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Protecting older victims of abuse who lack capacity: the role of the Independent Mental Capacity Advocate

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Abstract

In cases of elder abuse, mental capacity is relevant in two ways. First, lack of capacity may be a component of the abuse and the basis of a criminal offence or civil wrong. Typically, in financial abuse, the older person lacks capacity to undertake a transaction, but is coerced into doing so. Incapacity is relevant in sexual abuse, physical abuse and neglect cases. Section 44 of the Mental Capacity Act 2005 (MCA 2005) creates an offence of ill-treating or wilfully neglecting a person lacking capacity, or whom the abuser reasonably believes lacks capacity. Offences under the Sexual Offences Act 2003 include sexual activity involving a person with a mental disorder impeding choice. Secondly, lack of capacity is relevant in adult protection, particularly in deciding the most appropriate response and the use of justice seeking options. Abuse based on incapacity may also involve incapacity to decide under adult protection procedures. However, this is not inevitable. Mindful of the presumption of capacity under s 1(2) MCA 2005, and the time and context specific nature of the capacity test in s 2(1), assumptions that incapacity as a component of the offence necessarily entails incapacity to participate in the process, and vice versa, are misguided. This article discusses capacity in the context of adult protection, and in particular in ensuring that victims of elder abuse lacking capacity are able to access justice. It is based in part on an evaluation undertaken by the authors of the Welsh Government?s Access to Justice Pilot, which was designed to help ?older vulnerable people? who were victims of domestic abuse (A Clarke, J Williams, S Wydall and R Boaler, An Evaluation of the Access to Justice Pilot Project for Victims of Elder Abuse (Welsh Government Social Research, 2012)).
ELDLJ
Articles
Protecting older victims of abuse who lack capacity: the
role of the Independent Mental Capacity Advocate
John Williams, Sarah Wydall and Alan Clarke
Department of Law and Criminology, Aberystwyth University
Introduction
In cases of elder abuse, mental capacity is relevant in two ways. First, lack of capacity may be a
component of the abuse and the basis of a criminal offence or civil wrong. Typically, in financial
abuse, the older person lacks capacity to undertake a transaction, but is coerced into doing so.
Incapacity is relevant in sexual abuse, physical abuse and neglect cases. Section 44 of the Mental
Capacity Act 2005 (MCA 2005) creates an offence of ill-treating or wilfully neglecting a person
lacking capacity, or whom the abuser reasonably believes lacks capacity. Offences under the
Sexual Offences Act 2003 include sexual activity involving a person with a mental disorder
impeding choice. Secondly, lack of capacity is relevant in adult protection, particularly in deciding
the most appropriate response and the use of justice seeking options. Abuse based on incapacity
may also involve incapacity to decide under adult protection procedures. However, this is not
inevitable. Mindful of the presumption of capacity under s 1(2) MCA 2005, and the time and
context specific nature of the capacity test in s 2(1), assumptions that incapacity as a component of
the offence necessarily entails incapacity to participate in the process, and vice versa, are
misguided.
This article discusses capacity in the context of adult protection, and in particular in ensuring that
victims of elder abuse lacking capacity are able to access justice. It is based in part on an evaluation
undertaken by the authors of the Welsh Government’s Access to Justice Pilot, which was designed
to help ‘older vulnerable people’ who were victims of domestic abuse (A Clarke, J Williams,
S Wydall and R Boaler, An Evaluation of the Access to Justice Pilot Project for Victims of Elder
Abuse (Welsh Government Social Research, 2012)).
The Access to Justice Pilot
Many aspects of adult protection involve powers devolved to Wales under the Government of
Wales Act 2006 in particular social care, health and housing. However, the criminal justice
system falls outside of the devolution settlement and remains the responsibility of the Westminster
Government. This includes policing and the Crown Prosecution Service (CPS). Given the need to
ensure effective interagency working with the police and CPS in adult protection, the division of
responsibility is potentially disruptive.
