protect the welfare and safety of service users in recent years has led to significant changes in policy and practice as well as models of service provision within the health and social services sector to address this most significant issue.

For the HSE's part, an elder abuse policy and social work led support service has been in place since 2007. Following consultation in recognition of the need to widen and improve this policy, the HSE on establishing the social care division in mid-2013, launched its policy, Safeguarding Vulnerable Persons at Risk of Abuse: National Policy and Procedures, in December 2014. The policy declares that all service providers to disabled and older persons must have a publicly declared no-tolerance approach to any form of abuse. All service provision must promote a culture which supports this ethos.

Since the launch of the HSE's safeguarding policy, a number of supporting structures have also been put in place, including the establishment of the National Safeguarding Office, which provides leadership, oversight and co-ordination for all aspects of the policy and practice in safeguarding vulnerable adults. In implementing the policy, the HSE has set up nine safeguarding and protection teams, one in each community health organisation, CHO, to co-ordinate consistent responses to concerns of abuse and neglect. These teams are managed and led by principal social workers and staffed by social work team leaders and professionally qualified social workers. They provide oversight and support to all service providers, including those funded by the HSE. Each CHO has also established a safeguarding and protection committee, chaired by the heads of social care, which supports the development of a culture that promotes the welfare of vulnerable adults and provides support and advice to the safeguarding teams and senior management. In 2016 alone, almost 8,000 notifications of safeguarding concerns were submitted to the safeguarding teams.

The HSE has invested in additional staffing and support resources to strengthen the capacity base of these teams for oversight and management of safeguarding concerns. Over the past three years approximately €2.3 million has been invested in the recruitment of an additional 34 social worker positions and ten administrative support workers into the safeguarding and protection teams. Almost 60 staff members are involved in the safeguarding teams throughout the country. However, the implementation of the policy also saw the appointment of more than 900 designated officers in service settings relating to disability and older persons, who in their own right as senior managers are the key people to receive concerns or referrals of abuse, carry out preliminary screenings and develop safeguarding plans where appropriate. The nine safeguarding teams support the designated officers in their day-to-day work to ensure a consistent approach to the implementation of the policy across these settings.

A strategic training programme continues to be rolled out and the HSE has achieved a critical mass of more than 30,000 staff in the HSE and funded agencies who have been trained to date. The HSE's implementation plan for the adult safeguarding policy is part of a wider programme of reform and quality improvement measures across the social care sector. Significant change management programmes are being implemented in areas such as decongregation within residential care and new directions for day service users which have clear implications for advancing the safeguarding agenda. These developments have been clearly underpinned by person-centred principles and a clear message of no tolerance of abuse.

At national level, the HSE established the national safeguarding committee, which is a multi-agency and intersectoral body. This committee, which works collaboratively with a wide range of stakeholders, recognises that safeguarding vulnerable adults from abuse is a matter that cannot be addressed by any one agency working in isolation and cannot be solely seen as a health or social services responsibility. Representatives from the national safeguarding committee are also present today to address this committee which is most welcome.

As envisaged at its commencement, the HSE is undertaking a review of the safeguarding policy. This review has already highlighted many improvements since the introduction of the safeguarding policy, especially in areas such as awareness training, improved systems for recognising and reporting abuse, and challenging inappropriate attitudes and behaviours. The review has also highlighted areas that need improvement and areas of practice that need strengthening. While the improvements I have outlined will continue, there remains a significant underlying challenge for the HSE and other bodies in responding effectively to safeguarding issues due to the gap in legislation. There is a clear deficiency in the lack of a legislative framework for assessment, planning and co-ordination in responding to safeguarding concerns and managing interventions.

The HSE cannot undertake and co-ordinate adult safeguarding and protection in isolation. In this regard, the HSE recognises that the current safeguarding policy has clear constraints in its capacity and scope. The policy is limited as it is a health service-led policy, and while co-ordination has been improved with the establishment of the inter-agency national safeguarding committee and through the development of inter-agency protocols, legislation is needed on an inter-agency and societal level to effect the necessary changes. An important task for the drafting of any such legislation will be to develop a clear and easy to understand definition of who needs protection across all services and whether the vulnerable person concept should be replaced by a definition of an adult at risk.

Any such legislation providing powers of intervention in the lives of vulnerable adults should give due regard to the person's capacity to keep themselves safe and to the appropriate application of consent. The framing of the legislation needs to be careful to balance human rights principles in areas such as autonomy with the need for protective measures. Any law should be proportionate in its application and scope and needs to include essential safeguards on a person's right to express his or her will and preference on how he or she lives his or her life. A key consideration for future legislation will be the appropriate obligation on relevant organisations to report suspected abuse or harm to the appropriate authority. International research has indicated differing impact and outcomes with regard to permissive or mandatory reporting. Further analysis and research will be needed to consider the appropriate legal framework for such requirements.

International research and evidence has consistently highlighted the importance of a process and structure for mandated inter-agency collaboration and co-ordination on adult safeguarding. This will be of particular benefit with regard to information sharing for assessment and protection planning which will need to be incorporated into future legislation. This is of particular relevance for all services involved with adult protection but especially core State authorities such as the health services and An Garda Síochána, and it should also strengthen arrangements with Tusla regarding children progressing from State care into adult services and where vulnerability exists. This mandated interagency collaboration should also include the requirement to put safeguarding committees on a legislative framework to mandate co-ordination and collaboration among services with key safeguarding roles as well as ensuring appropriate reviews are undertaken following critical incidents. Legislation in this area will also need to strengthen vulnerable adults' right of access to independent advocacy which is most relevant when they are subject to a safeguarding report or assessment.

As a health service provider and commissioner of services we recognise that there is still a long journey of improvement and reform to travel and we acknowledge our shared responsibility to advance the safeguarding agenda. While much progress on adult safeguarding in the State has been made over recent years, we clearly need a statutory framework for adult safeguarding to address the issues and deficits I have highlighted.

This concludes my opening statement and, together with my colleagues, we will endeavour to answer any questions members may have.

Ms Patricia Rickard-Clarke

On behalf of the national safeguarding committee, I thank members for the opportunity to address the committee this morning on the important topic of adult safeguarding legislation.

The national safeguarding committee, which was established in December 2015, is a multi-agency forum aimed at promoting awareness of abuse, harm and exploitation of adults who may be vulnerable. The committee brings together key players in public services, legal and financial services, the health and social care professions, regulatory authorities, and NGOs representing older people, people with disabilities and carers.

Regarding adult abuse, the list of potential abusers is wide. Abuse may be perpetrated by a person known to the victim and may also be perpetrated by those who have no previous connection to the victim and may also be perpetrated by the State.

A recent RED C poll conducted for the national safeguarding committee highlighted that half of all Irish adults say they have experienced the abuse of vulnerable adults either through being abused themselves or seeing somebody close to them abused. Two in five people think vulnerable adults are badly treated and one in three believes vulnerable adult abuse to be widespread. The research findings indicate a very worrying prevalence of vulnerable adult abuse, uncertainty over what constitutes psychological and financial abuse, and a lack of knowledge of what to do when one becomes aware of the abuse of vulnerable adults.

While abuse of older people forms only one category of individuals at risk of harm, the National Centre for the Protection of older People at UCD has carried out a number of studies examining the nature and extent of older persons' abuse in Ireland.

Based on international prevalence of abuse figures at 5% and taking the current figure of more than 637,000 people over the age of 65 suggests that 32,000 people over the age of 65 years have experienced mistreatment in the previous 12 months. The report by the national centre also showed that financial abuse was the most common type of abuse reported in terms of older persons.

As Mr. Healy noted, almost 7,900 safeguarding concerns were reported to the HSE's safeguarding and protection teams in 2016 with a high level of concerns coming from the disability sector. It is clear from other research that this is likely to be the tip of the iceberg as many safeguarding incidents go unreported. It is also clear from the Red C poll that there is a lack of clarity regarding the point of contact for reporting.

As has been seen a number of times recently, once a person who may be in a very vulnerable situation reaches the age of 18 years, there is no clear obligation on the State, State agencies or organisations to prevent harm and protect such adults who may be vulnerable. Article 16.1 of the UN Convention on the Rights of Persons with Disabilities commits to the following:

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.

Ireland, on ratifying the convention, will be required to fulfil this requirement.

The prevalence of adult abuse and exploitation highlights the urgent requirement for adult safeguarding to be placed on a statutory footing in Ireland. The 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. The aim of adult safeguarding legislation should be to legislate for State agencies to take responsibility to prevent harm and protect from abuse adults who may be vulnerable. Such legislation should clearly set out the State's responsibilities for the prevention of harm and protection from abuse. Primary responsibility for such legislation would lie with the Department of Health due to the need to focus on the role of statutory health and social services. In recognising that safeguarding is everybody's responsibility, the legislation should be developed on a cross-governmental, inter-agency and societal basis.

