Tuesday, September 26, 2017

Looking at Article 16 of the UN Convention and what it means for safeguarding and preventing the abuse of people who may be vulnerable.

  • The UNCRPD says people with disabilities must be free from exploitation, violence and abuse
  • Research shows that there is a worrying level of exploitation, violence and abuse of adults who may be vulnerable in Ireland
  • New legislation relating to safeguarding must be brought in by the State

What does article 16 of the UNCRPD say?

what does article 16 of the UNCRPD say)The core element of the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD) is Article 12, which provides for equal recognition before the law of all persons with disabilities and provides that State Parties shall recognise that persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life. Importantly, Article 12 also provides that “State Parties shall ensure that all measures that relate to the exercise of legal capacity provide for appropriate and effective safeguards to prevent abuse in accordance with international human rights law…”

Article 16 then provides that persons with disabilities must be free from exploitation, violence and abuse and specifies the actions that State Parties must take to prevent abuse and to protect them from such abuses.

Article 16 does not give a list of types of exploitation, violence or abuse but clearly, in using the term “all forms”, indicates that it encompasses a wide range of mental and physical violence, abuse to include sexual abuse, financial abuse, neglect and negligent treatment, and inhuman or degrading treatment. Exploitation includes both economic/financial exploitation, maltreatment and sexual exploitation. There is a particular emphasis on gender-based violence and abuse.

As confirmed by both the research survey commissioned by the National Safeguarding Committee and the HSE Safeguarding Data Report 2016, there is a worrying level of exploitation, violence and abuse of adults who may be vulnerable in Ireland.

Recent research survey commissioned by the National Safeguarding Committee:  

For the purpose of this research, a vulnerable adult was stated to be someone who is limited in their ability to protect themselves from harm or exploitation, or to report such harm or exploitation. This includes an adult with dementia, mental health problems, physical disability or intellectual disability.

The results of research, commissioned from Red C by the National Safeguarding Committee (NSC), showed widespread public concern that many vulnerable adults are open to, and are experiencing, physical, emotional, psychological and financial abuse as well as abuse based on age and disability (18% based on age and 16% based on disability). Half of Irish adults say they have experienced the abuse of vulnerable adults, either being abused themselves or seeing somebody close to them abused.

The research findings are:

  • Physical abuse of vulnerable adults has been witnessed/suspected by 1 in 3 adults, very often in the home;
  • Over 1 in 3 has experienced emotional abuse;
  • Almost 2 in 5 (38%) think vulnerable adults are badly treated. One in three believes vulnerable adult abuse to be widespread;
  • There is significant public concern about the need to safeguard those who are limited in their ability to protect themselves;
  • There is a lack of clarity over where to report vulnerable adult maltreatment, particularly among the young.

The purpose of the research survey was to prepare a baseline against which to measure progress in developing public awareness and changing attitudes and behaviour.


HSE Safeguarding Data Report 2016: 

2016 is the first year of data collection on safeguarding concerns reported to the HSE Safeguarding and Protection Teams. The safeguarding concerns relate primarily to persons with a disability and/or over 65 years who are deemed vulnerable.  Prior to 2015, the HSE elder abuse service did collect data in respect of persons over the age of 65 years, but there was no national system for collecting or recording data in respect of persons with a disability.

There were 7,884 safeguarding concerns managed by the Safeguarding and Protection Teams in 2016. Of these, 4,788 came from a service setting and 3,093 from a community setting. The information given on the referral source of concerns indicate that voluntary agencies are the main source of referrals, followed by Public Health Nurses. The Report also indicates that safeguarding concerns from voluntary agencies are primarily within the disability sector (89%), whereas concerns that arise in the community, reported by Public Health Nurses, predominantly relate to older people residing in the community. It is also to be noted that the figures contained in the 2016 Report are limited to concerns reported to the HSE social care division and do not relate to acute hospitals, primary care or mental health services, nor indeed to abuse in the wider community of Irish Society.