Within Wales the equivalent of the English guidance No Secrets, is In Safe Hands. (See No Secrets:
Guidance on developing and implementing multi-agency policies and procedures to protect
vulnerable adults from abuse (Department of Health, 2000) and In Safe Hands: Implementing Adult
Protection Procedures in Wales (National Assembly for Wales, 2000). A recent review of In Safe
Hands concluded that it is only partially effective, no longer appropriate in important respects and
not sufficiently robust (J Magill, V Yeates and M Longley, Review of In Safe Hands (Welsh
Institute for Health and Social Care University of Glamorgan, 2010) at para 468). The Social
Services and Well-being (Wales) Bill currently before the National Assembly seeks to address some
of the shortcomings in the current arrangements.
In 2008, the Welsh Assembly’s Communities and Culture Committee published Domestic Violence
in Wales (National Assembly for Wales, 2008). This report found that older people who were
victims of domestic abuse did not get the support they needed. Concern was expressed over the low
level of convictions and the ability of the criminal justice system to meet the needs, inter alia, of
older people with dementia (para 4.1.4). Prosecution rates are low in Wales in cases of abuse of
vulnerable adults. Recent returns published by the Care and Social Services Inspectorate Wales
(CSSIW) confirm this. In 2012, only 2.4% of referrals resulted in a prosecution, and 1.2% resulted
in a caution (Adult Protection Monitoring Report 20102012 (CSSIW, 2013), at p 21). In England,
the figures are similarly low with 1% of all completed referrals resulting in prosecutions or police
caution for each of the age groups 6574, 7584 and 85 and over (Abuse of Vulnerable Adults in
England 2011-12, Final Report, Experimental Statistics (NHS Information Centre, 2013), at p 47).
In 2010, the Welsh Government published its 6 year strategy for tackling violence against women
and domestic abuse (The Right to be Safe, (Welsh Government, 2010)). It identified priorities for
tackling violence, including improving the response of criminal justices agencies. One outcome of
the strategy was a pilot project focusing on the needs of older people experiencing abuse. Age
Cymru and the CPS, along with other key stakeholders, supported the initiative. The objective was
to facilitate access to criminal and civil justice options for older victims of domestic abuse.
In its overview of adult protection in Wales, CSSIW recognised that justice and empowerment,
together with protection, should lie at the heart of a comprehensive safeguarding service (All
Wales Overview of Adult Protection (CSSIW, 2010), at p 7). The inability to access justice,
whether civil, criminal or both, risks double victimisation of the older person by denying them
redress. The European Court has recognised the added imperative for the state to ensure that
vulnerable people are entitled to the protection against breaches of their personal integrity (see X v
Netherlands [1985] ECHR 8978/80 and A v UK [1999] ECHR 25599/94). In its 2010 Strategy, the
Welsh Government stated that ‘there are few more basic human rights than that of being protected
from violence or exploitation’ (2010, p 4). For victims of elder abuse, a number of rights in the
European Convention of Human Rights are engaged, including Arts 2, 3, 5, 6 and 8. The right to
enjoy these without discrimination is enshrined in Art 14; although it does not specifically mention
discrimination on the ground of age, it is implicit in the words ‘or other status.’ Whereas a welfare
response to elder abuse through additional social care, respite care or carer support is important, the
ability to obtain justice is also essential in appropriate cases. Most elder abuse is also a civil and/or
criminal wrong. ‘Welfareisation’ of elder abuse reinforces the view that adult protection is solely
the responsibility of the caring agencies rather than involving justice agencies. For perpetrators and
for society this reinforces the view that a crime or civil wrong against an older person is less serious
(see J Williams, ‘State Responsibility and the Abuse of Vulnerable Older People: Is there a Case for
a Public Law to Protect Vulnerable Older People from Abuse?’, in J Bridgeman, C Lind and
H Keating, Responsibility, Law and Family (Ashgate, 2008) and J Williams, ‘Elder Abuse’, in
F Brookman, M Maguire, H Pierpoint and T Bennett, Handbook on Crime (Willan, 2010). The
Access to Justice Pilot is firmly rooted in human rights. Reference is made to the United Nations
Principles for Older People, which already have some statutory underpinning by s 25 of the
Commissioner for Older People (Wales) Act 2006. This requires the Commissioner to ‘have regard’
to the UN Principles in considering what constitutes the interests of older people in Wales (Access
to Justice Pilot for Older Vulnerable People: Domestic Abuse, unpublished Access to Justice
Working Group document, 2011).
