Adult Safeguarding: Discussion (Resumed)

The purpose of this morning's meeting is to engage with officials from the Department of Health and a representative of the Institute of Public Administration in relation to the subject of adult safeguarding and issues which might be considered in the context of drafting legislation in this area. On behalf of the committee, I would like to welcome from the Department of Health, Ms Frances Spillane, assistant secretary, social care and disabilities, and Mr. Niall Redmond, principal officer, services for older people, and Ms Joanna O'Riordan from the Institute of Public Administration.

I draw the attention of witnesses 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 the 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. I also wish to advise witnesses that any submission or opening statements they have 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 of the Houses or an official either by name or in such a way as to make him or her identifiable.

I now ask Ms Frances Spillane of the Department of Health to make her opening statement.

Ms Frances Spillane

Good morning, Chairman and members of the committee. I thank the committee very much for the invitation to attend this hearing to discuss the subject of adult safeguarding. I am joined today by my colleague, Mr. Niall Redmond, principal officer, services for older people.

The safety and protection of vulnerable people is a key objective of Government and society. We already have a range of legislation and policy-based measures to that end but it is acknowledged that there are gaps in legislation and also that promoting awareness and cultural change is key to effective safeguarding.

The opportunity to consider this topic is welcome and timely for the Department of Health, which is considering, subject to Government approval, the development of a comprehensive national safeguarding policy for the health sector underpinned with appropriate legislation. This is a very broad and complex piece of work involving an extensive scoping exercise to determine the precise nature of the policy and the legislative framework that may be required to support it. It includes reviewing current practice and legislation, researching best practice internationally and wideranging consultation.

In terms of existing measures, we have seen in recent decades, within and beyond the health sector, the strengthening of policies, procedures, professional codes of practice, primary and secondary legislation to protect and safeguard our most vulnerable citizens. Health sector safeguarding of adults at risk relies both on broader legislation and codes, including the criminal justice system and health sector specific provisions.

The range of protections for adults at risk in existing legislation include: the National Vetting Bureau (Children and Vulnerable Persons) Act 2012; the Protected Disclosures Act 2014; the Criminal Justice (Withholding of Information on Offences Against Children and Vulnerable Persons) Act 2012; financial and consumer protection legislation; domestic violence and family law legislation; Irish criminal law, including specified sexual offences in respect of protected persons; and a number of Acts relating to equality, anti-discrimination and social inclusion such as the Equal Status and Equality Acts and the Disability Act 2005.

The Assisted Decision-Making (Capacity) Act 2015 is a very important Act in terms of protecting vulnerable adults. It provides a detailed statutory framework for individuals to be assisted and supported in making decisions about their welfare and their property and affairs.

The Act is a game-changer in terms of safeguarding, both by maximising individuals' control over their own lives and through a range of robust provisions to protect vulnerable people against exploitation and abuse.

Within the health sector, a number of important steps have been taken in recent years to strengthen the protection of recipients of health services, including vulnerable adults. Relevant legislation in the health sector includes: the Mental Health Act 2001; the statutory complaints provisions in Part 9 of the Health Act 2004 and related regulations; by-laws on codes of professional conduct and ethics for a wide range of regulated health professions, which require relevant professionals to prioritise the safeguarding of children or other vulnerable people; the Health Act 2007, which established the Health Information and Quality Authority, HIQA, and regulations made under that Act setting standards in residential centres for older people and for children and adults with disabilities.

The HSE published its national safeguarding policy and procedures in December 2014. The HSE has established a number of structures to implement this policy, including a national safeguarding office, a national safeguarding committee, safeguarding teams, the appointment of designated officers across disability and older persons' services, and the training of over 30,000 staff. A detailed review of the operation of the HSE’s safeguarding policy to date is at an advanced stage, and is expected to be completed by early 2018. The findings of the review, when completed, will be of particular value in informing the development of appropriate policy approaches, and in the preparation of safeguarding legislation by the Department of Health.

As members are aware, Senator Colette Kelleher brought forward the Adult Safeguarding Bill 2017 during Private Members' time in the Seanad on 5 April and the Bill has passed Second Stage. The Bill includes the establishment of an independent national adult safeguarding authority, provision of independent advocates, and mandatory reporting by a wide range of persons of abuse or risk of abuse to vulnerable adults. The Minister for Health, Deputy Simon Harris, broadly welcomed the intentions behind the proposed legislation during the Seanad debate, but noted that significant work would be required to bring forward appropriate legislation in the area.

