Maurice Quinlivan, T.D.
Cathaoirleach of the Joint Oireachtas Committee on Disability Matters,
Leinster House,
Kildare Street,
Dublin 2
12 January 2025
Re: ‘Places of care = places of safety? Violence against persons with disabilities in institutions', a report of the European Union Agency for Fundamental Rights
Deputy Quinlivan, a chara,
I write to bring to the attention of the Joint Oireachtas Committee on Disability Matters a recent report published by the European Union Agency for Fundamental Rights. On 9 January, I wrote to the Minister of State Emer Higgins to share a copy of the report, titled ‘Places of care = places of safety? Violence against persons with disabilities in institutions'. The report draws on data from desk research in the Member States of the European Union and on qualitative research from 10 Member States, including detailed research on Ireland. The case study on Ireland is particularly concerning, describing the prevalence and persistence of various forms of abuse within large and small institutions in Ireland, continuing against a backdrop of historical institutional abuse and in the context of an inadequate legislative framework, a fragmented legal and policy landscape and ineffective complaints mechanisms. The report finds the prevalence and persistence of various forms of financial, physical, emotional and sexual abuse within all types of institutions in Ireland. The instances of violence included financial control, restrictive practices, coercion, and peer-to-peer violence, enabled by a culture that normalises negative behaviours, resource constraints, and slow progress towards deinstitutionalisation.
The Commission welcomes and endorses EUFRA’s recommendations, and we encourage the Committee to consider them carefully to ensure that Government’s policy and law reform responses match the severity of the issues arising. We draw your attention to a number of areas that require urgent attention, as detailed in the report and reflected in IHREC’s previous publications, including our recent submission to the UN Committee on the rights of Persons with Disabilities. Using human rights law as guardrails, the report provides a framework for what is needed to operationalise Ireland’s human rights obligations with respect to protecting and preventing disabled people from violence in institutions and to responding when violence occurs, and how these actions should be taken or shaped. Priority areas for action include strengthening the legislative framework, ensuring effective monitoring and deinstitutionalisation.
This subject matter is of particular interest to us as both the ‘A’ status National Human Rights Institution (‘NHRI’) and the National Equality Body (‘NEB’) for Ireland with specific statutory mandates as the Independent Monitoring Mechanism for the UN Convention on the Rights of Persons with Disabilities (‘UNCRPD’) and the prospective designated Co-ordinating National Preventive Mechanism under the Optional Protocol to the Convention against Torture (‘OPCAT’), pending ratification.
We anticipate that the issues raised will feature prominently in Ireland’s review by the Committee on the Rights of Persons with Disabilities in 2027. We note that in its recently published ‘List of issues in relation to the initial report of Ireland’, the Committee has specifically requested information about “measures to address the systemic factors enabling exploitation, violence and abuse of children and adults with disabilities in public and private institutional and community settings, including complaint, oversight and inter-agency coordination mechanisms, the provision of independent advocacy and legal representation, and steps to address gaps in the criminal justice system, inspection bodies and the care system.”
1. Legislative gaps and fragmented policy frameworks require reform
The report documents the factors which have exposed disabled people to increased risks: legislative gaps with respect to protection frameworks, varying safeguarding standards between different types of institutions, and ineffective an inconsistent implementation of existing standards. In the case of Ireland, existing policies were found to focus more on responding to abuse rather than preventing it.
Greater urgency is required around legislative reform to protect the rights of persons deprived of their liberty, including the advancement of Protection of Liberty Safeguards legislation, the Mental Health Bill 2024, noting our recent correspondence on the Bill, and the Inspection of Places of Detention Bill. Ireland must ratify the Optional Protocol to the Convention Against Torture, and ensure its scope extends to de facto detention in the health and social care sector. A comprehensive review of existing legislation and public policy in this area is required, with the active participation of disabled people and Disabled Persons Organisations, focused on consolidating and aligning the fragmented legal frameworks with the UNCRPD.
2. Legislative reform must be accompanied by operational standards and guidelines, tools and training
Legislative reform must be accompanied by standards and guidelines, developed in consultation with disabled people, and accompanied with continuous education and training for staff and residents about rights and abuse recognition. A rights-based, service-user led approach to safeguarding, including a cultural shift within institutions, is required. Procedural and reasonable accommodation policies must be complemented by guidance and training for personnel. These policies and standards must apply to both public and private entities.
