Published on 27 March 2017.

Keynote Address, ADA National Conference, ‘Human Rights & Social Justice: Shifting Client Control’, Surfers Paradise, Queensland, 23 March 2017, Emeritus Professor Rosalind F Croucher AM, President, Australian Law Reform Commission*

Abstract: The ALRC’s Disability inquiry embodied the paradigm shift of the UNCRPD to supported decision making and, as a first principle, that all adults have an equal right to make decisions that affect their lives and to have those decisions respected. In the Elder Abuse inquiry the ALRC has had to balance this principle of autonomy with the challenge of ensuring that laws and legal frameworks provide appropriate protections and safeguards for older Australians, while minimising interference with the rights and preferences of the person. This presentation provides insights from both inquiries, led by Professor Croucher.

Acknowledgments

As the Head of an Australian Government agency, and in the spirit of our Reconciliation Action Plan, I would like to begin my presentation by acknowledging the ancestral owners of this land, and to pay my respect to elders, past and present. I also extend my respect to all Aboriginal and Torres Strait Islander participants here today.

In this presentation I will be sharing insights from two ALRC inquiries: first, to talk about the ‘model’ that the we developed as set out in the 2014 report, Equality, Capacity and Disability in Commonwealth Laws (ALRC Report 124) (which I will call the ‘Disability Report’); the second is the current work on Elder Abuse. Both concern the challenge of not only supporting, but also protecting, older people in the exercise of their rights.

The Disability Inquiry

On 24 November 2014 the Australian Law Reform Commission’s report, Equality, Capacity and Disability in Commonwealth Laws (ALRC Report 124) was tabled, marking the entry into the public domain of the conclusions of this significant inquiry. In leading the inquiry, I was assisted wonderfully by Graeme Innes AM, then Disability Discrimination Commissioner, who was given an additional ‘hat’ as a part time Commissioner of the ALRC, and an Advisory Committee of experts, drawn from across the disability sector.

The central point of the inquiry was the equal recognition of people with disability as persons before the law and their ability to exercise legal capacity. Our Terms of Reference asked us to examine laws and legal frameworks within the Commonwealth jurisdiction that denied or diminished this equal recognition, and to recommend what, if any, changes could be made.

A principal task, as we saw it, was to translate into Commonwealth laws the paradigm shift marked by the UN Convention on the Rights of Persons with Disabilities, or ‘DisCo’. We were asked to consider ‘how maximising individual autonomy and independence could be modelled in Commonwealth laws and legal frameworks’.[1] This was to prove pivotal; as so many laws relating to capacity are entrenched in state laws, especially the law relating to guardianship and administration.

The ‘Commonwealth Decision-Making Model’ that we advocated is one in which supported decision-making is central. The process by which we reached it was, for me, an enlightening one—particularly in relation to how one deals with the central issue of ‘legal capacity’ and also teasing out the implications of the CRPD in relation to substitute decision-making. Let me share a little of that journey.

My background is in succession and property law and I am very familiar with the law’s approach to capacity questions, ones that arise usually in retrospect when a transaction is challenged or sought to be undone on the basis of a lack of legal capacity: transactions like contracts or wills. Law manages such matters in a functional way. Capacity is considered as fluctuating and calibrated to the transaction in hand. This is certainly how testamentary capacity is tested, in which the leading case involved someone who had been committed to a ‘lunatic asylum’.[2] The decision about his capacity to make a will was a legal one, not a medical one.[3] His will withstood challenge—as the ‘insane delusions’ which he experienced were considered irrelevant to the questions involved in making a will.

Legal capacity sets the threshold for individuals to take certain actions that have legal consequences. It is a question of legal competency. For example, a range of transactions may involve an age threshold as a benchmark of when a person is regarded as being able to act independently and with binding effect—to have legal agency to make ‘legally effective choices’.[4] Legal capacity goes to the validity, in law, of choices; and being accountable for the choices made. ‘Those who make the choice’, Emeritus Professor Carney AO states, ‘should be able to provide valid consent, and make decisions for which they can be held accountable. They should, in short, be legally competent.’[5]

Given law’s retrospective approach, the starting point is a presumption of capacity. A challenge on the basis of a lack of capacity (in the sense of agency) is brought to rebut this presumption of legal capacity.[6] Where a lack of the required level of understanding is proved in the particular circumstances, the transaction may be set aside. Such doctrines focus on a transaction and the circumstances surrounding it. They are decision-specific and involve assessments of understanding relevant to the transaction being challenged. As a lawyer, this appeared to me respectful and based on the premise of autonomy. The common law presumption of capacity has, after all, been described as ‘the law’s endorsement of autonomy’.[7]

But in leading the ALRC inquiry on capacity and seeking to frame National Principles, which seemed a good place to begin, my eyes were opened. We had to start somewhere else. If you start from a presumption, you separate people: between those with capacity, and those without. For in every presumption lies the possibility of rebuttal. It is a binary model; and for those with lived experience of disability it is deeply troubling. What the idea of equality means to people with disability is not a definition of capacity based on a presumption. The UN Committee on the Rights of Persons with Disabilities (UNCRPD) emphasised that the idea of equality reflected in art 12 is essentially about the exercise of human rights: ‘[e]quality before the law is a basic and general principle of human rights protection and is indispensable for the exercise of other human rights’.[8] This understanding led us to state, as the first of the National Decision-Making Principles that framed our report:

Principle 1: The equal right to make decisions - 

All adults have an equal right to make decisions that affect their lives and to have those decisions respected.