The development, subject to Government approval, of a comprehensive health policy on safeguarding adults at risk and associated legislation, informed by the forthcoming HSE review and consultation with stakeholders and the public at large, would be a major step forward. To that end, the Department of Health is currently researching best practice including international models, together with the HSE. We are also consulting with colleagues in the Department of Children and Youth Affairs, as we can learn a lot from their experience in the development of policy and legislation on child protection services. We want to work directly with the national safeguarding committee and HIQA to develop our proposals. In addition, we are in the process of identifying gaps in current legislation, with a view to commissioning research from the Law Reform Commission to assist in informing the process.

Of necessity, the preparation of detailed legislative proposals will take some time, and it is important that such proposals are built on the foundations of a clear, carefully considered, coherent and actionable policy. However, we are aiming to submit preliminary proposals to Government outlining our high-level approach in November. We are also exploring a suitable approach to engage the public and the views and inputs of citizens regarding improvements to the current system. The Department would also welcome continued engagement with Senator Kelleher in the development of national policy and legislation in this context. Thank you, Chairman. We are happy to answer any questions.

Thank you very much, Ms Spillane. I now call Ms Joanna O'Riordan of the Institute of Public Administration to make her opening statement.

Ms Joanna O'Riordan

Good morning, Chairman and members of the committee. In June of this year, Senator Colette Kelleher commissioned the Institute of Public Administration, IPA, to prepare a research paper looking at the organisational and governance options in respect of the establishment of the national adult safeguarding authority. I will confine my comments to the substantive issue of how Cosáint, which is the working title for the national adult safeguarding authority, could be established.

The paper I wrote for Senator Kelleher provides a short background to the approach in Ireland to the need for new public functions or services, and then reviews the most likely options in respect of Cosáint. There has been criticism of the proliferation of agencies across Organisation for Economic Co-operation and Development ,OECD, countries in the past, and many countries have engaged in agency rationalisation. However, in its review of the Irish public service, the OECD comments that agencies are not good or bad per se. What matters is why they were created and how they are governed.

In recent years the number of Irish agencies has declined. Where new agencies are created, it is in a more regulated environment which includes the use of performance frameworks between agencies and their parent Department. International experience indicates that there is no one way which is best in carrying out new public service functions, rather there is a need to review the proposed services in the light of a range of objective criteria.

My report assesses the advantages and disadvantages of four possible arrangements for establishing the new adult safeguarding authority. Of the four, the incorporation of the authority into the HSE would be problematic. From a governance perspective, difficulties arise where an organisation is both a provider and the regulator of services. It is important that Cosáint be perceived by users of services to be impartial and independent.

The second option, establishing Cosáint as an executive office of the Department of Health, has some merit. Executive offices allow for independent branding of a service, facilitate interdepartmental working and have a degree of independence, for example, in staffing. It is probable that an executive office could fulfil admirably the education, training and public awareness functions of the proposed authority. However, the issue of independence would arise again. The proposed authority will be required to investigate reports of abuse or harm and direct the HSE and others to act. Questions remain as to how an executive office would be independent if it was not legally separate from the Civil Service and if its chief executive would report to the Secretary General of the Department.

The two remaining options are establishing Cosáint as a completely new agency or amalgamating its functions with those of an existing agency, the most realistic options being the Health Information and Quality Authority, HIQA, or the Mental Health Commission, both of which operate in the same regulatory space. Notwithstanding the Government's general policy to rationalise agency numbers, research conducted by the IPA shows that 11 completely new agencies have been established since 2010. This reflects the fact, as my colleague Dr. Richard Boyle put it, that "agencies are often established for good reasons" and "focusing the debate simply on the number of agencies is unhelpful." It is more pertinent to have objective criteria for agency creation and systematic policy on performance management. In 2011 the Government agreed to a series of guiding principles for agency rationalisation and reform. The full list of principles which reflect good practice internationally is included in my report. However, it is important to highlight that the guidelines acknowledge that a separate body may be required if specialist skills are needed or where independence in the performance of functions requires functional separation from Departments.

