Abuse of the Elderly in a Changing Legal Landscape

A brief overview of the Care Act 2014 and the Criminal Justice and Courts Bill in the context of the abuse of elderly people.

Elder abuse has probably always been prevalent but it is now, similar to childhood abuse, an issue that people are more aware of and willing to talk openly about.  There is also an increasing elderly population and a strain on services.  Elder abuse can take many forms, encompassing financial, physical, sexual and psychological abuse.  Often basic needs of elderly people are neglected depriving them of their dignity in later years. Some elderly people suffer isolation from society at large.

This development has seen Solicitors and Lawyers playing an increasingly important role.

Solicitors often become involved when they are instructed by a family member who suspects abuse.  It may be that abuse becomes apparent during the preparation of a Will or Lasting Power of Attorney, or when someone is accused of abusing an elderly person. 

Sometimes Solicitors acting as attorney for an elderly person develop concerns about that person.  Local Authorities also have their own in house legal teams to advise on elderly abuse.

The role of a private practice solicitor is to act upon the client’s instructions. Where abuse is suspected the solicitor has additional duties to report to the police or social services and to assist the client in taking remedial action. 

Solicitors are more frequently being appointed to seek compensation on behalf of the victim of abuse. Our abuse team are regularly appointed to claim compensation on behalf of elderly people who have suffered abuse.

Solicitors can advise on support groups and networks in the local area to ensure that there is support for the victim. There are a number of types of support for elderly people.  These can include Social services and Age Concern, amongst other charities. Often GP’s provide invaluable support or act as a referral agent to an appropriate support group.

There are advocacy services who can provide personal support where required.  This can include representation at meetings or help with making relevant decisions.  The independent advocate is always on the side of the person who lacks capacity.

Duties of Solicitors

Solicitors must of course adhere to their professional code of conduct, but where abuse is suspected the lawyer has an overriding duty to the client and the wider public interest to report it.  A lawyer has a duty of confidentiality, but this can come into conflict with the duty to report an immediate risk to a vulnerable person.  Usually the elderly person, once properly advised, will agree that the abuse can be reported.  It is a difficult area for a practitioner and the Law Society provides a professional ethics service to assist professionals.

If any abuse is suspected, either by a lawyer or a member of the public, this should be reported to the Local Authority at the earliest stage.  A local authority will then allocate a social worker to undertake an assessment and the elderly person’s needs will be considered by a Safeguarding Adult Board.  Under the Care Act 2014 a Local Authority has a duty to ensure that a vulnerable person is adequately protected and there are likely to be more cases where the Local Authority is required to assess and implement a care plan to meet the vulnerable person's needs. 

There may be a need to obtain a Non-molestation order, or to ensure that court proceedings are pursued to reclaim misappropriated funds if financial abuse has occurred.  

Recent publicity has centred upon failings in the child protection system with the cases of Victoria Climbie and Baby Peter. However the same identified failings apply to elderly abuse.  The main area requiring improvement is communication between professionals involved with an elderly or vulnerable person.  The pressure on adult services in terms of resources and staff retention can lead to signs of abuse being missed until there is a blatant incident of harm. 

The quality and variety of adult protection arrangements vastly differ from area to area.  While they are based on current guidance, this does not guarantee comprehensive or predictable coverage of services.

Adult protection services also receive vastly different levels of funding and different access to front line staff.  This greatly impacts on the level of care provided from region to region.

The Local Authority now has a duty to decide what action is necessary to provide appropriate care for a vulnerable person, which was not present prior to the Care Act coming into force. 

This overreaching duty and low test threshold goes a long way to address the current failings in the system.  There is now a duty for the Local Authority to consider whether there has been a ‘significant impact’ on the wellbeing of a vulnerable person.

If it is found that there has been a significant impact, then section 1(2) of the Care Act, requires various professionals to be consulted.  In addition to this, clause 43 requires that each Local Authority area creates a Safeguarding Adults Board (SAB).  Schedule 2 of the Care Act requires that the SAB includes the police, as well local authority representatives.

Failings in the current system in relation to preventing abuse in care homes have been well publicised. In October 2014, the Care Quality Commission confirmed that it would be issuing an information sheet to the public explaining how best to undertake secret surveillance in care homes when families are concerned about possible abuse.

To help support the implementation of the Care Act 2014, schemes such as the Older People Assessment and Liaison Service can assist in identifying vulnerable elderly individuals at an early stage to encourage swift intervention when required.  

The Care Act 2014 and the Criminal Justice and Courts Bill

The Care Act 2014 will be the most significant reform of adult social care for over 60 years if it becomes law.  Following the Winterbourne View and Mid Staffordshire scandals, the final report of the Mid Staffordshire NHS Trust Public Enquiry was published in February 2013 and made 290 recommendations for improvements that needed to be made.  The Care Act goes some way to address the concerns highlighted.