The four National Decision-Making Principles, with accompanying guidelines, reflect the key ideas and values upon which the ALRC’s approach is based. They are not prescriptive, and are of general application. Principles 2–4 are these:

Principle 2: Support - Persons who require support in decision-making must be provided with access to the support necessary for them to make, communicate and participate in decisions that affect their lives.

Principle 3: Will, preferences and rights - The will, preferences and rights of persons who may require decision-making support must direct decisions that affect their lives.

Principle 4: Safeguards - Laws and legal frameworks must contain appropriate and effective safeguards in relation to interventions for persons who may require decision-making support, including to prevent abuse and undue influence.

What is central to these principles is a shift away from ‘substitute decision-making’ to ‘supported decision-making’, embracing the paradigm shift embodied in the CRPD. There is an important distinction between supported and substitute decision-making; but it also a point about which much confusion has arisen.

The language in the report signals the distinction between supporting a person, and substituting for that person as a ‘representative’. We chose this latter term carefully and sought to make a clear distinction between supporting and representing a person. But we also recognised that there are circumstances where a substitute, a representative, may be needed—to make decisions for a person—and to focus on such appointments through a safeguarding approach. Our choice of the new term, ‘representative’, was deliberate and it was made in light of evident tension concerning the use of the labels of ‘supported decision-making’ and ‘substitute decision-making’—as fully explored in the report.

‘Representative’ was chosen to distance ourselves from the historical baggage of ‘guardianship’. As this audience would know very well, guardianship has a long history,[9] and ‘traditional’ guardianship laws may be considered too paternalistic, too plenary, and outdated.[10] In settling upon the word ‘representative’ I drew upon my research background in succession law where the ‘legal personal representative’, in particular the executor, acts in execution of what the deceased person wanted: they literally represent the deceased through the discharge of the intentions of the deceased expressed in the person’s will.

While developing a new lexicon was important, as we urged,[11] it is much more than names. The essence is the understanding of what the roles mean in terms of how a supporter or a representative can act—whatever labels they have.

Put at its most basic, the ‘will and preferences’ approach involves starting with asking the person what they want; and if communication is difficult, then support in finding out what the person wants is required. It’s not about assuming what is ‘best’ for them, justified as their ‘best interests’. The ‘equal right’ to make decisions means that the person has be to central: to make their decisions.

The standard for action is set out in the Will, Preferences and Rights Guidelines, that complement Principle 3, the relevant parts of which are these:

(1)       Supported decision-making

(a)       In assisting a person who requires decision-making support to make decisions, a person chosen by them as supporter must:

      (i)  support the person to express their will and preferences; and

      (ii) assist the person to develop their own decision-making ability.

(b) ...

(2)       Representative decision-making

Where a representative is appointed to make decisions for a person who requires decision-making support:

(a)       The person’s will and preferences must be given effect.

(b)       Where the person’s current will and preferences cannot be determined, the representative must give effect to what the person would likely want, based on all the information available, including by consulting with family members, carers and other significant people in their life.

(c)  If it is not possible to determine what the person would likely want, the representative must act to promote and uphold the person’s human rights and act in the way least restrictive of those rights.

(d) A representative may override the person’s will and preferences only where necessary to prevent harm.

The ‘bottom line’ in the model is the acknowledgment of the role of substitute decision maker but only in the way that is described: namely, it is a representative role, guided by the will and preferences of the individual to the extent that this can be ascertained, including drawing upon information that family and carers may be able to provide to find out what the person ‘would likely want’. But there are also some ‘out’ clauses, as it were. The representative must act in a way to uphold the person’s human rights and only override a person’s wishes to prevent harm.

The kinds of human rights encompassed by the Guideline include the various matters set out in the CRPD, including:

  • respect for inherent dignity—preamble and art 3;

  • non-discrimination—art 5;

  • liberty and security—art 14;

  • freedom from torture or cruel, inhuman or degrading treatment or punishment—art 15;

  • physical and mental integrity—art 17;

  • liberty of movement—art 18;

  • independent living—art 19;

  • respect for privacy—art 22;

  • respect for home and family—art 23; and

  • participation in political and public life—art 29.

To play the devil’s advocate, one could ask, isn’t this ‘rights’ approach just like ‘best interests’? Should ‘best interests’ be retained as a fallback, as was suggested to us in the Inquiry?[12] Is it just that the ‘best interests’ standard is poorly understood? The Office of the Public Advocate (Qld) observed that

‘Best interests’ is often applied in an unsystematic way without any unpacking of relevant considerations, including the values and principles applied in the decision-making process.[13]

The OPA (Qld) also argued that, without ‘careful guidance, education, training and advice’, a rights-based approach could be similarly fraught and that the ‘kind of cultural change that needs to be achieved will be difficult to effect without a holistic strategy’.[14] Guidelines and codes of practice were cited as examples of things that could drive such cultural change. ‘At the end of the day’, said the Mental Health Coordinating Council’, the legislation ‘must have an underpinning code of practice that provides the key framework and principles of best practice’.[15]

The human rights approach is also reflected in the paragraph 2(d) of the Will, Preferences and Rights Guidelines, which provides that a representative may override the will and preferences of a person only where necessary to prevent harm. This is consistent with the CRPD in that, for example, art 17 may require the representative to make a decision that protects the person’s ‘physical and mental integrity’, notwithstanding the decision conflicts with the person’s expressed will and preferences. A qualification of this kind tests the limits of autonomy, particularly where the limitation concerns harm to oneself. Examples are seen usually in the context of mental health legislation: to save a patient’s life, or to prevent a patient from seriously injuring themselves or others. They are challenged practically in discussions about ‘restrictive practices’, which came up in the Disability inquiry, but also in the Elder Abuse inquiry, which I will speak about shortly.

