After an extensive two-year consultation and submission process, the Royal Commission into Aged Care Quality and Safety has published its much anticipated Final Report (‘the Aged Care Report’) in which it makes 148 recommendations aimed at improving standards of care in the aged care sector. The report is not light reading and highlights the urgent need for reform across the sector to ensure that aged care recipients are treated with care and dignity at all times.
A number of the recommendations from the Royal Commission are not new and have been made in numerous past reports including by the Australian Law Reform Commission (ALRC) in its Elder Abuse – A National Legal Response Report (‘Elder Abuse Report’) in 2017.
In its Elder Abuse Report, the ALRC made 43 recommendations on how Commonwealth legal frameworks could be reformed to better protect older persons from misuse or abuse in a way that safeguards their autonomy. While the Elder Abuse Report canvassed a broad range of issues facing older Australians, the report found that older people receiving aged care—whether in their homes or in residential aged care facilities—may experience abuse or neglect. Abuse may be committed against older people by paid staff, other residents in residential care settings, family members or friends. To address this abuse, the ALRC recommended a range of reforms to the aged care sector including:
- establishing a serious incident response scheme;
- reforms relating to improving the suitability of people working in aged care by enhancing employment screening processes, and ensuring that unregistered staff are subject to the proposed National Code of Conduct for Health Care Workers;
- regulating the use of restrictive practices in aged care; and
- establishing national guidelines for the community visitors scheme regarding abuse and neglect of care recipients.
The ALRC also addressed decision making in aged care and recommended that aged care laws be reformed to provide for supported decision-making approaches. This article discusses the approach adopted by the Aged Care Report in three areas that were also discussed in the ALRC Elder Abuse Report: empowering people receiving care by adopting supported decision-making approaches to care; strengthening the reporting processes around serious incidents in aged care facilities; and, introducing a nationally consistent approach to regulating restrictive practices.
The Royal Commission endorsed the ALRC’s call for aged care laws and legal frameworks to be amended to be consistent with decision-making principles that support people to make their own decisions on the care they require. Supported decision making emphasises the ability of a person to make decisions, provided they are supported to the extent necessary to make and communicate their decisions. As such, supported decision making upholds individual autonomy and dignity when compared to substituted decision making.
Where it is not possible to ascertain the care preferences of an older person, the Royal Commission concurred with the ALRC’s view that, in such circumstances, decision making 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’. The Commission’s views on decision making align with the ALRC’s finding that better outcomes are achieved when older people are empowered to make their own decisions rather than have decisions made on their behalf.
Serious incident reporting
Aged care residents are some of the most vulnerable members of our community with fifty-two percent of the residents suffering some form of dementia. Preventing and addressing serious incidence of harm in aged care is critical to ensuring the safety and wellbeing of all aged care recipients.
The Aged Care Report identifies that the existing compulsory reporting scheme is unsatisfactory because:
- the scope of incidents that must be reported is too limited;
- the number of reported incidents at each facility is not made publicly available; and
- reporting does not require a substantive response by providers to ensure that the incident is investigated, addressed, and the risk of repeat minimised.
The Aged Care Report supports the ALRC’s recommendation that a serious incident scheme be introduced in aged care. The report recommended that care providers be made to investigate, respond to, and take remedial action when reported incidents occur. Notably, the Government has recently introduced legislation into Parliament which, if passed, will implement some of the ALRC’s and the Royal Commission’s recommendations on how to strengthen the serious incident reporting scheme to ensure the risks of harm to older Australians are decreased.
The Aged Care Commission heard that antipsychotic drugs, such as risperidone, and a range of sedatives, are often used by providers to manage the behaviour of residents with dementia, even when more appropriate interventions could be used that respect the dignity and autonomy of residents. A ‘restrictive practice’ is an activity or intervention that has the effect of restricting a person’s free movement or ability to make decisions. According to the Aged Care Report, the regulation of restrictive practices in aged care is lacking, and where regulation does exist, divergent regulatory approaches are taken around Australia. The regulation of restrictive practices is further complicated by the fact that different regulatory approaches are taken in the aged care and the disability sectors.