The legislation should recognise that people who may be vulnerable frequently come into contact with State and other services and agencies. Specific responsibilities within the legislation would fall under the supervision of the Departments of Justice and Equality and Employment Affairs and Social Protection. The latter Department, recognising its responsibility, recently established a working group on agent arrangements and the protection of vulnerable adults to examine and make recommendations on the adequacy of current procedures and processes, within the Department, with a particular emphasis on financial abuse. In addition, in recognition of civil society's responsibilities and recognising that the largest prevalence of abuse is in the community, elements of the legislation should outline what safeguarding arrangements and responsibilities fall to the voluntary, community, independent, financial and faith-based organisations, as well as on individual families.

The legislation should be developed in line with the rights provided under the Constitution, the UN convention, and the European Convention on Human Rights. Adult safeguarding legislation should promote zero tolerance for adult abuse across Irish society and beyond. There are currently huge gaps in our approach to adult safeguarding. Adult safeguarding legislation must be constructed in a way that respects individual rights with an emphasis on prevention, as well as protection. Such legislation could place a general statutory duty of care to promote an individual's well-being and to protect him or her from abuse and neglect. There must be a statutory requirement to identify need, risk, the route to services to meet those needs, the mechanism for intervening and the mechanism for review and not simply to wait until an urgent safeguarding issue arises. The legislation should also provide that vulnerable adults have access to independent advocacy.

The legislation should ensure enhanced awareness of adult harm and abuse and the responsibility on people and society to report suspected cases of abuse to the relevant authorities. Article 16.5 of the UN convention requires that effective legislation and policies are put in place "to ensure that instances of exploitation, violence and abuse are identified, investigated and, where appropriate, prosecuted". Many public and private service providers within the community are well placed to identify early indications that an adult may be at risk, for example, in his or her interactions with banks, legal and property services. Providers of services who are in a position of trust, in particular general practitioners and providers of primary care services, will have access to information on adults that may suggest they are at risk of harm.

Service providers should be aware of the signs of harm to adults within their respective sectors. They should have a legal duty to ensure organisational procedures are in place to guide staff when concerns are identified. All those working to provide services in the community generally should also have a legal responsibility to refer concerns to social care services and to co-operate and share information, where necessary, with any adult safeguarding investigations. Indeed, a positive statutory obligation for the sharing of information on an inter-sectoral and inter-agency basis should be part of adult safeguarding legislation.

Recognising that there is a duty on service providers to ensure organisational procedures are in place, Article 16.3 of the UN convention provides that facilities and programmes should be "effectively monitored by independent authorities." The continuum of adult safeguarding outlines the wide range of organisations involved in people's lives, from small community activity groups through to larger organisations and statutory services. All organisations should be required in law to ensure that any service they deliver is underpinned by the principles of respect and treating each person with dignity. This is the first and crucial step to ensuring that services are of high quality and that the focus is on the individual receiving the service.

Increasing levels of care and support needs and risk among vulnerable people in our society are likely to lead to greater demands for service provision. This in turn requires a heightened awareness of the risk of harm when providing such services and more robust measures to prevent such harm. Time is not on our side and we need to act urgently to introduce adult safeguarding legislation.

I thank the committee for inviting me here this morning. I have provided a brief overview of why adult safeguarding legislation is needed. My colleague and I are happy to answer any questions that may arise.

Chairman

I thank Ms Rickard-Clarke for her presentation and call on Mr. Mervyn Taylor from Sage to make an opening statement.

Mr. Mervyn Taylor

In 2016, the then Oireachtas Joint Oireachtas Committee on Health and Children, which was chaired by the then Deputy, Senator Jerry Buttimer, produced a report on the role of advocacy in health and social care services in Ireland. This was the first time that an Oireachtas committee had ever directly engaged with the issue of advocacy. The report indicated that advocates can play an important role in helping to support and empower vulnerable people who use our health and social services. It also referred to the need for co-ordination.

The right to have one's voice heard and participate in the making of decisions that affects oneself is a fundamental principle in a democratic society. It is the simple principle of "Nothing about you - without you". In circumstances where people may be vulnerable, or have to depend on others, there is a need to ensure that their rights, freedoms and dignity are promoted and protected. Through support and advocacy the will and preference of a person can be heard and acted on independently of family, service provider or systems interests.

The concept of advocacy as a formal practice is relatively new, although advocacy has always happened in many forms. During the 20th century out of a diverse range of movements concerned with human rights, workers' rights, women's rights, welfare rights, racial equality, health, disability and the environment, there has emerged concepts, practices and services that can be broadly described as advocacy. Advocacy may be instructed or non-instructed. Non-instructed advocacy is where an advocate acts independently of the individual, in some cases through necessity, as the individual may lack the capacity to advocate for himself or herself.

With regard to instructed advocacy, it is worth noting that the idea that one adult person can give authority to another adult person to act on his or her behalf as an advocate is still deeply challenging to some people in Irish society, not least in the health, social care and legal professions. Sage has developed quality standards for its work. In the introduction to those standards Ms Justice Mary Laffoy, until recently a member of the Supreme Court, stated the following:

Too often we see the issues facing older people as related solely to health and social care. In doing so we can sometimes forget the fundamental importance of values, standards and the law in determining the well-being of citizens.

There are some significant challenges to the development of independent advocacy services.

At the core of these challenges is the absence of a legal framework for independent advocacy. For example, it is clear that, despite the references in the HIQA quality standards for nursing homes regarding access to independent advocates, the experience of Sage is that some nursing homes continue to display a total disregard for the right of their residents to see an advocate of their choice. We are currently preparing a submission to the Ombudsman in respect of this issue.

There is a clear need for the State to respond directly to the advocacy needs of citizens, rather than simply delegating responsibility to NGOs. Legislative recognition of an independent body such as a national council for support and advocacy is necessary in order to address the issues of coherency, transparency and equal distribution of resources that can arise when funding is provided to voluntary advocacy groups without reference to any development framework.

Sage argues not just for multidisciplinary approaches among professionals but also for multi-perspective approaches whereby the voices of vulnerable people are entitled to be heard and their will and preference respected when health and social care professionals and others gather to review and plan in respect of an individual.

The lack of inter-agency collaboration can sometimes lead to potentially serious situations being addressed in differing ways by various players each with a different remit and with differing perspectives, approaches, pieces of information and knowledge of the extent of each other's involvement. If a HSE safeguarding team, a HIQA inspector, a Garda detective and Sage all have engagement with a particular place of concern and all are acting independently then, in the absence of some framework of collaboration, there is the potential to fail vulnerable people.

The mission of Sage is “to promote and protect the rights, freedom and dignity of vulnerable adults and older people through the development of support and advocacy services to address individual and systemic issues”. As a consequence of this mission, Sage has a strong safeguarding dimension to its work and it has been engaged in approximately 200 cases to date in which there is a safeguarding element. There is a clear interplay between independent advocacy and safeguarding and for this reason we make several recommendations. The first recommendation is the immediate extension of the powers of HSE safeguarding protection teams in order that they can operate to the fullest degree possible within private care settings. The second is the recognition of the role and practice of independent advocacy. The third is the recognition of the right of vulnerable or potentially vulnerable adults to access and be represented by an independent advocate in all care settings, including domestic homes, as well as of the necessity for their voice to be heard in multidisciplinary and inter-sectoral working arrangements that relate to them. The fourth is the inclusion of advocacy services in any mandatory system of inter-agency collaboration, review and planning. The fifth is the establishment of a national council for support and advocacy to co-ordinate and strengthen the systems and practices of all providers of support and advocacy services to vulnerable persons and ensure equity in resource provision. The sixth recommendation is the development of a national safeguarding service independent of all other service providers and statutory agencies, the provision of resources to it to the level required to meet minimum nationally applicable standards and to undertake historic investigations of alleged abuse. The seventh is the enactment of safeguarding adults legislation, which would address all of the above issues.

I thank the committee for the opportunity to address it and my colleague, Ms Eileen O’Callaghan, the designated officer for safeguarding in Sage, and I will endeavour to answer any questions.

Chairman

I thank Mr. Taylor. We will take members' questions in groups of three, beginning with Deputies O'Reilly, Durkan and Murphy O'Mahony.

Deputy Louise O'Reilly

I thank the witnesses for their opening statements. I will ask questions in the order the witnesses spoke and will begin with Mr. Healy.

