Abuse and mentally incapable adults
Section 44 of the Mental Capacity Act 2005 (MCA) provides specific legislation for protecting mentally incapable adults against ill treatment and wilful neglect.
- Criminal offences apply to anyone who has the care of a person who lacks mental capacity.
- This could be Attorneys, Deputies or Carers.
- Prosecutions result in a fine and/or a sentence of imprisonment of up to five years.
Before the MCA
Prior to the MCA, where someone neglected or ill treated a mentally disordered person, prosecutions might be brought under s127 Mental Health Act 1983. This, however, was only with permission of the Director of Prosecutions; a slightly arduous process involving demonstrations that abuse occurred. Where sexual abuse was claimed, the Sexual Offences Act 2003 could be instigated. Alternatively, the Domestic Violence, Crime and Victims Act 2004, provided protection within households from significant risks of serious physical harm and death. In 2000, Social Services role in responding to abuse allegations was clarified in the ‘No Secrets’ guidance, which outlined intervention procedures. Unfortunately, few interventions resulted in actual prosecutions.
The LawSkills Monthly Digest
Subscribe to our comprehensive Monthly Digest for insightful feedback on Wills, Probate, Trusts, Tax and Elderly & Vulnerable client matters
Not complicated to read | Requires no internet searching | Simply an informative pdf emailed to your inbox including practice points & tips
Subscribe now for monthly insightful feedback on key issues.
All for only £120 + VAT per year
(£97.50 for 10+)
Before the introduction of the MCA, there was no specific measures allowing a 999 call reporting suspected abuse against a mentally incapable adult. If this concerned a child the position was distinctly different.
First MCA Prosecution
Believed to be the first MCA prosecution, in August 2009 Ma Ramona Dublas, a care home nurse was found guilty under s44 MCA. She was sentenced to nine months imprisonment, suspended for a year, 200 hours community service and banned from working with children and vulnerable adults. She had taken and circulated around her care home, a photograph of a half naked 92 year old dementia sufferer, being held by her wrists. Acting Detective Chief Inspector Sam Faulkner, of Newham police said, “This case demonstrates that we and our partner agencies take the abuse of vulnerable people extremely seriously”.
MCA Codes of Practice
Part 14.3 provides examples of where abuse might arise.
Financial – theft, fraud, undue pressure, misuse of property, possessions or benefits, dishonest gain of property, possessions or benefits.
- Physical – slapping, pushing, kicking or other forms of violence, misuse of medication (for example, increasing dosage to make someone drowsy), inappropriate punishments (for example, not giving someone a meal because they have been ‘bad’).
- Sexual – rape, sexual assault, sexual acts without consent (this includes if a person is not able to give consent or the abuser used pressure).
- Psychological – emotional abuse, threats of harm, restraint or abandonment, refusing contact with other people, intimidation, threats to restrict someone’s liberty.
- Neglect and acts of omission – ignoring the person’s medical or physical care needs, failing to get healthcare or social care, withholding medication, food or heating.
Where abuse is suspected the following should be contacted: Social Services, the Police or the Office of the Public Guardian.
Eradicating elder abuse is nothing new. With the conviction of Dublas, a further step closer is taken to protecting mentally incapable adults.
FREE monthly newsletter
Wills | Probate | Trusts | Tax | Elderly & Vulnerable Client
- Relevant learning and development opportunities
- News, articles and LawSkills’ services
- Communications which help you find appropriate training in your area