Legal Definitions of Elder Abuse and Neglect

3.0 THE UNITED KINGDOM

The United Kingdom ("U.K.") government has a unitary (or centralized) system of government, with some powers having been devolved to Scotland (Scottish Parliament), Wales (National Assembly for Wales and the Welsh Assembly Government), and Northern Ireland (Northern Ireland Assembly).117 The U.K. government has responsibility for all matters that have not been devolved ("reserved" matters), as well as all policy in England for all matters that have been devolved to Scotland, Wales and Northern Ireland ("N.I.").118 Although the U.K. Parliament ("Westminster") may still legislate in devolved areas for any part of the U.K., in practice it will only do so with the agreement of, or upon request by, the devolved governments.119 Consequently, there may be different laws and/or policies in each of these jurisdictions that are relevant to defining and addressing elder abuse and neglect.

3.1 Legislation

The U.K. Parliament has not enacted any legislation that includes a specific definition of "elder abuse". However, there are a number of more general statutes, which may be applicable to cases involving the abuse of older adults, particularly where an individual is deemed to be "lacking capacity", "vulnerable" or "at risk". These statutes include definitions of terms such as "ill-treatment", "neglect", and "harm".

There are also several Guidance documents that have been published in the U.K. dealing with adult protection and care, which include definitions of "abuse" and "vulnerable adult". Most recently, questions around language and definitions are focusing on the term "vulnerable adult". There seems to be a shift towards using the language of "safeguarding adults" in areas where other jurisdictions speak of adult protection.

3.1.1 England & Wales

Mental Capacity Act 2005

The Mental Capacity Act 2005 ("MCA 2005")120 for England and Wales received Royal Assent on 7 April 2005 and was fully implemented on 1 October 2007. The MCA 2005 provides a framework to empower and protect people who (may) lack capacity to make certain decisions for themselves. Section 44 creates a new criminal offence of wilful neglect or ill-treatment of a person lacking mental capacity to make relevant decisions:

44 Ill-treatment or neglect

  1. Subsection (2) applies if a person ("D")—
    1. has the care of a person ("P") who lacks, or whom D reasonably believes to lack, capacity,
    2. is the donee of a lasting power of attorney, or an enduring power of attorney (within the meaning of Schedule 4), created by P, or
    3. is a deputy appointed by the court for P.
  2. D is guilty of an offence if he ill-treats or wilfully neglects P.
  3. A person guilty of an offence under this section is liable—
    1. on summary conviction, to imprisonment for a term not exceeding 12 months or a fine not exceeding the statutory maximum or both;
    2. on conviction on indictment, to imprisonment for a term not exceeding 5 years or a fine or both.

The MCA Code of Practice121 ("Code") "provides guidance to those working with and/or caring for adults who may lack the capacity to make particular decisions".122 The Code includes the following definitions of abuse:

What is abuse?
The word 'abuse' covers a wide range of actions. In some cases, abuse is clearly deliberate and unkind. But sometimes abuse happens because somebody does not know how to act correctly—or they haven't got appropriate help and support…

Abuse is anything that goes against a person's human and civil rights. This includes sexual, physical, verbal, financial and emotional abuse.

Abuse can be:

  • a single act
  • a series of repeated acts
  • a failure to provide necessary care, or
  • neglect123
The main types of abuse described in the Code are: financial, physical, psychological, neglect and acts of omission.124 The broad category of "acts of omission" is unique to the U.K., and its content is unclear, particularly as to if and how it may differ from neglect.
Domestic Violence, Crime and Victims Act 2004

The Domestic Violence, Crime and Victims Act 2004 ("DVCVA 2004") provides some additional protection of the rights of "vulnerable" older people.125 Section 5 of the DVCVA 2004 creates an offence of causing the death of a child or vulnerable adult:

5 The offence

  1. A person ("D") is guilty of an offence if—
    1. a child or vulnerable adult ("V") dies as a result of the unlawful act of a person who—
      1. was a member of the same household as V, and
      2. had frequent contact with him,
    2. D was such a person at the time of that act,
    3. at that time there was a significant risk of serious physical harm being caused to V by the unlawful act of such a person, and
    4. either D was the person whose act caused V's death or—
      1. D was, or ought to have been, aware of the risk mentioned in paragraph (c),
      2. D failed to take such steps as he could reasonably have been expected to take to protect V from the risk, and
      3. the act occurred in circumstances of the kind that D foresaw or ought to have foreseen.126