Mr. Healy's statement referred to 60 persons employed. Are they employed on a full-time basis and is this their whole job? If not, can Mr. Healy express it in terms of a whole-time equivalent, WTE? It strikes me that it is very good news if this is their whole job but if it is not, I would be interested in knowing the extent to which they concentrate on that area, especially in light of the figures before us which indicate that there are potentially 32,000 older persons experiencing some form of mistreatment. Staffing levels might seem adequate but when one stacks it up against that large number, one would wonder. Sage recommends that the HSE teams would operate to the fullest extent possible within the private home care sector, which indicates that it is not operating to the fullest extent possible now. Does Mr. Healy have a view on why this is the case and should the HSE teams operate to the fullest extent possible? Would this require additional staffing? Are there barriers to that work being carried out?

Ms Rickard-Clarke stated there is a breakdown of the abuse and mistreatment which takes place in the home versus that occurring in residential care settings. Can she indicate if there is a difference in the severity between the home care and the residential care settings? Can she elaborate on this?

The Sage submission referred to a total disregard for the right of residents to have advocates. That worries me, as someone who was an advocate in my previous life. When a person is vulnerable in that way, his or her need for an advocate and to have someone in his or her corner becomes very acute. Can the witnesses advise us on what line or direction could be taken to improve that level of advocacy and empowerment for older persons? Is it something that would come from giving HIQA more powers in the area, possibly in regulation? Having read the submissions and heard them this morning, I wonder if there is something I have missed in terms of how we could improve that because I found that figure on the extent to which the right to have an advocate had been completely disregarded to be shocking.

My question for Sage might be a little cheeky but does it feel the private nursing home sector will welcome with open arms the beefed-up role of the protection teams within their sectors? Is it an area where Sage anticipates resistance? If so, do the witnesses have any views on how this might be overcome? One could make a big political speech about how Government is not investing in the public service, but more and more people find themselves in the private home care sector. Since it is becoming more of a reality for people, it becomes even more important that we have an understanding of the views within that sector. I appreciate there are no representatives of that sector present but will Sage give its view?

My final question is a general one for all the witnesses. According to newspaper reports, there will be mandatory reporting of child abuse, which is to be welcomed. Would there be any benefit if this was extended to the area of elder abuse and the abuse of vulnerable persons?

Deputy Bernard J. Durkan

I thank the witnesses for coming before us and giving a very enlightened appraisal of the situation.

Two things occurred to me. One was the scale of notifications, which Mr. Healy referred to in his opening statement. In 2016, 8,000 notifications of safeguarding concerns were submitted to the safeguarding teams. To what extent were they investigated adequately and satisfactorily? Was action taken as a result in every situation?

Is the HSE satisfied that adequate provision can be made to detect abuses on time without necessarily waiting to be told or waiting to receive a report from some quarter? Of the 8,000 notifications of safeguarding concern, I am sure there were other cases that were not notified and need to be detected. To what extent can unannounced inspections be carried out? Are unannounced inspections conducted in all institutions, be it for children, vulnerable adults or others? To what extent is the HSE aware that abuse can be generated by colleagues in the institutions, fellow patients, by staff and by outsiders? Is the HSE representative satisfied that sufficient provisions to identify all such abuses are in place? In particular, we get reports from institutions dealing with older people of cases of bullying but which is abuse; it is mental and sometimes physical abuse from colleagues in the system. It is one of the things that happen.

In respect to Mr. Taylor's submission, has thought been given to the appointment of advocacy officers in the institutions, similar to the officers dealing with requests under freedom of information? Why not have an officer in each institution who has statutory responsibility to ensure that such issues are reported instantly? In other words, a member of the staff would be earwigging - for want of a better description - and identifying situations where there might be potential for abuse or cause for concern.

Ms Rickard-Clarke referred to the need for legislation on adult safeguarding. How far can we go in providing the legislation without creating the nanny state and a situation that becomes so administratively involved at every possible level that the system becomes unworkable and does not work at all? Could an individual officer from the staff of all institutions, nursing homes and so on, be given responsibility to identify the potential for abuse, possible abuse, financial abuse and mistreatment of older people? I know the financial institutions have responsibilities but to what extent do they observe their responsibilities? Can we be absolutely certain that they are rigorous in the application of the rules, in so far as the rights of the individual customer who holds the bank account is concerned? Do they rigorously pursue that to ensure their customer is not the victim of abuse?

Chairman

I call Deputy Murphy O'Mahony.

Deputy Margaret Murphy O'Mahony

I welcome the witnesses and thank them for giving up their time to be present. I have a number of questions arising from the informative presentations. It appears from the Red C findings that there is a lack of clarity as to how one defines a vulnerable adult. This needs to be addressed in order that people can have a better understanding of what it means. Do the witnesses have an idea on how this could be done?

Emotional abuse is very subjective. What one person would see as abuse would not be so perceived by another. Is there any way to eliminate ambiguity and have a clearer definition of emotional abuse?

In regard to elder abuse, elderly people seem the least likely to report it, especially if it is happening in their own homes. Do the witnesses have suggestions on how this can be rectified?

Chairman

I will ask Mr. Healy to lead off on some of those questions.

Mr. Pat Healy

I will take Deputy O'Reilly's question first. As the 60 staff are full-time whole-time equivalents, they are full-time permanent staff. One of the important parts of what we were trying to do was to get a dedicated team. We have built on the elder abuse teams and now we have these. In 2016, there were about 8,000 notifications of safeguarding concern, which is approximately 300 cases for each team and somewhat more than six cases a week. Clearly, when one looks at the totality, there are large numbers. We are progressively developing the service but as one would go on, one would want to expand the teams as one continues to develop.

The position is that all people at risk of abuse, be it older people or others are covered by the current policy. The issue that is specific to private nursing homes is that there is a constraint on our entitlement to access nursing homes. We neither have a right to access the nursing home in this regard nor we do not have a right of access to records. It is important to state, however, that the majority of private nursing homes have worked very positively with us. In many cases, the safeguarding policy has been adopted by private nursing homes as the policy they operate. That is very positive. The fact that the policy is regulated by HIQA is important because HIQA is inspecting independently and is the regulator that carries out the type of unannounced inspections to which Deputy Durkan referred. There also is access to the Ombudsman for complaints.

Legislation is important to underpin this whole area because there are constraints on what the HSE can and cannot do. While the HSE policy is positive, that area must be dealt with.

Deputy Louise O'Reilly

On that point, in the event of the enactment of legislation to give the HSE right of access to private nursing homes, the HSE clearly would need additional staff to have the capability to be able to operate under the new legal powers.

Mr. Pat Healy

I think that as one would implement the law, staffing would be an issue. The inspections would have to be adequately resourced. I think all those who gave presentations have referenced the resources as an important part of that. Significant work has been done in strengthening teams, but more would have to be done.

What I have reflected in our submission in regard to mandatory reporting is that a balance is required. I have differentiated between what would be termed "permissive" and what would be termed "mandatory". Permissive would focus on providing for professional judgment in reporting on the case, but there is compellability in a mandatory situation. We have indicated that there are pros and cons in this regard. There is an international perspective and we suggest that more work would need to be done to settle on a position for the Irish context.

Deputy Durkan raised the scale of the notifications. I think I have touched on it but I will ask my colleague, Mr. Tim Hanly, to address the follow-up in terms of his role as the head of the national safeguarding office.

Mr. Tim Hanly

The nine safeguarding teams are based in each of the community health organisations, so notifications come in on two formats, one of which is from the residential and the service setting, which are submitted as screenings. A number of designated officers carry out screenings and the Health Service Executive has an oversight of the adequacy of that screening in respect of any concern that has been raised. The other element is that direct reports come in to us from the community, from family members, from older people themselves or persons with a disability. They are the community-based referrals.

My colleague mentioned that of the 8,000 referrals last year, 3,000 were community-based referrals with the remainder from residential and service settings.

The safeguarding teams have responsibility for the community or direct referrals, to carry out a direct screening and to consider if there should be a protection plan and if there are reasonable grounds for concern. The social work teams follow good practice by considering what is in the report, the detail of it, the view of the person him or herself and any other information that needs to be gathered. There is a supervision system via their team leaders and there is overall management by the professional social workers.

There is a need to consider greater resourcing as the service develops. In the last year alone we saw a 60% increase in direct community-based referrals from January through to December. We believe that might be linked to greater awareness and the training programme we have been running. The service is able to respond. We do need to look critically into the future. Legislation and the widening of the scope and operational remit of safeguarding will give more responsibility to those social work teams. We must be very mindful of matching the resource. We also need to be mindful of where the resource is placed. Other people have mentioned the need for prevention and raising awareness. It is not just responding to abuse or concerns of abuse but also making sure that structures are in place, that our staff are trained in order that early intervention is possible and that systems are in place to catch these before problems develop.

