In the wake of the Grace and Áras Attracta abuse scandals, Claire O’Sullivan looks at the gap in law protecting vulnerable adults and what’s being done to close it.
Vulnerable adults at risk of all kinds of abuse have little or no legal safeguards.
And the case that most shockingly illustrated this was the longstanding physical abuse of a mute intellectually disabled woman, known as Grace, who spent her childhood and adult life in the care of a foster family in the South East.
Last week, the High Court agreed a €6.3m settlement with the HSE over its “gross negligence” in the care of Grace who was abused for two decades at a State-funded foster home as HSE officials dithered about making her a ward of court.
But vulnerability to abuse isn’t restricted to those born with a disability.
Elderly people, people with dementia or people who lose the ability to walk or speak following a stroke, can find themselves at increased risk of psychological, financial, physical or emotional abuse and they aren’t legally protected either.
It’s estimated that 10,000 older people are mistreated or neglected each year according to the 2010 National Study of Elder Abuse and Neglect — with 6,000 cases of financial abuse.
However, unlike children, professionals aren’t obliged through mandatory reporting to report such abuse of adults if they suspect it or believe a person to be at risk.
And these cases can be notoriously awkward, with abuse often taking place at the hands of relatives or carers so it’s not difficult to imagine how some third parties baulk at getting involved.
In short, in this country, you have a legal wall of protection around you until you are 18 years but after that, you are somewhat cut adrift if you are a vulnerable adult. This dangerous gap is something that Waterford Fine Gael TD and Grace champion, John Deasy has repeatedly warned must be filled.
There isn’t an agency, aside from the gardaí, that is obliged to investigate a complaint and direct state agencies and others to provide additional support if required to the vulnerable person.
Neither is there a body setting out standards to ensure vulnerable people are protected in the first instance.
Following RTÉ’s Áras Attracta exposé, the HSE published an safeguarding policy for vulnerable adults but this is just restricted to HSE and HSE-funded disability and older people’s services including private nursing homes.
Even the HSE itself when reviewing the Áras Attracta case last year, called for their policy to be put on a statutory footing.
It noted: “The HSE’s safeguarding procedures are now being put in place and activated throughout Ireland. In order for these procedures to have teeth, however, they are required to be placed on a statutory basis. This would ensure that they are fully implemented.”
The health and safety watchdog, Hiqa has echoed these calls.
Patricia Rickard-Clarke is chair of the National Safeguarding Committee. She says HSE safeguarding policy states that vulnerable adults living in a HSE or HSE-funded service have the right to be safe and live a life free from abuse and to be treated with dignity and respect.
“However, if you have concerns about a vulnerable person living in a private domestic home, there isn’t a clear reporting pathway and you’re not under a legal obligation to report abuse.
“Furthermore, if an employee of a bank or post office suspects financial abuse of a vulnerable person in family care, there isn’t a protocol outlining what action to take and who to report to. Neither, again, is there a legal obligation to report,” she said.
Rickard-Clarke, a solicitor and former commissioner of the Law Reform Commission, believes an independent central safeguarding authority must be established that is “above the HSE” so, if required, they too can be questioned.
This authority would have a clear, proper reporting mechanism in place and a legal obligation to report the complaint to gardaí. This authority should also have the legal backing to allow the authority “to gain access to a vulnerable person” in a relative’s home or nursing home should the need arise and “reasonable access” to financial records if relevant.
“At the moment, there is nothing, and many of these abuse concerns — concerns about financial abuse — end up at the HSE safeguarding office when it really is outside their remit,” said Ms Rickard-Clarke.
Therefore, it is not surprising that Safeguarding And Advocacy for Older People (Sage), Patricia Rickard Clarke and senators of all political persuasions are backing Senator Colette Kelleher’s safeguarding bill introduced last month.
Speaking in the Seanad, Senator Kelleher said: “The Grace case highlights more than others why we need legislation like this. The case highlighted systemic and systematic failures to act to prevent abuse, conflicts of interest, poor separation of duties and responsibilities, and a lack of clarity about what to do.
“With Grace, her life and her welfare fell through all the cracks in our current system. The proposed legislation is a framework to protect people like Grace with clear definitions of abuse and obligations on those who could and would have acted. It creates an arm’s length, independent body to prevent and investigate cases of abuse and harm.