In 2014, the state and territory governments agreed to adopt a national approach to reducing and eliminating restrictive practices in the disability sector, which the ALRC built upon in its Elder Abuse Report and its 2014 Equality, Capacity and Disability in Commonwealth Laws Report, where it recommended that there should be a nationally consistent approach to the regulation of restrictive practices in the aged care and disability services sectors. The Aged Care Commission endorsed the ALRC’s recommendation in its Report, and stated in support that a strong, nationally consistent approach should be taken to ensure that the liberty and dignity of people receiving aged care is not compromised by restrictive practices.
The Royal Commissioners made wide-ranging recommendations in their Aged Care Report which incorporate many of the same themes and principles traversed by the ALRC in its Elder Abuse Report. Both reports highlight the need to treat people receiving aged care with dignity and respect and call on the Government to introduce mechanisms which empower people to make decisions about their own care.
On 7 September 2017, Matt Corrigan joined the panel discussion with The Hon Dr Kay Patterson AO (Age Discrimination Commissioner) and Melanie Joosten at the Community Legal Centres Queensland Justice in Focus Series.
The panel discussed the factors that have converged to create a ‘perfect storm’ in the form of widespread elder abuse in Australia.
Elder Abuse Reform Symposium, Melbourne Town Hall, World Elder Abuse Awareness Day, 15 June 2017, Emeritus Professor Rosalind F Croucher AM, President, Australian Law Reform Commission*
[Note: Professor Croucher spoke to this paper, so the text below is not an exact transcript of the recording of the presentation—some comments were added, especially at the beginning; and some parts of the text were somewhat condensed in presentation]
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, the Wurundjeri people of the Kulin Nation, 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.
Today is a special day—World Elder Abuse Awareness Day—and it is a most fitting time to be launching the ALRC’s report, Elder Abuse—A National Legal Response. It is also another important historical day, for it was on 15 June 1215 that King John sealed the Magna Carta.
The Attorney-General is clearly a big picture thinker. After giving the ALRC an inquiry into encroachments on traditional rights and freedoms in Commonwealth laws, no small task, his next project for us was on elder abuse, plus an inquiry into Indigenous incarceration rates! Considerable tasks, requiring sophisticated thinking and a view to both short and long-term policy horizons. As always, our inquiries are also reliant on a willing partnership with engaged stakeholders in helping us to build the evidence-base for our recommendations. Many of you here today participated in the elder abuse inquiry.
Helping us to come up with law reform answers were those we consulted, in the 117 consultations conducted all over the country, and the 458 submissions, from a wide range of people and organisations, including: individuals in their private capacity; academics; lawyers; law societies and representative groups; community legal centres; advocacy groups; peak bodies; and state and federal government agencies. Submissions from advocacy groups and community legal centres included many case studies, drawn from their experiences on the frontline, working with people who had been subjected to abuse. Such examples are included as illustrative case studies throughout the Report. The ALRC recognises that, particularly in small community-based organisations with limited resources, such involvement can have a significant impact and we thank all stakeholders for the important contribution they have made to our evidence base. The depth of engagement reflected in this process of consultation is the hallmark of best practice law reform and the ability of governments to implement them. Many of those stakeholders have been with us now for several inquiries.
Special mention must be made of the many submissions from individuals, who generously shared with the ALRC personal stories of heartache and frustration, of families torn apart by elder abuse and who live with the painful knowledge that their loved ones suffered at the end of their lives. One individual referred to their submission as an ‘introduction to a nightmare’; another said, ‘I am a broken person’. These stories present a devastating picture of ongoing grief, loss, anger and powerlessness. We are indebted to the many individuals who made the dynamics and experiences of elder abuse painfully clear and so powerfully put the need for action.
Elder abuse 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 description is that of the World Health Organization, referring to 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.
Commonly recognised categories of elder abuse include psychological or emotional abuse, financial abuse, physical abuse, neglect, and sexual abuse. The World Health Organization has estimated that the prevalence rate of elder abuse in high- or middle-income countries ranges from 2% to 14%. The 2016 report by the Australian Institute of Family Studies (AIFS), Elder Abuse: Understanding Issues, Frameworks and Responses, commissioned as part of the background to the ALRC inquiry, and drawing upon Queensland elder abuse helpline information, 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.