Our teams are busy in terms of the number of reports. They apply their good social work practice. We expect reports to increase and we have seen an increasing number of reports already. The teams became operational in 2015. An elder abuse service has been in place since 2007, which was well established and has been incorporated into our safeguarding teams who now have overall responsibility for both disability and older persons. We foresee a greater demand and a greater need going into the future and that would be reflective of any expansion of the scope of the policy and any legislative impact.

Deputy Bernard J. Durkan

Of the 8,000 reported, were they speedily investigated and comprehensively reported upon afterwards to the satisfaction of those who made the report in the first instance?

Mr. Tim Hanly

The safeguarding of vulnerable persons policy has in-built timeframes, which mandate how quickly a preliminary screening is submitted to the HSE. Our expectation of service is that we are notified within three days and that a protection plan is done within 20 days. Those timeframes were put in to ensure a timely response. Where there have been difficulties with our time responses, we have put in place performance indicators. Professional staff apply judgement with regard to prioritisation, urgency and high-risk cases. More serious cases are considered more quickly. Where there is no professional team to assess someone, there may be vulnerable people in the community with limited access to support structures, and they may be prioritised. There are targets in our report. The service is meeting those targets for the most part. There certainly are areas in which we would like to see improvement as well. The critical point is that we ensure that people at the greatest risk are prioritised for attention. Timeframes for notification and follow-up were clearly put into the policy. Once reasonable grounds are established, that is, once the safeguarding team in respect of community-based referrals or the designated officer in respect of the residential service setting has come to a conclusion that there are reasonable grounds - by which we mean the service user or person in the community faces an ongoing risk - there is a clear timeframe to put in place a protection plan. There is work to do and it has come out in our review that we could strengthen practice and procedure. We need to look at balancing timeframes with risk assessment. Timeframes have a place but so too does prioritising where the greatest risk is.

Ms Patricia Rickard-Clarke

I refer to Deputy O'Reilly's question regarding abuse in home care and residential care. The 2016 HSE figures are the first time that we have had figures from the disability sector and we do not have comprehensive data. Generally, the work the National Centre for the Protection of Older People has done over a number of years indicates a very high level of abuse in the home, that is, the family or community setting. That was for older people. The emphasis there was on a high level of financial abuse. Coming back to the legislation, we require legislation for the right to access a home where there is a high or reasonable suspicion of a person being abused, as well as access to information, data, bank accounts and so on. We have no legislation to deal with that. There is no right of access for the HSE protection teams to go into nursing homes or a person's home in those situations.

In terms of residential care, looking at the HSE figures - again we do not have really comprehensive data - there are instances of a lot of physical abuse where people with intellectual disabilities are living together. That is a question of putting systems, processes, education and training in place.

The right to have an advocate was mentioned. I will leave it to Sage to answer this in detail but again, there are very confrontational situations in which families do not like somebody advocating on behalf of the individual. We absolutely need legislation. One of the huge issues for older people is the right to decide where they wish to reside. As deprivation of liberty legislation will be introduced shortly, it is fundamental that we have the right of advocacy. There should be triggers in certain circumstances where an advocate should be appointed.

HIQA and its powers were mentioned. Its role is to look at systems, organisations and governance but it has no role with regard to individuals and that is a huge deficit in respect of adult safeguarding. As for people with disabilities, when they turn 18 there is no screening of their needs. Someone with intellectual disabilities could live in a situation for many years without an assessment of need. Their changes between the ages of 20 and 40 may never be screened or reviewed. There is no obligation on State agencies or authorities to ascertain if they are in vulnerable situations.

Deputy Durkan spoke about institutions having people in place. We do not have proper systems in place to prevent all of the abuse that happens. If we had proper systems in place we would avoid much of that but we do require the legislation. He also asked about the magnitude of the problem and how far we can go without creating a nanny state. We have total informality at present. There are no systems in place either in State organisations or any other organisations. In other words, what are the standards? We have no regulation of home care. That is a huge gap. The Law Reform Commission recommended that in 2011. We still do not have it. We need a legislative framework to deal with many of these issues.

Financial abuse in financial institutions was mentioned. Again we have had no exchange of information. The Department of Employment Affairs and Social Protection is paying out €7.2 billion in State pensions.

If we take a level of expected abuse of even 10%, it is a large amount of money.

A total of 52% of payments are paid into a bank account where somebody may have the pass card, PIN or whatever. Where money is going into a joint account the banks have no information that the person may lack capacity or cannot operate his or her own bank account. This is why we are talking about inter-agency information and exchange of information. Financial institutions are working quite independently of everything else because we do not have legislation to enable them to make inquiries. How do they raise the red flag or know when the red flag is to be raised? Something the national safeguarding committee has done is try to bring people around the table, and we are working with financial institutions to try to achieve this, but we need the legislation for it.

I will now deal with Deputy Murphy O'Mahony's question on elderly people being least likely to report abuse. The national safeguarding committee had a public awareness campaign earlier this year. We will have another session next week or the week after to try to inform people of what actually is abuse. One of the issues that came out of the Red C poll is that people do not recognise that pilfering the pension or taking the person's money is actually abuse and theft. Sitting around the table, it is difficult to get the State organisations to understand that theft is a crime and it should be reported. We have this informality, and we really need systems in place.

I mentioned the figure paid by the Department of Employment Affairs and Social Protection. Another €3 billion is paid in occupational pensions from the State with regard to public services. There are huge gaps in their systems as to how they know where a person is in a vulnerable position or has a lack of capacity. The question was asked about putting in people so we do not have the abuse. We have to do a huge amount to put systems and processes in place to prevent it happening in the first place, and not to throw money at inquiries after it happens and the horse has bolted. We have a huge gap because of very many years of doing nothing with heads in the sand ignoring what we need to face into. We badly need a legislative framework to look at all of these areas.

Mr. Mervyn Taylor

In response to Deputy O'Reilly's question on the rights of residents to an independent advocate, the Deputy was in an advocacy role as a trade union official but she was not an independent advocate for the individuals who were recipients of the services of her members.

Deputy Louise O'Reilly

That is true.

Mr. Mervyn Taylor

There are gradations. One of the issues, particularly in private nursing homes, is that some of them claim they have their own advocate. In other words, they tell us we will have a person that they will appoint to represent our interests, and if our interests are against their interests then their interests will win out. This is a piece of nonsense. We also have the argument being used that because there is no formal recognition of independent advocacy they do not have to let us across the door. I am not an lawyer, but my understanding is judges quite regularly in court refer to the fact that people should go to mediation and not be in front of the court. To the best of my knowledge, mediation is almost there but not yet, but judges have been talking about this for years.

The big issue is family pressures, and this can be particularly because families are divided and they do not want another person coming in. We can understand this to a certain extent, but they are still ignoring the right of the person to his or her own voice. Sometimes it is because the family is actually actively exploiting that person. There might have been a daughter or son living in that person's home when that person was shoehorned into the nursing home and in fact that son or daughter is getting a place free of rent that would otherwise be €1,800 month. That family then puts pressure on the owners of a nursing home, and we know of some situations like this, who then say they will lose income if they annoy this family, so there is a real problem there. Sometimes it is also just stubbornness, and it will take some time to break this down. HIQA is starting to ask during its inspections whether there is an independent advocate, whether there is access to one and whether the nursing home can show proof of this. There are still some people, and I can put it bluntly, whose attitude is they own the building therefore they own the residents. I am putting it baldly, but this is what it boils down to.

In relation to the question on whether private nursing homes welcome us, the fact of the matter is there is another side to this. A total of 46% of our complex cases last year involved nursing homes, many of which were private nursing homes. We have a principle that we collaborate first and then we challenge, but many private nursing homes are coming to Sage because they are not getting the supports they need for some of these very challenging situations from their industry organisations. We are effectively a sounding board for them. It is a tale of two cities. There are those who will bar us and there are those who will actively be on the phone to us asking us for God's sake to help in a particular situation, which we do willingly. I am just saying there are two different types of nursing homes.

I must say that although we experienced a few rather frosty handshakes in the early stages of our establishment a few years ago in 2014, our right to be in a HSE facility has never ever been challenged, because an ethos is developing and a network of understanding is developing in the public sector. It is different in the private sector. Many of the providers are quite isolated and they are not part of any grouping, or where they are part of a grouping the corporate policy is to be suspicious of us and not to let us in.

With regard to Deputy Durkan's question on advocacy officers in each institution, I do not think it relates to my previous answer as we cannot have an institution providing its own advocacy officer. We can have an advocacy person who champions and pushes the idea, and in each of these facilities there is a designated person, and, if I may, I will ask my colleague Ms O'Callaghan to briefly speak about this.

