Committee Secretariat

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PAC32-R-12 B Meeting 7/7/2016

DG Ref: 394154

25thApril 2016

Ms. Margaret Falsey,

Committee Secretariat,

Committee of Public Accounts,

Leinster House,

Dublin 2.

Dear Ms. Falsey,

I refer to recent correspondence from the Committee to Mr. Tony O’Brien, Director General in respect of follow up issues from our attendance at the Committee.

I attach below responses to the issuesin the correspondence.

Issue 1 – A note on the legal advice received regarding the ending of residential care arrangements of an adult.

The European Court of Human Rights in the case of O’Keeffe –v- Ireland, in January 2014, held that there was a positive obligation on States who are parties to the European Convention on Human Rights to ensure that there are protective measures in place for children and other vulnerable persons which should include reasonable steps to prevent ill-treatment of which authorities had or ought to have had knowledge.

In the case of children, Section 3 of the Childcare Act 1991 provides:

“(1) It shall be a function of every health board to promote the welfare of children in itsarea who are not receiving adequate care and protection.

It is pursuant to the provisions of Section 3 of the Childcare Act 1991 that TUSLA, the Child and Family Agency, has the power to investigate allegations of abuse which are brought to its attention, and, where it has found such allegations to be true, to make such applications to the District Court as it deems necessary. Such applications may include applications to take the child concerned into care and remove the child from the care arrangements where the child is at risk.

In exercising its statutory powers under Section 3 of the Childcare Act, TUSLA will seek information from various parties in order to investigate the allegations of abuse, conduct interviews, prepare a report on its findings, and notify others who may be at risk of any concerns it may have.

The Oireachtas has not, to date, bestowed on any organisation within the State statutory powers similar to Section 3 of the Childcare Act. The Oireachtas has not empowered any entity within the State, other than An Garda Síochána, with powers of investigation to inquire into allegations of abuse in respect of vulnerable persons over the age of eighteen. The Oireachtas has not empowered any entity to take such steps as would be deemed necessary to remove vulnerable persons from situations in which they may be at risk, regardless of the level or risk to which that person might be exposed.

Clearly, as provided for in the judgment of the European Court of Human Rights in O’Keeffe –v- Ireland, there is a positive obligation on the State to enact measures to protect vulnerable adults from ill-treatment. Those positive measures would include powers of investigation, powers to notify others of findings from such investigations, and powers to remove vulnerable persons from situations in which they may be at risk. Although the Oireachtas has enacted measures to put such protections in place for those under the age of eighteen, it has not enacted any similar measures to empower the HSE or any other entity to deal appropriately with situations where there have been allegations of abuse concerning a vulnerable adult.

Obviously An Garda Síochána have powers of investigation for the purposes of pursing a criminal matter and with the ultimate aim of securing a prosecution where a criminal offence has been committed. An Garda Síochána may obtain significant evidence which would assist in proving that serious abuse towards a vulnerable adult had occurred. But it may not be in a position to share that information with other vulnerable persons, their families, or the HSE pending criminal proceedings.

In effect there is an absence of legislation to empower any entity from taking such steps as may be necessary to protect vulnerable persons when allegations of abuse arise. The European Court of Human Rights has determined that there is a responsibility on the State to put protective measures in place, but the State has not empowered any entity to invoke those protective measures.

Although the HSE has the power to remove an individual that it has placed in a care setting, the HSE has no visibility or statutory powers to prevent placements which may be arranged privately. A family may make a private arrangement with a neighbour or another family member to care for a vulnerable person. Such arrangements may be as casual as a once off arrangement or may be something more permanent. There are no regulations that govern such arrangements and no regulatory body with powers to oversee the standard of care that may be provided under such arrangements. Certainly, the HSE has not been empowered with any statutory functions to monitor or regulate such arrangements.

Furthermore, no entity in the State has been empowered with a statutory function or power to prevent such arrangements from continuing where the standards of care for that vulnerable person are inadequate. In the absence of any statutory power or authority to direct such private placements to cease, where the HSE has concerns as to the care that may be provided to a vulnerable adult or risks to which that vulnerable adult may be exposed, the HSE will use its best endeavours to persuade those involved that the arrangement should cease. The HSE has no power to direct that such arrangements must be brought to an end.