The Access to Justice Pilot defined an ‘older vulnerable person’ as being 60 years or older who is
not in a position to protect their own well-being, property, or other interests because they are
disabled, ill or otherwise. He or she must be at risk of harm from domestic abuse that another
person is causing, or is likely to cause.
The Pilot assists victims to use the criminal or civil justice systems to obtain justice and protection
from further abuse. It adopts a referral pathway that seeks to ensure the following:
(1) older victims of domestic abuse have access to justice seeking options;
(2) professional practitioners understand and appreciate the significance of risk of harm to older
vulnerable people who experience domestic abuse;
(3) disclosures of abuse are appropriately recorded and support measures implemented;
(4) statutory agencies and third sector organisations provide a co-ordinated response to protect
victims;
(5) existing service provision is utilised to help victims make informed choices in seeking civil or
criminal justice solutions.
Swansea was chosen as the location for the pilot project. It is an urban area in south west Wales
with a population of 231,000, a quarter of which is aged 60 or over.
Mental capacity and elder abuse
It is difficult to identify how many referrals of cases of elder abuse in England and Wales involve
victims lacking capacity in either or both of the contexts identified above. Given that the original
idea for powers of intervention in cases of vulnerable adults at risk emanated from the Law
Commission’s 1995 report on mental incapacity, it is interesting that incapacity is less central to the
debate on the efficacy of current procedures (see Law Commission, Mental Incapacity, Law Com
No 231, (TSO, 1995) Part IX). The Review of In Safe Hands and the review of the English
guidance No Secrets both recognise the importance of participation and representation of people
lacking capacity (Safeguarding Adults Report on the consultation on the review of ‘No Secrets’
(Department of Health, 2009)). The MCA 2005 provides a decision making framework for an older
person lacking capacity. The best interest checklist in MCA 2005, s 4 provides a structured
approach to decision making in cases of abuse. Particularly important is s 4(4) which requires the
decision maker to ‘permit and encourage the person to participate, or to improve his ability to
participate, as fully as possible in any act done and decision affecting him.’ Similarly, s 4(6)
requires consideration of past and present wishes and feeling, beliefs and values, and other factors
he or she may have considered. The importance of these provisions was considered by Arden LJ in
the Court of Appeal decision in Aintree University Hospitals NHS Foundation Trust v James (by his
litigation friend, the Official Solicitor) and others [2013] EWCA Civ 65. She said (at para [56]):
‘Consideration of the wishes of the individual himself or herself, so far as they can be
ascertained from the evidence, is an important part of the exercise of determining what
is in an individual's best interests. Each individual is free to reach his or her own view,
and have his or her own wishes, about the continuation of medical treatment.’
She points out that s 4(6)(a) requires the court to consider not only past wishes, but also the
person’s present wishes (at para [57]). This must be considered alongside the decision of Munby J
in the Court of Protection in Re M, ITW v Z and Others [2009] EWHC 2525 (Fam), [2009] COPLR
Con Vol 828 who said that the MCA 2005 does not lay down any hierarchy as between the factors
in s 4 and that the weight attached to any one will vary depending upon individual circumstances.
He states (at para [35]):
‘…the weight to be attached to P's wishes and feelings will always be case-specific and
fact-specific. In some cases, in some situations, they may carry much, even, on
occasions, preponderant, weight. In other cases, in other situations, and even where the
circumstances may have some superficial similarity, they may carry very little weight.
