Researching the financial abuse of individuals lacking mental capacity

Statistical data: NHS Digital (NHSD) data

In terms of statistics, the starting point was to identify locations where financial abuse might come to light in the official, public domain, such as the courts and statutory safeguarding services, recognising that publicly available statistics are only ever going to describe a small part of actual misbehaviour.

The most useful data identified were the annual statistics published by the Health and Social Care Information Centre, now renamed NHSD, relating to safeguarding adults referrals received annually by local councils in England. These national data show that financial abuse is one of seven risks identified as being faced by people with care and support needs and is ranked third in frequency of risk. At national level in the most recent year, 2015-2016, 86 per cent of cases were attributed to people known to the victim (including care workers): the riskiest places were the person’s own home, followed by care homes. Of those who were referred under safeguarding procedures, 27 per cent were reported as lacking capacity. The classifications framework used by NHSD states that its category “lacking capacity” is determined where “an MCA [Mental Capacity Act] assessment concludes an individual lacks capacity to make decisions about the safeguarding incident” (NHS Digital, 2016).

In more detail, the two data sets which best inform the main focus of this paper are those dealing with “referrals on individuals” through to concluded cases, following investigation and the instances of “reported risks” (there may be more than one abuse risk associated with the same individual). Data relating to a recent two-year period are considered here:

Other data sources: the Office of the Public Guardian (OPG) and the CoP

Other data sources proved even more limited. Crime statistics (Office of National Statistics, 2015) were examined for information on the number of prosecutions for fraud per annum – particularly the category most appropriate for this investigation, “fraud by abuse of position of trust” – 3 per cent of all fraud – but found the data for these were bundled up into more general categories of fraud and could not be disaggregated (Dalley et al., 2017a). In any case, as noted later, a common concern amongst those experts who were interviewed during the course of the research was that cases of financial abuse were rarely prosecuted and thus remain hidden from public record, raising the wider question of how useful this avenue of investigation would be as a useful source of information.

Other possible sources were the OPG and the CoP – both established under the Mental Capacity Act 2005 – the CoP having jurisdiction over the property, financial affairs and personal welfare of people who lack mental capacity to make decisions for themselves (This study was concerned with its jurisdiction over property and financial affairs). The OPG registers lasting powers of attorney (LPAs) and supervises deputies, appointed by the CoP in the absence of attorneys to protect the interests of people lacking capacity, and mounts investigations into possible misbehaviour by attorneys and deputies in the discharge of their duties. The OPG annual report for 2014-2015 noted that there had been a 34 per cent increase in the number of LPAs registered since the previous year, thus widening the pool of opportunities for potential misbehaviour in the custodianship of donors’ assets – as well as for their appropriate management. It also reported a downturn in the number of safeguarding referrals received in 2014-2015 compared to the previous year but at the same time an 18 per cent increase in cases proceeding to full investigation into the possible breach of attorneys’ fiduciary duties, up from 628 (out of 2,200 referrals received) to 743 (out of 1970 referrals received).

The CoP had also seen a steady increase in the number of applications made to revoke attorneyships and deputyships for similar reasons during the same period (Dalley et al., 2017b). The senior judge reported that in 2014 he dealt with 313 safeguarding applications from the Public Guardian dealing with decisions about financial matters compared to 185 the previous year (Lush, 2014). He also commented that in the court’s experience “financial abuse is almost exclusively perpetrated by close relatives” (p. 11).

However neither of these sources (OPG and CoP) appears to publish detailed and regular statistics, particularly in relation to the detailed outcomes of OPG investigations and the number of LPA revocations by the CoP, which otherwise would throw some light on the overall scale of financial abuse.

Discussion of quantitative data

Of the sources examined as possibly useful to this study, NHSD provided the most helpful information. It showed that financial abuse is not uncommon – it ranks third in terms of referrals and types of risk dealt with by local safeguarding authorities. Other sources were examined but were less helpful. A limited picture of financial misbehaviour also emerges from the OPG and CoP but virtually nothing relating to the financial abuse of people lacking capacity was found in the crime statistics relating to fraud (the only possibly applicable category of offence). But even the NHSD data give little information about the nature of the abuse, the identity of perpetrators or victims, or the real outcomes of cases. Moreover, the biggest data source (NHSD) bears limited proven relationship to the other two (OPG and CoP). It is impossible to say how many of the individuals who come to the attention of the safeguarding authorities are also found to be under the protection of the OPG and CoP. It is quite likely that most NHSD-reported victims are not donors of LPAs, therefore are unregistered with the OPG and thus fall outside the aegis of CoP jurisdiction.

Professional views of the issue

In total, 35 professionals were interviewed for this part of the project (from over 50 consulted in total) and identified and selected as the key actors at local level in the case study or occupying positions of prominence nationally. They were able to provide examples of instances of financial abuse which either they themselves had encountered during the course of their daily work or had been reported to them via advice services or by colleagues. The interviewees comprised:

• local authority safeguarding team members (managers and front-line);

• voluntary organisation managers as well as policy and advice workers; dementia care nurses; therapists; mental health workers;

• police officers;

• professionals in national or local financial institutions;

• chairs or members of safeguarding adults boards; and

• legal professionals (lawyers, judges).