The Australian population, like other developed countries, is an ageing one. Approximately 15% of the population was aged 65 or over in 2014–15, and this is expected to rise to 23% by 2055. And while we are staying healthy longer, there is ‘decline’ that is associated with ageing. The prevalence of cognitive impairment, for example, increases with age. From age 65, the prevalence of dementia doubles every 5 or 6 years. 30% of people aged over 85 have dementia, and over 1.1 million Australians are expected to have dementia by 2056. This increases the vulnerability to elder abuse.
The Toronto Declaration on the Global Prevention of Elder Abuse (2002) said that preventing elder abuse in an ageing world is ‘everybody’s business’.
What can law do?
In the Elder Abuse Inquiry we looked 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. There were Commonwealth laws, like banking, superannuation, social security and, of growing interest, aged care. But we were also asked to examine the interaction and relationship of Commonwealth laws with state and territory laws. This clearly took 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 therefore involved state and territory bodies and agencies. The crossing of state and federal borders makes responding to elder abuse a complex issue—both from the perspective of laws, but also in terms of practical responsibility.
As stakeholders observed, because elder abuse is ‘complex and multidimensional’, it requires a ‘multi-faceted response’. The ALRC contributes to that response with a set of 43 recommendations aimed at achieving a nationally consistent response to elder abuse. The ALRC has also looked to the horizon and developed a conceptual template to guide future reform through a National Plan to combat elder abuse.
The recommendations in the Report seek to balance two framing principles: dignity and autonomy, on the one hand; and protection and safeguarding, on the other. Autonomy and safeguarding, however, are not mutually inconsistent, as safeguarding responses also act to support and promote the autonomy of older people.
But sometimes protective measures may conflict with a person’s autonomy, such as where an older person refuses to accept support, or to report abuse to police. Where possible, the ALRC has sought to recommend changes to the law that both uphold autonomy and provide protection from harm, but where this is not possible, greater weight is often given to the principle of autonomy. Older people, like most adults, prize their freedom and independence, and do not wish to be treated like children or sheltered from all risk. Where ‘dignity of risk’ is often heralded in the context of supporting people with disability in their decision making, perhaps in the context of older people we are speaking of another iteration of this: ‘dignity in decline’. The autonomy of older people should not be afforded less respect than the autonomy of others. However, in limited cases, where there is particularly serious abuse of vulnerable people, protection should be given additional weight.
Autonomy is a significant aspect of a number of the United Nations Principles for Older Persons that underlie the ability of persons to make decisions and choices in their lives: particularly the principles of ‘independence’, ‘participation’ and ‘self-fulfilment’.
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 illustrate, in a simple example: this approach requires asking 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, and even if it takes a while for her to say what it is that she does want. Carers here play a crucial role, sometimes just bringing a framework of reference of a lifetime to fill in the words or to translate the words that are scrambled: knowing that ‘yabbies’ means ‘wallabies’, or that ‘balloons on the water’ means a hovercraft (again drawing on personal experience). And while mentioning carers, I note that in 2017, there were 2.7 million unpaid carers in Australia. In 2011, the Productivity Commission noted that, of the group aged 65+ who were needing care, 24% of primary carers were adult sons or daughters.
Children in their 50s may be the biggest group of abusers—but many of these may also be carers. And for the few ‘bad eggs’ there are many angel sons and angel daughters out there. One of the personal submissions cautioned against ‘punishing those of us who are doing the right things for the sake of a few bad eggs makes a difficult situation that much more complicated and could prevent people from stepping up to care for the elderly’.
However, we needed to respond to the plea running through many of the personal submissions, that ‘someone’s got to do something!’ But, at the same time, to resist overzealousness, otherwise the balance between the principles is pushed too much to the ‘protective’ side.
By way of personal reflection, my parents turn 96 this year, and are living independently. Dad still drives—retaining a full unrestricted licence—but also loves the ride-on lawnmower, a new career of sorts after being one of the longest serving judicial officers in NSW.
In thinking about my parents, and what I would expect when I am their age, it is not to be infantilised, treated as a child, but to be respected. This was a guiding mantra for me in leading the Elder Abuse inquiry: a combination of ‘honour thy father and thy mother’, and ‘do unto others as you would have them do unto you’. The UN Principles for Older Persons express such commitments thus:
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.
