‘Why we need to make elder abuse an imprisonable offence’

Action on Elder Abuse head Gary FitzGerald explains why the charity has launched a campaign for new laws to protect abused older people

By Gary FitzGerald

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. While England, 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.

Masking criminality

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.

Proposed offences

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.

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13 Responses to ‘Why we need to make elder abuse an imprisonable offence’

  1. foresaa June 15, 2016 at 2:47 pm #

    Proposed Offences:
    •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.

    This constrains the breadth of Offences IMHO
    “who is in their care and custody” should be “by anyone anywhere in the UK at any time”

    IMHO – fully support this initiative

  2. Helen Gormley June 15, 2016 at 3:13 pm #

    agree but also feel this should be all vulnerable adults, having worked with learning disabled adults they too need this extra deterrent and cases like Steven Hoskin, 2007 strongly evidence this. At the end of the day if you do not intend on causing harm you’ve nothing to worry about from this.

  3. Jason Marshall June 15, 2016 at 4:10 pm #

    Rather than making it about age, this has to be addressed in the wider sense to protect all who may be similarly targeted and to avoid belittling. What are the constituent characteristics of ‘vulnerability’ mentioned above? Physical frailty is stated, but that applies far more widely than people captured in a category called ‘older’. Lacking capacity is not mentioned – we have that one on statute already anyway. Let ‘old’ imply ‘vulnerability’ and that is not fair. The domestic violence parallel is incorrect (and I find it slightly worrying to see it suggested that it’s ‘for women’ – it implies all sorts).

    Let’s add to that list of constituent characteristics those issues that affect many more and yes, put it on a par with hate crime. Abuse (or attempted abuse) motivated by / aggravated by a hostility to or wish to exploit a person on the basis of their age, physical or mental impairment, their dependence or need for support from others, etc. Much better.

    • Gary FitzGerald June 16, 2016 at 8:50 am #

      Hello Jason

      Thank you for your observations. I think the article very clearly sets out not only why Action on Elder Abuse has focused on older people (i.e. it is our raison d’être) but also our openness to have our campaign extended to include other groups that may be considered at risk, and in fact we state we would encourage this. The challenge is therefore down to you and others if you wish to pick it up and run with it. We’d be happy to support you.

      The campaign focusses on the reality of elder abuse and not the theories that are so often propagated. Yes, of course capacity can be an issue that leads to victimisation, but it is not the only factor and is far wider than the definition contained in the Mental Capacity Act 2005.

      We do not accept your inferred argument that introducing a protective crime ‘belittles’. It is not a valid argument, and is undermined by all the evidence of the effectiveness of such crimes in other countries. Download a copy of our Report on the website, it makes interesting reading. We know from our helpline that there are thousands of older victims of elder abuse who most definitely would not perceive this as belittling, and our focus will remain on them.

      The domestic violence parallel is an excellent one, and I’m sorry if you find our recognition that such abuse happens primarily to women to be worrying (do look at the Women’s Aid website) but we accept that reality. And that is all it implies. No more and no less.

    • John beer June 16, 2016 at 9:35 am #

      Hi Jason. I accept there are many other vulnerable people and groups that should also be protected by the law but with a rising older population and a rising percentage of those being abused we need to focus on this group because the current law is so lamentably failing. An offence of elder abuse is easy to define and to prosecute and there is clear evidence from other countries that it acts as a real deterrent. Please support our campaign and get your friends to do so too

    • Norman Sterling-Baxter June 20, 2016 at 9:01 am #

      Hi Jason

      I appreciate the position you are taking and agree that this should be the case. However, ageism is so subtle that it may need bringing into clearer focus. For example, in the draft ACPO policy on safeguarding adults in 2011, of the protected characteristics in the Equality Act only one was missing – age.