“The Adult Safeguarding Bill 2017 does two things,” she says. Part three provides for mandatory reporting where an adult has suffered abuse or harm or is at risk of suffering abuse or harm.
“Part two establishes a national adult safeguarding authority that will be required to respond effectively if significant concerns are reported. The authority will have the power to investigate, including the power to enter.
“It will also have powers to direct the HSE and others to provide additional support if required. It will also be able to appoint an independent advocate, a key protection especially endorsed by the self-advocates I met in preparing this bill.”
According to CEO of the Disability Federation of Ireland, John Dolan, who seconded the bill, “it will also have a powerful and vital element in changing mindsets about people”.
“There is a good balance of carrot and stick in the bill. Every person is vulnerable and everyone merits the dignity that the protection in the Bill would bring,” he said.
But what about preventing abuse actually taking place?
In Scotland, England, Wales and Canada, social care legislation exists to help prevent abuse of vulnerable people occurring. Vulnerable people’s needs are assessed in advance so that protective mechanisms are in place. There is nothing similar here.
Senator Kelleher’s new bill also relies heavily on the hugely important 2015 Assisted Decision Making (ADM) Capacity Act which is being commenced in phases. She describes the two bills as “dovetailing”. Central to this act is the Decision Support Service (DSS) which has yet to be put in place.
The DSS will support decision making by adults with capacity difficulties, such as intellectual disability and dementia.
In what is a major cultural change in legal and medical circles, capacity will be presumed but when it is determined that capacity isn’t there to make an important decision, the DSS will also regulate those who have been allocated, under the bill, to make decisions on the vulnerable person’s behalf.
Patricia Rickard Clarke said: “The Assisted Decision Making Act changes how capacity is assessed and will have the person participate if possible. At the moment, if you lack in one area, you are supposed to lack in all. The office of the DSS is extremely important. Anyone can make a complaint to the office and the office will supervise all allocated decision makers,” Rickard-Clarke says changes to how doctors assess a person’s decision making capacity has already been included in the HSE and Medical Council guidelines and there is “no reason why it can’t be brought into law now”.
“Focus is now on the positive, on enhancing capacity and there is a statutory presumption of capacity unless there is clear evidence to the contrary,” she said.
Sage manager, Mervyn Taylor, who also sits on the National Safeguarding Committee, says progress is being made with the ADM Act and that the Department of Health “is drawing up of codes of practice around how the health and social care aspects will work while the National Disability Authority is overseeing the drawing up of codes of practice around non health and social care e.g. enduring power of attorney, decision makers”. He anticipates the codes of practice will be completed next year.
But much attention is focussing on budget allocation as the Mental Health Commission have warned that it will need significant extra resources to ensure the Decision Support Service operates properly. The DSS is to sit within the Mental Health Commission.
Paddy Connolly, CEO of Inclusion Ireland, who also sits on the National Safeguarding Committee, has said: “If you’re only going to establish the DSS piecemeal and without the funding it requires, it will never be fully capable”.
Meanwhile, Health Minister Simon Harris, who was present last month when Senator Kelleher’s adult safeguarding bill was being introduced at second stage, said a framework of procedures is in place for vulnerable people. “But it must be noted, this is important and represents a collective failing on the part of all of us — that there is no statutory framework underpinning these policies. I agree strongly that a legislative basis must be provided for this safeguarding,” he told the Seanad.
Mr Harris welcomed Senator Kelleher’s adult safeguarding bill but said elements of it need to be “teased out” such as the relationship between the new authority and the HSE as well as the cost of the proposed services. He also said its proposed investigation powers require legal scrutiny.
The adult safeguarding bill was described by senator, senior counsel and former attorney general, Michael McDowell as a “very valuable” starting point as “the [Irish] disinclination to become involved and inclination to avoid becoming involved in messy situations where it would be difficult, for example, to sustain the necessary ingredients to a criminal investigation, form part of a background in which we find that people are left vulnerable and without any real help,” he said.
He added: “I know that the Department of Public Expenditure and Reform will probably have a fit when it sees the Bill because it will ask who is going to fund all this. Words are cheap. Apologies are cheap.
“Commissions of investigation are not cheap but they are a great way of doing nothing while other people give one time to work out where one stands on issues”
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