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

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)).