What the ALRC recommends
In addition to our framing principles, our recommendations embody the ‘three Rs’: reducing risk; ensuring an appropriate response; and providing avenues for redress. The Report presents two long horizon ideas: one, the National Plan to combat elder abuse; and the second, the introduction of state and territory legislation for safeguarding adults ‘at risk’.
With respect to the specific areas of law identified in the Terms of Reference, the Report begins with a consideration of aged care: a large and growing area of Commonwealth responsibility, and on which there is much attention at the time of writing the Report. The next set of chapters and recommendations focus on advance planning by a person, and include: enduring documents, family agreements, superannuation, wills and banking. The remaining set of chapters looks at safeguarding against elder abuse in various settings: tribunal appointed guardians and administrators; social security; health and the National Disability Insurance Scheme; criminal justice responses; and ends with recommendations about new legislation in states and territories for safeguarding ‘at-risk’ adults.
So let’s talk about the ‘biggies’: aged care; enduring documents; and safeguarding agencies.
Older people receiving aged care—whether in the home or in residential aged care—may experience abuse or neglect. The newspapers and other media give attention to particularly egregious examples. Abuse may be committed by paid staff, other residents in residential care settings, family members or friends.
The aged care system is in a period of reform, largely in implementation of work of the Productivity Commission in 2011 and there is a legislated review underway now (reporting in August) and concerns will need to be addressed about how the move to home care will be covered in the consumer driven demand model of aged care service delivery.
We recommend reforms to enhance safeguards against abuse, including:
- establishing a serious incident response scheme in aged care legislation;
- reforms relating to the suitability of people working in aged care—enhanced employment screening processes, and ensuring that unregistered staff are subject to the proposed National Code of Conduct for Health Care Workers;
- regulating the use of restrictive practices in aged care; and
- national guidelines for the community visitors scheme regarding abuse and neglect of care recipients.
The serious incident response scheme builds on the existing requirements for reporting allegations of abuse in the Aged Care Act and draws on existing and proposed schemes for responding to abuse in the disability sector. Our concern was to focus on response, and not just reporting for other purposes—eg, accreditation.
Stakeholders had a lot to say about the existing reporting arrangements, which require providers to report an allegation of a ‘reportable assault’ to police and the Department of Health within 24 hours. These include ‘unlawful sexual contact, unreasonable use of force, or assault specified in the Accountability Principles and constituting an offence against a law of the Commonwealth or a State or Territory’.
Some thought this was just ‘red tape’ and made little or no difference to the safety of residents. In particular, the provisions place no responsibility on the provider other than to report an allegation or suspicion of assault. And no obligation is placed on the provider to record any actions taken in response to the incident. We heard conflicting reports about subsequent action taken by the provider or the Department.
A telling example was given by the Aged and Community Services Association (ACSA). They considered that there was little value in the existing requirement to report to the Department, ‘when no action is taken by the agency you are reporting to’. To illustrate its point, ACSA noted that
on 16 December 2016 in their Information for Aged Care Providers 2016/24, the Department of Health provided the following advice:
‘Compulsory reporting of assaults and missing residents over the holiday period. The compulsory reporting phone line will not be staffed from 3 pm Friday 23 December 2016 to 8.30 am Tuesday 3 January 2017. Providers are still required to report within the legislative timeframe. Providers may leave a message but are encouraged to use the online reporting forms during this period’.
While the number of notifications is captured in a bulked up sense, the outcome of the reports is not known. As LASA summarised:
what we do not know is the outcome of these reports, whether the allegations were found to have had substance, what local actions were put in place, and if any convictions occurred as a result of Police action.
The ALRC considers that there should be a new approach to serious incidents of abuse and neglect in aged care. The emphasis should change from requiring providers to report the occurrence of an alleged or suspected assault, to requiring an investigation and response to incidents by providers. This investigation and response should be monitored by an independent oversight body. The recommended design of the scheme is informed by the ‘disability reportable incidents scheme’ (DRIS) for disability services in NSW—overseen by the NSW Ombudsman—and the serious incident reporting scheme planned for the National Disability Insurance Scheme (NDIS).
The ALRC recommends that the provider be required to report both an allegation or suspicion of a serious incident and any findings or actions taken in response to it. The appropriate response will vary according to the specific incident, but in all cases will require a process of information gathering to enable informed decisions about what further actions should be taken. Significantly, the ALRC has not recommended that providers be required to report an incident to police. In part, this is due to the expanded scope of the definition of serious incident. It also reflects an approach that requires an approved provider to turn its mind to the response required in the circumstances.