Amalgamation with another agency is also a possibility. In the case of the Mental Health Commission, it has already been determined that it will have responsibility for the assisted decision-making support service, which might preclude further expansion. It is possible that Cosáint could be incorporated into HIQA. There are parallels between the proposed authority and HIQA in that both have statutory responsibilities for the protection of vulnerable citizens and both have a role in promoting standards and providing information. The Government's guidelines for agency rationalisation indicate that the merging and restructuring of bodies should have a clear and demonstrable benefit in delivering greater democratic control, providing for improved service delivery and-or financial savings. In other words, there should be a strategic imperative for a merger, rather than simply a desire to reduce agency numbers.

My paper sets out the advantages and disadvantages of the most likely institutional and governance options for Cosáint. All of the options will require more detailed consideration and assessment before coming to a final decision. Regardless of the option chosen, there will be a cost and a period of very intensive work for those involved. Acceptance of the cost is a political decision that will have to be set against the benefits of the proposed authority and its work.

I thank Ms O'Riordan. I will now open the discussion to members.

I thank the delegates for their presentations. In a session last week we heard from the National Safeguarding Committee, the Support and Advocacy Service and the HSE. It is important to capture the reason we are discussing the legislation. Almost 8,000 cases of suspected adult abuse were reported to the HSE in 2016.

The National Centre for the Protection of Older People at UCD estimates that 32,000 people over the age of 65 were mistreated last year, so it is important to always remember why we are looking at this area. According to a RED C poll, a third of people think abuse of vulnerable adults is widespread, and I think the numbers reported to the HSE are probably the tip of an iceberg. There was strong consensus among the witnesses last week on the need not only for adult safeguarding policy, but for legislation, with the gap in the legislative framework universally highlighted. For example, in his opening statement, Mr. Pat Healy of the HSE noted that "there is now a strong expectation on legislators, policy makers and service providers to take adequate measures to combat abuse.". He pointed out that the current constraints to the HSE, such as the inability to enter nursing homes as being a clear gap, and he went on to say that a statutory framework is needed. Ms Patricia Rickard-Clarke noted the urgent requirement for adult safeguarding to be placed on a statutory footing. Mr. Mervyn Taylor, representing the citizens, talked about the need for law, particularly the importance of independence in any safeguarding mechanisms, and emphasised the importance of the independent advocates.

We now have a Bill that is progressing through the Seanad. It was interesting to note that the HSE highlighted the need for an easy-to-understand definition, which I believe we have in the Adult Safeguarding Bill 2017. Sage highlighted the need for an independent national safeguarding service, which is also in the Bill, and the independent advocates and the national safeguarding committee highlighted the need for mandatory reporting, which is another feature of it. The national safeguarding committee also stated that the responsibility for the legislation should lie with the Department of Health, but there was a strong interest from other Departments, including the Department of Justice and Equality.

I will now ask a few questions of the Department of Health. Is the Department of the view that there is a need for legal framework? Would witnesses from the Department concur with those from last week that there are gaps in the legislation? Moreover, do the witnesses view the Department of Health as being the lead Department on this issue and how do they propose to work with other interested Departments? Assuming that the witnesses are in agreement with the enactment of such legislation, how do they envisage their responsibilities? The witnesses mentioned proposals coming to Government in November. Could they give us an outline of those?

I now address the witnesses from the Institute of Public Administration. The key issue in any mechanism is independence. From the work that the witnesses have done, how can that be ensured in any mechanisms that are put in place for the citizen?

Thank you very much, Senator Kelleher. Perhaps we might deal with those questions directly.

Ms Frances Spillane

Thank you, Chairman. Senator Kelleher asked if the Department agrees that there is a need for a legal framework. Yes, that would be the case. In my opening statement, I explained that we accept that this is a very complex area, so our preference would be to pursue legislation for the health sector initially, as distinct from legislation for all areas. We have consulted with other Departments on members' proposals in the Bill, and we can expand on the comments we have got from other Departments.

The Senator mentioned proposals being brought to Government. We have had an initial discussion with the Minister about this, but we will need to talk to him again in more detail. Expanding on our current thinking, we see the possibility of providing legislation setting out that safeguarding is very much a part of good corporate governance.

In this way we would build on the HSE's adult safeguarding policy, and equally its review of this policy.

