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A Regulatory Framework for Adult Safeguarding

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A Regulatory Framework for Adult Safeguarding ISSUES PAPER A Regulatory Framework for Adult Safeguarding (LRC IP 18 – 2019) Issues Paper A Regulatory Framework for Adult Safeguarding (LRC IP 18 - 2019) © Law Reform Commission 2019 Styne House, Upper Hatch Street, Dublin 2, D02 DY27 T. + 353 1 637 7600 F. + 353 1 637 7601 E. [email protected] http://www.lawreform.ie ISSN 1393-3140 ISSUES PAPER: A REGULATORY FRAMEWORK FOR ADULT SAFEGUARDING About the Law Reform Commission The Law Reform Commission is an independent statutory body established by the Law Reform Commission Act 1975. The Commission’s principal role is to keep the law under review and to make proposals for reform, in particular, by recommending the enactment of legislation to clarify and modernise the law. Since it was established, the Commission has published over 200 documents (Working Papers, Consultation Papers, Issues Papers and Reports) containing proposals for law reform and these are all available at www.lawreform.ie. Most of these proposals have contributed in a significant way to the development and enactment of reforming legislation. The Commission’s role is carried out primarily under a Programme of Law Reform. The Fifth Programme of Law Reform was prepared by the Commission following broad consultation and discussion. In accordance with the 1975 Act, it was approved by the Government in March 2019 and placed before both Houses of the Oireachtas. The Commission also works on specific matters referred to it by the Attorney General under the 1975 Act. The Commission’s Access to Legislation work makes legislation in its current state (as amended rather than as enacted) more easily accessible to the public in three main outputs: the Legislation Directory, Revised Acts and the Classified List. The Legislation Directory comprises electronically searchable indexes of amendments to primary and secondary legislation and important related information. Revised Acts bring together all amendments and changes to an Act in a single text. The Commission provides online access to selected Revised Acts that were enacted before 2005 and Revised Acts are available for all Acts enacted from 2005 onwards (other than Finance and Social Welfare Acts) that have been textually amended. The Classified List is a separate list of all Acts of the Oireachtas that remain in force organised under 36 major subject-matter headings. i ISSUES PAPER: A REGULATORY FRAMEWORK FOR ADULT SAFEGUARDING Commission Members President: Ms Justice Mary Laffoy, former judge of the Supreme Court Commissioner (full-time): Raymond Byrne, BCL, LLM (NUI), Barrister-at-Law Commissioner: Donncha O’Connell, Established Professor of Law, NUI Galway Commissioner: Ms Justice Carmel Stewart, judge of the High Court Commissioner: Thomas O’Malley, Senior Lecturer in Law, NUI Galway, Barrister-at-Law iii ISSUES PAPER: A REGULATORY FRAMEWORK FOR ADULT SAFEGUARDING Commission Staff Law Reform Research Director of Research: Vacant at present Deputy Director of Research: Robert Noonan, LLB (Dubl), BCL (Oxon), PhD (Dubl) Access to Legislation Manager: Alma Clissmann, BA (Mod), LLB, Dip Eur Law (Bruges), Solicitor SLRP Project Manager: Fiona Carroll, BA (Mod), LLB, Solicitor Deputy Manager: Kate Doran, BCL, LLM (NUI), PhD (UL), Barrister-at-Law Administration Head of Administration: Bríd Rogers Executive Officers: Ger Mooney Gavin Walsh Clerical Officer: Roslyn Dalton Library and Information Services Library and Information Manager: Órla Gillen, BA, MLIS v LAW REFORM COMMISSION OF IRELAND Legal Researchers Hazel Bergin, LLB, LLM (Dubl) Leanne Caulfield, BCL, LLM (NUI) Eunice Collins, LLB (Dubl) Éire Dempsey, BCL (NUI) Liam Dempsey, BCL (NUI), LLM (QUB) James Egleston, LLB, MA (NUI) Sandra Eaton, Dip (BIHE), BA (NUI), PDip (Kings Inns), Barrister-at-Law Rachel Gaffney, BCL, LLM (NUI) Morgane Hervé, BCL (NUI), Maîtrise (Paris II), LLM (KCL) Suzanne Scott, LLB (Ling Germ) (Dubl), LLM (NUI) Principal Legal Researcher for this Issues Paper: Leanne Caulfield, BCL, LLM (NUI) vi ISSUES PAPER: A REGULATORY FRAMEWORK FOR ADULT SAFEGUARDING Table of Contents Context and Overview ...................................................................................................... 1 1. Introduction ............................................................................................................. 1 2. Positive practice and developments in adult safeguarding ..................................... 2 3. Studies on abuse and the need for adult safeguarding legislation ......................... 6 4. Legal context for adult safeguarding legislation ...................................................... 9 5. Outline of the Issues Paper.................................................................................... 11 Issue 1 Values and Principles Underpinning Adult Safeguarding ........................................ 15 1. Values and principles underpinning adult safeguarding practice in Ireland currently ........................................................................................................................ 15 2. Principles underpinning adult safeguarding in other jurisdictions ........................ 20 (a) England ....................................................................................................... 20 (b) Scotland ...................................................................................................... 20 (c) Wales .......................................................................................................... 21 3. Proposed principles to underpin adult safeguarding legislation in Ireland ........... 21 Questions for Issue 1.................................................................................................. 22 Issue 2 Defining Key Terms for Adult Safeguarding ............................................................ 23 1. Adult at risk ........................................................................................................... 23 (a) ‘Vulnerable person’ .................................................................................... 23 (b) ‘Adult at risk’ ............................................................................................... 24 2. Adult Safeguarding ................................................................................................ 26 3. Abuse ..................................................................................................................... 30 4. Harm ...................................................................................................................... 32 5. Neglect ................................................................................................................... 34 6. Capacity ................................................................................................................. 35 Questions for Issue 2.................................................................................................. 37 Issue 3 Physical, Sexual, Discriminatory and Psychological Abuse, Neglect and Deprivation of Liberty ........................................................................................................................ 39 1. Introduction ........................................................................................................... 39 2. Physical abuse ....................................................................................................... 40 3. Sexual abuse .......................................................................................................... 40 4. Discriminatory abuse ............................................................................................. 42 5. Psychological abuse ............................................................................................... 43 vii LAW REFORM COMMISSION OF IRELAND (a) Coercion ......................................................................................................44 (b) Harassment .................................................................................................44 (c) Coercive control ..........................................................................................45 6. Neglect ...................................................................................................................46 7. Deprivation of Liberty ............................................................................................48 8. Possible legal reforms to tackle abuse of at risk adults .........................................48 (a) Specific offences relating to the abuse or neglect of at risk adults.............49 (b) A duty to safeguard at risk adults ...............................................................49 (c) A duty to have a care plan in place .............................................................51 Questions for Issue 3 ..................................................................................................54 Issue 4 Financial Abuse ..................................................................................................... 55 1. Financial abuse in Ireland .......................................................................................55 2. Issues in the prevention and detection of financial abuse ....................................56 (a) Public awareness of financial abuse ............................................................57 (b) Breach of fiduciary relationships .................................................................57 (c) Undue influence ..........................................................................................58
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