Professor Amanda Phelan:

I represent Sage Advocacy, but I am also the programme director of Ireland’s only dedicated, multidisciplinary and multisectoral adult safeguarding programme, which is hosted in the school of nursing and midwifery in Trinity College Dublin. Safeguarding may be defined as, “Putting measures in place to reduce the risk of harm, promote and protect people’s human rights and their health and well-being, and empowering people to protect themselves.”

Sage Advocacy is an independent organisation, operating across Ireland to provide information, support and advocacy for older people and adults who may be at risk, be they in the community, residing in long-term care or other settings. We seek to promote social inclusion, equality and social justice in all aspects of our work. We engage with policymakers, civil society partners and media to raise awareness of systemic issues in the public interest as well as conducting research in these areas. The service provides information and support and individual case-based representative advocacy. Annually, we provide advocacy support to almost 1,500 people as well as information and support to 2,000 people.

The right of a person to have his or her voice heard and to participate in making decisions that affect him or her is a fundamental principle in a democratic society. It is a principle that can be simply stated as: nothing about you without you. For people at risk, having independent advocacy is crucial. This is the process of supporting people to make and communicate decisions and to participate in decisions about their lives, such as access to finances, accessing services, planning ahead, support when there is desire to move residence, issues relating to abuse and-or neglect, and barriers to decision-making. Consequently, our work maps to the objectives of the UN Convention on the Rights of Persons with Disability, which Ireland ratified in 2018. The work we undertake provides an important resource for individuals at risk of abuse, yet statutory advocacy support on an independent basis, despite being available in other jurisdictions, is not within Ireland’s safeguarding responses.

It is a fact of life that some adults will find themselves at risk. While thousands of adults receive care at home, with family members acting as a principal carer, more still receive care in a variety of residential care settings.

It must be acknowledged that though many caregivers discharge their responsibilities conscientiously and to the best of their abilities, this does not guarantee that the rights, will and preference of the individual are front and centre.

The pandemic is unprecedented in living memory and Sage Advocacy has observed that it has exacerbated existing safeguarding concerns while enabling new ones. This strengthens the argument to take action and we refer, based on a number of years of experience in this area, to two imperative areas. These are safeguarding legislation and attending to the deprivation of liberty. We strongly support a legislative framework to protect adults at risk from abuse. What we know from other countries that nobody is getting it completely right but the presence of legislation, such as the Care Act 2014 in the UK or Nova Scotia's Protection for Persons in Care Act 2004, as amended in 2017, are useful instruments in prevention, intervention and ongoing case management.

Abuse and neglect of vulnerable adults is significantly under-reported in Ireland due to a lack of public awareness of what constitutes abuse, cultural issues and a lack of comprehensive policy and legal safeguards to prevent the abuse of adults at risk and to protect them from abuse. Current safeguarding policies are limited, resulting in inconsistent approaches across sectors and organisations and gaps in responses from State agencies and other parties to adequately safeguard the person at risk of abuse. In the absence of primary safeguarding legislation, guidance and information is required to ensure personal sensitive information and data can be shared securely for the purposes of safeguarding a person at risk. This contrasts with the suite of legislation available for safeguarding children.

In addition, we have an obligation to address explicitly liberty protection. Everyone has the right to liberty. This means persons cannot have their liberty taken away unless it is in accordance with law. This might seem to be something that is taken for granted but our experience demonstrates blurring of lines and supports the impetus for overt robust safeguarding responses in this regard.

We wish to make a number of key points. A deprivation of liberty is defined as an oppressive restriction by a third party. People are de facto detained if they are in residential care and the building is secured, requiring residents to ask permission to leave the premises. Where a person’s liberty is being restricted, they should have access to an independent advocate to ensure their will and preference is heard. Any process to safeguard a person's liberty should apply to all people equally. Individuals who are residing in a care setting may not have made the choice to do so but are there due to a lack of a statutory right to homecare, a lack of flexible models of care to meet individual's needs, and lack of adequate homecare service provision. In supporting the case for exercise of the right to liberty by a person at risk, care should be taken to ensure that the situation of persons whose rights might be disproportionately harmed by such an exercise are fully considered and discussed with all relevant parties.

Having structures of legislation and policy are important but oversight of the process translates to its efficacy and quality, especially for the adult at risk. Observing the work of safeguarding in the UK, Sir James Munby, former president of the Court of Protection, commented on the importance of actively supporting the will, preference, values and beliefs of individuals. When judging a case a number of years ago he asked, "What good is it making someone safer if it merely makes them miserable?" Working through a human rights lens by authentically using the principles of safeguarding developed by HIQA, the Mental Health Commission and other agencies will underpin supporting each individual's will, preference, value and beliefs, regardless of physical or cognitive ability, biased influence from others or domicile.