Safeguards may be included in terms of ensuring that the course of action proposed is the ‘least restrictive’ option.[16] The latter approach is captured as the first point in the Safeguards Guidelines.

(1)     General

Safeguards should ensure that interventions for persons who require decision-making support are:

(a)      the least restrictive of the person’s human rights;

(b)     subject to appeal; and

(c)      subject to regular, independent and impartial monitoring and review.[17]

Whenever a limit on the ‘will and preferences’ priority is included, however, considerable care is needed in translating it into practice. A provision that a person’s will and preferences may be overridden based on the outcome of a decision—in this case, harm—runs contrary to a focus on ability that is not outcomes-based. In the Support Guidelines it is spelled out that, in assessing what support is required in decision-making, a person’s decision-making ability is to be assessed, not the outcome of the decision they want to make.[18] However, it is not necessarily inconsistent with a principle of autonomy, as autonomy is not an absolute concept.[19] The Australian Guardianship and Administration Council (AGAC) reiterated that,

in certain circumstances, the views of the person might lead to outcomes that are significantly detrimental to the person’s health and welfare. In these circumstances, recognition of the representative’s authority to make decisions contrary to the wishes of the person is essential.[20]

The development of codes of practice, guidance and accountability measures will, over time, lead to a shift in culture and practice. An important aspect of this cultural shift arises in decisions where the person involved has expressed their will and preferences in ways that are likely to be financially detrimental. The issue is captured in the phrase ‘dignity of risk’. While the UNCRPD has referred to the need to protect people from ‘undue influence’, it has also said that protection must ‘respect the rights, will and preferences of the person, including the right to take risks and make mistakes’.[21]

As we have worked through the Elder Abuse inquiry, there are other resonances of the idea of ‘dignity of risk’ that I will explore later.

The National Decision-Making Principles and the accompanying Guidelines are not legislative, nor did we recommend that they be enacted, but rather that they provide the conceptual backdrop to implementation elsewhere. Reform at the state and territory level is critical to the implementation of the ALRC model, because many important areas of decision-making are governed by state and territory law—including in relation to guardianship and administration, consent to medical treatment, mental health and disability services—and the ALRC recommended that such laws be reviewed to be consistent with the Commonwealth model advocated.[22] This means that guardianship laws will need to be brought in line with an approach that reflects the will and preferences of the individual for whom decisions are to be made.

The most difficult policy challenges in this area concern those who require the most support—where a person’s will and preferences are difficult, or impossible to determine, and they may need someone else to make decisions on their behalf. These hard cases should not, however, be treated as a barrier to building law and legal frameworks that move towards supported decision-making in practice, as well as in form. It is a long view; and law reform necessarily must take a long horizon.

Recognition of the value of the Disability Report is implicit in the Terms of Reference for the Elder Abuse Inquiry, which direct us to have regard, among other things, to the recommendations of our own report.

The Elder Abuse Inquiry

The Elder Abuse Inquiry is most timely—given the problem, the challenge, the opportunity of an ageing demographic. The Australian population, like other developed countries, is an ageing one. The statistics are quite confronting, however you come in on it: whether it’s in terms of the numbers of workers that will be needed to support an ageing population, or whether it’s the extent to which health services, and aged care services, and disability services will be needed, an ageing demographic provides a very intense opportunity for public policy concern. In fact a parliamentary report in 2007 referred to this as the ‘inescapable demographic destiny’ of an ageing population.[23]

In the Elder Abuse Inquiry we are looking at Commonwealth laws and frameworks that seek to safeguard and protect older persons from misuse or abuse by formal and informal carers, supporters, representatives and others. The main areas of interest are financial arrangements and superannuation; enduring documents and powers of attorney; guardianship; social security; and aged care arrangements.

We have also been asked to examine the interaction and relationship of Commonwealth laws in areas such as aged care and social security with state and territory laws. This clearly takes us into the realm of guardianship and administration; and into laws dealing with ‘private’ appointments of substitute decision makers through enduring powers of attorney and the appointment of enduring guardians. A great deal of our work has therefore involved state and territory bodies and agencies. The crossing of borders makes responding to elder abuse a complex issue—both from the perspective of laws, but also in terms of practical responsibility. The AIFS Study, Elder Abuse: Understanding Issues, Frameworks and Responses, that was commissioned as part of the background leading to our inquiry, commented that

responses to the management and prevention of elder abuse sit within a range of complex policy and practice structures across different levels of government, and various justice system frameworks within the private sector and across non-government organisations.[24]

The ALRC comes to this inquiry having undertaken several inquiries in recent years that have provided a rich resource, both in terms of conceptualising the issues, but also in a very practical sense, in the excellent relationships we have built with a number of stakeholders. Here I include not just the Disability Inquiry, but also the landmark report in 2010 on Family Violence;[25] and the 2013 report that looked at barriers for older people in the workforce.[26] Each of those inquiries took us into the kind of thinking necessary to conceptualise the problems that traverse both across state and federal boundaries.