Ms Eileen O'Callaghan

The huge issue with the policy at present is that it applies to HSE and HSE-funded services so private nursing homes are left out of it, as is the community. HSE and HSE-funded services have a designated officer who is usually trained, and Mr. Healy mentioned the 30,000 who have been trained. They are trained to recognise abuse, notice the signals and refer. They usually get good support from their local safeguarding team. However, there are huge inconsistencies throughout the country. There is no standard operating protocol or procedure that is consistent to the nine CHOs. In north Dublin we might get a very good response but we may not get the same response in Cork or Kerry. A vulnerable person does not know what response he or she will get.

In private nursing homes, as mentioned by Mr. Healy and Mr. Taylor, there is some really good engagement. Some private nursing homes really want support. However, when they pick up the phone to their local safeguarding team that team is not obliged to support them because they are private nursing homes. Again, this discrepancy falls on who picks up the phone and the response is dependent on this. Our major concern is what is happening in the community. There are no designated officers in the community.. It often falls to the public health nurse or the primary care social worker to respond, and they are often left to case manage. What happens is someone the community with his or her own job is left to actively assess the situation, see what is going on and provide support. This falls back to the lack of any standard operating procedure and that the resources are not sufficient. We have been consistently told by safeguarders on the ground they are not sufficiently resourced to respond. In the HSE and HSE-funded services there are designated officers who will respond accordingly, but what is happening in the areas where we are not involved?

Chairman

I will bring in some other members and I ask the witnesses to bank their answers until they have had a chance to contribute.

Deputy Billy Kelleher

I welcome the witnesses and thank them for their presentations and observations. Regarding some of the surveys, the Red C polls, the statistics that are coming out and the HIQA 2016 submission to the Oireachtas Committee on the Future of Healthcare, the Abuse and Neglect of Older People in Ireland: Report on the National Study of Elder Abuse and Neglect report from 2010 estimated that 10,000 older people are mistreated or neglected every year with 6,000 cases of financial abuse. Dr. Amanda Phelan from UCD estimated that 32,000 older people were abused in the past 12 months. There are large disparities but certainly large numbers of people regardless of which figure one takes into account. At the same time, the HSE reported that 8,000 cases of alleged adult abuse were reported to it last year. The main types of abuse experienced were physical, psychological and financial abuse and neglect. In the context of the 8,000 cases that were reported to the HSE, without any change in the law, physical abuse is a criminal offence, as is psychological abuse. Financial abuse is also a criminal offence if it can proved that money was taken illegally. Of all those cases, how often would the HSE interact with An Garda Síochána in terms of investigations from a criminal point of view? Is there a reluctance to refer these cases or does a filtering system exist? Who analyses whether or not they should be referred to An Garda Síochána, which is the body charged with protecting individuals' integrity?

The HSE is the body that is primarily responsible in the context of the provision of service as well. Can a conflict sometimes arise regarding providing and funding a service and at the same time, investigating potential failings in that service? An example is where the HSE may be funding a home care package and there is no oversight regarding how the person receiving the home care package is actually treated. We must take into account what happened in the "Grace" case and the case of Áras Attracta. Áras Attracta was facility run by the HSE where neglect and abuse took place. Is there a conflict at times because the HSE is funding an entity and might have to hold the entity to account effectively if it highlights issues of abuse or neglect?

What are the witnesses' observations regarding the broader issue of the Adult Safeguarding Bill 2017 published by Senator Kelleher, which has cross-party support? Could they make some general observations on it? When we talk about safeguarding vulnerable people, there is a move to decongregate and provide more care in the home care or community setting. If we were unable to ensure that there was no abuse or neglect in a congregrated setting, how capable are we of making sure there is no abuse or neglect when an awful lot more people will be dispersed throughout the community? From what I can gather from parliamentary questions put down by Deputies over the years, there has not been a huge investment in the area of oversight and investigation because of a lack of legislation and resources or even a lack of will at times.

The Law Reform Commission recommended oversight of home care and the home care setting. I suppose that refers to home help, home care packages and, I assume, carers. It is clearly a failing of the Legislature that it has not legislated for that issue. This committee should take on board that indication from the Law Reform Commission that there is a deficiency in that area, along with Senator Kelleher's Bill.

Senator Colette Kelleher

There are lots of Kellehers here today. We are out in force. I am no relation.

Deputy Billy Kelleher

No relation but both highly thought of.

Senator Colette Kelleher

I have some questions for each witness. I commend Mr. Healy on his leadership in developing the adult safeguarding policy in the wake of Áras Attracta. It was hard to take any positives from that but the work that was initiated by Mr. Healy in establishing the National Safeguarding Committee in December 2015, on which I served, and the adult safeguarding teams in the nine community healthcare organisations was positive. In his submission, he was clear that we need adult safeguarding legislation and he was also clear about the constraints in the current capacity and scope of the HSE policy. I think this was referred to by other speakers. Mr. Healy mentioned specific points regarding the adult safeguarding legislation. He will be glad that they are contained in the Bill referred to by Deputy Kelleher around legislative gaps. Assessment, planning and co-ordination can be found on page 9; definition and preference for the adult at risk concept rather than the vulnerable adult can be found on pages one and six; the balance between human rights principles and autonomy, which is a tricky one because we want to protect people but people also have a right to control what interventions and supports they get, is on page ten; inter-agency collaboration is on page nine; and the independent advocacy right is on page ten. Going back to where we are at present, we have an estimate of about 32,000 cases of abuse, which is a huge figure, and with no scope around them. A total of 8,000 cases were reported but this was probably significantly under-reported. Could the HSE spell out what its adult safeguarding teams, welcome as they are, cannot do at the moment because of the lack of a legislative base? We had information about powers of entry and financial abuse. Deputy Kelleher also said that there would be far more people living in the community so that is all the more reason why we have adult safeguarding provisions. Can the witnesses spell out what powers adult safeguarding teams do not have? I would also like to hear about the multiple roles the HSE carries, if there are conflicts of interest and if the HSE can be truly independent? I would like to hear from the HSE in respect of that question but also Ms Rickard-Clarke and Mr. Taylor.

I have some questions for Ms Rickard-Clarke, who I thank for her powerful leadership of the National Safeguarding Committee. Could she comment on how the Adult Safeguarding Bill, as drafted, measures up and what she would add to it? How should this committee advise the Minister in respect of progressing the adult safeguarding legislation that is currently on the Seanad Order Paper?

My final question is addressed to Sage. The Bill, as drafted, includes access to an independent advocate so that takes up many of the points the witnesses from Sage made about the importance of enshrining that right in legislation. Could the witnesses from Sage comment on the Bill, as drafted? What would they recommend to the Minister in light of the magnitude of the issue we need to address - 32,000 cases, 8,000 of which reported to the HSE? What should this committee say to the Minister about the urgency to develop the legal framework for adult safeguarding?

Senator Colm Burke

I thank the witnesses for their contributions and for the work they are doing. As my colleague, Senator Kelleher, who has published her Bill, I have also published a Bill on the regulation of home care providers, which follows on from the Law Reform Commission report. Sometimes people say that we in the Seanad do not do any work but there are two examples of us being proactive in trying to move things forward. The disappointing thing about that is that when it came before-----

Deputy Billy Kelleher

The Senator was in favour of abolishing the Seanad, if I remember correctly.

Senator Colm Burke

I was not in favour of that. When it came before the Seanad, unfortunately the Department advised it wanted a further 12 months before it would go forward with the regulation of home care providers. It is an important issue because anyone can set up a home care providing company without restriction. There is a voluntary code but there is no regulation. It is something we need to progress. Perhaps we could put that Bill on our agenda and give it some consideration here as a way of pressing the Department to progress that legislation.

I will touch on a number of issues that I will come at as a practising solicitor rather than a public representative. On the one hand I think there is a need for regulation but on the other hand I think sometimes there has been misinterpretation of regulation. Recently I went to lodge €25,000 into the credit union account of an elderly person who was in a nursing home. The cheque was swiftly sent back to me saying the person must come in person to lodge the money into her account. That is an example on an over-emphasis on regulation. There was a clear explanation given for where the money came from. It was from the estate of a brother who had died. The money laundering legislation was cited as the reason why the money has to be lodged in person by the account holder. Over-interpretation of regulation can sometimes be a disadvantage.

