Dr. Andrea Mulligan:

On the principles, we are trying to achieve a certain unity in terms of the principles. In the issues paper the members might have seen that we set out some of the key principles that should guide the area. These are for discussion, but they are well-established principles arising from the human rights norms in the field. I will flag some of those, and the members will find that these are quite common across jurisdictions. Within that, it is very important to have a focus on empowerment. Indeed, a great deal of safeguarding comes down to trying to protect the individuals while empowering them at the same time. There are sometimes tensions between those, but regulatory systems need to try to achieve both ends and to draw a balance between them. Empowerment is a principle, as are protection and prevention.

An important way to achieve a balance between those is to have the principle of proportionality, whereby if one is going to make an intervention to protect a person, it must be one that is necessary, proportionate to the risk to that person and that person must have the right to be involved in any decisions relating to him or her. The person must be participating in those decisions. This area involves the use of State power to protect somebody, and that can be an intrusive measure. It is therefore very important that the legislation is protecting the person's individual liberties and also makes provision for those involved in their care at the same time. Those are the types of principles we see as being central to this field. They are the ones we have built on in our colleague jurisdictions. Ms Caulfield mentioned the Scottish jurisdiction, which is one of the leaders in this area. It was very strong on the balancing of those principles, and we would have taken the lead from it.

In terms of differences, and Ms Caulfield can speak on this in more detail, I am aware there are differences in terms of the extent to which the State can intervene and the types of powers the State has, for example, powers for entry, inspection and investigation. There are decisions to be made as to how robust the State can be in intervening to protect a person.