On 15 June, coinciding with Elder Abuse Awareness Day, the ALRC released the first consultation document for the Inquiry, an Issues Paper calling for responses from the public to its 50 questions.[27] We received over 200 submissions, which is a very significant response. The Discussion Paper was released in December and included 43 proposals for reform across 10 areas. Submissions closed at the end of February, bringing in another 200 plus, and the inquiry will conclude with the delivery of a Final Report to the Attorney-General in May 2017.

Identifying the problems

What is elder abuse? It usually refers to abuse by family, friends, carers and other people where there is a relationship or expectation of trust. While there is not a universally accepted definition, a widely used one is that of the World Health Organization, describing elder abuse as ‘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’.[28]

Commonly recognised categories of elder abuse include psychological or emotional abuse, financial abuse, physical abuse, neglect, and sexual abuse. Using drugs to sedate older people when unnecessary is another type of abuse, sometimes called chemical abuse. Throughout our consultations the ALRC has heard that often these types of abuse overlap, and the very nature of the abuse makes it difficult to identify and respond to.

There are many case studies or illustrations that can be drawn upon to gain an understanding of the elder abuse landscape. Many of the submissions were from people with their own particular stories of heartache. The AIFS study provided many examples. Using calls to the Queensland elder abuse helpline as a principal source of information, the AIFS study identified financial abuse as accounting for 40% of the most commonly reported type of abuse in 2014–15; and children in their 50s as the largest group of offenders.

Writing in The Australian newspaper on 6 February, the Age Discrimination Commissioner, Dr Kay Patterson AO, recounted examples from consultations she has been undertaking:

at one community legal centre I was told about a son moving in to help his father renovate. The son sold the house, delivered his emaciated father to his sister in just the clothes in which he stood, and drove off with the money.

Or the bank teller who was concerned when a regular customer came in with her son, asking to withdraw $50,000. When the manager asked if she really wanted to withdraw the money, she said her son had told her she wouldn’t see the grandchildren again if she didn’t.

Similarly, Seniors Rights Service provided a list of examples of types of financial abuse that have been brought to their notice:

  • An attorney uses the older person’s funds and spends the money on themselves;

  • The attorney lives in the older person’s home and obtains a benefit but does not pay market rent;

  • The attorney enters into a conflict transaction where they themselves benefit (they pay themselves for the care provided to the older person or they mortgage the older person’s home and keep the proceeds);

  • The attorney breaches the conditions of the enduring power of attorney;

  • The attorney mixes the funds of the attorney and the older person (such as placing the funds of the older person in a joint account) once the older person loses capacity;

  • An attorney taking money from bank accounts and through an ATM and spending the funds on themselves.[30]

But having enduring appointments in place is not all bad. They have a vital role to play in supporting older persons with declining abilities; similarly with respect to family agreements concerning property (collectively dubbed by Centrelink as ‘granny flat’ interests). Problems can, and do arise, as the research indicates, but the good they do should not be forgotten.

Remember that in 2017, there were 2.7 million unpaid carers in Australia. Their average age was 55, most were female and 96% were caring for family members. And in 2009, of the group aged 65+ who were needing care, 24% of primary carers were adult sons or daughters living with their parent. Many of these may well have held enduring documents in their favour that assisted in their caring roles.

Framing our reform thinking

The policy objective expressed in the Terms of Reference, and therefore the ALRC’s brief, is to identify best practice laws and legal frameworks that: promote and support older people to participate equally in their community and access services and advice; protect against misuse or advantage taken of formal and informal supporter or representative roles; and to provide specific protections. To meet these objectives, and to express a rights-based framework, we consider that the proposals, and the recommendations that we make in the Final Report, should meet the following framing principles: dignity and autonomy; and protection and safeguarding.

Dignity and autonomy

The right to enjoy a dignified, self-determined life is an expression of autonomy. The UN Principles for Older Persons state this principle as requiring that:

Older persons should be able to live in dignity and security and be free of exploitation and physical or mental abuse.

Older persons should be treated fairly regardless of age, gender, racial or ethnic background, disability or other status and be valued independently of their economic contribution.[31]

Dignity in the sense of the right to enjoy a self-determined life is particularly important in consideration of older persons with impaired or declining cognitive abilities. The importance of a person’s right to make decisions that affect their lives was a fundamental framing idea throughout the ALRC’s Equality, Capacity and Disability Inquiry. It reflects the paradigm shift towards supported decision making embodied in the UN Convention on the Rights of Persons with Disabilities and its emphasis on the autonomy and independence of persons with disabilities, so that it is the will and preferences of the person that drives decisions they make or that others make on their behalf, rather than an objective notion of ‘best interests’.

To put it plainly again, in a simple example: ask mum what she wants first. Just because she has some cognitive impairment doesn’t necessarily mean that she doesn’t know what she wants; even if you think you know better.

Protection and safeguarding

Where the Disability Inquiry had strongly embodied the principle of dignity and autonomy, the Elder Abuse Inquiry draws us firmly towards safeguards and protections. This is reflected in the title of the Terms of Reference: ‘Protecting the Rights of Older Australians from Abuse’. It is also a clear objective of the Inquiry. The challenge, in law reform terms, is to find an appropriate protective and safeguarding response without abandoning the emphasis on rights—and particularly as expressed as the ‘will and preferences’ of the older person in the general context of increased cognitive impairment aligning with increasing age.