The oversight body’s role should be to monitor and oversee the approved provider’s investigation of and response to serious incidents. It should also be empowered to conduct investigations of such incidents. While it is important that the oversight body have powers of investigation, the ALRC anticipates that direct investigations by the oversight body would not be routine. Rather, its focus would be on overseeing providers’ own responses to serious incidents, and building the capacity of providers in doing so.
We suggest that the Aged Care Complaints Commissioner is the most appropriate oversight body, but did not make a specific recommendation about this.
The aged care workforce received a lot of comment. We addressed this in part through recommending enhanced screening, like the ‘working with children’ checks that are conducted; and also through recommending that unregistered aged care workers should be subject to the planned National Code of Conduct for Health Care Workers. We also recommended that the Department of Health should commission an independent evaluation of research on optimal staffing models and levels in aged care. (Nurses had a lot to say on this score).
Enduring powers of attorney and enduring guardianship (together referred to as ‘enduring documents’) are important tools that allow people to choose who will make decisions for them, should they later lose decision-making ability. These decision-makers can play a key role in protecting people with impaired decision-making ability from abuse.
However, these arrangements may also facilitate abuse by the decision maker themselves. Many examples were given by stakeholders. The ALRC recommends reforms to laws relating to enduring documents, including: adopting nationally consistent safeguards; giving tribunals jurisdiction to award compensation when duties are breached; and establishing a national online register.
Safeguards against the misuse of an enduring document in state and territory legislation should:
- recognise the ability of the principal to create enduring documents that give full powers, powers that are limited or restricted, and powers that are subject to conditions or circumstances;
- require the appointed decision maker to support and represent the will, preferences and rights of the principal;
- enhance witnessing requirements;
- restrict conflict transactions;
- restrict who may be an attorney;
- set out in simple terms the types of decisions that are outside the power of a person acting under an enduring document; and
- mandate basic requirements for record keeping.
To take one example, there is a wide range of approaches to witnessing enduring documents across the states and territories. What we suggest by enhanced witnessing requirements is that there should be two witnesses; and one of these should be a professional whose licence to practise is dependent on their ongoing integrity and honesty and who is required to regularly undertake a course of continuing professional education that covers the skills and expertise necessary to witness an enduring document. We also suggest that the witness needs to certify, as suggested by the Law Council of Australia, that
the witness is not aware of anything that causes them to believe that:
- the principal did not freely and voluntarily sign the document;
- the principal did not understand the nature of the document; or
- the enduring attorney did not freely and voluntarily sign the document.
The final requirement in enhanced witnessing is that the attorney’s signature also needed to be witnessed and that the witnesses certify that the attorney was signing voluntarily and understood the nature of the document. This was designed to address a key concern with respect to the misuse of enduring documents, namely that the attorney did not understand the nature of their role and the limits on their authority.
Requirements like these will help to ‘settle the siblings’ and reassure other family members.
We also recommended the development of a national registration scheme based on nationally consistent laws—provided such scheme is user-friendly and low cost. A model referred to is the Personal Property Securities Register, introduced in 2012.
We also addressed the topic of redress and recommended that state and territory civil and administrative tribunals be give a power to order compensation for misuse of enduring documents, based on the Victorian model of redress in a no-cost jurisdiction.
Some ‘family agreements’ involve an older person transferring the title to their home, or the proceeds from the sale of the home or other assets, to an adult child in exchange for ongoing care, support and housing. These ‘assets for care’ arrangements are typically made without legal advice and are often not put in writing. There can be serious consequences for the older person if the promise of ongoing care is not fulfilled, or the relationship breaks down. The older person may even be left without a place to live.
The ALRC recommends that tribunals be given jurisdiction over disputes within families with respect to these arrangements. Tribunals provide a low cost and less formal forum for resolving such disputes.