Just as the test of incapacity under the 2005 Act is, as under the common law, issue
specific, so in a similar way the weight to be attached to P's wishes and feelings will
likewise be issue specific.’
Thus, the views of the person lacking capacity as to whether a justice seeking option should be
pursued are always important and something decision makers must consider. However, the weight
given to those views will vary depending upon a number of matters including the degree of
incapacity, the nature of the decision, the risk to the person and the risk to others. Thus, in adult
protection decisions involving older people lacking capacity to decide on justice seeking options,
their views should be sought, considered and given an appropriate weighting. The reasoning behind
these assessments should be recorded.
The views of the person lacking capacity are particularly relevant where the perpetrator is a family
member, for example a son or daughter, or a grandchild. In the Pilot, 21 out of the 127 cases
involved abuse by grandchildren; they were predominately cases of attacking property rather than
physical abuse. In some cases of elder abuse, the older person may not be dependent on the
perpetrator, but the other way round the abuser is dependent on the abused person emotionally or
financially. This might be the case where the abuser has a substance dependency or financial
problems and sees the older person as a source of funding (see A Turner, D Spangler and B Brandl,
‘Domestic Abuse in Later Life’ in Domestic Violence: Intersectionality and Culturally Competent
Practice (Columbia, 2010), at p 183). In addition, there may be inter-dependency between the
abuser and the victim. If the grandparent lacks capacity, they may, despite incapacity, fear family
tensions arising from a prosecution. They may fear what would happen if a prosecution failed, or if
it was successful. What is important is that any fears, wishes or beliefs are heard and considered.
The fact that it is a case of the abuse of an older person lacking capacity, does not disapply the
statutory principles in the MCA 2005. Best interest is not something imposed on the victim without
involving them to the best of their ability.
Independent Mental Capacity Advocates
Section 35 of the MCA 2005 introduced the statutory Independent Mental Capacity Advocates
(IMCA) service providing for the appointment of an IMCA in some, but not all, decisions involving
people lacking capacity. There is a duty to instruct an IMCA for a person lacking capacity where a
decision is required about a long-term change in accommodation, or where serious medical
treatment is proposed. An IMCA must also be instructed where a deprivation of liberty
authorisation is sought. In all of these cases there must be nobody else who is appropriate and who
can or should advocate on the person’s behalf – sometimes referred to the person being
‘unfriended’. There is discretion to appoint an IMCA in adult protection cases. The ‘unfriended’
requirement does not apply. Even though there are family members or others who could advocate,
an IMCA may still be appointed. However, if as part of the adult protection process a deprivation of
liberty is contemplated, then an IMCA must be appointed if the person is unfriended.
The role of the IMCA in adult protection is critical and is an important component of protection and
empowerment (see K Samsi, J Manthorpe and J Rapaport, ‘As People Get to Know It More:
Experiences and Expectations of the Mental Capacity Act 2005 amongst Local Information, Advice
and Advocacy Services’ (2011) 10(1) Social Policy and Society 41, at pp 4142). The IMCA is not
responsible for making a decision; rather the role is to ensure that the decision maker gives
appropriate consideration to the persons wishes, feelings and beliefs. The MCA Code of Practice
states that (Department for Constitutional Affairs, Mental Capacity Act 2005: Code of Practice
(TSO, 2007), at p 179):
‘Any information or reports provided by an IMCA must be taken into account as part of
the process of working out whether a proposed decision is in the person’s best interests.’
An IMCA has the right to see all relevant healthcare and social care records. The Code (at
para 10.4) outlines their roles as:
(1) being independent of the person making the decision;
(2) providing support for the person who lacks capacity;
(3) representing the person without capacity in discussions to work out whether the proposed
decision is in the person’s best interests;
(4) providing information to help work out what is in the person’s best interests; and
(5) raising questions or challenge decisions that appear not to be in the best interests of the
person.