"Vulnerable adult" is defined in section 5(6) of the DVCVA 2004:

"vulnerable adult" means a person aged 16 or over whose ability to protect himself from violence, abuse or neglect is significantly impaired through physical or mental disability or illness, through old age or otherwise.127

In February 2003, pursuant to section 23(1) of the Care Standards Act 2000128 , the Secretary of State for Health (Department of Health) published a statement of national minimum standards entitled, Care homes for older people: national minimum standards and the Care Homes Regulations129 ("National Minimum Standards"). This statement applies to "care homes", as defined by section 3 of the CSA 2000, which provide accommodation, as well as nursing or personal care, for older people.130 The National Minimum Standards includes the following definition of abuse of older people (from Action on Elder Abuse):

Abuse
Single or repeated act or lack of appropriate action occurring within any relationship where there is an expectation of trust, which causes harm or distress to an older person [Action on Elder Abuse] including physical, emotional, verbal, financial, sexual, racial abuse, neglect and abuse through the misapplication of drugs.131

3.1.2 Scotland

Adult Support and Protection (Scotland) Act 2007

The Scottish Parliament enacted the Adult Support and Protection (Scotland) Act 2007132 ("the Act"), which introduces a statutory framework for the protection adults of all ages who may be "at risk". The Act defines "adult at risk" and "harm" as follows:

  • 3 Adults at risk
    1. "Adults at risk" are adults who—
      1. are unable to safeguard their own well-being, property, rights or other interests,
      2. are at risk of harm, and
      3. because they are affected by disability, mental disorder, illness or physical or mental infirmity, are more vulnerable to being harmed than adults who are not so affected.
    2. An adult is at risk of harm for the purposes of subsection (1) if—
      1. another person's conduct is causing (or is likely to cause) the adult to be harmed, or
      2. the adult is engaging (or is likely to engage) in conduct which causes (or is likely to cause) self-harm.
  • 53 Interpretation of Part 1
    1. In this Part––
      • "adult" means an individual aged 16 or over,
      • "harm" includes all harmful conduct and, in particular, includes—
        1. conduct which causes physical harm,
        2. conduct which causes psychological harm (for example: by causing fear, alarm or distress),
        3. unlawful conduct which appropriates or adversely affects property, rights or interests (for example: theft, fraud, embezzlement or extortion),
        4. conduct which causes self-harm,133

While England and Wales are sources of law and policy in relation to adult abuse and neglect, Scotland and Northern Ireland have not yet published any position on how to define elder abuse and neglect.

3.2 Policy

Action on Elder Abuse ("AEA") is a national, non-profit organization, working in all four nations across the U.K. and in Ireland, "to protect and prevent the abuse of vulnerable older adults".134 AEA has been instrumental in shaping the meaning of elder abuse in the U.K. and internationally. AEA developed the definition of "elder abuse" that was subsequently adopted by the World Health Organization ("WHO") in 2002:

A single or repeated act or lack of appropriate action, occurring within any relationship where there is an expectation of trust, which causes harm or distress to an older person.135

The other focal point of policy development in the U.K. is a guidance document produced by the Department of Health on protecting vulnerable adults from abuse. No Secrets: Guidance on developing and implementing multi-agency policies and procedures to protect vulnerable adults from abuse136 ("No Secrets") is intended to provide guidance to local agencies responsible for investigating and taking action in cases where a vulnerable adult is believed to be suffering abuse. The document also offers a framework for the "development of local inter-agency policies, procedures and joint protocols which will draw on good practice nationally and locally."137 No Secrets includes the following definitions of "vulnerable adult" and "abuse":