Concerns about determining appropriate safeguarding responses may also be increased in the context of a move towards more self-directed care, where older people are being supported to stay in their own homes for as long as possible.[32] While a consumer or self-directed model of aged care allows more room for autonomous choices, it may also expose older people to new risks. Policy choices need to recognise this risk exposure with the aim of future-proofing reforms. New processes of accountability and transparency will be required, as part of the community’s responsibility to ensure older people are protected from potential abuse. 

Coming up with answers

The law reform responses must reflect our framing principles. First and foremost we have to start from a position of respecting and supporting individuals in their choices and in their exercise of their rights. But we also have to answer the 4 Rs of safeguarding: reducing risk, reporting, response and redress.

We need to respond to the plea that runs through many of the personal submissions, that ‘someone’s got to do something!’ But, at the same time, overzealousness has to be resisted, otherwise it pushes the balance between the principles too much to the ‘protective’ side. Perhaps where ‘dignity of risk’ was a theme in the Disability Inquiry, ‘dignity in decline’ is one we need to embrace in the Elder Abuse Inquiry. We also need to recognise that there is a difference between ‘coercion’—forcing someone to do something against their wishes; and what I describe as ‘acquiescent exploitation’—where a person knows that others may think what they are doing as unwise but they decide to do it anyway, for a whole range of often very personal, self-sacrificing reasons.

Clearly, however, there are no bright lines. As a person’s cognitive ability declines, so perhaps, does their vulnerability increase.

Practically, we are looking at a range of things, to ‘frontload’ understandings as much as possible, to improve complaint handling mechanisms, but at the same time ensuring that the older person is supported in protecting their rights. It is a person-centred approach, but also with a view to systemic improvements.

Here are some examples from our Proposals as they express our framing principles.

Dignity and autonomy

This principle is seen in a range of proposals respecting and supporting the individual. It is expressed, for example, as ‘direct contact’ with an older person, to ascertain or confirm will and preferences, seen for instance in proposals with respect to social security,[33] and exploration, though a question, as to the best way to ensure that a person who is subject to a guardianship or financial administration application is included in the process.[34]

Proposals also concern supporting an individual in making arrangements for enduring powers of attorney and enduring guardianship, recognising that such instruments are important tools that allow older people to choose the person they would like to make decisions on their behalf should they lose decision-making ability in the future. In this way they are expressions of autonomy. Enduring documents are also protective in that they protect an older person who has lost decision-making ability from being exploited and abused by others. But they also may be used as a vehicle of abuse, as submissions and other research have revealed. The proposals about enduring documents are aimed at reducing such risk by ‘front-loading’ safeguards through proposals for enhanced witnessing requirements and certification; greater scrutiny of the appointee; and greater restrictions on the management of a person’s estate by an attorney under powers, with particular focus on conflict transactions and record keeping requirements.[35]

Respecting the dignity of an individual is also central to the proposals that concern what are described as ‘restrictive practices’. Such practices are used to manage ‘challenging behaviours’ and include things like detention (eg, locking a person in a room or ward indefinitely); seclusion (eg, locking a person in a room or ward for a limited period of time); physical restraint (eg, clasping a person’s hands or feet to stop them from moving); mechanical restraint (eg, tying a person to a chair or bed); and chemical restraint (eg, giving a person sedatives). In practice, restrictive practices are most often used on people with an intellectual disability or cognitive impairment who exhibit ‘challenging behaviours’, such as striking themselves or other people or ‘wandering’. They are therefore intended to be used to protect the restrained person or others from harm. However they can also be considered as contrary to the dignity of the person being restrained. Although not commonly included in discussions of elder abuse, the use of restrictive practices can amount to abuse. Concerns have been expressed about the use of restrictions as a ‘means of coercion, discipline, convenience or retaliation by staff or others providing support, when aged care facilities are understaffed’. The Australian and New Zealand Society for Geriatric Medicine submitted that restrictive practices are ‘still pervasive’ in residential aged care facilities, ‘particularly in relation to chemical sedation and inappropriate use of drugs’.[36]

A national framework exists for reducing and eliminating the use of restrictive practices in the disability service sector. In aged care, the use of restrictive practices is not explicitly regulated, although guidance has been provided. The ALRC proposes that the Aged Care Act should regulate the use of restrictive practices and that they should only be used as a last resort and when necessary to prevent harm, consistent with the principle of dignity.[37]

Protecting and safeguarding

Respecting the choices that older people make, but also safeguarding them is a challenge that is not necessarily easy to resolve, because protective responses may lead to overreach. Many of the proposals reflect the following themes: reducing risk; reporting and ensuring an appropriate response; and providing avenues for redress. There are also ‘capstone proposals’ which go towards informing policy change into the future.

