mpo october 2011 vulnerable adults and financial abuse martin o'neill

MPO October 2011MPO October 2011

Vulnerable Adults Vulnerable Adults and financial and financial

abuseabuse

Martin O'Neill Martin O'Neill


Financial abuse can Financial abuse can include:include:

• Theft of money or possessionsTheft of money or possessions

• Controlling someones access to Controlling someones access to money or benefits money or benefits

• Money being misappropriated and/or Money being misappropriated and/or absorbed into a Care Home's or absorbed into a Care Home's or household budget without the household budget without the person's consent person's consent


Financial abuse can Financial abuse can include:include:• Staff or volunteers borrowing or accepting Staff or volunteers borrowing or accepting

gifts or money from service users gifts or money from service users • Goods or Services purchased in someone's Goods or Services purchased in someone's

name but without their consent name but without their consent • Taking out a loan in someone's name Taking out a loan in someone's name • Being deliberately overcharged for goods Being deliberately overcharged for goods

or services or being asked to part with or services or being asked to part with money on false pretences money on false pretences

• Altering ownership of property without Altering ownership of property without consentconsent


Financial abuse can Financial abuse can include:include:

• Being asked to sign or give consent Being asked to sign or give consent to financial agreements (including to financial agreements (including making a Will) when a person does making a Will) when a person does not have the mental capacity to not have the mental capacity to understand or give informed consentunderstand or give informed consent

• (With thanks to Warwick University (With thanks to Warwick University 2006) 2006)


Some potential offencesSome potential offences

• TheftTheft

• FraudFraud

• ForgeryForgery

• False accountingFalse accounting

• Handling stolen goodsHandling stolen goods


Theft Theft

• R v HinksR v Hinks


FraudFraud

• Fraud Act 2006Fraud Act 2006

• Came into Force on 15Came into Force on 15thth January 2007 January 2007


One or two issues:One or two issues:

• With a view to gain or to cause lossWith a view to gain or to cause loss

• This is intended to be the same as the This is intended to be the same as the existing definition in the theft act 1968existing definition in the theft act 1968

• It is defined in section 5 of the new actIt is defined in section 5 of the new act

• Only extends to money or other Only extends to money or other propertyproperty

• Can be a temporary or permanent gain Can be a temporary or permanent gain or lossor loss


DishonestyDishonesty

• The Ghosh (1982) two-stage test:The Ghosh (1982) two-stage test:• A) whether the defendants behaviour A) whether the defendants behaviour

would be regarded as dishonest by would be regarded as dishonest by the ordinary standards of reasonable the ordinary standards of reasonable and honest people. AND If yesand honest people. AND If yes

• B) whether the defendant was aware B) whether the defendant was aware that his conduct was dishonest and that his conduct was dishonest and would be regarded as dishonest by would be regarded as dishonest by those standardsthose standards


Section 2 Fraud Act 2006Section 2 Fraud Act 2006

• A person is in breach of this section if he-A person is in breach of this section if he-

• A) A) dishonestlydishonestly makes a makes a false false representationrepresentation, and, and

• B) B) intendsintends, by making the representation-, by making the representation-

• (i) to make (i) to make gain for himselfgain for himself or another, or or another, or

• (ii) to cause (ii) to cause lossloss to anotherto another, or to expose , or to expose another to the risk of loss another to the risk of loss


Section 4-Fraud by àbuse Section 4-Fraud by àbuse of positionòf position`• A person is in breach of this section if A person is in breach of this section if

he-he-

• A) occupies a position in which he is A) occupies a position in which he is expected to safeguard, or not to act expected to safeguard, or not to act against, the financial interests of against, the financial interests of another person,another person,

• B) dishonestly abuses that position, and B) dishonestly abuses that position, and

• C) intended gain or lossC) intended gain or loss


s.4(2) states:

•“A person may be regarded as having abused his position even though his conduct consisted of an omission rather than an act.”


Occupies a positionOccupies a position

• Can be official positionCan be official position

• Can be unofficial positionCan be unofficial position


Ormerod 2007Ormerod 2007

• Financial position (official):Financial position (official):

• Employee/employerEmployee/employer

• Trustee/beneficiaryTrustee/beneficiary

• Director/companyDirector/company

• Professional/clientProfessional/client

• Business partnersBusiness partners


Ormerod 2007Ormerod 2007

• Financial position (unofficial):Financial position (unofficial):

• Family Family

• FriendFriend


Examples Examples

• An employee in a software company An employee in a software company dishonestly clones his company's dishonestly clones his company's products to sell on for his own products to sell on for his own purposes.purposes.

• BR sandwiches! Note can be alone. BR sandwiches! Note can be alone. No need for conspiracy.No need for conspiracy.

• Shopkeeper double swipes and Shopkeeper double swipes and clones credit cards.clones credit cards.


PNLD (citing Law Commission PNLD (citing Law Commission paper on Fraud)paper on Fraud)

•Another example covered by this section is where a person who is employed to care for an elderly or disabled person has access to that person's bank account and abuses his position by removing funds for his own personal use


R v Marshall 2009R v Marshall 2009

• Colette Marshall was joint manager of a residential care home

• There were four residents in the home. Each had severe learning difficulties. One of the residents, B, had a mental age of only a young child. She was vulnerable and Marshall was employed in a position of trust and responsibility towards B. B had a bank account which she could not exercise any proper control over it herself. She was dependent on others to do so on her behalf.


R v Marshall 2009R v Marshall 2009

• There were strict rules governing the withdrawal from her account. It should only have been done in the presence of B and of course the money withdrawn should have been used entirely for her benefit. A vigilant social worker became concerned about irregular transactions; in particular withdrawals in the West Midlands which could not have been made by or for the benefit of B. An audit showed that between January and

June 2008 the appellant had wrongly withdrawn £7,600 odd from B's account.


Outcome Outcome

•Defendant convicted of sections 1 and 4 Fraud Act 2006


To sum upTo sum up

• I was looking for a quote that might I was looking for a quote that might succinctly describe what we are succinctly describe what we are looking for in the context of the looking for in the context of the vulnerable…..vulnerable…..


Section 4 is potentially aimed Section 4 is potentially aimed at:at:• “[A]cquisitive family members, neighbours, or

acquaintances who batten on vulnerable people who have lost their wits, or who never had any, and relieve them of their money or other property by inducing them to make them gifts or exorbitant payments for minor services, or otherwise financially abuse them.”

• A.P. Simester, J.R. Spencer, G.R. Sullivan and G.J. Virgo, Simester and Sullivan's Criminal Law: Theory and Doctrine, 4th edn (Oxford: Hart Publishing, 2010), p.619

mpo october 2011 vulnerable adults and financial abuse martin o'neill

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