"Vulnerable Adult"
  • 2.2 Which adults are vulnerable? In this guidance 'adult' means a person aged 18 years or over.
  • 2.3 The broad definition of a 'vulnerable adult' referred to in the 1997 Consultation Paper Who decides?, issued by the Lord Chancellor's Department, is a person:
    "who is or may be in need of community care services by reason of mental or other disability, age or illness; and
    who is or may be unable to take care of him or herself, or unable to protect him or herself against significant harm or exploitation"    .
"Abuse"
  • 2.5 What constitutes abuse? In drawing up guidance locally, it needs to be recognized that the term 'abuse' can be subject to wide interpretation. The starting point for a definition is the following statement:
    Abuse is a violation of an individual's human and civil rights by any other person or persons.
  • 2.6 Abuse may consist of a single act or repeated acts. It may be physical, verbal or psychological, it may be an act of neglect or an omission to act, or it may occur when a vulnerable person is persuaded to enter into a financial or sexual transaction to which he or she has not consented, or cannot consent. Abuse can occur in any relationship and may result in significant harm to, or exploitation of, the person subjected to it.
  • 2.7 A consensus has emerged identifying the following main different forms of abuse:
    • physical abuse, including hitting, slapping, pushing, kicking, misuse of medication, restraint, or inappropriate sanctions;
    • sexual abuse, including rape and sexual assault or sexual acts to which the vulnerable adult has not consented, or could not consent or was pressured into consenting;
    • psychological abuse, including emotional abuse, threats of harm or abandonment, deprivation of contact, humiliation, blaming, controlling, intimidation, coercion, harassment, verbal abuse, isolation or withdrawal from services or supportive networks;
    • financial or material abuse, including theft, fraud, exploitation, pressure in connection with wills, property or inheritance or financial transactions, or the misuse or misappropriation of property, possessions or benefits;
    • neglect and acts of omission, including ignoring medical or physical care needs, failure to provide access to appropriate health, social care or educational services, the withholding of the necessities of life, such as medication, adequate nutrition and heating; and
    • discriminatory abuse, including racist, sexist, that based on a person's disability, and other forms of harassment, slurs or similar treatment.138

The Office of the Public Guardian ("OPG") uses the following abbreviated version of the No Secrets definition:

What is abuse?
Abuse is the violation of an individual's human and civil rights by any other person or persons. Abuse of a vulnerable adult may consist of a single act or a series of repeated acts. It may occur as a result of a failure to undertake action or appropriate care tasks.139

The differences between the No Secrets and Action on Elder Abuse definitions illustrate some of the tensions in developing language to speak of elder abuse. They are encapsulated in the following questions:

3.2.1 Alternatives to the category "elder abuse"

Much of the policy work in the U.K. subsequent to No Secrets moves away from the expression "elder abuse". In 2000, shortly after the release of England's No Secrets guidance document, the National Assembly for Wales produced a guidance document on protecting vulnerable adults from abuse entitled, In safe hands: Implementing adult protection procedures in Wales (2000)140. The National Assembly for Wales has agreed to the following definitions of "abuse" and "vulnerable adult":

  • 7.1 For the purpose of both national and local guidance it is important to clarify how we abuse, who is included under the heading of a "vulnerable adult", and what kinds of abuse are covered.
  • 7.2 For the purposes of this guidance a vulnerable adult is a person over 18 years of age who:

    "[I]s or may be in need of community care services by reason of mental or other disability, age or illness and who is or may be unable to take care of himself or herself, or unable to protect himself or herself against significant harm or serious exploitation" Law Commission (Who decides?: making decisions on behalf of mentally incapacitated adults 1997)

  • 7.3 People with learning disabilities or mental health problems, older people and disabled people may fall within this definition, particularly when their situation is complicated by additional factors, such as physical frailty or chronic illness, sensory impairment, challenging behaviour, social or emotional problems, poverty or homelessness.
  • 7.4 The following definition of abuse provides a basis from which to develop practice:

    "Abuse is a violation of an individual's human and civil rights by any other person or persons"

  • 7.5 Abuse may take different forms…141

In partnership with the Association of Directors of Adult Social Services and Association of Chief Police Officers, the Commission for Social Care Inspection142 published a guidance document entitled, Safeguarding Adults Protocol and Guidance143 ("Safeguarding Adults Protocol"). This paper "sets out how [they] work with other agencies to make sure people who use care services are safeguarded from abuse".144

The Safeguarding Adults Protocol includes the following definitions of abuse and types of abuse (referring to No Secrets):

No Secrets (para 2.5) defines abuse in the following terms:
a) "Abuse is a violation of an individual's human and civil rights by other person or persons. Abuse may consist of single or repeated acts. It may be physical, verbal or psychological, it may be an act of neglect or an omission to act, or it may occur when a vulnerable person is persuaded to enter into a financial or sexual transaction to which he or she has not consented, or cannot consent. Abuse can occur in any relationship and may result in significant harm, or exploitation of, the person subjected to it".145