Reducing risk

Proposals focused on reducing risk include:

  • improving the understanding of frontline workers, like Centrelink staff, to identify and respond to elder abuse;[38]

  • employment screening of aged care workers, like that that applies to working with children, to provide better protection to care recipients;[39]

  • requiring unregistered aged care workers who provide direct care—variously employed as assistants in nursing, aged care workers, or personal care workers—are unregistered to be subject to the planned National Code of Conduct for Health Care Workers;[40]

  • excluding some people from being able to be an enduring attorney—such as an undischarged bankrupt;[41]

  • listing the transactions that cannot be completed by an enduring attorney or enduring guardian;[42]

  • requiring enduring attorneys to keep records and to keep their own property separate from their principal’s;[43]

  • ensuring that newly-appointed non-professional guardians and financial administrators are informed about the scope of their roles, responsibilities and obligations,[44] and that they sign an undertaking to comply with those responsibilities and obligations;[45]

Another set of proposals aimed at risk reduction is through increased transparency in relation to enduring documents through the establishment of a national register. Even more forward looking is a set of proposals concerning a national model agreement, a Representatives Agreement, reflecting the language developed in the Commonwealth Decision-Making Model in the Disability Inquiry.[46]

This set of proposals is designed to bring clarity to the nature of the relationship created by an enduring document, the powers and responsibilities it bestows and the safeguards in place to protect the principal. An important benefit of adopting a single model agreement is that it will ensure consistency across Australia in the form and content of enduring documents, including terminology and assessments of capacity or decision-making ability. The Representatives Agreement would also drive reform in the decision-making standard for substituted decision making towards a focus on the principal’s will, preferences and rights.

Reporting and response

A group of proposals focus on ensuring that elder abuse concerns have somewhere to go and that there is an appropriate response.

We propose the establishment of a national reportable incidents scheme in the aged care sector to respond to concerns raised by stakeholders about the limited scope of the current reporting regime in aged care, and the lack of transparency and accountability in responses to reportable assaults.[47]

The proposed scheme is modelled on the New South Wales disability reportable incidents scheme (DRIS). The DRIS provides an instructive model upon which to base a reporting regime for aged care, as it captures people who are closer to the cohort of people the subject of this Inquiry, that is, older people with disability, and draws on 16 years of experience of the employment related child protection function provided by Part 3A. It would require the reporting of a broader range of abusive conduct to the Aged Care Complaints Commissioner. The goal is that the scheme is one that focuses on responding to incidents, rather than a regulatory compliance obligation.

The gap in the current scheme is the limited scope of what is reported and what happens when reports are made. The latter could reflect a gap in response or a lack of transparency as to what happens when reports are made.

One of the concerns identified by stakeholders is that the type of conduct defined by the legislation as being a ‘reportable assault’ is too limited and fails to capture various forms of serious ‘abuse’ that can result in grave consequences for victims. For example, the definition failed to address ‘poor nutrition, hydration, verbal and emotional abuse [and] financial fraud.’ Under the proposed scheme, approved providers would be required to report a broader range of abusive conduct.

The ALRC proposes removing the exemption to reporting resident-on-resident incidents in aged care—an issue of significant interest to stakeholders. For example, the Office of the Public Advocate Victoria argued that, without such incidents being visible, it is difficult to evaluate the efficacy and appropriateness of any response, and further develop policy and program responses to those incidents. Although the legislation requires that approved providers implement a behaviour management plan, a number of stakeholders raised concerns about the appropriateness of plans implemented; and said they were troubled by the lack of oversight in that regard.

The ALRC proposes a limited expansion of the requirement to report beyond the residential care context, where a care recipient is receiving home or flexible care. It is proposed to require a notification to be made where the alleged perpetrator is a staff member of an approved provider.

What we have been hearing in response to this set of proposals is that we need to separate what is needed for regulatory and accreditation purposes; what is needed for quality improvement; and what is needed for the individual who is at the centre of any ‘incident’. These lines are not entirely clear.

At the state and territory level, the ALRC proposes addressing what has been identified as an investigative gap in relation to elder abuse, by providing a power to investigate to Public Advocates or Guardians, to complement existing avenues of intervention and response, such as elder abuse helplines and the police. The set of proposals expands the power of public advocates (by whatever name) to enable such bodies to investigate suspected elder abuse, based on a number of comparative models, and to be able to refer people to available services, assist in obtaining services, and to prepare support and assistance plans.[48]

We have had generally supportive responses in relation to the idea of ensuring that people are referred to appropriate and supportive pathways for resolution of their issues, and that there should be no investigative gap.

An aspect of safeguarding strategies in the aged care context is monitoring. One way in which this is presently done is through the ‘community visitors scheme’ (CVS), which provides an important role in reducing social isolation, which may itself be protective against abuse. The ALRC proposes that national guidelines applying to the CVS should be developed, in place of the current approach that directs auspices to develop their own internal policies for the scheme.[49] But in addition to this scheme, the ALRC proposes that there should be an ‘official visitors’ scheme established for residential aged care to provide an additional safeguarding mechanism for older people in residential aged care.[50]

Redress

When looking at the issue of avenues of redress, one area we considered was in relation to criminal justice responses. Some overseas jurisdictions have enacted specific ‘elder abuse’ criminal offences, concerning behaviour that causes or permits an older person to suffer, be injured, or placed in a situation in which their health is endangered. Although there are not specific elder abuse offences in Australia, state and territory laws do cover a range of types of conduct that may be described as ‘elder abuse’: including assault, sexual offences, kidnap and detail offences, and property and financial offences. Some also have offences for neglect, although these are rarely utilised in relation to older people. There are also comprehensive family violence frameworks in all jurisdictions that provide for quasi-criminal, protective responses to abuse of older people in domestic settings. Many states and territories recognise age and disability and take the victim’s characteristics into account when sentencing offenders.