Measures to be taken to protect and prevent against all forms of exploitation, violence and abuse:

Paragraph 1 of Article 16 mandates State Parties to take appropriate legislative, administrative, social, educational and other measures to protect persons with disabilities from all forms of exploitation, violence and abuse, while Paragraph 2 obliges State Parties to take all appropriate measures to prevent such abuses. Paragraph 3 states that effective monitoring of programmes and facilities by independent authorities is required. Paragraph 5 calls for legislation and policies to ensure instances of such abuses are identified, investigated and prosecuted. So how has Ireland measured up to meeting our Article 16 obligations?

Currently, the only policy document directly dealing with the issue of safeguarding is the HSE’s Policy Safeguarding Vulnerable Persons at Risk of Abuse.  Although it purports to be a National Policy it is not – it is limited. The policy only applies to services directly provided under the HSE’s Social Care Directorate, which includes older people and people with a disability. The policy does not extend to other services such as mental health, or indeed to persons who are not in receipt of services but who endure abuse in their own home or community. In addition, there are no formal structures to enable the HSE Safeguarding and Protection Teams to liaise with An Garda Síochána or with regulators when issues of safeguarding arise.

A further current deficit is the obligation of the State to ensure that all facilities and programmes designed to serve persons with disabilities are effectively monitored by independent authorities (Para 3). At present, both HIQA and the Mental Health Commission regulate certain services, but a recent HIQA Report points out that large numbers of people are being cared for in different care settings that are unregulated. These include domiciliary care, day services, personal assistance, home sharing, and respite and supported living arrangements. The latter two may in part come within the oversight of the regulator if they are co-located with a residential service. HIQA in this report also points out that if the principle objective of regulation is to protect and promote the rights of service users, then it is necessary to regulate service models that are currently unregulated.

So what is required to comply with the State’s Article 16 obligations?  It is necessary to have robust safeguarding legislation and for the State to acknowledge in such legislation its responsibility to prevent abuse and to protect those who are the subject of abuse from exploitation, violence and harm. The legislation should set out the responsibility for all services, to include financial and consumer services (not simply confined to health and social care), to have safeguarding policies and procedures in place.  An Adult Safeguarding Bill 2017 was introduced in the Seanad in April and received all-party support. Although the detail of this Bill requires further development, it has included some of the essential requirements such as reporting requirements and the right of entry and inspection by ‘authorised’ persons.  The Bill proposes the establishment of an Adult Safeguarding Authority and sets out the functions of the Authority to include the promotion of standards in the safety and quality of services provided to adults at risk, the promotion of education, training and public awareness and the requirement for the Authority to undertake investigations.

If we are serious about promoting the wellbeing of persons with disabilities and respecting their dignity and autonomy, then it is essential that their protection against harm and abuse is put on a statutory footing. It is hoped that the development of adult safeguarding legislation, already before the Oireachtas, will be prioritised to ensure that Ireland does meet its international human rights obligations as set out in Article 16 of the UNCRPD.

Author Bio

Patricia Rickard-Clarke is a solicitor and former Commissioner of the Law Reform Commission. She is Chair of the National Safeguarding Committee, Chair of the Third AGE’s National Advisory Council, SAGE, Support and Advocacy Service for Older People and Chair of the Law Society’s Mental Health and Capacity Task Force. She is a member of the Council of the Royal College of Physicians of Ireland, a member of the HSE’s National Assisted Decision-Making (Capacity) Act Steering Group and a member of the National Disability Authority’s Expert Group.

Why we should all support the Love Not Hate Campaign – by Ian McGahon of Sunbeam House Services...

love not hate
  • Inclusion Ireland recently signed up to the Love Not Hate Campaign
  • It is a campaign to bring in a new hate crime law in Ireland
  • People with disabilities do get targeted (sometimes violently) in hate crime
  • In the UK, hate crimes against people with disabilities have included
    • Adam Pearson being told on a YouTube comment he “should have been burned to death at birth” because his face is disfigured
    • Christine North, an intellectually disabled woman, being urinated on while she lay dying in July 2007
  • We should all support the Love Not Hate campaign

Recently, Inclusion Ireland signed up as a supporter to the Love Not Hate Campaign. What exactly is the Love Not Hate Campaign? Why should it be supported by people with disabilities and disability advocacy and human rights organisations? Why do we need the campaign in Ireland and what does it propose?