Analysis of their accounts of financial abuse, drawn from explorative interviews, each designed to elicit information specific to each interviewee (rather than a single interview schedule applied uniformly) was undertaken to identify commonalities and differences. Additionally, cases heard by the CoP were analysed to provide detailed illustrative material to augment – and substantiate – individual perceptions.

Themes emerging from the analysis fell into several categories – relating to the people involved, the relationship between perpetrator and victim and the type of financial abuse that most commonly occurs: abusers, victims and content of abuse.

Abusers

Victims

The examples of financial abuse that the research has reported on are drawn from several sources – from cases heard by the CoP, accounts provided by people working in the various parts of the voluntary sector as well as local authority safeguarding team members.

As noted, the study was concerned specifically with the financial abuse of people assessed as lacking mental capacity. While cases dealt with by the CoP are almost always going to involve those lacking capacity, because their protection is the Court’s functional purpose, local safeguarding teams intervene to protect people at risk regardless of defined mental status. It is thus worth noting that a quarter of safeguarding referrals involved people lacking capacity. As with individuals who were the subjects of safeguarding referrals, clients of voluntary sector informants, too, were frequently but not invariably, assessed as lacking capacity. Victims as a whole fell into a range of categories:

• older donors of LPAs (females in the majority) whose family members were acting for them either singly, jointly or severally, with fiduciary duties that meant they should act at all times in the best interests of the donor;

• learning disabled young adults trying to live independently (in supported accommodation) or being “over managed” by families (usually parents but sometimes siblings) who had undergone the transition from the role of parenting a child to the parenting of an adult;

• individuals with mental health difficulties, living in supported accommodation, who were victims of exploitation by other tenants often behaving as aggressively or manipulatively dominant “friends” (sometimes termed “mate crime”); and

• brain-injured adults who had experienced an unexpected and traumatic transition from their previous lives to their current position are open to exploitation because of changes in their own personalities and increased vulnerabilities.

Types of abuse

The main report on the research (Dalley et al., 2017a) considers the utility of establishing an overarching definition and typology of financial abuse and decided against doing so, preferring context-related definitions. The abuse described here fell into three broad contextual categories:

1. situations where the abusers (often family members) are legally in direct charge of the victim’s money (as an attorney or appointee) where they spend inappropriately on a small-scale, regular basis (“dipping in”) or by misappropriating large amounts (“gifting” to self or others);

2. manipulative exploitation by an abuser who can “persuade” or force the vulnerable person to “lend” money or be otherwise persuaded to spend money to the abuser’s benefit – this also includes mate crime, offers of romance, exploitation because of the victim’s gullibility; and

3. deception – abuse of trust usually by a stranger or by someone who has insinuated their way into the victim’s friendship circle and is in a position to persuade the victim to give them money, or pay over the odds for goods or services, or simply not produce the gift or service.

Theoretical considerations

Social exchange theory provides a convincing framework for understanding the complexity of the misbehaviour described in many of these examples – particularly in relation to intra-family abuse. The family, rather than being a haven, a place of safety imbued with love and trust as conventionally perceived, is often a site of intergenerational stress and antagonism (Parrott and Bengtson, 1999) – of particular danger to those members who may lack capacity to make decisions about their own financial and material concerns. This is exemplified in the analysis of the CoP cases, reported by elsewhere (Dalley et al., 2017b), which reveals vividly the extent to which bitterness, hostility and feuding can occur within families where one, or several of them, is/are misusing LPAs to their own advantage at huge cost to the vulnerable and victimised donor, a close relative.

Emerging organisational issues

Separate from the detail about the nature of the abuse emerging from the accounts of interviewees, was their perception that little could be done in many of the situations described and that satisfactory outcomes were hard to achieve. These pessimistic views fell into two categories:

1. Disenchantment with procedures in partner organisations

   From time to time, interviewees in different organisations expressed jaundiced or weary views about each other’s performance. Some were disenchanted with the degree of collaboration between member organisations of their local safeguarding adults boards, where some members failed to attend regularly, claiming other priorities. Other interviewees, from voluntary organisations, recounted instances of referrals they had made to their local safeguarding teams which had not been taken seriously and were not followed up. The police were sometimes criticised for similar failures, with safeguarding professionals eventually assuming that it was not worth reporting incidents of abuse to the police because they anticipated no action could or would be taken.

2. Lack of evidential proof

Safeguarding professionals expressed frustration that very few perpetrators of abuse were ever prosecuted – although hard data are hard to come by either to confirm or refute this. The police argue that the required standards of proof are rarely met to a point where the Crown Prosecution Service is able to recommend criminal prosecution (on a balance of probabilities that a conviction would result). NHSD data on case conclusions show that only 63 per cent of concluded referrals end up being substantiated or partially substantiated and that 41 per cent resulted in any action being taken (an unknown proportion of which would mean prosecution). There seem to be no statistics available in relation to the outcomes of CoP cases which show whether any criminal prosecutions or civil cases in chancery followed the proceedings in the CoP. LPAs may be revoked but even in cases of substantial misappropriation of the donor’s assets by an attorney or deputy, criminal prosecution seems to happen only rarely (the problem often being the lack of evidential proof to the required standard).