The ALRC also recommends that the Social Security Act 1991 (Cth) be amended to require that assets for care agreements (which give what is described as a ‘granny flat interest’, a term I think should be removed from the dictionary and replaced with something like ‘dower house’) be expressed in writing, for the purpose of calculating the Age Pension. This is an example of ‘frontloading’ protections. The ALRC has sought to address specific concerns raised by stakeholders that Centrelink policy is encouraging older people to enter into assets for care arrangements in a manner that may be disadvantageous. This recommendation uses the engagement with Centrelink as a lever to improve the position of a person entering into an arrangement captured by this policy.
Safeguarding adults at risk
In the final chapter of the Report, the ALRC recommends the introduction of adult safeguarding laws in each state and territory. Most public advocates and guardians already have a role in investigating abuse, particularly abuse of people with impaired decision-making ability, but there are other vulnerable adults who are being abused, many of them older people. The ALRC recommends that these other vulnerable adults should be better protected from abuse.
In addition to the support and protection often provided by family, friends, neighbours and carers, support and protection is currently available for older people experiencing abuse from a number of government agencies and community organisations, including:
- the police and the criminal justice system—the primary state protection against elder abuse;
- medical and ambulance services;
- elder abuse help lines, which can provide information and refer people to other services;
- advocacy services;
- community based organisations, such as women’s services, family violence prevention legal services, and community housing organisations;
- state and territory public advocates and guardians (where the person has limited decision-making ability);
- aged care service providers, such as nursing homes, which must not only meet certain standards of care but are also required to report allegations of abuse by staff and other people in aged care; and
- the Aged Care Complaints Commissioner, who investigates and conciliates complaints about aged care.
Despite this, the protection and support available to adults at risk of abuse may be inadequate.
No government agency in Australia has a clear statutory role of safeguarding and supporting adults. Most public advocates and guardians in Australia have some responsibility to investigate the abuse of people with limited decision-making ability, but not of other adults at risk of abuse.
Public advocates and guardians play a crucial role in protecting people with limited decision-making ability and there is a case for giving them additional powers to investigate the abuse of these people. However, many vulnerable and older people do not have such decision-making limited ability but nevertheless also need support and protection.
The ALRC recommends that adult safeguarding services be provided to other at-risk adults, which should be defined to mean adults who: (a) need care and support; (b) are being abused or neglected, or are at risk of abuse or neglect; and (c) cannot protect themselves from the abuse. Some, but by no means all, older people will meet this definition.
In most cases, safeguarding and support should involve working with the at-risk adult to arrange for health, medical, legal and other services. In some cases, it might also involve seeking court orders to prevent someone suspected of abuse from contacting the at-risk adult. Where necessary, adult safeguarding agencies should lead and coordinate the work of other agencies and services to protect at-risk adults.
Existing public advocates and public guardians have expertise in responding to abuse, and may be appropriate for this broader safeguarding function, if given additional funding and training. However, some states or territories may prefer to give this role to another existing body or to create a new statutory body.
The ALRC recommends that consent should be obtained from the at-risk adult, before safeguarding agencies investigate or take action about suspected abuse. This avoids unwanted paternalism and shows respect for people’s autonomy. However, in particularly serious cases of physical abuse, sexual abuse or neglect, the safety of an at-risk person may sometimes need to be secured, even without their consent. Where there is serious abuse, safeguarding agencies should also have coercive information-gathering powers, such as the power to require people to answer questions and produce documents.
The ALRC also recommends statutory protections from civil liability, workplace discrimination laws and other consequences that might follow from reporting suspected abuse to authorities. Protocols about reporting abuse should also be developed for certain professionals who routinely encounter elder abuse.
The capstone recommendation of the Report is the development of a National Plan to combat elder abuse to provide the basis for a longer term approach to the protection of older people from abuse. The Plan will provide the opportunity for integrated planning and policy development. We suggest a conceptual template for a National Plan and provide a wide range of examples from stakeholders, drawn from over 400 submissions—sharing ideas, illustrations, suggestions and urgings. In a practical sense, much work already undertaken and in train, both at the Commonwealth level and in states and territories, together with recommendations throughout the Report, may be seen to constitute strategies in implementation of a commitment to combat elder abuse. The significant attention already on issues concerning family violence has provided, as St Vincent’s Health Australia observed, ‘a climate of opportunity’, for a national consideration of elder abuse.