Love Not Hate is a campaign led by ENAR (European Network Against Racism) Ireland and its Action Against Racism Group. It is a campaign to bring in hate crime legislation in Ireland. Most European countries have laws on hate crime but, uniquely, Ireland does not. The campaign proposes a law in Ireland that provides for sentencing to be increased and for crimes to be treated as more serious if prejudice or hate can be shown to be a motive.

A hate crime is, typically, a violent crime motivated by prejudice, when a perpetrator targets a victim because of their perceived membership of a certain social group. People targeted by hate-motivated crime in Ireland are usually from an ethnic minority background (racist hate crime), from a religious minority (religious hate crime), Lesbian, gay or bisexual (homophobic hate crime), Transgender (transphobic hate crime), People with disabilities (disablist hate crime).

Disablist hate crime or hate crime where people with disabilities are targeted because of their disability is something that rarely gets discussed or highlighted in public or in the media. In the UK it has become a growing phenomenon, because the public discourse has turned against people in receipt of state welfare support and portrays them as scroungers and spongers, and certainly people who use wheelchairs are violently targeted.

Adam Pearson, a UK actor, highlighted the issue last year on BBC3. He has a severe facial disfigurement and was told on a YouTube comment he “should have been burned to death at birth”. No action was taken by the state or YouTube on this despite, as Pearson points out, the fact that perpetrators of racist online comments on Twitter have been prosecuted.

Pearson now campaigns on the issue of disablist hate crime, and has highlighted several cases. Kevin Davies, an epileptic aged 29, was kept in a shed by “friends” where he was fed on scraps and beaten for weeks before he died in 2006. One of his torturers kept a diary of the abuse. Christine North, an intellectually disabled woman, collapsed and lay dying in Hartlepool in July 2007, neighbour Anthony Anderson urinated on her. He also egged on a pal to film the incident.

We are all probably very aware of hate crimes that target migrants, black people, Muslims, refugees and lesbian, gay, bisexual or transgender people, but honestly, how many of us really take the issues of disablist hate crime seriously? Until approximately 3 years ago I didn’t take it too seriously as an issue either. Since then I’ve seen it in voluntary work that I do with the Council of Europe’s No Hate Speech Movement and I’ve also seen it in my own day job. I work with people with intellectual disabilities, and have been told of several cases of verbal abuse and harassment (thankfully nothing seriously violent).

When I was researching this article, I found 2014 statistics on hate crime in Ireland published by the OSCE (Organization for Security and Co-operation in Europe). To me they were startling, and showed that we in Ireland do not take this issue seriously at all. The OSCE found two things: one, that 53 crimes were recorded by Gardaí as having a bias motive, and two, that 171 crimes were recorded as having a bias motive by NGOs and civil society organisations. Only 1 of these 171 was recorded as a disablist hate crime. At face value, this may suggest that disablist is not a big problem in Ireland. However, delving further into this it is clear that dozens of hate crimes were obviously not reported to the Gardaí. Additionally, when we look again to the UK, the police there found in a 2013 report that disablist hate crime was not taken seriously enough in how it is prosecuted.

I was personally involved in researching hate crime against LGBT people in Dublin in 2006, and we found huge under-reporting. Considering all of this (the OSCE data, the UK experience and my own personal experiences of researching hate crime against LGBT people and being aware of people with disabilities subject to verbal harassment), I firmly believe that Ireland is not taking the issue of hate crime seriously. We need to update our hate crime laws, and disablist hate crime needs to be firmly recognised.

The Love Not Hate Campaign is something all of us should be supporting.

We need to send a clear message that racism, homophobia, transphobia, disablism and hate have no place in our communities and that our society must be inclusive of all.

We need to update Ireland’s hate crime laws for many reasons.

We must break the silence on hate crime, encourage people to report it, and find effective ways to address all forms of prejudice.

For more information on the campaign see http://enarireland.org/hatecrime/

Author Bio

ian mcgahonIan McGahon works in Sunbeam House Services, supporting people with intellectual disabilities. In his spare time he is a campaigner on various equality and human rights issues. He volunteers with No Hate Speech Movement, a Council of Europe youth campaign promoting human rights online. In particular he has campaigned on LGBT rights and led the Yes Equality marriage equality referendum campaign in Co Wicklow.