The independence of the IMCA is essential to ensure that the person contributes, insofar as they
can, to the decision making process. It is about empowerment. Brandon’s definition of advocacy
includes the following (D Brandon, Advocacy power to people with disability (Venture Press,
1995), at p 1):
‘Both the intent and outcome of … advocacy should be to increase the individual’s
sense of power; help them to feel more confident, to become more assertive and gain
increased choices.’
This applies with equal force to an advocate for a person without capacity as it does to a person
with capacity. The introduction of the statutory IMCA service breaks the tradition of advocacy as
something detached from the state. It is possible that tension or conflict may arise, or be perceived,
because an IMCA may be required to challenge the body that has commissioned the IMCA service
(see M Redley, I Clare, M Dunn, M Platten and A Holland, ‘Introducing the Independent Mental
Capacity Advocate (IMCA) and the Reform of the Adult Safeguarding Procedures’ (2011) 41
British Journal of Social Work 1058, at p 1066). IMCAs also challenge the view that social care
practitioners are and should be advocates for their clients. Ife points out the difficulties of social
work or health care advocacy (J Ife, Human Rights and Social Work (Cambridge University Press,
2001)). He points to the legal model, in particular the fact that legal advocates are not expected to
consider balancing arguments or other interests (for example, resources). He argues (at p 36):
‘Social workers on the other hand, do not usually have such a luxury and are often
expected to undertake some form of “assessment”, which involves judgement, rather
than simply representing only one side of the story.’
Redley et al evaluated a pilot IMCA service established prior to the commencement of the statutory
services (M Redley, I Clare, L Luke and A Holland, ‘Mental Capacity Act 2005: the Emergent
Independent Mental Capacity Advocate (IMCA) Service’ (2009) 40 British Journal of Social Work,
1812). The evaluation is helpful in identifying practitioner perceptions of IMCAs. It found that
whereas advocates normally have an opportunity to get to know their client in a holistic way, the
IMCA’s role is decision specific and of limited duration. This creates a tension, although the study
identified a consensus amongst IMCAs summed up in the words of one who said that their role is
decision-led but client focussed’ (at p 1821). For some health care workers who had not worked
with an IMCA four specific concerns were identified. There were doubts about the nature of a
contribution by a non-medical person; concerns over the ability of IMCAs to represent the client’s
views; the feeling that IMCAs were unnecessary as they as healthcare professional had already
acted in the client’s best interests; and that a service unavailable out of hours was unhelpful. There
was a more positive response to the IMCA role in relation to change of accommodation decisions
where the decision was perceived as not being entirely a medical one (at p 1822).
The lower than expected number of referrals by the NHS to the IMCA service has caused some
concern (J Cowley and S Lee, Safeguarding People’s rights under the Mental Capacity Act’ (2011)
23(1) Nursing Older People 19). Luke et al found that while clinicians were aware of the potential
benefit of IMCAs, they considered their input to be limited other than in discharge from hospital
cases (L Luke, M Redley, I Clare, and A Holland, ‘Hospital clinicians’ attitudes towards a statutory
advocacy service for patients lacking mental capacity: implications for implementation’ (2008)
13(2) Journal of Health Services Research & Policy 73).
Although the above research focuses primarily on health practitioners and on serious medical
treatment decisions, it identifies reservations by practitioners, and indeed a degree of mistrust
concerning IMCAs. Do other practitioner groups, including adult protection, share these concerns?
In addition, do other partner agencies working in adult protection, understand the IMCA’s role?
The response of practitioners to the involvement of IMCAs in adult protection is important as there
needs to be trust in their professionalism and in the integrity of the service. There is evidence that
practitioners in adult protection are aware of the role, and the broader implications of the
MCA 2005, although training and updating are needed. (J Manthorpe, J Rapaport, J Harris, and
K Samsi, ‘Realising the safeguarding potential of the Mental Capacity Act 2005: early reports from
adult safeguarding staff’ (2009) 11(2) Journal of Adult Protection 1324).
