Joint Committee on the Draft Mental Incapacity Bill First Report

14 Chapter 14: Protection against abuse and exploitation

255. We have been greatly concerned to hear about the extent of abuse and exploitation of people with impaired capacity and the lack of provision in the current law to investigate allegations of abuse or provide adequate protection to people at risk of abuse.[277] The same witnesses suggested to us that the draft Bill contains insufficient provisions to protect vulnerable people from abuse or to bring their abusers to account.

256. In its 1995 report, the Law Commission proposed that local authorities should be given new duties to investigate allegations of abuse and new powers to take emergency protective action where a vulnerable person was thought to be at risk of harm.[278] These measures were intended to achieve a balance between the empowerment of people with impaired capacity as autonomous individuals and support for carers acting on their behalf, with the need to provide appropriate safeguards and protection from abuse and exploitation. In 'Making Decisions'[279] the Government gave no reason for excluding these proposals from its plans for law reform.

257. The Law Society pointed out to us that the support given to many of the Law Commission's proposals now contained in the draft Bill, for example the general authority, was dependent on there being appropriate "counter-balancing public law protection rights",[280] to allow allegations of abuse to be investigated and to provide an effective remedy in cases of abuse. The Master of the Court of Protection also asked us in particular to consider whether the draft Bill has struck the right balance between autonomy and protection.[281]

Arrangements for dealing with abuse

258. In place of new legislation, the Department of Health, jointly with Home Office, issued guidance in 1999 on developing multi-agency procedures for the protection of vulnerable adults.[282] This guidance places responsibility on local councils with social services responsibilities to play a co-ordinating role in setting up Adult Protection Committees (APCs) to develop local inter-agency policies, procedures and joint protocols, bringing together all the agencies who may come into contact with vulnerable adults. We heard evidence from the Association of Directors of Social Services (ADSS) that while some local authorities have well-established arrangements in place, others have not yet begun to implement the guidance.[283] It was also pointed out that local authorities have not been resourced for the additional responsibilities given to them under the 'No Secrets'[284] guidance.

259. Several witnesses drew attention to problems with the current arrangements, whether or not APCs have been established. Master Lush told us that the police are often reluctant to get involved, particularly if the allegation is made against a family member who is acting under an Enduring Power of Attorney.[285] Professor Williams referred to the frustration felt by social workers and health care professions who have no powers to intervene even when they are aware that abuse is taking place.[286] The Law Society endorsed both these concerns.[287] In the view of Professor Williams, the current law "does not comply with the Human Rights Act, tolerates financial abuse, tolerates physical abuse, and basically there is nothing that can be done".[288]

The need for additional powers?

260. In a paper to the Committee on Implementation of the Bill , the DCA described the supervisory role proposed for the new Office of the Public Guardian (OPG). This confirmed that "The OPG's supervisory role would be geared to risk and would intrude as little as possible. The focus would be on supervision of deputies. … Where there are allegations of possible abuse (of any kind), [OPG] would liase closely with all of the agencies and individuals involved, including social services, the police, voluntary organisations and Adult Protection Committees".[289] It therefore appears that the new OPG will have a similar remit to the existing Public Guardianship Office (PGO) with no additional powers. However, Lord Filkin confirmed to us that the PGO is currently looking at ways in which the work carried out by its investigation unit can be made more effective.[290]

261. The DCA also described to us the supervisory roles to be played by a range of other bodies in the health and social care fields. Review bodies such as the Commission for Healthcare Audit and Inspection (CHAI) and the Commission for Social Care Inspection (CSCI) will have general responsibilities to monitor and inspect the delivery of health and social care services and undertake some specific investigations where serious concerns have been raised. We also appreciate that initiatives such as the Patient Advice and Liaison Service (PALS) and the Independent Complaints Advisory Service (ICAS) will assist carers and people with impaired capacity who wish to make formal complaints about health and social care services, which may serve to expose abuse in individual cases. However, we heard evidence that both health and local authority complaints procedures are difficult, cumbersome and slow and people with capacity difficulties may not be taken seriously.

262. The Law Society expressed concern that this approach requires clear evidence of impropriety before any action can be taken and stressed the need for more pro-active powers of investigation and intervention.[291] The ADSS proposed that one way of strengthening the 'No Secrets' guidance would be to impose on local authorities a statutory duty to intervene where there are reasonable grounds to suspect abuse.[292] It was also suggested that some local authorities would be unable to give priority to establishing APCs and developing protection procedures unless they were placed under a statutory duty to do so.[293]

263. Under Clause 39 of the draft Bill, the Court of Protection will have the power to call for reports, including from a Lord Chancellor's Visitor. The Public Guardian may also, under Clause 48(d), request a report from a Visitor in relation to a donee acting under an LPA or a court-appointed deputy. Although these powers will enable the Court or the OPG to look into any matters of concern, they are intended purely as a reporting mechanism. The Bill does not provide Visitors with any specific powers of investigation, supervision or intervention. Under the current law , it is a criminal offence for anyone to obstruct a Lord Chancellor's Visitor in conducting a visit or making a report but there is no similar provision in the draft Bill.

