Alison Brammer, head of Keele University’s law school, said many convictions under the ill-treatment and wilful neglect offence included in the Mental Capacity Act 2005 resulted in a fine, unpaid work or suspended sentence. The maximum sentence for the offence is five years in prison.
Brammer, a former local authority lawyer, was speaking to social workers at a Care Act conference run by ADASS North West, Bury council, and Manchester Metropolitan University.
The first case prosecuted under the offence involved a care manager and care worker who had left three men with severe learning disabilities left locked in a hot car for three hours while the pair went into a betting shop. The care staff received a fine for wilful neglect “because they just hadn’t noticed the time,” Brammer said.
The only exception, she added, has been the case of three care workers who took mobile phone footage of ‘inhuman and degrading abuse’ against an 86-year-old man and 99-year-old woman. The care workers received jail sentences of 12, 18, and 21 months.
Brammer said there was “a continuing dissatisfaction with the judicial process” and pointed to the ongoing campaign for a new criminal offence for abuse against vulnerable adults, which is being led by charity Action on Elder Abuse.
But “without a very real commitment and understanding from the judiciary of the seriousness of cases being brought to court”, she said she remained sceptical that a new offence would be a solution to safeguarding cases.
Brammer also discussed the current consultation on the possible introduction of mandatory reporting in child abuse and neglect cases, or a duty to act. The consultation applies to England only and was launched in response to high profile cases, most notably the Rotherham child sexual exploitation scandal.
“You may be thinking well I work in adult social care so that’s why I’m not aware of it, but the consultation document also states that it will consider views on whether any changes should be applied to vulnerable adults – it’s hidden away,” Brammer told the audience.
The consultation document outlines a number of different options for mandatory reporting, as well as the possible extension of the wilful neglect offences that were added to the Criminal Justice and Courts Act last year. Brammer urged adult social care professionals to respond.
Speaking to Community Care after the event, she said: “Short sentences may be a reflection of the way society views offences against vulnerable adults.
“In some of the cases I researched, account was also taken of the fact that conviction could lead to the individual being barred from working in the sector.
“Mandatory reporting has the potential to draw out more cases of adult abuse and raise the profile and societal awareness. It is difficult to say without any certainty what proportion of cases would lead to any criminal law intervention or whether cases that are reported would be investigated and a safeguarding plan would provide further support to the individual.
“This is really part of a bigger question about the range of approaches to adult abuse, the role of the law and the impact that criminal prosecution of perpetrators of abuse may have.”
She added: “The current philosophy of the Care Act is very much about promoting wellbeing and following the wishes of the individual concerned. The criminal law does however have a distinct role in clearly indicating behaviour which is unacceptable to society.”
Source: Community Care