We would also build on the experience in the area of children. We have looked at the Children First Act 2015 because we felt there were aspects of that which were very relevant. It provides for some very positive measures, including the preparation of guidelines by the Minister and the requirement that providers ensure that children are safe from harm while availing of the service; in other words, a statutory duty to safeguard. We see a lot of advantages, in terms of changing the culture and raising awareness, to a statutory duty to safeguard vulnerable adults, something that is not there at the moment. The Children First Act provides for risk assessment by each service provider, and the preparation of child safeguarding statements. Again, we feel that these are measures that could translate to legislation for safeguarding adults.

There have been discussions on monitoring compliance. Our view is that if a governance obligation on entities is introduced, HIQA could monitor it as part of the inspection and quality assurance work it does in visiting facilities regularly. We also consider it important to distinguish between vulnerable adults in residential care, and vulnerable adults in their own homes or living with relatives. HIQA is already inspecting both public and private nursing homes for older people and disability centres for children and adults. That is already in place on a statutory basis.

The Government has already committed to introducing a new funding scheme for, and regulation of, both private and statutory home care services. A public consultation was launched in early July, and we received over 2,600 submissions to that consultation by the deadline of 2 October.

We also feel that health professionals, including GPs and public health nurses, are a resource in identifying potential abuse of vulnerable adults living in the community. When I talk about regulation of home care, I am talking about home care services provided by either the HSE or private providers. This would be undertaken with a view to protecting vulnerable adults in their own home.

The question of reporting arrangements is particularly complex. In the area of children, mandatory reporting of child abuse was first recommended in the Kilkenny incest case report in 1993. This was followed by a discussion document on mandatory reporting of child abuse in 1996. The Children First National Guidelines for the Protection and Welfare of Children were issued in 1999, providing detailed guidance on definitions of abuse and reporting arrangements. The guidelines effectively provided for administrative mandatory reporting, so that all health professionals, for example, were under an obligation to report any cases of child abuse that they came across in their work. This extended across the health services, including in respect of people in hospitals and all other areas. The guidelines were in place for a good 11 years, and were then revised by the Department of Children and Youth Affairs in July 2011. This was followed in April 2012 by the publication by the Minister of the heads of the Children First Bill. The Children First Bill was published in April 2014 and signed into law in November 2015. The Act provides for mandatory reporting of child abuse, and is due to come into operation shortly.

I thought it would be helpful to outline that timeline for the committee, to show how long it has taken to move from the Child Care Act 1991 to the situation today, where we are about to introduce mandatory reporting. From the time of the Kilkenny incest report in 1993, approximately 22 years have passed. Experience of the development of practice and awareness in child protection services has influenced our thinking on the similar work that needs to be done in the area of adult safeguarding.

It may be seen from the timeline that the development of child protection practice policy and legislative proposals has taken many years, and the question of mandatory reporting is still quite controversial. Our view, subject to Government approval, is that we should await the experience of mandatory reporting in child care services before introducing any such requirement for reporting in regard to vulnerable adults. It is important to note there has not been the same focus on elder abuse procedures and practice. Public education and awareness-raising is also essential.

To come back to the Assisted Decision-Making (Capacity) Act, we feel that is very important in terms of awareness-raising. A director has recently been appointed and funding of €3 million has been provided in the budget for setting up the decision support service and an important part of the role of the decision support service is to promote awareness of the Act. The Act is all about helping older people to make decisions themselves and provide them with support in making those decisions.

At last week's meeting of the committee, the chair of the national safeguarding committee, Ms Patricia Rickard-Clarke, noted that the question of mandatory or voluntary reporting needs huge concentration in terms of what is appropriate. Looking at other jurisdictions' mandatory reporting systems does not necessarily work. That is an outline of our thinking at the moment.

Thank you very much, Ms Spillane. I now call Ms Joanna O'Riordan.

Ms Joanna O'Riordan

Senator Kelleher asked about the issue of independence and how that can best be guaranteed. The proposed authority will be required to investigate reports of abuse or harm, and direct the HSE and others to act. It is important that the authority is legally separate from the Civil Service. It must not just be independent but it must also be perceived by citizens as independent. To go back to the Government guidelines on agency rationalisation and restructuring, they recognise that a separate body is required where there is a need for this independence in the delivery of functions of a service. That means that a separate agency or incorporating the safeguarding authority into an existing agency is the most likely option. I do not think that incorporating it into the HSE or having it as part of a Government Department can guarantee the independence that is needed.