264. By contrast, we were told of the robust mechanisms available under the Adults with Incapacity (Scotland) Act 2000 for monitoring, supervision and investigation.[294] The Scottish OPG holds a register of all interventions carried out under the Act and has specific duties to monitor, supervise and investigate the use of financial interventions, whether by a carer authorised to use the funds of an incapacitated adult , an attorney or a guardian appointed by the court. Local authorities and the Mental Welfare Commission have powers to supervise, monitor and investigate welfare interventions by an attorney or guardian.

265. The organisation Alzheimer Scotland, which was commissioned by the Scottish Executive to monitor and research the implementation of parts of the AWI Act commented: "The [Scottish] Act has been criticised for being over zealous in a bid to reduce the risk of abuse, subjecting genuine carers to more regulation and bureaucracy than necessary".[295] Nevertheless, it recommended that similar robust systems should be included in the draft Bill, using risk assessment processes to avoid unnecessary intrusions.

266. We strongly recommend that the statutory authorities should be given additional powers of investigation and intervention in cases of alleged physical, sexual or financial abuse of people lacking the capacity to protect themselves from the risk of abuse.

Switching the burden of proof

267. The Master of the Court of Protection has suggested to us that a possible remedy would be to allow the burden of proof to shift in appropriate cases of alleged abuse.[296] He gave the example of an elderly woman with vascular dementia giving a door-to-door salesman a disproportionately large amount of money. He suggested that in such cases where an incapacitated person sells property at an undervalue, buys at an overvalue, or makes an improvident gift, the burden of proof should shift to the other party to prove that the person was able to understand the nature and effect of his/her actions. This would provide a means of restitution against an abuser seeking to take advantage of a person whose capacity is in doubt.

268. Similar measures have already been included in the Sexual Offences Bill to deal with cases of alleged sexual abuse against people lacking capacity to consent to sexual relations. Its general definition of consent requires a person to have the capacity to choose whether to agree to sexual activity. The Bill places the responsibility on defendants to have made "reasonable enquiries" to ascertain whether consent exists. The burden of proof is therefore on the defendant to show that the person had capacity to consent to sexual activity, rather than capacity being assumed or merely disregarded.

269. We recommend that consideration be given to allowing the burden of proof to shift in cases of alleged abuse where the victim's behaviour might indicate a lack of capacity.

270. Professor John Williams suggested[297] to us an another approach to extend the scope of the Bill to cover the lack of capacity to make a free choice as a result of undue influence (or unacceptable pressure). It was recognised there is a precedent in the common law. As Professor Williams acknowledged, drafting such a clause would be "immensely complex" and would have to contain significant safeguards to avoid unnecessary intervention. We do not feel confident in recommending such an approach.

Criminal law provisions

271. Clause 31 of the draft Bill proposes the creation of a new criminal offence where an attorney or deputy or someone who has care of an incapacitated person ill-treats or wilfully neglects that person. While this additional protection is to be welcomed, the Master of the Court of Protection has pointed out that it appears to relate solely to physical ill-treatment and does not cover financial abuse.[298]

272. We recommend that Clause 31 be extended to include the misappropriation of the person's property and financial assets.

273. We also heard of the particular difficulties in obtaining sufficient evidence to secure a conviction in any criminal proceedings, whether for physical, sexual or financial abuse, where the main witness has capacity problems.[299] While the Youth Justice and Criminal Evidence Act 1999 provides some assistance to enable people with special needs to give evidence in court, it does not help with the identification of abuse and the gathering of evidence to enable the Crown Prosecution Service to bring a case to court.

274. We recognise that detailed provisions of the criminal law are the responsibility of the Home Office and therefore outside the remit of this Bill. However, we urge continued co-operation between departments to ensure that the state's positive obligation to provide for the protection of vulnerable people is complied with.

277   Ev 188 Q505 (Mr Lush) Ev 193 Q517 (Professor Williams) Back

278   Law Commission No. 23 (1995) Part IX Back

279   'Making Decisions', Lord Chancellor's Department, October 1999, Cm 4465 Back

280   Ev 214 Q589 (Mr Clements) Back

281   Ev 185 para 23 mib 1049 Back

282   "No Secrets: guidance on developing and implementing multi-agency policies and procedures to protect vulnerable adults from abuse" Department of Health, 1999. See also Back

283   Ev 178 Q463 (Mr Collingridge) Back

284   Ev 183 MIB 1213 para 7e Back

285   Q506 (Mr Lush) Back

286   Q517 (Professor Williams) Back

287   Ev 205 Section 2 Back

288   Q515 (Professor Williams) Back

289   Ev 266 MIB 1222 Back

290   Ev 280 Q752 (Lord Filkin) Back

291   Ev 214 Q591 (Mr Raymond) Back

292   Ev 179 Q464 (Mr Collingridge) Back

293   Ev 194 Q520 (Professor Williams) Back

294   Ev 2 MIB 990 para 6.2, Ev 14 MIB 989, Ev 448 MIB 968 para 3.3.5 Back

295   Ev 448 MIB 968 para 3.3.5 Back

296   Ev 189 Q508 (Mr Lush) Back

297   Ev 200 (MIB 1210) Back

298   Ev 184 MIB 1049 para 6  Back

299   Ev 193 Q517 (Professor Williams) Back

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