Wednesday 17th April 2024: The Law Reform Commission has today published its Report: A Regulatory Framework for Adult Safeguarding, which will be launched at an event at the Anantara Marker Hotel, Grand Canal Dock, Dublin 2.
The 1,000 page Report: A Regulatory Framework for Adult Safeguarding details the proposed framework for adult safeguarding. It draws from extensive research and analysis of existing domestic law and policy and a comprehensive review of adult safeguarding legislative frameworks in other jurisdictions. The Law Reform Commission (“Commission”) engaged with regulators, professional bodies, relevant government departments, human rights organisations, advocacy bodies, representative groups, and professionals across various sectors during its extensive consultation process.
The Report addresses the need for an overarching safeguarding framework in Ireland, which sets out duties and obligations to prevent and respond to harm of adults who need support to protect themselves from harm (“at-risk adults”). Statutory bodies currently have limited ability to intervene where an at-risk adult is at risk of abuse or neglect. This has been highlighted by a number of incidents over the past twenty years, including failures of care at Leas Cross, Áras Attracta, and in the ‘Grace’ case, ‘Brandon’ case and ‘Emily’ case.
Against this background, the Commission recommends the introduction of adult safeguarding legislation, underpinned by a robust, rights-based framework. The Commission has prepared two draft Bills, the Adult Safeguarding Bill 2024 and the Criminal Law (Adult Safeguarding) Bill 2024.
The Adult Safeguarding Bill 2024 aims to provide a comprehensive, cross-sectoral statutory and regulatory framework. The framework is rights-based and aims to empower at-risk adults to protect themselves from harm. It is focused on preventing and safeguarding against all forms of abuse, and would require the promotion, supervision and enforcement of high standards of adult safeguarding in Ireland.
The Commission recommends that safeguarding duties should be imposed on providers of certain services including managing their services so as to prevent harm to at-risk adults, undertaking a risk assessment and preparing an adult safeguarding statement. The Commission believes that these duties should apply to a range of service providers across various sectors including nursing homes, residential and day services for adults with disabilities, accommodation for people in the international protection process and people experiencing homelessness, and substance misuse centres.
The Commission recommends the establishment of a social work-led adult Safeguarding Body (“Safeguarding Body”) with a statutory function to promote the health, safety and welfare of at-risk adults. In addition, the Commission recommends expanding the remit of existing regulators, such as HIQA and the Mental Health Commission. The Commission believes that the Safeguarding Body should not have regulatory functions. The Safeguarding Body should provide social work-led multidisciplinary safeguarding responses using relationship-building skills to prevent harm; empower at-risk adults and, where necessary, protect them from harm.
The Commission recommends the introduction of a statutory protection for all persons who report harm of at-risk adults in good faith, and the introduction of a duty on people working in certain occupations and professions to report harm.
The Commission also recommends that the Safeguarding Body should have statutory powers to receive reports of harm of at-risk adults and to respond appropriately to safeguard at-risk adults. When necessary to assess the health, safety or welfare of at-risk adults, the Safeguarding Body should have a statutory power to enter relevant facilities. In serious cases, the Safeguarding Body should have the power to obtain a court warrant to enter a premises, including a person’s home, to assess the health, safety and welfare of an at-risk adult. It should also, in particularly serious cases, have a power to obtain a court order to remove an at-risk adult from where they are and take them to a specified safe place. These powers would be available as a last resort, where all other actions to safeguard an at-risk adult have failed, and would be subject to strict thresholds and safeguards.
The Commission also recommends amending the Domestic Violence Act 2018 to allow for barring and safety orders to be made against people who cohabit with an at-risk adult on a non-contractual basis, or on a contractual basis involving the person caring for the at-risk adult. This would help to ensure that domestic abuse perpetrated against at-risk adults can be appropriately addressed.
The Commission also believes that additional measures are needed to prevent harm to at-risk adults by other individuals, outside of the domestic abuse context. Accordingly, the Commission recommends that the courts should be able to make full, interim and emergency no-contact orders to protect at-risk adults from specific individuals in appropriate cases. The at-risk adult’s views should be considered when making applications for such orders. These proposed orders would prevent a non-cohabiting person (who is not a spouse or otherwise captured by the Domestic Violence Act 2018 regime) from contacting an at-risk adult. Similar protective orders are already available in Irish law, but not specifically in the adult safeguarding context.