Thank you, Ms O'Riordan. I call Senator Colm Burke.

I would like to thank Ms O'Riordan very much for the presentation and the work she and her colleagues are doing in this area. Last week we discussed this whole area of forward planning. We still do not seem to have gotten the message out there about the need for forward planning. I am coming from a legal background. What we find helpful are enduring powers of attorney, and having people sign them. The problem is that on too many occasions we are ending up with complications with people who have nothing done. We then have to try to sort out the details of how we should manage the person's affairs. Another problem is who is in charge, and from whom do we get instructions. Has the Department considered highlighting this need for thinking ahead? I know the witness talked about €3 million being set aside in one particular area, but there is much forward planning that people can do. We just do not seem to have gotten that message out there.

We are finding that people are living longer now. I have come across a number of cases recently where dementia or Alzheimer's disease has suddenly set in and there is no forward plan. In other cases, as a result of meeting people about other issues over the last three to four years, we have been able to get people to sign enduring powers of attorney. This has been extremely helpful. Would the Department consider keeping that in mind, that is, trying to highlight how people can avoid difficulties in the future?

The other issue I want to raise is the fact 11 agencies have been created since 2010. The issue of separate agencies is that it can cause its own problems. I raised this recently in relation to HIQA identifying inadequacies in care for people with intellectual disability. I am referring in particular to respite care. We now have a scenario where a lot of respite care facilities that were available are no longer available because HIQA has issues with, or has made decisions in respect of, these facilities but has not identified alternatives. While we might solve a problem in one area, we now have created a huge problem in another area. I know of quite a number of families who have children, or rather young adults who are now 18, 19 or 20 years of age, who cannot get access to respite care.

If the Government is to set up a new agency in this area, we need to look at the consequences if decisions are made. Its role may be quite clear-cut and its attitude may be that it is not its responsibility to identify the solution but only to deal with the problem as it arises. I am a bit concerned that there may be too many agencies. What is the witnesses' view on incorporating it into HIQA? There needs to be far more co-operation in regard to withdrawing a particular service, because it does not meet standards, when there is no obligation to identify a solution. It is something we need to keep in mind.

Thank you very much, Senator Burke. Would you like to make some comments on that, Ms Spillane?

Ms Frances Spillane

I will defer to Ms O'Riordan.

Ms Joanna O'Riordan

My paper examined what has happened recently in Ireland when a need for a new service is identified as well as the international experience when a need for a new service is identified. Certainly, more research is required into where best the national safeguarding authority might sit. One would need to look at the cost of incorporating it into HIQA, its organisational capacity and its structures. There is a range of issues that one would need to research in more detail before identifying which is the best home for it. I agree with Senator Colm Burke that if a service's shortcomings are identified or if a service is lacking, it creates problems for people. However, one cannot keep a service open in that two wrongs do not make a right. It is beyond my area of expertise but the Senator identified an important point, particularly where resources are lacking. In respect of what my paper addressed, more research will be needed to assess which option is best for the national safeguarding authority.

Thank you very much, Ms O'Riordan. I will now ask a few questions-----

Could we go back to the issue, which arises, where a problem is identified in a service? An agency might identify the problem but there is no co-operation before the service is cut, and in terms of an alternative replacement for it being identified. That is what I am concerned about, and the issue is beginning to grow. There are clearly defined lines in terms of the role of agencies, with the result that one is creating more problems than one is sorting out. I am concerned about that.

In regard to the agency, evidence provided last week showed that almost 8,000 cases of suspected adult abuse were reported to the HSE, and the National Centre for the Protection of Older People estimated that there were 32,000 people over the age of 65 who were mistreated last year. That is a huge volume of work to be placed on an existing agency. I am sure HIQA is stretched to the limit of its capacity at the moment and to have that volume of work placed upon it would be very difficult. Perhaps the witnesses might comment on that. Do the witnesses think that mandatory reporting, if that is the way the legislation goes, will slow its progress? Mandatory reporting in regard to children presents a huge difficulty in terms of historical reporting. A GP may get information from patients of child abuse going back many years, and to place a mandatory reporting obligation in that regard would be very difficult. That may also be the case in regard to reporting adult abuse. Will the witnesses comment on whether mandatory reporting will slow the whole process up?