Findings of the evaluation of the Access to Justice Pilot
The involvement of the IMCA service
The consent of the victim is a key driver in adult protection processes. The right to make a choice
as to risk is emphasised in both In Safe Hand and No Secrets (see para 7.17 and para 6.20
respectively). Linked to this is the presumption of capacity in the MCA 2005. The human rights
implications of this presumption cannot be overstated. However, this does not mean that
practitioners should only reluctantly or in the most obvious of cases consider capacity. The
evaluation of the Welsh Access to Justice Pilot found that in 43 of the incidents the victims were
recorded as having capacity to consent or refuse to engage with the process. In 10 cases the victims
were assessed as lacking capacity four males and six females. Nine of these victims experienced
two or more types of abuse. Eight were cases of physical abuse; carer stress featured in five cases.
The average age of this sub-group was 79.6 years.
An analysis of the case management records revealed that in 92 cases it was not indicated whether
capacity was assessed. Where the Domestic Abuse, Stalking and ‘Honour’-Based Violence: Risk
Indicator Checklist (DASH RIC) forms were completed it appeared that in some cases there was a
lack of clarity about the basis of the assessment of the victim’s capacity. However, there was no
evidence that throughout the process any uncertainties about capacity were addressed. Of those
who were assessed as lacking capacity, in many cases the victim was effectively unfriended because
the abuser was a close relative or a near neighbour. This would exclude them from acting as an
advocate for the victim. Although in adult protection cases there is no need for the person to be
unfriended to qualify for an IMCA, the fact that they are should surely trigger the exercise of the
discretion to appoint an IMCA. There was no evidence from the records that in these unfriended
cases that an IMCA was considered. Only three cases were recorded on the case management
records as having been referred to an IMCA, although the IMCA records identified only two. Of
the remaining seven cases, the files indicate that they met the IMCA referral criteria. This suggests
that the IMCA service is not integrated into the adult protection procedure.
Interviews disclosed some misconceptions about the point when an IMCA should be involved in an
adult protection investigation. There was a sense that statutory agencies delayed considering the
involvement of an IMCA until the investigation was completed. Agencies perceived that early
involvement of an IMCA would compromise the process and risk accusations of coaching the
victim and thus removing the possibility of a prosecution. However, the early involvement of an
IMCA is critical, as decisions at an early stage of the investigation often determine the outcome,
particularly in relation to justice seeking options. An IMCA would ensure that the person’s voice is
heard throughout the process and that options, such as special measures for the giving of evidence,
are explored at all stages. The decision to use special measures may determine whether a
prosecution goes ahead. In making that decision, it is important that the CPS is aware of all
relevant information including assessments of the victim by other practitioners. IMCAs can assist
in this process. To deny the victim a voice at this stage might effectively deny him or her access to
justice. One mental health expert who is an IMCA said (Clarke et al, at p 32):
‘What I do feel is [practitioners] seem to be of the view that the IMCAs wouldn’t get
involved while the investigation is going on for fear of us talking to people or
inadvertently making some mess of it basically and getting in the way of that process
We all have training I think we are all clear, everybody was of the view that they are
all quite sensible people and professional.’
Arguably, some of the reservations of hospital clinicians identified by Redley et al (2008) feature in
adult protection cases. There may also be a feeling that social care and health care staff are able to
advocate on behalf of the person, especially when making best interest decisions. The role of the
IMCA does not threaten the duty of the decision maker to decide. Rather the IMCA helps ensure
that the decision maker is aware of the views that the person has expressed. Interestingly, in the
Redley study, the IMCAs reported that 54% of the 109 clients ‘were able to communicate some
indication of their wishes that could be passed on to the decision maker’ (Redley et al, 2009, at
p 1822).
