A smiling carer chats with an elderly lady

The Care Act 2014: recognising elder abuse

The new adult safeguarding regulations outlined in the Care Act 2014 (The Care Act) are now in force and provide a statutory framework for ensuring that adults in need are identified, supported and protected from abuse and neglect.

In previous posts on this blog we have seen that abuse can take many forms and, sadly, the likelihood of abuse increases significantly in older age.

In 1993, Action on Elder Abuse published this definition of ‘elder abuse’:

‘A single or repeated act or lack of appropriate action, occurring within any relationship where there is an expectation of trust, which causes harm or distress to an older person’.

The five most common types of abuse are physical, psychological, financial, sexual abuse and neglect. Often these abuses are also crimes.

Financial abuse is possibly the most frequently identified as it is easier to evidence the misuse of money. When an individual lacks capacity to manage their own finances, financial abuse becomes more prevalent. Those without Lasting Powers of Attorney (LPA) in place, (and before a financial Deputy can be appointed) do expose themselves to an increased risk of financial abuse.

Even those who have appointed attorneys are still at risk of abuse. However, the Office of the Public Guardian (OPG) and the Court of Protection are becoming wiser to this and there have been a series of cases where the Court of Protection has removed attorneys for not complying with their duties. Examples include attorneys making gifts to themselves from P’s estate, placing proceeds from the sale of P’s properties into their own bank accounts, not keeping accurate records and not keeping P’s affairs separate to their own.

Unfortunately, many people who are faced with caring for, or supporting an elderly person with limited capacity, or limited physical capabilities will not understand the law relating to managing the finances of another individual, and may make mistakes. This sort of ‘abuse’ is likely to be quite prevalent, but may not be at all intentional or malicious.

Psychological or emotional abuse and neglect are more difficult to spot and a significant amount of evidence is usually required before anything can be done. It is also incredibly difficult to pick apart, especially when the alleged abuser is a family member. I have been involved in many cases where the interactions between the vulnerable individual and the carer, or family member, have just been that way for their entire life. Furthermore, everyone has different standards of living and care, and what might be considered to be neglect by a Social Worker, might actually just be the way that person has always chosen to live their life.

In terms of physical abuse (including sexual abuse), bruising and injuries are easy to spot, but luckily, I have not come across many cases where physical or sexual abuse of the elderly has been an issue. Anecdotally I am aware of cases where there has been unexplained bruising, which have, following investigation been attributed to age related conditions, not abuse. Therefore, the evidence of abuse needs to be obtained very carefully and dealt with incredibly sensitively.

How then, will vulnerable adults benefit from the provisions of the Care Act 2014?

In terms of physical, emotional and sexual abuse, and neglect – these issues are always going to face social workers. There is a fine line between Local Authorities having sufficient power to make enquiries to ensure that if there is an issue, it can be dealt with, and giving the state too much power. It already has an incredible amount of power over those who lack capacity to make important welfare decisions, and in my view, if there was a separate set of safeguarding powers that could be added to the list, this could be sinking deeper into paternalism.

With regard to financial abuse, giving those supporting the elderly more tools to assist them, will improve the auditing of accounts for attorneys and do it at an earlier stage. At the moment, there is only a common law duty to keep accounts prepared by an attorney, if attorneys were required to file accounts with the OPG as is the case with deputy orders, then there might be a greater sense of the importance of the role on those attorneys who are picking up the mantel on behalf of a vulnerable adult. If the financial provisions come into force in April 2016 as planned, local authorities will be involved with more individuals and will also be involved in organising care, which might mean that they will pick up on the existence of abuse sooner.

In terms of spotting abuse, bringing safeguarding onto a statutory footing through the Care Act will not only provide clarity on what financial abuse constitutes, we will also have more tools available to us to get an enquiry into any suspected elder abuse and we may be able to ensure that the individual who is allegedly being abused as more support.