Ms Joanna O'Riordan

On the question of HIQA and its resources, absolutely, further research will need to be done. If HIQA is given a new service that it has to deliver, it will need to be given new resources commensurate with the new responsibilities.

We would need to look at its existing organisational arrangements, organisational capacity, governance, the capacity of its board and consultation and co-operation with other bodies and at logistics around accommodation. As I said, extensive further research would be required before a decision could be made to give this new proposed service to an existing agency, most likely HIQA. That would need to be weighed against whether it would be better to establish it as a separate authority. There are examples of services being merged into existing public services within the local government sector and the resources going with them. The Radiological Protection Institute of Ireland merging into the Environmental Protection Agency, EPA, would be an example. There is practice and learning around agencies taking on new services. However, there is more research required. The area of mandatory reporting and safeguarding is not my area of expertise. Perhaps Mr. Redmond can comment.

Mr. Niall Redmond

In regard to the authority, it is a big question in terms of whether to have a wholly separate and new authority or whether to amalgamate some functions in relation to safeguarding into an existing authority. Ms O'Riordan's paper sets out a really good foundation for further research in that regard. We have to be mindful of the cost of a new agency versus the cost of amalgamating functions into an existing agency. There is going to be a high cost one way or another. Probably what works best and what is most efficient will certainly be part of the thinking on this. To give an example, Tusla, which would have reasonably similar functions and powers in the child sphere compared to what one would have in the adult sphere, has an annual budget of over €700 million. That is a very substantial cost. There are approximately 1,500 social care workers employed by Tusla. We spoke a lot about HIQA, and indeed the HSE. Something that was raised with us, as part of our consultations with other Departments, was that maybe Tusla was an organisation worth looking at in terms of expanding its functions, given that it has investigative functions that HIQA, in terms of individual cases, generally does not have. That is an interesting point worth further consideration.

I would like to touch on a point that Senator Colm Burke mentioned on striking a balance between ensuring the safety of services versus the continuation of services. That is an important point. We have to be mindful that we have to protect people and ensure they are in a safe environment. That is paramount. However, there is much to be said for ensuring close co-operation, whether that is through policies and procedures and memorandums of understanding, or through some legislative provision, to ensure authorities are working together in regard to decisions that are made. Whether we are looking at a new authority or an existing authority, in terms of expanding and putting out legislative provisions on safeguarding, there would have to be a lead-in time for service providers to get their houses in order, if that is needed. That may not be the case in all instances of course, but that lead-in time would be important.

Ms Frances Spillane

In response to Senator Colm Burke's questions, HIQA is the independent regulator so it operates very independently. It has regulations and standards which it applies, and it applies those standards in an objective manner. That is the advantage of having an independent regulator in the social care area. That can have knock-on effects in terms of services and we have seen that in both the nursing home and disability centre areas over the past number of years. It involves huge change for service providers and for people working in the services as well in terms of getting used to the independent inspection and regulation.

Huge advances have been made in that area in terms of satisfying the public as to the high standards available in centres. People can look up the Internet very easily to see what kind of report a nursing home has received, and people do that all the time in terms of trying to make decisions.

The second issue mentioned was about enduring power of attorney and the lack of forward planning. Again, that is something that is dealt with in the Assisted Decision-Making (Capacity) Act, so it is more a matter for the Department of Justice and Equality. However, just for the information of the committee, the Act provides for new arrangements. As I understand it, enduring power of attorney is covered under a 1996 Act at the moment, so all the enduring powers of attorney under that Act will continue. However, the Assisted Decision-Making (Capacity) Act provides for new arrangements. The idea is that people should plan ahead, especially as people are living much longer. They should make their arrangements for enduring power of attorney which then kicks in at a stage when they lack capacity and when the big decisions are needed. That is where I hope and I would expect that the decision support service would be very active in trying to publicise all that. Equally, the national safeguarding committee has been good in terms of raising awareness of these issues but I would agree that planning for the future is an area in which Irish people are not particularly proactive. Interestingly, in the Assisted Decision-Making (Capacity) Act, there is a provision for advanced health care directives, which is the same sort of thinking in terms of future important health care decisions. Again, we are going to need much education of the public and awareness-raising about that important area.

What about mandatory reporting as opposed to voluntary reporting?