The National Plan to combat elder abuse needs clear leadership. The ALRC recommends that the planning process should be led by a steering committee. The Law, Crime and Community Safety Council (LCCSC) of COAG has established a working group to discuss current activities to combat elder abuse in Australian jurisdictions, consider potential national approaches, and consider the findings of this Inquiry. The LCCSC is well placed to take a lead role in coordinating a planning process. The important role that COAG can play, expressing a commitment of all governments at a senior level, was identified by stakeholders. The Age Discrimination Commissioner, the Hon Dr Kay Patterson AO, is well placed to lead a number of strategies and actions of the Plan, involving key stakeholder groups and will be a fine champion of our work, having served on our Advisory Committee as well.
This Inquiry has acknowledged that elder abuse is indeed ‘everybody’s business’. It is also everybody’s responsibility—a responsibility not only to recognise elder abuse, but most importantly, to respond to it effectively. The recommendations in this Report address what legal reform can do to prevent abuse from occurring and to provide clear responses and redress when abuse occurs.
Ageing eventually comes to all Australians and ensuring that all older people live dignified and autonomous lives free from the pain and degradation of elder abuse must be a priority.
An inquiry such as this requires many thank yous.
I want to acknowledge the contributions of Advisory Committee members from Victoria, including Dr John Chesterman, from the Office of the Public Advocate, and Dr Rae Kaspiew from the Australian Institute of Family Studies.
I also want to single out my wonderful EA, Tina O’Brien, who is with me today. Tina once again provided key support as Project Coordinator and typesetting everything under the sun in this Report, and in all other ALRC inquiries. Thank you, Tina.
Everyone here today has played, and is playing, a part.
 World Health Organization, The Toronto Declaration on the Global Prevention of Elder Abuse (2002).
 World Health Organization, The Toronto Declaration on the Global Prevention of Elder Abuse (2002).
 Productivity Commission, Caring for Older Australians (Report No 53, 2011) 326–7.
 Y Lawrence, Submission 202.
 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) –.
 Aged Care Act 1997 (Cth) s 63-1AA(9).
 Leading Age Services Australia, Submission 104.
 Aged and Community Services Association, Submission 217.
 Leading Age Services Australia, Submission 377.
 Ombudsman Act 1974 (NSW) pt 3C. Part 3C is modelled on Part 3A of the Ombudsman Act, which has provided for a reportable conduct scheme since 1999. From 1 July 2017, Victoria and the ACT will implement reportable conduct schemes in relation to children, and COAG has agreed, in principle, to harmonise reportable conduct schemes: Department of Health and Human Services (Vic), Creating Child Safe Organisations <www.dhs.vic.gov.au>; ACT Ombudsman, Reportable Conduct Scheme <www.ombudsman.act.gov.au/reportable-conduct-scheme>; Council of Australian Governments Communiqué (1 April 2016).
 Department of Social Services (Cth), NDIS Quality and Safeguarding Framework (2016) 49–53.
 The reporting systems in place for the DRIS provide instructive guides for how a system could be operationalised: NSW Ombudsman, Disability Reportable Incidents Forms and Guidelines <www.ombo.nsw.gov.au>.
 For examples of how these investigations are expected to be carried out under the DRIS and NSW reportable conduct scheme for children, see further NSW Ombudsman, Planning and Conducting an Investigation (Child Protection Fact Sheet 4, 2014); NSW Ombudsman, How We Assess an Investigation—Employee to Client Incidents (Disability Reportable Incidents Fact Sheet, 2016); NSW Ombudsman, Risk Management Following an Allegation against an Employee (Disability Reportable Incidents Fact Sheet, 2016).
 Nonetheless, some criminal laws may require the reporting of suspicion of serious offences to the police: see, eg, Crimes Act 1900 (NSW) s 316.
 See, eg, Seniors Rights Service, Submission 169.
 A point made, eg, by Relationships Australia Victoria, Submission 356.
 Human Rights Commission Act 2005 (ACT) s 27B; Guardianship of Adults Act 2016 (NT) s 61; Guardianship and Administration Act 2000 (Qld) sch 4; Public Guardian Act 2014 (Qld) s 19; Guardianship and Administration Act 1993 (SA) s 28; Guardianship and Administration Act 1995 (Tas) 1995 s 17; Guardianship and Administration Act 1986 (Vic) s 16(h); Guardianship and Administration Act 1990 (WA) s 97.
