Relatively few care staff or family carers have been prosecuted for abusing or neglecting vulnerable adults who are subject to the Mental Health Act 1983 or who lack capacity to make relevant decisions, suggests research.
Since 2007, 871 charges have been made and reached a first magistrates’ court hearing in England and Wales in relation to the offences of ill-treatment or wilful neglect under section 127 of the Mental Health Act 1983 or section 44 of the Mental Capacity Act 2005. The figures were obtained from the Crown Prosecution Service (CPS) by Dave Sheppard, a former social worker who runs the MHA and MCA Law training service.
The number of defendants is much lower than the number of charges: press reports covering 749 of the 871 offences, unearthed by Sheppard, showed that 218 defendants were charged, of whom 112 were convicted and 40 jailed.
The offences relate to abuse or neglect perpetrated by health or social care staff, family carers, deputies or those given lasting power of attorney to manage the affairs of people who lack capacity (under section 44 of the MCA), or those appointed as guardians for people with significant mental health problems (under section 127 of the MHA). The 11 staff members found guilty of abusing patients at Winterbourne View were all convicted of offences under section 127 of the MHA; the vast majority of offences prosecuted since 2007 (681) concerned care staff or family carers charged under section 44 of the MCA.
It is not possible to know how many relevant offences took place over this period that went unprosecuted. However, in 2011-12 alone, local authorities in England completed 84,000 investigations of alleged abuse or neglect of a vulnerable adult, and in 42% of cases (about 35,000) the allegations were fully or partly substantiated. A lack of mental capacity to take decisions is likely to be a factor for many of the victims of these cases, while most alleged perpetrators were health and social care staff or family members. This suggests levels of prosecution for the offences are low, a point Sheppard has made in evidence he has submitted to the House of Lords committee currently reviewing the implementation of the MCA.
Why prosecution rates are low
Action on Elder Abuse chief executive Gary FitzGerald said the low level of prosecutions could be explained by a number of factors:-
- A failure to record that a person lacked capacity to take relevant decisions in a way that could establish that offences under section 44 of the MCA had taken place;
- The difficulty of proving that neglect had been wilful, particularly in the case of family carers, where neglect could be explained by a lack of knowledge or skill;
- A failure to effectively implement the CPS’s policy on prosecuting crimes against older people.
The policy says that the use of “special measures” to help vulnerable adults give evidence, such as appointing an intermediary to help the person respond to questions in police interviews, should be considered at the earliest possible opportunity. It also says that where people cannot give evidence because of reasons of capacity, the CPS should work actively with the police to build a provable case through other sources of evidence.
FitzGerald said it was an “excellent policy”, but added: “I don’t think it’s being implemented. I don’t think we are seeing the special measures being put in place.”
Responding to the figures, a CPS spokesperson said it took allegations of these offences “extremely seriously” and had provided prosecutors with specific guidance in handling cases involving victims with mental health problems or learning disabilities to help them prosecute these cases.
‘Behind closed doors’
But he added: “These offences are often complex and can take place behind closed doors with no witnesses other than the victim who may not always be able to give evidence, despite the special measures and other support we are able to provide. This is not a barrier to prosecution, and we will work with the police to build a strong case on all the evidence available, but it does provide investigators with particular challenges.”
He said the CPS would continue to prosecute people for offences under the MHA or MCA where there was sufficient evidence and it was in the public interest to do so. In cases where there was not sufficient evidence in relation to these offences, prosecutions could still be brought under other charges, such as assault, he added.
Sheppard’s study of press reports found that most of the victims were older people living in care homes and just five prosecutions were made against family members. Though the maximum prison sentence available under both Acts is five years, the longest jail term given out was two years and nine months for nursing assistants James Hinds and Susan Murphy, who were convicted this year of 25 counts between them of ill-treatment of patients under the MHA. They perpetrated the abuse against learning disabled users of the Solar Centre, a day centre in Doncaster run by Rotherham Doncaster and South Humber Mental Health NHS Foundation Trust, between 2005 and 2007.
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