3. Independent monitoring must be strengthened and resourced and accessible and rights-based oversight and complaints mechanisms must be provided in legislation and practice
Notwithstanding the urgency needed to deinstitutionalise, the report makes clear that effective monitoring must be in place for institutions that remain, and such effective monitoring is not currently in place in Ireland. Monitoring is a key measure for deterring violence and can ensure that duty-bearers are held accountable for upholding the rights and safety of disabled people. Effective prevention goes hand in hand with comprehensive national planning and budgeting, efforts to raise awareness, the training of caregivers and justice personnel and the empowerment of persons with disabilities.
In practice, in Ireland, monitoring is spread between many actors, such as government authorities and regulators of health and social care services. Guidelines apply different standard and methodologies. Many monitoring bodies do not have sufficient financial or human resources to conduct regular visits, leading to rather reactive, case-driven responses once incidents become public. Complaints mechanisms are absent or inadequate and must be strengthened including through provision of information and guidance to people deprived of their liberty to enable them to access these mechanisms. Existing safeguarding practices by regulatory bodies are hampered by resource limitations – including adequate staffing, pay and conditions and a culture in which abuse may become normalised, and long-standing detrimental staff practices and attitudes.
The fragmented monitoring framework must be addressed and supported by better collaboration between institutions and external oversight bodies to address and implement recommendations effectively.
Urgent legislative reform is required to provide for accessible, effective and independent oversight of de facto detention in mental health establishments, healthcare and residential settings; adequate complaints mechanisms; and collection of accessible and transparent data, including with regard to private settings. These mechanisms must be designed according to universal design principles, and with meaningful oversight of disabled people. Proposals regarding safeguarding legislation provide an opportunity to achieve this.
The report highlights the role of independent monitoring frameworks that are fully independent from governments, adequately funded, and have the mandate to visit any place under a State Party’s jurisdiction or control where persons are or may be deprived of their liberty.
4. A core component of preventing and responding to violence against disabled people is to provide for access to justice for disabled people
This report details, as documented in IHREC’s policy brief regarding access to justice for disabled people, failures to report and investigate violence, as well as inadequate communications skills of investigators, resulting in the denial of justice to disabled people who have been victims of violence.
The State must ensure that reports of abuse of disabled children and adults in the health, social and care systems are adequately and effectively investigated, that children and adults are supported in making complaints, and that adults and children are provided with independent advocacy, legal representation, with any investigation conducted in compliance with the human rights standards and the EU Victims’ Rights Directive.
5. Measures to safeguard people in institutions must complement and align with measures to prevent, and not perpetuate, institutionalisation
Deinstitutionalisation is clearly identified in the report as the most effective legal safeguard for persons with disabilities. It ensures their right to liberty, autonomy and community inclusion in line with the UNCRPD.
Ireland must fully and properly commit to deinstitutionalisation through effective legislative reform, policy and crucially resourcing, thereby strengthening efforts to realise the right of persons with disabilities to live independently and be included in the community consistent with the UNCRPD. This requires a case management system, adequate financial supports to enable independent living, a legal right to personal assistance, and flexible services across the life cycle. As stated in our recent submission to the UN Committee on the rights of Persons with Disabilities, and in our Policy Statement on Care, the status quo of risk adverse approaches among medical professionals, a bias in favour of institutional care and supports, and paternalistic tendencies towards decision-making of disabled people must end.
6. Continued consultation and engagement
Action on the issues raised in the report must be advanced in consultation and with continued engagement with disabled people, in line with General Comment No. 7 of the UNCRPD Committee. Robust processes are required to ensure the voices of disabled people - including people with psycho-social and/or intellectual disability - in all legislative reform, policy design, implementation and monitoring. Further, the Government is obliged by Section 42 of the Irish Human Rights and Equality Commission Act 2014 to have regard to the need to eliminate discrimination, promote equality, and protect human rights in carrying out their functions. The Public Sector Duty calls for consultation with rights holders in advance of the development of services, policies and programmes and should be a foundational part of any response to the findings of this research report.
We encourage the Committee to consider this report, and we remain available to discuss the issues it addresses.
Your sincerely,
Liam Herrick
Chief Commissioner