I come across the biggest problems with people who are on their own and are borderline in terms of whether someone should be appointed to manage their affairs; they need further assistance but there is a certain amount of independence. I have a case at the moment of an elderly gentleman living on his own whose medical card has lapsed. On Monday morning I had a Bill from the pharmacy for over €800 and we cannot get access to his bank account to answer all the questions for the medical card application. We have the community guard and nurse working on it but there is no one in charge. It is a very grey area. There is a concern about over-interference and it is one of the problems we have. One issue arises when I have to enact enduring powers of attorney. In some cases, we are lucky that we already had those powers signed but in cases where we do not have them signed, the issue seems to drag on when trying to manage the person's affairs and trying to make decisions. We have not done enough work in trying to encourage people to sign powers of attorney while they are fully competent, for example when they are admitted to a nursing home. Another example is when people just come out of hospital and, while their health may have stabilised, they need to start long-term planning. There is a reluctance to such planning so we need to provide more education in that area. It is one of the situations where there are difficulties acting in a legal capacity. We find resistance from some institutions when we are trying to help. Barriers are put in our way when we are trying to give assistance when it is really necessary. It is something we need to look at. I am particularly talking about enduring powers of attorney so that at least there is someone clearly identified as being in charge. They also, in taking on that role, have responsibilities and are fully accountable. We need to do a lot more in that area.

When abuse arises, it can be hidden in many ways. I might recognise it from reading all the signs that are presented to me in a legal capacity but to try to pinpoint it to get movement to protect the person is quite difficult. It is something we need to highlight a lot more. We also need to highlight how people can protect themselves at a far earlier stage rather than waiting for the day they can no longer make a decision. It is one of the problems I am finding in a legal capacity. There also needs to be far more co-operation between the agencies and the community guard, community nurse, the HSE services and all the other State agencies so that when something arises such as the situation I am talking about someone is put in charge to co-ordinate all that. It is one of the problems we are not addressing at the moment. I thank the witnesses for the work they are doing and for the progress that has been made over the past number of years.

Senator Keith Swanick

I will be brief because I have tabled a Commencement matter in the Seanad. My colleague will remain to hear the answer to my question. I commend Senator Kelleher for the legislation, which is excellent. Mr. Taylor mentioned elderly people being shoehorned into nursing homes and I totally agree with him. From my own experience as a GP, I think there is a widespread practice of what we call granny dumping in the medical profession. I welcome the idea of an independent advocate. From my clinical practice, I feel that banks and nursing homes do not really care so long as they are getting money in or unless there is a legal requirement, as Senator Burke said, such as a power of attorney or if a patient has dementia and is made a ward of court. As long as there is a legal dimension forcing the bank or institution to adhere to legal requirements, it will happen. Apart from that, it is a widespread practice.

I welcome the idea of an independent advocate but how can we ensure the vulnerable person gets open access to that independent advocate? Who will be the intermediary between them? Will it be a staff member in the nursing home, the GP or the public health nurse? Access to the independent advocate is an issue I would like explored.

Chairman

Mr. Healy wanted to come in before we took that last group of questions.

Mr. Pat Healy

Home care was the issue I wanted to address so I will deal with it and get my colleague, Mr. Michael Fitzgerald, to deal with the other issue. A lot of work has been done in collaboration with the Garda and we now have an agreed notification process between the HSE and the Garda with regard to vulnerable adults. It is an important step and it will govern the referrals and so on.

I have a number of points to make on the issue of investigation. Learning from all of the previous issues that have arisen, I have a number of points to make. Regulation is an essential part of it. On the residential side we have independent regulation by HIQA, which we do not have yet in community services and home care. We are supporters of that and Mr. Fitzgerald will talk about it in more detail and some of the other aspects that have been raised by members. Regulation will be an important part of it. On the specific issue of our independence and the learning around that, we have established a national panel for people with disability similar to the child care panel. It has been formally established and a chairman has been appointed to it. The panel is still being put together. Investigations of a significant nature that are required in future will go to that panel in the same way that investigations into child care services in the past went to the national panel for children. It is important that it will be independently investigated.

In other cases we have established a framework, which is now in place, such that if we require investigating teams, we can draw them from a panel which is being tendered externally. They are two important innovations.

Deputy Billy Kelleher

Are they external to the HSE or the area?

Mr. Pat Healy

External to the HSE. This is a panel like one that would be tendered for external expertise.

Decongregation raises issues of regulation in the community and home care.

As Senator Kelleher said, many of the areas we were focused on are covered in the legislation. In our opening statement we were trying to set out our issues. The simplest way of dealing with the constraints would be to highlight section 3 of the Child Care Act 1991 which gives Tusla, the Child and Family Agency, the authority to do all that it does for children. There is no such legislation for adults. The Oireachtas has not bestowed that responsibility on any organisation. The only authority that has the power to investigate abuse is An Garda Síochána. No entity in the State has the authority to remove vulnerable people. In individual cases there is potential in the area of inherent jurisdiction to go to the High Court. There is the use of the wards of court provisions and so on. The legislation is required. As the national director of social care, my priority is that the national policy, which is good and can be developed, needs a legislative basis. Certainty needs to be provided for those who are working in the field.

Senator Colette Kelleher

There is a national safeguarding authority proposed in the Bill. That deals in a way with some of the points Mr. Healy is making.

Mr. Pat Healy

I see that. Mr. Fitzgerald, the head of services for older people, has undertaken a lot of work in the area of home care. I will ask him to comment on that.

Mr. Michael Fitzgerald

The Department of Health is undertaking significant consultation in the area of home care legislation and regulation. That will come to a conclusion this week. It had to be extended because of the level of input from the community and voluntary groups, etc. From our perspective, home care has grown as a resource and in terms of its importance in maintaining older people and people with disabilities in their own homes. Those of us in the HSE have been calling for such regulation or licensing of providers to a standard or level and we hope the committee might move that legislation forward. We have done some internal work to strengthen our organisation and have good oversight of the home care services. We have put audit teams in place in the nine community health organisations, CHOs, this year. They are working with the service providers, and taking the temperature and receiving comments from the recipients on their experience of the service. This is important because home care is a high risk area and there will be challenges in regulating that. It will be important that those who provide it will be able to display that they have oversight and good systems in place to ensure that any risks with regard to abuse of vulnerable people will be picked up by the service.

I acknowledge what Senator Colm Burke said, that there is work to be done in a range of services because people who are getting older should put their affairs in place at an early stage. They should do it when they are healthy, have capacity, are clear about what they want to do, and understand the importance of that when they do need services, such as applying for the nursing homes support scheme and all that comes with it. Doing all that in the cold light of day when one is well and able, for want of a better phrase, is very important. I echo his comments on that area. Too often we find ourselves in a morass with people's circumstances, and people are not sure or not clear. Families are often not sure what their parents' requirements are or there is divisiveness. It would be important that, given our ageing population, older people are educated on their rights and entitlements to enable them make good decisions when they are able to do so.

Ms Patricia Rickard-Clarke

First, I will deal with Senator Kelleher's questions. The figures can be confusing. We do not have comprehensive data but the 10,000 refers to the research that the National Centre for the Protection of Older People did in 2010. It did not cover people who lacked capacity. The high risk areas are the people over the age of 90 who lack decision-making capacity. It did not include people in residential services. The cohort was quite confined. The 32,000 is a general extrapolation based on international figures and our own figures.

The Senator asked about the interaction between An Garda Síochána and others. The offences that the Senator identified, particularly theft and fraud, operate significantly in respect of vulnerable people. The vulnerable person is left to report it. Someone asked about emotional or psychological abuse, the vulnerable person may be under huge pressure not to report. My view is that if it is a crime the Garda should intervene, and another State authority to ensure support for the person. That can be done by anonymous reporting but we do not have any system in place for that even where it is clear that a crime or offence has been committed. We do not recognise that there is a large cohort of vulnerable people in our society who need protection.

The UN Convention on the Rights of People with Disabilities considers the question of people being able to exercise those rights. It also provides that we need safeguarding protection for people in vulnerable situations. We have a huge gap.

In response to the question of the HSE being the body responsible for the provision of the service and the funding and the investigation, while I hear what Mr. Healy says about audit teams and external panels, that is in the CHO, it is not general around the country or in non-governmental organisations, NGOs. That is only starting. There are very good organisations such as Sage which have that internally but there is a need for external oversight. That has to be the independent national safeguarding authority as provided for in the Bill. That is extremely important.

That leads to the question of mandatory reporting or not. If there is an external authority and proper systems in place such that people know how to escalate internally and there are external panels they do not need to escalate everything. However, they need a robust authority with right of access and investigation when it is needed. Meanwhile the systems are working to prevent abuse. We have nothing in our systems to prevent abuse, no overarching standards or guidance. The HSE have some but, for example, banks do not even know that things are going on. I mentioned shared services, they do not know or understand.

We have not addressed the fact that we have an ageing population who may be in be in very vulnerable situations. This brings us back to Senator Burke's point. Our systems are honed in on money laundering but are not facilitating people. We do not have systems to accommodate people in certain circumstances. We need to be very aware that people may need to be safeguarded against abuse. Our mentality and thinking has not got to grips with that issue.