The local HSE manager in the area concerned received legal advice in January 2012, having indicated to the legal firm advising at that time that they wished to have the private weekend arrangement for ‘Anne’ in this ‘foster’ placement terminated with immediate effect. The legal advice also notes that the parents of Anne did not wish this arrangement to be discontinued. The letter of advices indicates that the arrangement concerning Anne was a private arrangement and the legal adviser states,

“I am unaware of any provisions that would enable or entitle HIQA or any other regulatory interests, either to review or assess such private arrangements, or in any way to interfere with same’.

The letter further refers to efforts that would continue to be made by HSE personnel to try to reach a consensual arrangement with Anne’s parents for Anne to avail of the seven-day placement which the HSE had made available to her. The letter refers to ‘inconclusive enquiries’ and an inability to have conclusions to share with the family which could assist in the decision making concerning Anne’s care arrangements.

Further legal advice was provided by another legal firm in October 2013. On foot of that advice a letter was sent to the ‘foster mother’ informing her that there were on-going investigations in relation to concerns raised about service users in her home and indicating that the HSE did not believe that it was appropriate for any individual to receive respite or residential care at her home, pending the conclusion of those investigations.

The letter asked her to confirm that she would suspend the provision of such services to any individual at her home. The ‘HSE’s priority at all times’, as recorded by the legal firm, ‘was to ensure the cessation of the respite placement’ for Anne. The HSE continued to discuss what was in Anne’s best interests with Anne’s family. Subsequently Anne’s parents and two of her siblings wrote to the HSE and asked the HSE to reconsider its position.

On the 18th October 2013 the legal firm advised the HSE that any decision to intervene must be made on the basis of an assessment of risk to any person who may be availing of care at that home. The legal firm recorded that while there were ongoing investigations into historical concerns that there were no conclusions or findings at that stage. The HSE again wrote to Anne’s family, informing them of the ongoing investigations and advising that it was in Anne’s best interest that the care at the foster home would be suspended pending the investigations. The HSE apologised to the family for any inconvenience this change would cause to Anne or her family and offered alternative respite care.

On the 21st October 2013 the law firm advised the HSE that there was a risk of litigation against the HSE by both the ‘foster mother’ and by Anne and her family against the HSE. However, the law firm records that regardless of this risk, the priority of the HSE was ‘to look after Anne and the respite care from Mrs. X could not be continued’. Correspondence continued to be exchanged between Anne’s family and the HSE offering an alternative respite placement for Anne. This correspondence was prepared by the law firm.

While recognising the limitations in the current legislative framework the HSE has taken steps to implement a National Safeguarding Policy for the first time in Ireland which was launched on 5th December, 2014 – “Safeguarding Vulnerable Persons at Risk of Abuse – National Policy & Procedures”.This provides one overarching policy to which all agencies and services will subscribe and implement in their place of work ensuring:

• a consistent approach to protecting vulnerable people from abuse and neglect
• all services have a publicly declared ‘No Tolerance’ approach to any form of abuse
• a culture which supports this ethos is promoted

Safeguarding and Protection Teams have been established in each of the 9 Community Healthcare Organisations. These Teams are managed and led by a Principal Social Worker and staffed by Social Work Team Leaders and Professionally Qualified Social Workers.

Issue 2–A note on the training, particularly in open disclosure, that the individuals involved in the apology to “Grace” and her family would have received.

The staff involved in the communication with the identified Service User and family have confirmed that they are aware, have read and are familiar with the Open Disclosure Policy.

One of the staff attended a briefing on the policy on the 20th February 2015 in Waterford Regional Hospital.

In addition the Senior Management of Community Healthcare Organisation Area 5 has also included in their Operational Plan for this year the role out of training for staff in the Open Disclosure Policy & Strategy.

If any further information is required please do not hesitate to contact me.

Yours sincerely,

______

Ray Mitchell

Assistant National Director

Parliamentary Affairs Division

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