Ms Frances Spillane

Sorry, Chairman. I would have concerns that if we were to introduce mandatory reporting from day one, it could be very difficult. There are issues about the threshold for reporting that come to the fore with management reporting. One has to be extremely precise as to what is the threshold for this compulsory reporting. That has been an issue in the area of children, so in fact the bar, as I understand it, has been set quite high in terms of mandatory reporting. There is experience from other jurisdictions in the area of children, and Senator Kelleher is aware of this. One can get caught up in the administration, reporting, filling in of forms and all that, so one has to be very careful to come up with something pragmatic.

When I talked about the guidelines in the area of children, another option would be to have very clear guidelines and to try to explain to people when they should report. That is an area where we do not have as much experience and it is something that is going to come through from the review of safeguarding that the HSE is doing. I think it will be very helpful to us.

Thank you very much, Ms Spillane. I call Senator Kelleher.

I want to summarise for my own benefit that the policy lead is currently sitting with the Department of Health, that the proposals being worked on are around a more health-focused form of adult safeguarding, that it is accepted that there is a wider societal issue but that the focus is on health initially, that mandatory reporting needs to be teased out and that mandatory reporting is neither good nor bad as it is, a bit like the independent agency, in that it is how it is done and that that is an outstanding issue that needs to be looked at a little bit further. I am a little bit alarmed at the timetable set out from 1993 to now for certain aspects of mandatory reporting or child protection legislation. I would be concerned that we are taking that as a recommendation. Surely we recognise that there is urgency. The Department has identified that there are legislative gaps, that it is the lead Department, that it is going to be health focused and that there are issues like mandatory reporting, an area that needs to be further explored. Would the Department accept that there is an urgency in terms of people being harmed today?

I prefer the term "adult at risk of harm" rather than "vulnerable adult". Would the Department accept that given that 8,000 cases were reported to the HSE, and that 32,000 people over the age of 65 were mistreated last year, there is urgency around this and that we cannot really wait 24 years to see this put in place? I presume that was not what Ms Spillane was suggesting. I am interested in her sense of urgency and what kind of timetable there might be, given that there are some issues that need to be explored. The HSE has done much of the work, and I read the reviews Dr. Sarah Donnelly did. I do not think that needs to delay us because the work is there.

Ms Frances Spillane

I thank Senator Kelleher. To answer the points made, yes, it is correct that our view is that we should focus on health initially. However, we accept, of course, that there are implications for other Departments, and, if the Senator wishes, we can outline some of the comments that we received from other Departments when we circulate the Senator's Private Members' Bill. The Department also accepts fully that this is an urgent matter and that is why we will be bringing a memo to Government by the end of November. We accept fully, from the experience of Sage and the HSE, that there are problems and that this needs to be tackled. I am sorry if I gave the impression in setting out the long period of time for child protection that we should spend that long in terms of adults. It took a very long time for that decision to be taken in terms of development of policy. I was involved in that at the time. Discussion papers were issued and there was much discussion, but action was not taken for a very long time. It is quite a big thing to put a statutory obligation on people to report a risk of abuse. It needs a lot of preparation and it took a huge amount of time. It will be very interesting to see how this works out in the area of children. I accept fully that this is a very urgent matter, and that is why we are prioritising this. We have assigned additional resources to this work within Mr. Redmond's unit. We fully accept that this is an urgent matter.

Thank you. Are there any other issues that Senator Kelleher wishes to raise?

No. I would be interested to see the comments from the other Departments, but we can do that outside of the committee. My background is as a social worker. I have also been responsible for large services at the Alzheimer Society of Ireland and the Cope Foundation, so I have had multiple experiences and I am very persuaded of the urgent need for this legislation. I think we can move swiftly on it if there is the will. The last piece is the importance of independence. I think that is going to be critical, particularly in regard to the HSE which has a lot of responsibilities. It is a provider of services and it is now in this policy role, and in a role of adult protection as well. It is more than it can continue with in terms of its capacity. I think Mr. Pat Healy from the HSE outlined that clearly last week. We need to look at alternative arrangements around the mechanisms and I think Ms O'Riordan's paper has given us a good start.

Thank you, Senator Kelleher. I call Deputy Durkan.

Chairman, I apologise for arriving late. I was two and a half hours on the road this morning, it was just one of those days that traffic would not move. I would like to compliment the witnesses on their papers. The number of people who may be vulnerable seems to be growing, depending on their particular location. Some may live in their own homes, some may live in institutions and some may be dependent on care on an ongoing basis, which may not be available for a variety of reasons. I know the witnesses attempted to cover that.