Deputy Kelleher asked whether the Bill hits a lot of the points we are making. I would say we need an independent authority with a right of access and all the rest. I also welcome the section of the Bill providing for an internally mandated person. The Bill attempts to define what we are talking about, which is something that is really needed. I agree that we are talking about a person at risk, but how should that be defined? As Senator Kelleher has said, such questions need to be put to the Minister. We need a framework that will enable systems and processes of prevention to be put in place so that we are not arriving at critical situations.

Before I ask Ms Lennon to talk about decongregated settings, I will deal with some of Senator Burke's questions. Mr. Fitzgerald has mentioned the whole area of home care provision. The Law Reform Commission recommended the regulation of home care services, which is extremely important. A disability (miscellaneous provisions) Bill has been introduced to deal with the issue of access. It will provide for the right of a person to decide to get care at home. If we have that, we need to have robust home care regulation. I refer not only to service providers, but also to what happens in the home. My own experience has been that Government Departments shy away from the home and do not want to go there. If one is aware that a vulnerable person is being abused, one must have a mechanism to deal with that. I would come back again to the systems we have in place to prevent abuse in the first place.

I would like to speak about the issue of having enduring powers of attorney. In 2009, the Council of Europe recommended that State parties were to ensure that older people had advanced health care directives and enduring powers of attorney in place. We have no national campaign, even though that has been demanded for a number of years. The Assisted Decision-Making (Capacity) Act 2015 will deal with many of the points that are being made about having a decision-making assistant or a co-decision maker in circumstances in which someone still has capacity but needs a lot of assistance. As members will be aware, the 2015 Act has not yet been fully commenced. It has been in the process of commencement for a long time. We badly need it. Some of our bad practices, particularly in dealing with people whose decision-making capacity is in question, can be dealt with fully under that legislation, which recognises their rights. I am aware that the director of the decision support service started in that position this week. I hope that as a result, the commencement of that legislation will now start to be accelerated.

Wardship is a denial of human rights. It is 1871 legislation. We have not yet realised that in reality. The sooner we get the commencement of the Assisted Decision-Making (Capacity) Act, the better. I emphasise strongly that we need to commence section 3, which relates to the assessment of capacity, and section 8, which sets out the guiding principles, immediately. They could start tomorrow. They are already part of the common law. They are already part of the HSE consent policy. They are already part of the Medical Council guidelines. I do not understand why we do not start those two sections immediately because it would enable people to start planning and would assist the whole issue of prevention.

I would like to come back to the barriers. Advocates cannot get in. We go for total informality in our system. We do not realise we need to face up to the fact that we are dealing with people who are growing older and becoming frail and vulnerable. Some of them have huge capacity, but they are sometimes ignored. Those who cannot physically go into the bank to do what they have to do need assistance that is provided in a correct and appropriate manner. I emphasise that much of the abuse that happens is possible because we do not have a system to recognise the vulnerability of such people. There needs to be far more co-operation between all organisations. I ask Ms Lennon to address the question of decongregation.

Ms Sarah Lennon

We were asked how we can be sure during the process of decongregation that the community will be better. The short answer is that we cannot be sure. I suppose it is a bigger issue than decongregation. It is actually a question of deinstitutionalisation. Decongregation involves between 2,500 and 2,700 people. Deinstitutionalisation is a bigger issue. It depends on what we understand to be an "institution". The definition of an "institution" that is used by the committee on the UN conventions includes many other places where people with disabilities can live, including community group homes. It may also include people's private residences. We are talking about between 2,000 and 3,000 people moving to the community. A significant number of people with disabilities live with their ageing parents, who are receiving support but might not be known to us and are certainly not being considered in terms of service provision.

I represent Inclusion Ireland on the national safeguarding committee. We represent people with intellectual disabilities. We view institutions of all kinds as abuses in themselves. They are certainly fertile ground for abuse to take place in. We face significant challenges as we consider how we can get the community right. I suggest we should perceive those challenges as opportunities. We have many tools at our disposal. Interagency working has been mentioned all day. A significant number of laws and policies which are partially commenced or not commenced at all would make community living a significantly more abuse-free environment for people.

The deprivation of liberty safeguards are a significant piece of work for the Department and the committee to do. The decision support service has a huge role to play. Clearly, the provision of independent advocacy is a significant area that has been teased out. Another important structural change that needs to be brought in involves drawing up personal budgets for people with disabilities and putting in place personal assistance to help people to live in their own homes.

I would like to offer a couple of observations on the Bill itself. It is really welcome. It is being introduced in response to a number of things that have happened, such as the Áras Attracta and Grace cases. The focus on prevention is really important. If we recognise that vulnerability is constructed, and that we are all responsible for constructing it, we need to do more than react when abuse takes place. We need to put in place the structural changes that are needed to prevent abuse from occurring in the first place.

I think the committee should consider the idea of being able to take care of oneself, which has not really come up in this debate to date. It is a part of the legislation. We need to reflect on issues of self-neglect or a lack of self-care and the boundaries around that. If we are taking a neutral or non-status approach to defining who this legislation applies to - such an approach is to be commended - we need to be careful that we do not become subjective in terms of what constitutes self-neglect and self-care. An important conversation needs to take place in this context. The boundaries of that conversation will need to be managed carefully.

Those of us who work in the area of disability have seen that independence is critical. It can be difficult for children with disabilities to receive services within the likes of Tusla, the Child and Family Agency. They often have to return to the HSE for investigation or management. For that reason, the independence of the national adult safeguarding agency that is being mooted in this legislation is critical. Training is also important, as is an awareness of the multitude of people we could be talking about here, including people with disabilities, older people, people with acquired brain injuries and people with mental illnesses. A significant number of people will not sit comfortably within the groups I have identified. Resources and training will be needed. The independence of the agency will be absolutely critical.

I would like to suggest some recommendations that this committee can make. The Department of Employment Affairs and Social Protection has a personal advocacy service at its disposal, but the statutory powers that go with it need to be commenced.

In the interim, an important move would be if that part of the Citizens Information Act 2007 were commenced. While it agrees with the likes of an agency as proposed by Mr. Mervyn Taylor, Inclusion Ireland also proposes an advocacy agency which would have oversight of all of the statutory and voluntary advocacy services.

The other critical part of this legislation is the idea of the will and preference of the person. Earlier we spoke about children's first legislation. It is a different concept when we talk about adults. Whatever we put in place in terms of investigations, mandatory reporting and advocacy, it is critical that people with disabilities and others who are being represented are not subject to any investigations or anything that takes place around safeguarding but that they are actually active participants and their will and preference are recognised. The best way to do that is through independent representative advocacy. That message has been heard loud and clear today.

Mr. Mervyn Taylor

Deputy Billy Kelleher raised the issue of congregated care. In the south east, where much public attention has been paid to some particularly awful cases, 70% of those with a disability live in the community. For some people, a person in a family with a disability is a source of income. The solution to this is not about having more safeguarding teams. This is why we have a national safeguarding committee, as well as the involvement of the Department of Employment and Social Protection and HIQA. It is through the interaction of the various agencies who can check who is actually benefitting from the moneys. Is it really for the benefit of the person? We must not see this as just the responsibility of any one agency. Although there is a clear lead agency with the HSE, other agencies are involved. Huge amounts of State money go out through the Department of Employment and Social Protection which is a key part of the picture. Following the money is often, as in crime, a useful way of tackling the issue of abuse.

We thank Senator Colette Kelleher for her welcome work on the Adult Safeguarding Bill 2017. Our view is that any safeguarding service should be independent of service providers. For example, the same chief operating officer of the HSE who does not answer three letters could be the same person who is responsible for setting up safeguarding teams and various committees in those areas. We see the need for an independent service. People need to understand that the future lies in having a dedicated independent safeguarding service.

The recognition of the independent advocate in the Bill is welcome. There is a debate about whether the old Citizens Information Bill is the relevant one because some have criticisms of the way people were mandated to provide advocates. There are issues to be teased out there. The first point is that there should be recognition of the role of independent advocacy. I also think of the emerging decision support service which will have implications for the emergence of advocacy. We need to develop among the general public a better understanding of what constitutes abuse. We need to talk about a threshold for engagement of safeguarding services. There is a role in all of this for the public.