Clauses 42-47 set a new strategy intended to safeguard adults.  The person in question must have a need for care and support and be unable to protect themselves.  The Local Authority will be required to determine what further action is necessary.  Where the Local Authority determines that further action should be taken ( i.e. to implement a protection plan ), then they must take it. 

There will be a new low threshold above which the Local Authority must make enquiries into abuse or require others to make enquiries on their behalf.  If there is a ‘reasonable cause to suspect’ that a person is at risk of being abused, then the Local Authority is now required to take action. 

Sections 17-21 of the Criminal Justice and Courts Bill create a new offence involving ill-treatment or wilful neglect of a person.  This replaces the previous ‘no secrets’ guidance, which failed to offer adequate protection to a vulnerable person.  The Care Act and Criminal Justice and Courts Bill attempts to correct these shortcomings, although it remains to be seen how effective this will be.

What is certain is that a new statutory offence will always make it easier to identify abuse and ensure the perpetrator is sanctioned accordingly.

The Act and Bill will make it a statutory obligation to provide services and to act in a timely and coordinated fashion where elderly abuse is suspected.  Creating an environment of accountability will always make pursuing justice easier, as there is a clear recourse to identify failings and protect a vulnerable person.

The new requirement for the Local Authority to assess should make elderly abuse less prevalent, as should stricter criminal sanctions for abusing an elderly person.

The Government’s ‘no secrets’ guidance presented a number of issues, which have not been fully corrected by the Care Act.

It appears that the term ‘vulnerable adult’ still remains ambiguous.  It is likely that this is to ensure that a vulnerable person does not ‘fall through the cracks’ because they do not meet the definition of ‘vulnerable’.  However, failing to define the term may result in other problems.

Despite all these changes, the pressure on frontline adult social workers and Local Authority employees generally, means that the current issues found within the system are unlikely to be solved through the implementation of the new law.  It is therefore hoped that the impact of the new law will create accountability, which in turn, may force care providers to consider the standard or level of care they offer. 

In short, the new legislation will certainly offer significantly more protection than the current guidance does, however abuse will certainly still occur especially without further funding and training being made available to support vulnerable people.

Duties of an Attorney

The main duties of an attorney are to ensure that the vulnerable person’s welfare is a priority at all times.  Under the five guiding principles, a lawyer would be required to take steps if they believed that an elderly person is being subjected to abuse. 

At present under the Mental Capacity Act, where a person lacks capacity to make a particular decision all steps must be taken to support that person and any decision made should always be in their best interest.  The Act applies to anyone who is providing care on behalf of someone who lacks capacity, which includes lay carers such as family members, as well as professionals. 

The Act is based on five statutory principles –

Presumption of capacity – every adult has a right to make his or her own decisions and must be assumed to have capacity to do so unless proved otherwise. 

A person must be supported to make their own decisions or practical steps must be taken to help a person make their own decision where it is concluded that they are unable to do so.

The right to make a bad decision.  A person should not be treated as being unable to make a decision simply because the decision they want to make is unwise.  This is subject to them being able to show that they have weighed up the options and comes to a decision based on fact.

Best interests – any decision made or action taken must be in the best interest of the person who lacks capacity.

Least restrictive option – any decision made on behalf of another person should be made in the least restrictive way.

Care and Support Plan

A care and support plan is a document prepared by the Local Authority which specifies the person’s needs and to what extent those needs meet the eligibility criteria.  It details how the Local Authority is going to meet those needs and to help to reduce those needs in the future.  It is important to ensure that the adult for whom the plan is being prepared is as involved as possible, along with any carer.  If the elderly person lacks capacity it is important to ensure that a person who appears to be interested in the elderly person’s welfare is involved.  It is important that the financial repercussions of any care plan are fully understood and that the plan is kept under constant review. 

It is imperative to check the complaints procedure for the care home, the procedure for terminating a contract, how medicines will be administered, if there is an exclusion on liability in the event of death or injury, if the care home can make significant changes to the service provision without consultation and if or how long fees may remain payable after death.

Often contracts are signed in a hurry in order to secure a care home bed, but legal advice should be taken.

Legal Aid and Finance

Unfortunately legal aid is not available for wills, trusts and probate work.  Legal aid is available in limited circumstances where abuse can be demonstrated in family or protective orders. Legal aid remains available in some criminal cases because of the possibility of deprivation of liberty. If Legal Aid is not available, alternative funding options are available through Slee Blackwell. 

If you require specialist legal advice on elderly abuse then call our expert team on freephone 0333 888 0445.

Abuse of the Elderly in a Changing Legal Landscape