The ALRC concluded not to propose any new offences in relation to elder abuse, when the type of conduct proscribed is already captured by other offences as there was a risk of duplication. There is also the difficulty of the need for specificity in seeing to create a new ‘elder abuse’ offence.

There are many forms of conduct that may be caught within the broad description of ‘elder abuse’ that may not satisfy a criminal threshold of harm and/or the evidentiary threshold required to commence and/or sustain a prosecution. We heard that police need support in relation to appropriate and accessible referral pathways. The ALRC proposals about a new investigative role for Public Advocates might assist here.

When it comes to civil avenues of redress, we have made a proposal, by suggesting that civil tribunals have the jurisdiction to order an enduring attorney or enduring guardian to pay compensation where they have breached their obligations under an enduring document, causing their principal loss.[51]

Informing policy change into the future

We made two capstone proposals that look to the future. The first concerns a National Plan, the second a national prevalence study.[52]

We support the commitment expressed in Coalition policy that a national plan be developed to address elder abuse: The Coalition’s Policy to Protect the Rights of Older Australians. It is a capstone proposal and provides the basis for a longer term approach to the protection of older persons from abuse. The plan will provide the opportunity for future planning and policy development in an integrated way. The development of a National Plan would squarely place elder abuse ‘on the national agenda’, as the family violence plan has done.

The National Plan would:

  • establish a national policy framework to guide government, industry and community policies, initiatives and programs with respect to safeguarding the rights of older persons;

  • outline a plan for action by government and the community; and

  • establish specific performance indicators and monitoring mechanisms to ensure accountability and establish a basis for measuring progress.

The National Plan could be developed to address, among other matters, additional strategies with goals such as:

  • promoting respectful intergenerational relationships;

  • making systems work together effectively;

  • improving responses to elder abuse; and

  • improving the evidence base.

Such goals are not completely discrete areas. Strategies may well address a number of goals at the same time.

In developing the National Plan, national consultations should be undertaken to provide opportunities for contributions by individuals and relevant organisations. The process could be led by a National Council—as was the Family Violence National Plan.[53] The consultation and National Plan should take into account the different experiences and needs of older persons, including across gender, sexual orientation, disability, cultural and linguistic diversity; and those who live in regional and remote communities.

The National Plan should identify a range of strategies and actions towards supporting older persons in exercising their rights and stopping elder abuse. The ALRC’s recommendations would then become identified strategies in implementation of the plan. The planning process would also offer the opportunity to develop strategies to combat elder abuse that extend beyond legal reforms, such as: national awareness and community education campaigns; elder abuse hotlines; training for people working with older people; and the identification of future research agendas.

To improve the evidence base to support the case for policy change, there is a need for a prevalence study, to identify, among other things, rates and types of abuse; who commits it and who suffers it. Real progress is difficult without this information. While this would be covered by the fourth suggested goal of the National Plan, the ALRC made this a specific proposal.[54]

So that provides an overview of the current inquiry and gives you an idea of the principles that provide the contextual framework for our thinking, the areas where the ALRC has focused its work and the nature of the likely recommendations we will make. In addition to all the submissions we are working through, we have completed a final round of national consultations. Since the beginning of February we have been to Perth, Melbourne, Hobart and continued consultations in Sydney, Canberra and elsewhere, and today I am here on the Gold Coast.

Thank you for this opportunity to speak about our current important work on elder abuse, building on our earlier disability work. We are deeply grateful for the willing participation and continued engagement of so many in the shared aspirations for reform. I commend all the wonderful participants at this conference and know that our recommendations will have fine champions!


*              This presentation draws from the work of the ALRC in both the Disability and Elder Abuse inquiries. Where additional comment is given in speaking to the presentation, this should be regarded as my own remarks and not necessarily those of the ALRC. Aspects of this paper are drawn from a presentation given at the AGAC National Conference in Sydney, October 2016. This can be found at: http://www.alrc.gov.au/news-media/speech-presentation-article/modelling-supported-decision-making-commonwealth-laws-alrcs

             The Terms of Reference are set out at the front of the report: http://www.alrc.gov.au/publications/terms-reference-6. Emphasis added.

[2]              Banks v Goodfellow (1870) LR 5 QB 549.

[3]              For example, in the context of wills, a person is presumed to have the legal capacity to make a will and it is for those who challenge a testator’s capacity to bring evidence of incapacity: Bull v Fulton (1942) 66 CLR 295. The presumption of capacity arises if the will is rational on its face and is duly executed. See, eg, Gino Dal Pont and Ken Mackie, Law of Succession (LexisNexis Butterworths, 2013) ch 2. This was expressed in the legal maxim ‘omnia praesumuntur rite et somemniter esse acta’: all acts are presumed to have been done rightly and regularly.

[5]              Terry Carney and David Tait, The Adult Guardianship Experiment—Tribunals and Popular Justice (Federation Press, 1997) 3.

[6]              Equity also includes protective doctrines for vulnerable people, such as the doctrines concerning undue influence and unconscionable transactions: see, eg, Dyson Heydon and Mark Leeming, Cases and Materials on Equity and Trusts (LexisNexis Butterworths, 8th ed, 2011) ch 14.

[7]              Mary Donnelly, Healthcare Decision-Making and the Law—Autonomy, Capacity and the Limits of Liberalism (Cambridge University Press, 2010) 93.