Assessment of capacity
Capacity is a dynamic and pervasive feature of adult protection. Although social care or health
practitioners probably make the initial assessment, the identification of capacity or incapacity at one
point of the process is not determinative of capacity throughout the entire process. As the
MCA 2005 emphasises, capacity may fluctuate. It is also time and context sensitive. A person may
not be able to function properly at 9.00 am in a hospital ward, but may be able to do so later in the
day and in different and more conducive surroundings. All agencies involved in adult protection
(including the police and the CPS) must be aware of the MCA 2005, in particular the duty to assist
people to make decisions themselves. It is not something that is exclusively the role of health and
social care. Creating enabling environments throughout the process is required from all agencies.
Conclusion
Adult protection procedures should be sensitive to the possibility that a victim of elder abuse may
lack capacity. Without undermining the presumption of capacity, practitioners should record that
the possibility of incapacity was considered, but dismissed. This is not to suggest that all victims of
elder abuse should undergo a mini mental capacity test. Such a record need only be brief, but it
would demonstrate that capacity has been addressed. Where there are doubts about capacity, an
assessment should be undertaken and any concerns followed up, at whatever stage of the process it
is considered necessary and not just at the initial point of contact. The fact that the victim has or
does not have capacity for one part of the process does not necessarily mean that this is the case for
entirety of the process. All agencies and voluntary organisations, including those in the criminal
and civil justice systems, should be familiar with the provisions of the MCA 2005 and its relevance
to their specific involvement with the victim. Capacity is not just the responsibility of social care
and health.
Where a victim lacks capacity there should be a rebuttable presumption that the discretion to
appoint an IMCA will be exercised. A presumption of involvement by an IMCA at an early stage
ensures that safeguards are in place for an incapacitated victim when making early decisions that
could have a significant impact on the outcome of the process and on accessing justice seeking
options. To delay appointment until the investigative process is complete may disadvantage the
victim.
Further research is needed to analyse the effectiveness of interagency practice to ensure it is victim-
centred, particularly in cases of incapacity. This includes the criminal justice agencies. The uptake
of the IMCA service in elder abuse cases should be monitored. Where an IMCA is not instructed,
the reasons should be recorded. The IMCA service needs to be embedded in adult protection
procedures, whilst retaining its independence. This requires a delicate balance by both practitioners
and IMCAs. There is a need for joint training so that each can better understand the other’s role.
Prosecution or the use of the civil law is not a panacea for victims of elder abuse. There may be
good reasons, in individual cases, why these options should not be pursued. However, in the case
of older victims who lack capacity, the decision whether to pursue them should be based on a
pervasive awareness of capacity by all agencies and the third sector throughout the process.
Assumptions should not be made about the desirability, or more likely the undesirability, of a
justice seeking option without the person being able to contribute to that decision to the best of their
ability, with the assistance of an IMCA where necessary.
The authors would like to thank Steve Bartley, Rebecca Boaler and Robert Willis for their help and
support throughout the research process and are also grateful to the interviewees and everyone else
who contributed to the study.
... An Independent Mental Capacity Advocate (IMCA) was used in 15 cases, a low figure considering the profile of victims (Stats Wales, 2017). Clarke et al. in their evaluation of the Welsh Government's Access to Justice Project identified reluctance to use IMCAs in safeguarding cases (Clarke et al., 2012;Williams et al., 2013). ...
Article
Purpose The purpose of this paper is to consider the background to the recent changes to adult safeguarding in Wales as a result of the new measures introduced by the Social Services and Well-being (Wales) Act 2014 and discuss their potential impact. Design/methodology/approach The paper relies on a range of material including reports published by the Law Commission, the National Assembly for Wales and other public bodies. It also refers to academic and practitioner material in journals and government guidance. Findings Although the Social Services and Well-being (Wales) Act 2014 introduced many changes in adult safeguarding in Wales, not least the duty to make enquiries, it does not take the opportunity to include statutory powers of barring and removal. The introduction of Adult Protection and Support Orders (APSOs) is a cautious step forward – perhaps it is too cautious. More research in needed on the different approaches across the UK. Research limitations/implications At the time of publication, the full effect of the new legislation has not been seen. Local authorities and others are coming to terms with the new provisions. No data on the impact of the new legislation are yet available. The paper identifies future research evaluating the working of the different approaches to safeguarding within the UK. Practical implications For practitioners, the new legislation provides opportunities to rethink the approach to safeguarding. The lower threshold for referrals will mean an increase in caseloads and the need to react to both low- and high-risk cases. For authorised officers, the practical issues identified relate to the circumstances in which an APSO may be sought and what can be put in place to protect the adult at risk once the order has been used. Social implications For those who experience abuse or neglect, the new legislation provides additional support when compared to the POVA process. The duty to make enquiries and the duty to report will hopefully strengthen protection and, with a lower threshold for referral, enable more preventative work to be done at an earlier stage. Whether the new APSO will make a difference remains to be seen. Originality/value As this is new legislation, there is very little analysis of the implications of the Social Services and Well-being (Wales) Act 2014 in relation to safeguarding. This paper presents an overview and, in places, a critical analysis of the new safeguarding duties.