      Norman Sterling-Baxter

  4. Gary FitzGerald June 15, 2016 at 10:39 pm #

    People can sign the petition to make elder abuse a crime at: https://petition.parliament.uk/petitions/132323

  5. Stephen James June 16, 2016 at 10:23 am #

    I was present at the conference launch yesterday and was extremely moved at the large number of case studies that were outlined that evidenced abuse and suffering of so many older people in our country. The arguments that I’ve previously heard put forward that we already have sufficient legislation really do not add up, and you only need to ask the thousands of older people who are enduring abuse on a daily basis to appreciate this fact. It is time to end this scandal and place the abuse of older people on the same level as child abuse and begin to provide some justice for those who suffer this and to formally make elder abuse a crime. I offer my full support to this initiative and say thank you to Action on Elder Abuse and all who support them for their continued efforts in speaking out for those older people in our society who currently don’t have a voice and suffer in silence.

  6. David Congdon June 16, 2016 at 12:08 pm #

    For too long the perpetrators have got away with it. Too often they are let off with a caution and in the rare event that they go to court, they often get let off with a fine or a suspended sentence. This is unacceptable. Older people deserve better.

  7. Lesley McDowell June 16, 2016 at 2:48 pm #

    Among the arguments that there are sufficient laws to protect older people in UK, is evidence presented to the NI Assembly Health Committee (15.10.2015), quoting an obscure and obsolete Article in 44 year old legislation! I am incensed by the apparent cynicism of some politicians and their advising civil servants, when considering the scandal of the abuse of older people. I fully support the AEA campaign and am very anxious to see Elder Abuse recognised as a crime across the whole of the UK.

  8. Keith M Lewin June 16, 2016 at 3:34 pm #

    I note the comments above.

    I begin by declaring that I am a trustee/director of Action on Elder Abuse.

    The arguments and reasons given in support of not marking out elder abuse as worthy of special categorisation do not, with respect to others, hold water.

    When passing into law the concept that marking someone out for derogatory treatment, or worse, based on, for example, racial background, or sexuality etc. our legislators had little difficulty in categorising them as ‘hate’ crimes. Lets see the same approach in relation to offences against our older citizens.

    This is about drawing attention to a class of citizen which requires particular support – no one has seriously suggested that such laws belittle, for example, members from the ‘gay’ communities.

    In relation to ‘foressa’ above; I have serious reservations about reversing the burden of proof in criminal matters, and I would not readily be persuaded that is needed. In most cases which come to light proving ‘guilty intention’ is not the problem. The challenge is getting police and the CPS to uniformly respond to reports by first recognising the criminal act.

  9. Andy Smith June 17, 2016 at 11:33 am #

    My wife is a court deputy for her aunt, who has always been very independent minded and always declined any suggestion that she set up a power of attorney, which made it more difficult than it might have been to help her. When she lost capacity we went through the long and rigorous process of becoming a court deputy. When this was granted and we gained access to her bank records our suspicions about a neighbour were shown to be justified as there were two large transactions in his name falsely indicating that he was her nephew. A forensic examination of all transactions showed a pattern of withdrawals of roughly twice the amount you would expect for an elderly lady living at home, over a number of years, amounting to many thousands of pounds. In addition we found evidence of an attempt to set up a Will leaving everything to the neighbour.

    When we showed the evidence to a representative from the Office of the Public Guardian she immediately told us to present this to the police, which we did. After a long delay the police eventually stated that they did not have enough resources to investigate, and that since my wife’s aunt was now in my wife’s care she was no longer at risk. The OPG more of less shrugged and said we had to accept the police decision.

    In addition, the bank completely denied all responsibility even though we had met with the branch manager to explain the vulnerability of my wife’s aunt. At that meeting it emerged that the neighbour was presenting himself as the nephew. We presented birth certificates and marriage certificates to prove my wife’s status and told them that the neighbour was no relation. It later emerged that this meeting was just a couple of months after two large transactions in favour of the neighbour had taken place. By the time my wife became a court deputy the bank said it was too long ago to investigate.

    In the end we felt we were hitting a brick wall and gave up fighting for justice for my wife’s aunt. The Law has to be changed to offer greater protection to the vulnerable elderly.

  10. Rekha R Elaswarapu June 19, 2016 at 3:18 pm #

    Elder abuse particularly physical is no different from GBH so should be an imprisonable offence. This also covers compromise in dignity, violation of human rights, disregard to safeguarding of people in vulnerable situations. I am sure there are bits of law that can be applied but to be more effective a stand alone clause is an urgent requirement to make prosecution and conviction easy.
    I fully endorse this campaign by AEA.