[8]              United Nations Committee on the Rights of Persons with Disabilities, General Comment No 1 on Article 12 of the Convention—Equal Recognition before the Law, 2014 [1].

[9]           For the history of guardianship, see, eg: Blackstone, above n 2, 292–294; Terry Carney, ‘Civil and Social Guardianship for Intellectually Handicapped People’ (1981) 8 Monash UL Rev. 199; John Seymour, ‘Parens Patriae and Wardship Powers: Their Nature and Origins’ [1994] Oxford Journal of Legal Studies 159; Sarah Burningham, ‘Developments in Canadian Adult Guardianship and Co-Decision-Making Law’ (2009) 18 Dalhousie J. Legal Stud. 119; Shih-Ning Then, ‘Evolution and Innovation in Guardianship Laws: Assisted Decision-Making’ (2013) 35 Sydney Law Review 133.

[10]          Eg, Victorian Law Reform Commission, Guardianship, Final Report No 24 (2012) [6.95]–[6.96].

[11]         ALRC Report, [1.8].

[12]           Eg, the NSWCID submitted that ‘[t]here should also be caution about completely dispensing with the best interests approach—it has weaknesses but it also has the strength of being able to flexibly accommodate the unique and fluctuating circumstances of an individual’: NSW Council for Intellectual Disability, Submission 33.

[13]            Office of the Public Advocate (Qld), Submission 110.

[14]            Ibid.

[15]             Mental Health Coordinating Council, Submission 94.

[16]             See, eg, Mental Health Act 2014 (Vic) s 71(3) concerning treatment decisions for patients who either do not have capacity to give informed consent, or who do not give informed consent. See also Mental Capacity Act 2005 (UK) s 1(6); Adult Guardianship and Trusteeship Act 2008 (Alberta) cA4.2, s 2(c); NSW Trustee and Guardian Act s 39(b).

[17]             Disability Report, Rec 3–4, first part. Emphasis added.

[18]             Disability Report, Rec 3–2, 2(d).

[19]             The classical conceptualisation of autonomy, by John Stuart Mill, recognised some limit—that it may be limited in order ‘to prevent harm to others’: John Stuart Mill, On Liberty (London, 1859) in John Gray (ed) On Liberty and Other Essays (Oxford University Press, 1991) 14.

[20]             AGAC, Submission 91. See also Centre for Disability Law and Policy NUI Galway, Submission 130.

[21]             United Nations Committee on the Rights of Persons with Disabilities, General Comment No 1 on Article 12 of the Convention—Equal Recognition before the Law, 2014 [22]. In the Disability Report we reflected this idea in the Support Guidelines, in para 2(d).

[22]             Rec 10–1.

[23]             Parliament of the Commonwealth of Australia, House of Representatives Standing Committee on Legal and Constitutional Affairs, Older People and the Law, September 2007, vi.

[24]           Kaspiew, Carson and Rhoades, Elder Abuse: Understanding Issues, Frameworks and Responses, AIFS 2016, 1.

[25]             Family Violence — A National Legal Response (ALRC Report 114, 2010).

[26]             Access All Ages—Older Workers and Commonwealth Laws (ALRC Report 120, 2013).

[27]             Available at <www.alrc.gov.au/publications/elder-abuse>. An enewsletter for the inquiry was also released at the same time: <http://us1.campaign-archive1.com/?u=0ac682945224f85fa1d89d148&id=b2cb656eb9>.

[28]             World Health Organization, The Toronto Declaration on the Global Prevention of Elder Abuse (2002).

[29]             Kay Patterson, ‘When sons and daughters abuse our most vulnerable’, The Australian, Monday 6 February 2017.

[30]             Seniors Rights Service, Submission 169.

[31]             United Nations Principles for Older Persons, GA Res 46/91, UN GAOR,  46th Session, 74th Plen Mtg, Agenda Item 94(a), UN Doc A/RES/46/91 (16 December 1991) [17]–[18].

[32]             Department of Health (Cth), What Has Been Achieved so Far <agedcare.health.gov.au>.

[33]             Proposal 10–2: Centrelink communications should require that Centrelink staff speak directly with persons of Age Pension age who are entering into arrangements with others that concern social security payments.

[34]             Question 6–3.

[35]             Set out in Chapter 5.

[36]             Australian and New Zealand Society for Geriatric Medicine, Submission 51.

[37]             Proposal 11–7.

[38]             Proposal 10–4.

[39]             Proposals 11–4, 11–5. .

[40]             Proposal 11–6.

[41]             Proposal 5–7.

[42]             Proposal 5–8. Proposal 5–6 concerns conflict of interest transactions.

[43]             Proposal 5–9

[44]             Proposal 6–1.

[45]             Proposal 6–2.

[46]             Proposals 5–10 to 5–13.

[47]             Proposals 11–1 to 11–3.

[48]             Proposals 3–1 to 3–5.

[49]             Proposal 11–9.

[50]             Proposals 11–10 to 11–11.

[51]             Proposal 5–5.

[52]             Proposals 2–1, 2–2.

[53]             The National Council’s work led to the report, Time for Action: https://www.dss.gov.au/our-responsibilities/women/publications-articles/reducing-violence/national-plan-to-reduce-violence-against-women-and-their-children/time-for-action-the-national-councils-plan-for-australia-to-reduce-violence-against-women-and-their-children-2009-2021-a?HTML

[54]             Proposal 2–2.