3.2.2 Types of abuse

Borrowing from No Secrets, the Safeguarding Adults Protocol includes a description of physical, sexual, psychological, financial or material abuse, neglect and acts of omission, and discriminatory abuse, and adds the following two descriptions that appear to be unique to this document:

Institutional abuse—the term 'Institutional Abuse' is sometimes used to describe a type of abuse, which pervades a particular establishment. Institutional abuse may take the form of repeated incidents of poor or unsatisfactory professional practice, at one end of the spectrum, through to widespread and persistent ill treatment or gross misconduct at the other. There may be a variety of underlying factors in relation to poor care standards which could include, for example, inadequate staffing, an insufficient knowledge base within the service, lack of essential equipment, rigid routines or a controlling management regime. (See also para 2.9 of No Secrets).

Restraint—The inappropriate use of restraint is considered a form of physical abuse and could also give rise to criminal charges.146

The four national Age Concerns147 in the U.K. have joined together with Help the Aged148 to form new national charities dedicated to improving the lives of older people.149 Help the Aged has published a number of documents on elder abuse and crime containing definitions of elder abuse, which can be accessed through their website. For example, in their publication entitled Putting a Stop to the Abuse of Older People150, elder abuse is defined as:

What is elder abuse?
Elder abuse occurs when an older man or woman is harmed, mistreated or neglected–usually by someone they should be able to trust.

'Abuse' is a strong word. It makes many people feel uncomfortable.

What it actually means is harm, mistreatment, exploitation or neglect.

Older people can be harmed in lots of different ways.

Forms of abuse
There are many different forms of abuse. Some can be obvious–for example, an older person being physically assaulted (hit, slapped or kicked) but may rarely be witnessed directly.

Other abuses are inflicted in very subtle ways, so it can be difficult to pick up on them. For example, neglect and humiliation are common types of abuse.151

3.3 Court decisions

R. v. Saw & Ors152:

Saw and five other defendants were found guilty of burglary of occupied premises, including a number of homes. This case involved applications for reduced sentences and an appeal by the defendant McPhee. The defendant Tete-Djawu ransacked the home of a 69-year-old woman, stealing almost £2000 worth of property, including the victim's car keys. The defendant Smith burgled two homes in concert with others. In both cases, the victims were elderly ladies living alone (aged 92 and 88 years) and Smith entered the premises at night while they were in bed. Smith stole the victims' purses and other goods. £9000 worth of charges was racked up on one victim's credit card. The defendant McPhee attempted to enter several homes one night. He rang the bell at the home of an 89-year-old man, who let him in thinking McPhee was a neighbour. McPhee entered the man's bedroom and rifled through the victim's belongings despite the victim's demand for him to leave. The victim had lost his leg and used a wheelchair; he was in bed at the time of the invasion. The Court found that the sentences were appropriate given the particular circumstances of each burglary. The applications for reduced sentences were refused; McPhee's appeal was dismissed.

R. v. Gallagher153:

This case involved an appeal by Gallagher of his sentence of four and a half years' imprisonment for theft and obtaining property by deception. Gallagher, over a period of almost three years, deceived and stole from elderly persons by posing as a gardening contractor. He specifically targeted elderly individuals. Gallagher would either steal from the victims' homes or purses while "working" on their gardens or he would invent false charges for work, demand payment in advance, and then not perform any work. In first instance opinion, the sole judge stated that Gallagher deserved some credit for pleading guilty to the charges, "but not much."154 Gallagher's sentence was upheld. The sentence reflected a proper discount for the pleas of guilt.

Attorney-General's Reference Nos. 038 and 039 of 2004155:

Randall and Donaghue were charged with robbery and were each sentenced to three years' imprisonment. The victim was 57 years old and known to the offenders to be frail and have learning difficulties. The offenders and a third man went to the home of the victim one night and confronted him at his doorstep. The men used physical force to restrain the victim, punched him in the face, and at least one of the men demanded money from the victim. The victim directed the men to an envelope containing £100, the victim's total savings, which Randall (and possibly another) retrieved. Randall and Donaghue both pled guilty to the charge of robbery. The Attorney-General submitted that the sentences awarded "failed to mark adequately the gravity of the offence and aggravating features present."156 The aggravating features were: targeting a vulnerable and frail victim; invading a home at night; using gratuitous violence; causing significant injury to the victim; and acting as a group of three men. The Court held that the three-year sentences were unduly lenient and were substituted with 5½ years and 5 years 10 months for Donaghue and Randall, respectively.