Currently in Ireland, statutory access to independent advocacy services in the adult safeguarding context is limited to adults with disabilities and older people living in residential centres regulated by HIQA and adults resident in mental health services regulated by the Mental Health Commission. Adults outside of these settings are not entitled to independent advocacy services. The Commission recommends that the Government should take a consistent approach and should facilitate access to independent advocacy services for at-risk adults in all care settings. The Commission recommends that the Safeguarding Body should have a duty to facilitate, so far as reasonably possible, access to independent advocacy services for at-risk adults, including where it engages directly with an at-risk adult. The Commission recommends the introduction of a code of practice for independent advocates who provide support to at-risk adults.
To address financial abuse of at-risk adults, the Commission recommends amending existing legislation and draft regulations proposed by the Central Bank in March 2024, to impose obligations on regulated financial service providers (RFSPs) to prevent and address financial abuse of at-risk customers. To this end, the Commission recommends immunity from liability for RFSPs and their staff who act in good faith to prevent financial abuse of at-risk customers. The Commission recommends that RFSPs should be provided with a statutory power to temporarily suspend the completion of a financial transaction if they suspect financial abuse. The Commission also recommends that adult safeguarding training for staff of RFSPs, credit unions and post offices should be a legal requirement.
The Commission recommends that statutory adult safeguarding reviews should be carried out where serious abuse or neglect of an at-risk adult is known or suspected, or an at-risk adult dies and abuse or neglect is known or suspected to be a factor in their death. Such reviews should focus on the lessons to be learned to prevent further incidents and to improve the safety and quality of services rather than apportioning blame. The reviewing body could also carry out an adult safeguarding review where the above criteria are not met if it believes that material information or valuable insights could be gained. The Commission hopes that adult safeguarding reviews will remove the need for other review mechanisms (such as Commissions of Investigation) and ensure consistency because all serious adult safeguarding incidents that meet the threshold for a mandatory review would be addressed in the same manner.
The Commission believes that there should be statutory provisions for cooperation and information sharing between the Safeguarding Body and other appropriate persons or bodies when carrying out adult safeguarding functions. The Commission also makes recommendations about the regulation of professionals and occupational groups who work or have contact with at-risk adults. It recommends the introduction of post-conviction prohibition orders to prohibit persons who have been convicted of relevant offences from engaging in work or activities where they would have contact with at-risk adults. Mandatory re-vetting at specific intervals should be introduced for persons who are already subject to mandatory vetting under the National Vetting Bureau (Children and Vulnerable Persons) Act 2012.
Four new criminal offences are proposed in Chapter 19 of the Commission’s Report:
(1) an offence of intentional or reckless abuse, neglect or ill-treatment of a relevant person; (2) an offence of exposure of a relevant person to a risk of serious harm or sexual abuse; (3) an offence of coercive control of a relevant person; and (4) an offence of coercive exploitation of a relevant person. These offences would apply in relation to a specified category of at-risk adults “relevant persons”, as the criminal law needs to be clear and specific. The coercive exploitation offence would criminalise a range of coercive and exploitative behaviours such as “cuckooing” where a person befriends an at-risk adult and takes over their home to conduct illegal activities or engage in anti-social behaviour. These offences are defined in the draft Criminal Law (Adult Safeguarding) Bill 2024.
The Report will be available on the Law Reform Commission's website,
www.lawreform.ie, from 7am on Wednesday, 17th April.
The Executive Summary of the Report can be accessed through the Commission’s website www.lawreform.ie, from 7am on Wednesday, 17th April.
Plain English and easy-to-read reports will shortly be available on www.lawreform.ie.
Beidh leagan Gaeilge den achoimre fheidhmeach ar fáil go luath ar www.lawreform.ie
For further information, contact Larry Donald, Heneghan 087 2581787 or Michael Hall, Heneghan 087 3106238.
Background Notes for Editors. The Law Reform Commission is an independent statutory body whose mission is to keep the law under independent, objective, and expert review, to make recommendations for law reform, and to make current law accessible for all. The Commission strives to ensure that the Commission’s law reform publications are practical, relevant, solutions-driven and focused on the end-users of legislation. To date, the Law Reform Commission has published over 200 publications (Working Papers, Issues Papers, Consultation Papers and Reports) containing reform proposals. The majority of these proposals have influenced the drafting and content of Irish legislation.