... Ten older people were described as lacking mental capacity: physical abuse was recorded in eight of these cases. Details of these cases are presented in Williams et al. (2013). ...
... Ten older people were described as lacking mental capacity: physical abuse was recorded in eight of these cases. Details of these cases are presented in Williams et al. (2013). ...
Article
Full-text available
Elder abuse can be conceptualised as a social problem, a crime problem and a human rights issue. This article presents the findings from an evaluation of the ‘Access to Justice’ Pilot Project for victims/survivors 1 of elder abuse, which was launched in 2010 as part of the Welsh Government's six-year integrated strategy for tackling domestic abuse. It was designed to address the needs of older people in domestic settings and facilitate their access to criminal and civil justice options. Between April and July 2012, case study data were obtained for 131 individuals. A total of thirty-three interviews and a focus group were conducted with service providers, potential service users and practitioners drawn from relevant statutory and third sector groups. The article explores multi-agency responses to elder abuse and addresses the victim‒perpetrator dynamic. Reactive and proactive types of perpetrator 2 behaviour are identified and interdependence is described as a feature of the victim‒perpetrator relationship.
... The changes in the Act will improve the ability of local authorities and other statutory partners to engage in preventative work, but also to intervene when necessary. With a better statutory framework, the potential for an increase in referral rates and limited powers of intervention, local authorities will be required to diversify the way they respond to abuse and neglect (Williams: 2013). ...
Chapter
This chapter draws directly on the learning from the Dewis Choice project (see link http://choice.aber.ac.uk/choice-initiative/) and the latest research to share good practice in cases of domestic abuse where older people are the victims of abuse either by intimate partners or other family members. The chapter highlights the importance of treating people aged 60 years and over as equals, by providing equality of opportunity when making choices about domestic abuse and coercive control. For practitioners, direct advice is provided that will help them to engage with their clients and recognise discrimination, especially ageism both within and across agencies they will work with within a safeguarding/domestic abuse framework. Many signs of domestic abuse can be masked by signs of ageing, acting on stereotypical assumptions about what older people want may result in denying an older person their basic human rights. Ensuring that an older person is in a position to make an informed choice about what they want and do not want and giving them the opportunity to change their minds without judgement ensures a safer client-centred approach. The chapter concludes by providing good practice examples and key tips for all practitioners working with older people.
Chapter
The chapter describes the development of Dewis Choice, a four-year, Big Lottery funded project, launched in 2015 in two locations in Wales, one a city area and the other a predominantly rural county. The project, which combines service provision and research, is aimed at people sixty years of age and over who experience domestic abuse. As such, it represents a response to the gap in service provision for this age group and recognition that older people do not receive the same access to services as their younger counterparts. As research shows, service and legislative responses can often, albeit unintentionally, discriminate against older people (Wydall et al. in British Journal of Social Work 48: 962–981, 2018). From a research perspective, the adoption of participatory action research and a qualitative longitudinal design helps to capture the experiences of older victim-survivors at different stages in the ‘justice-seeking’ journey and illustrates how their conceptions of justice are subject to change over time.
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