Senator Colm Burke referred to enduring power of attorney, EPA, and the general idea of planning ahead. Earlier this year, we wrote to the Chairman of the Committee on Budgetary Oversight, Deputy Madigan, suggesting certain incentives to develop EPAs, advance health care directives, etc. We would like very much if the committee would bring that message to the Committee on Budgetary Oversight. We have not had engagement with it so far but we know some people are interested in this whole idea of how we can develop a series of incentives. People need to be incentivised. There is a significant cost to the health and social care system generally, as well as to the public purse, arising from the fact that one has divided families, not always large, fighting over people who have a lack of or are losing capacity. An incredible amount of time is spent by us, as well as doctors, social workers, nurses, health care attendants, and indeed in some cases, security, in dealing with these cases. This is an incredible cost to the State. We have got to find a basic system to incentivise people to actually take responsibility and literally think ahead.

Chairman

Which Department should be responsible for this complex legislation? It is multidisciplinary and goes across a wide range of departmental and agency services. It would seem to involve the Departments of Health, Justice and Equality, and Employment Affairs and Social Protection. What would the proposed national safeguarding authority look like? What would its composition be? What would it cost the State? This was a question the Minister asked when he dealt with it in the Seanad. What resources would be required to investigate 32,000 complaints? We have looked at open disclosure in medical negligence and mishap cases in hospitals and discussed whether it should be mandatory or voluntary. If it were to be mandatory, would that dramatically increase the number of complaints? If someone failed to make a mandatory report, what would be the consequences?

Ms Patricia Rickard-Clarke

The three Departments referred to by the Chairman are critical. There probably should be others such as the Department of Finance.

I see the authority replacing the current national safeguarding committee, which has a multi-agency format with State, private, non-governmental organisations, etc, involved. It has a wide representation of high levels from those organisations such as chief executive officers. It is important to have people around the table who can make decisions and commit. It will need a core number of staff but will also need to be able to commission work because one does not know from day to day what expertise one needs. It should also have powers of investigation like the decision support service.

The cost to the State would actually decrease substantially. Taking Mr. Taylor's point, we are wasting and using money inappropriately because we are going around in circles and not actually dealing with the problem. We have no systems in place or no processes in place to deal with it.

Therefore, I would say that it would actually decrease the cost to the State if we had a proper system.

On having mandatory or voluntary reporting, that needs huge concentration in terms of what is appropriate. Looking at other jurisdictions, mandatory reporting does not work. My view is to have good prevention and a system internally in organisations such as that being put in place by the HSE and external panels to deal with a lot of complaints. At the moment, we do not really distinguish between a low level complaint and a really serious safeguarding issue but we need to dissect those. Where there are serious issues, it would then be over to the independent authority to take action and investigate. Our systems, NGOs, banks and financial institutions are all institutions today.

On the public awareness in families, a huge cultural shift has to take place in terms of understanding the appropriate behaviour to a family member and acknowledging that the vulnerable family member or a person who lacks capacity is an individual person with his or her own rights. We have not reached that point yet because our legislation has not demanded it of us. This is why I emphasise that the Assisted Decision-Making Capacity Act is so important. It is based on the right of the individual. We should not look at their disability, age or whatever but look at them as an individual person with rights and we should enable them to exercise their rights. That is hugely important. On whether it would dramatically increase the number of complaints, I would say "yes and no". Perhaps it would initially, but if we put a robust prevention and proper system in place, we would get the benefit of it.

Those are my views, off the top of my head. I congratulate Senator Kelleher, who was on our National Safeguarding Committee. The Bill is hugely important and relevant. She has worked on it but I know she has said, including in her speech in the Seanad, that it needs further development. Of course it does. These are not easy issues. They are complex. The future of vulnerable people in society needs to be protected so we need to ensure that we have legislation that stands up and responds to that.

Ms Eileen O'Callaghan

On mandatory reporting, it is important to distinguish between reporting and response. There are consent issues with someone who is over 18 years of age. However, at the moment, with the 8,000 preliminary screenings that went in, we need to concentrate on what is the response from safeguarding teams on the ground as well as the response from other professionals. We all have a role to play in safeguarding. If we move away from who is going to report and what the response will be, with, as Ms Rickard-Clarke mentioned, training and education changing cultural responses, we need to have that wider conversation rather than just signalling on reporting.

Senator Colette Kelleher

We have a report from the Institute of Public Administration. It arrived yesterday, so it is hot off the presses. It deals with some of the issues around the establishment of an authority and it explores the current arrangements and different options in an independent-minded way. We will have a chance to examine it next week.

Chairman

On behalf of the committee, I thank Mr. Mervyn Taylor and Ms Eileen O'Callaghan from Sage, Mr. Pat Healy, Mr. Michael Fitzgerald and Mr. Tim Hanly from the HSE, and Ms Rickard-Clarke and Ms Sarah Lennon from Inclusion Ireland and the National Safeguarding Committee.

Senator Colm Burke

Could I raise the issue of regulation of home care providers? Could the draft Bill be given some consideration at a future meeting? I will write formally to request it. Again, I thank Senator Kelleher for the work she has done in bringing forward the Bill. It is not an easy job to bring forward a draft Bill. There is a lot of work in it.

Deputy Bernard J. Durkan

If I may make a quick comment on a matter I did not refer to earlier, decongregation is the flavour of the era in which we live but I would warn that the alternatives are expensive and require supervision equal to that which exists in institutions. As it stands, there is evidence to suggest that those who were institutionalised in the past may well be sleeping rough or on the homeless list. We are not marrying the two elements of thought to the extent that we should. It is an urgent and pressing issue that is becoming more serious with the passage of each day. I was a member of the health board when decongregation took place in places such as Grangegorman. Unfortunately, it was good in theory but the necessary back-up services were not put in place, and the evidence is there to this day. That is fact. I say that for the benefit of all.

Mr. Pat Healy

In terms of the disability service, which is going through a significant programme of change, the numbers have reduced since the report was published. In 2012, there was reference to more than 4,000 in congregated settings. By the end of next year, it will be just over 2,000. That is significant progress. It is important to reassure people that those who we are moving into the community under this programme will be supported. It is a question of providing the proper support and there is a huge programme of engaging with them. We have worked closely with Inclusion Ireland, independently of ourselves, as part of that to develop family fora and to build confidence in it. Learning from issues in the past, that is a really important part of it. I wish to reassure members that that is very much a part of the programme under way and we will continue to pay a lot of attention to it.

Mr. Mervyn Taylor

I appreciate that time is limited but I think that warrants a quick response. It is important that the barracks close but it is also important that the barracks sergeant does not come to live with the person when it is moved into the community. We should not merge mental health issues and intellectual disability. There are serious issues in terms of mental health services for those who are on the streets but that is not an argument in terms of people moving out and finding a life in the community. The numbers are actually relatively small. Let me repeat the point, the barracks need to close. If the committee members have seen the film "The Secret Scripture", they will have seen what is now a hotel in Sligo but once was a psychiatric hospital that contained more than 1,000 people who supposedly needed to be there and they will see that things can change and they can change for the better.

Mr. Tim Hanly

As people said, this is a societal problem and abuse and harm needs a societal response. The health service is aware, and we are in consultation with the Department of Health in this regard, that the current policy has areas that need improvement in terms of consistency and scope. However, this needs a societal response and we need legislation setting out who needs protection and why they need protection. Further, when people are carrying out their work, they need authority and they need to be clear on their role and their responsibilities. It is a wonder that we are constrained at the moment. We have taken a step in terms of setting up a policy but we do not have legislation to back it, and that is urgently needed.

Ms Sarah Lennon

In terms of the cost of decongregation, I am happy to engage with deputy Durkan afterwards and I will provide some more information not only on costs but on the costs and benefits. Decongregation and de-institutionalisation only supports those concepts. If the Deputy is happy to invite me to meet him, I would be delighted to examine it further with him.

Deputy Bernard J. Durkan

I will. I agree with most everything else but I want to mention to Mr. Taylor that I have been down this road and have examined the barracks and the conditions therein in the past. I have also looked at the alternatives and the conditions therein, or thereout as the case may be now. It is a sad reflection on our society that we have displaced people to move them, theoretically, to a better place but left them with no place to go. That is a sad, hard fact of life. We need to address the issue because it will not go away. There are seriously vulnerable people now sleeping on the streets within reach of where we are sitting and in every other city and town in this country.

It is not acceptable and we must deal with it. I know the institutions were not satisfactory before and I was part of the visiting committees. The places some of those people are now are not very satisfactory. They are an appalling reflection of what we are as a society, what we are doing and what we propose to do. We see "remedial alternatives" that do not turn out to be as good as they looked at the beginning. The other man's grass is always greener.

Chairman

Thank you, Deputy. At our next meeting we will meet representatives of the Institute of Public Administration, the Law Reform Commission and the Secretary General of the Department of Health on this issue. Is that agreed? Agreed.

The joint committee adjourned at 11.30 a.m. until 9 a.m. on Wednesday, 11 October 2017.