What I would be most anxious to know is the extent to which a person who might be vulnerable - a child, an older person, or whoever - can get ready and rapid access to support when and if required. It is of huge importance, first of all, that the person is believed and is not dismissed and that there is a help service available to them and that they can rely on that. As we have said previously when discussing this issue, there is a variety of situations, which I do not propose to go into at this moment, where it is important to have a rapid response, or a response at the end of a phone line, or that within the institution concerned, there is a dedicated person to go to who can say to the older person, "We acknowledge your situation, and we can do something about it".

Thank you, Deputy Durkan. I call Deputy O'Connell.

I thank all those present for coming in. Like Deputy Durkan, I was stuck in a the car for hours this morning.

I welcome the work that Senator Kelleher has done on this. In anything we do to safeguard vulnerable people from abuse, or from people taking advantage of them, I suggest that we constantly review our practices. Where there are gaps, people will obviously take advantage; people are in the business of taking advantage. Anything we do must be constantly subject to review to make sure that there are not people taking advantage of situations. Again, I compliment Senator Kelleher on her work so far in this area. She has my full support.

I call Mr. Niall Redmond.

Mr. Niall Redmond

In regard to Deputy Durkan's comments, he is quite right about the importance of rapid access to somebody who is appropriately trained to identify problems as they arise, and more importantly to identify solutions to those problems. I know from the discussion here last week that the HSE has trained up to 30,000 of its staff in safeguarding, something which we welcome. The suggestion of having a designated person or an officer within an institution, a service provider, a nursing home or whatever it might be is worth exploring, particularly for that sort of rapid access, whether in a nursing home or wherever. One would know the person to whom one could bring an issue and who can respond to it. That is something that would be key.

I raise another issue which is a provision in the Bill, namely, the provision of independent advocates to represent vulnerable people who cannot represent themselves. Have the witnesses any comments on how they would be provided, who they would be, or how they would be identified?

Ms Frances Spillane

As I understand it, Sage is providing a very good advocacy service at present. It has been funded by the Atlantic Philanthropies and the HSE, and a lot of the advocates are very highly trained professionals. In some cases, they are retired people, and they provide a very good advocacy service. However, I think advocacy is an area that is still in development in Ireland. The Assisted Decision-Making (Capacity) Act 2015 has a reference to advocacy, and it is proposed that, under the Act, codes of practice will be prepared in regard to advocacy services. It is an evolving area at the moment, but certainly there are huge advantages to having advocates working in this area, perhaps more so than expecting a parallel process to what has happened in child protection. Some of the comments that we got from other Departments suggested that approach as well; that of training front-line people who are likely to come across instances of adults at risk, who are vigilant and who have a duty to report, which is the way it went with the guidelines in the child protection area. We will already have all of the interveners under the Assisted Decision-Making (Capacity) Act 2015 to help older people, or people without capacity to take decisions, or people who are in danger of losing capacity. Equally, I think advocates would play a huge role in helping older people to make sure that their concerns are conveyed properly.

It may be the case that somebody is having difficulty communicating, or that he or she does not know where to go to make the complaint. Yes, I see advocates as a very important component, but it is not an area in which I have a huge background. I know that the Department of Employment Affairs and Social Protection has an advocacy service, and that is something we are researching at the moment.

Is this on a statutory basis?

Ms Frances Spillane

The social protection service is provided for in legislation, but the legislation was not commenced. That is something we would want to look at. It depends on what one means by the advocacy service; if it is going to be run by volunteers, then that is very positive in that it does not have a cost. There are lots of people taking early retirement who would be very interested in becoming advocates, and that has been the experience of Sage. However, all that has to be thought through in terms of developing policy. That was one of the points we were trying to make in general; the first step is to develop policy, and then one does legislation, usually. There is not a clear policy on advocacy services from what I have seen. I note that the Department of Justice and Equality has a role, as well as the Department of Employment Affairs and Social Protection.

Thank you very much. On behalf of the committee, I thank Ms Frances Spillane, Mr. Niall Redmond and Ms Joanna O'Riordan for coming in and for giving their time and expert opinions on this important matter.

The joint committee adjourned at 10.27 a.m. until 9 a.m. on Wednesday, 18 October 2017.