Why we must make elder abuse an imprisonable offence
Gary FitzGerald, Head of Action on Elder Abuse (AEA) explains why the charity has launched a campaign for new laws to protect older people who have suffered abuse.
The abuse of older people is routinely recognised as a major issue, not just in the UK, but in many countries across the world.
Both the United Nations and the European Union have developed statements and policies aimed at generating awareness and action by member states, and there are widely differing but proactive approaches being taken to address it. Nevertheless it continues to be a growing cause for concern.
The number of older people in the UK is set to rise significantly, to around 19m in just over 30 years, with an increasing number of ‘very’ old people. The 2007 UK Study of Abuse and Neglect of Older People identified that 8.6% of older people living in the community experience elder abuse (suggesting there will be 1.6m victims by 2050, unless we make a significant impact on what is happening now). This is in addition to the abusive experiences of older people in hospitals and care homes, which appear to continue despite all the commitments to change and improvement.
Rising rates of abuse
In England, the proportion of referrals to adult protection concerning people aged over 65 rose from 60% to 64% from 2011-12 to 2014-15. Despite being asked by Action on Elder Abuse, both the Association of Directors of Adult Social Services and the government have declined to initiate any information campaigns in response to this increase. Based on the prevalence study, Action on Elder Abuse estimates that no more than one in ten victims ever reach the attention of adult protection, so the situation is likely to be far worse in reality than current referral rates suggest.
The nations of the UK have adopted different approaches to adult protection legislation. WhileEngland, Scotland and Wales have all introduced legislation to put the “infrastructure” of adult protection on a statutory footing – notably through the creation of multi-agency boards or committees to oversee safeguarding – England has done little more than this. In Wales, and more so in Scotland, powers of entry or intervention have been introduced to help practitioners take action to tackle the abuse of vulnerable adults.
But all of these systems are focused on stopping any abuse that might be occurring, or about to occur, not on taking action against the perpetrator, other than curbing or restricting their actions if legal powers allow. The only acknowledgement of the criminal nature of abuse within adult protection is the expectation that the police will investigate possible crimes. Investigation however is different from prosecution.
In reality, the terminology and philosophy of adult protection has masked the criminal nature of abusive acts. Calling an incident ‘physical abuse’ instead of assault or actual bodily harm lessens its importance and impact. Calling something financial abuse instead of theft or fraud implies that it falls outside of the criminal justice process. And it becomes even easier to marginalise the impact if you can refer to it as ‘poor practice’ in service provision and a ‘serious incident’ in a hospital environment. Such an approach reduces the scale and cost of such crimes, because they are then no longer part of the criminal justice system, but it also provides no deterrence to future abuse and undermines the status of older people as equal citizens in our society.
Very few cases of elder abuse ever reach the courts. Statutory services will sometimes argue that this is because most older people do not want prosecution. It is true that, in some abuse situations, it is not in the victim’s best interest to prosecute and they do not want to do so. However, while this is equally true in domestic abuse situations, there is a commitment from the criminal justice system to proceed with a prosecution even if the domestic abuse victim objects, where there is sufficient evidence and it is deemed in the public interest. Such an approach should apply equally to elder abuse.
Lack of convictions
And yet, the reality is that most elder abuse that could be prosecuted is not. It is either not considered an option, or it is addressed through a police caution, which is not a criminal conviction. One police force told AEA in response to a freedom of information enquiry that they had investigated 76 instances of elder abuse or neglect and had issued a police caution in every case, an action that seems highly dubious.
But even if a case of elder abuse gets to court it will very rarely result in a prison sentence for the perpetrator, regardless of the seriousness of the act or the impact on the victim. It is more likely to result in a suspended sentence or community service, neither of which can be considered a deterrent for future abusers.
All of which explains why it is time to draw a line under the current social policy approach to abuse and instead consider elder abuse to be an aggravated offence that carries statutory minimum sentencing. This would bring the UK in line with many other countries, including America, Japan and Israel.
This is what we propose:
- Any person who inflicts pain or suffering, including mental suffering, on an older person who is in their care and custody should be the subject of a charge of ‘elder abuse’. It should be the responsibility of the accused to prove that such actions were not intentional or wilful. Anyone employed in the provision of either health or social care should in all instances be considered to have acted with intent in such situations, with the burden on them to prove differently.
- Elder abuse would be punishable by imprisonment of up to four years. If in the commission of the offence, the victim suffers grievous bodily harm or death, the perpetrator should receive an additional jail term of five or 10 years, respectively.
- Any carer of an older person, or any person in a position of trust and confidence who steals from, or defrauds on older person of property or money, should be the subject of a deterrent sentence that is proportionate to the impact of the crime on the victim. Any person who uses a power of attorney to steal from or defraud an older person should be the subject of an increased sentence, reflective of the breach of trust.
- Health practitioners, care providers and staff, clergy members, and employees of local authorities, statutory bodies, financial institutions and police should be required by law to report known or suspected cases of elder abuse to the relevant local authority/health and social care trust adult protection/safeguarding teams and to encourage the public in general to do so.
- An older victim of elder abuse should have be able to obtain a court order restraining an abuser from further acts of abuse, and this process should be simple and speedy.
- Where there is reasonable suspicion that an older person is being subjected to elder abuse, and a third party denies access to see and speak to that older person, a police officer should be enabled to obtain a court order granting access.
Why only older people?
We have chosen to campaign for an offence in respect of older people specifically for two reasons: because that links with laws in other countries, showing such offences are possible and could be beneficial; and because we can draw substantially on our own data to make the case for older people in a way we could not for other groups. But we are not resistant to extending such a law to encompass other vulnerable adults, and would encourage this.
Of course, there will be those who will argue that we already have sufficient laws and we just need to make them work more effectively. But that does not address the additional aggravating factors of elder abuse, such as the frailty and vulnerability of victims and the increased impact upon them because of those factors. This was the same justification used for the introduction of aggravated offences for hate crime, under which offences are treated more severely if motivated or accompanied by hostility to a person based on their real or perceived membership of a racial or religious group, disability or sexual orientation.
There will also be those who will argue that such an approach belittles older people, because it somehow suggests that they cannot protect themselves. No one would suggest that the introduction of domestic abuse laws has undermined or belittled the status of women, or that the introduction of hate crimes have had a similar impact on people from minority communities.
It is when we compare and contrast these attitudes and arguments with actions already taken in support of other parts of society that we truly perceive the extent to which an ageist approach allows the continuation of elder abuse. It has to stop. Now.
Article by Gary FitzGerald originally published by communitycare.co.uk 15/6/16