Attorney General's Reference Nos. 32 and 35 of 1995157:

The offenders in this case are Pegg, Martin, and Underhill. The Attorney General takes issue with the sentences of Pegg and Martin alone. Pegg was sentenced to a total of four years' detention and was only charged with aggravated burglary; Martin was sentenced to seven years' imprisonment and charged with aggravated burglary and attempted robbery. The three offenders had heard an untrue rumour that a 73-year-old man in the community was very wealthy, which prompted them to break into his home. At some time before 1:30am, the offenders appeared in the bedroom of the victim, waking him. Underhill kicked and punched the victim while Pegg and Martin searched for money. Underhill used a knife to slash and stab the victim repeatedly, threatening to kill him. Pegg returned and pleaded with Underhill to stop the attack. The offenders left, taking nothing. The victim was severely injured and took five hours to reach the telephone to call the police. He spent over a month in hospital, but recovered from the incident. The victim later had nightmares of the attack and wished to sell his home.

The Court held that the sentences were not reflective of the aggravating factors of the burglary; Pegg's sentence was increased to seven years detention and Martin received ten years imprisonment, taking into account double jeopardy.

3.3.1 Vulnerability and older adults

A major theme in the U.K. jurisprudence is the notion of vulnerability. In the Attorney General's Reference Nos. 32 and 35 of 1995, the judge states:

[W]here an elderly victim, living alone, is violently attacked by intruders within the home and is injured the likely sentence will be in double figures. We wish to stress that attacks on elderly people in their own homes are particularly despicable and will be regarded by the court as deserving of severe punishment. Elderly victims living alone are vulnerable, not only because of the lack of assistance but also because of their own weakness and isolation. Any attack on such a person is cowardly and can only be expected to be visited with a very severe punishment indeed.158

The language of this case suggests that all older adults are vulnerable. This is consistent with U.K. legislative and policy approach discussed above which addresses elder abuse as a subset of the larger category of mistreatment of vulnerable adults. Nine years later the decision in Attorney-General's Reference Nos. 038 and 039 of 2004 reinforces this approach unequivocally:

We would also emphasize that the real test in these cases is that of vulnerability. The precise age of the victim is of less relevance. It is simply a factor which, along with other factors, may contribute to the victim being a vulnerable person living alone. This court has spelt out on many occasions the gravity with which such attacks in the home on elderly or otherwise vulnerable people will be viewed. Such offences cause widespread anxiety amongst the elderly or vulnerable. We entirely accept the point made by the Attorney General that deterrent sentences in such cases are required.159

3.3.2 Targeting elderly victims

The other theme that runs through U.K. sentencing appeals is the condemnation of crimes in which the offender preys upon older adults—a theme also found in the Canadian jurisprudence discussed above. There is a sense that criminal behaviour characterized as elder abuse, or mistreatment of the vulnerable, may get categorized as such because of the intention to harm a person known to be vulnerable, and the targeting of supposed easy victims. The following quotations illustrate this point:

In any event this was the most serious burglary. The impact on the disabled elderly housebound occupier was considerable. It was committed by a man with a clear track record for preying on the elderly and vulnerable… [T]he judge was entitled to pass a condign sentence, beyond the usual range, because of the persistence of this defendant's repeated offending against vulnerable victims.160

This sort of offending, where elderly people are targeted because of their vulnerability, is amongst the most serious that can be committed where violence is not actually used. The harm done to the quality of life of the victims by the fear and anxiety these offences cause far exceeds the monetary value to the defendant of the thefts, although the sums of money, sometimes modest, may be very significant indeed to the particular victims. A substantial sentence, both as punishment for the serious offending and as a clear indication to the defendant and others who might be tempted to commit these offences that if they do so substantial punishment will follow, is always required.161

3.4 Conclusion

The U.K. has been a leader in defining elder abuse and neglect, the definition of Action on Elder Abuse serving as a model on the international human rights front and focusing the concept around breaches of trust. However, the tenor of recent law and policy is to move away the term elder abuse altogether. The terms "adult at risk" and "vulnerable adult"—the latter of which can be found in the some Canadian adult protection statutes—are used instead. Moreover, the influential No Secrets policy characterizes elder abuse as a human rights issue, an approach, which, based on our review, is not common amongst documents issued by governments.