 St Vincent’s Health Australia, Submission 345.
 Law, Crime and Community Safety Council, Communiqué, 19 May 2017. See also The Coalition’s Policy to Protect the Rights of Older Australians <www.liberal.org.au/coalitions-policy-protect-rights-older-australians>.
 See, eg, Eastern Community Legal Centre, Submission 357; Financial Planning Association of Australia (FPA), Submission 295.
* This presentation draws from the work of the ALRC in the Elder Abuse inquiry, particularly as contained in the Summary Report. 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.
The Australian Law Reform Commission (ALRC) is delighted to be launching its Report, Elder Abuse—A National Legal Response (ALRC Report 131), on World Elder Abuse Awareness Day 2017.
The ALRC was asked to consider Commonwealth laws and legal frameworks and how they might better protect older persons from misuse or abuse, and safeguard their autonomy.
The Report includes 43 recommendations for law reform. The overall effect will be to safeguard older people from abuse and support their choices and wishes through:
- improved responses to elder abuse in residential aged care;
- enhanced employment screening of care workers;
- greater scrutiny regarding the use of restrictive practices in aged care;
- building trust and confidence in enduring documents as important advanced planning tools;
- protecting older people when ‘assets for care’ arrangements go wrong;
- banks and financial institutions protecting vulnerable customers from abuse;
- better succession planning across the self-managed superannuation sector;
- adult safeguarding regimes protecting and supporting at-risk adults.
These outcomes should be further pursued through a National Plan to combat elder abuse and new empirical research into the prevalence of elder abuse.
ALRC President Professor Rosalind Croucher AM, Commissioner-in-charge of the inquiry, said, “In developing the recommendations in this Report, we have worked to balance the autonomy of older people with providing appropriate protections, respecting the choices that older persons make, but also safeguarding them from abuse.”
The Report represents the culmination of research and consultation over a 15-month period, during which the ALRC consulted with 117 stakeholders around the country, released two consultation documents, and received more than 450 submissions.
Professor Croucher said: “The ALRC is indebted to the broad range of individuals and organisations who have contributed to evidence base that informs its recommendations. In particular I thank the many individuals who generously shared with the ALRC personal stories of heartache and frustration, and of families torn apart by elder abuse. It is significant that the Attorney-General, Senator the Hon. George Brandis QC, has chosen to mark the launch of the Report today —with advocates and service providers —at the 2017 World Elder Abuse Awareness Day Forum.”
Elder Abuse—A National Legal Response (ALRC Report 131) is available for viewing or download free at www.alrc.gov.au/publications.
Marie-Claire Muir (MCM): Hi I’m Marie-Claire Muir, Communications Manager at the Australian Law Reform Commission. I’m here with Dr Julie Mackenzie who is a Senior Legal Officer at the ALRC. She’s been involved in the Elder Abuse Report, Elder Abuse—A National Legal Response, which has just been released. Hi Julie.
Dr Julie MacKenzie (JM): Hello.
MCM: You were focussed particularly in the area of aged care, now we’ve heard a lot of stories and media reports over the past 12 months and longer about abuse and neglect happening in aged care facilities, most recently and probably at the front of most people’s mind is the Oakden facility in South Australia. We’ve been hearing reports of, as I said, neglect, of inappropriate restraint and force, even sexual assault. What are the rec’s that we’ve made in the area of aged care that you hope might make a difference and bring to a resolution the sort of things we were hearing about at Oakden?
JM: So we’ve made a suite of recommendations in aged care that we feel will enhance the response to incidents of abuse and neglect in aged care. Initially, we’ve made a recommendation that there be a serious incident response scheme brought into aged care. Now there’s already a process in which there is a required reporting of certain incidents of assault in aged care to the Department of Health. What we’ve suggested is that this reporting be replaced with this new serious incident response scheme which would require providers to report allegations of serious abuse and neglect to an independent oversight body, but also, crucially, to report on their, the provider’s, response to those allegations of abuse and neglect and that that response be monitored by that independent oversight body. So we really think that there needs to be a greater focus on, a greater emphasis on, the particular responses being made to these particular incidents of abuse or neglect.
We’ve also suggested that there be an expanded definition of what is required to be reported and responded to by the provider, including what is often described as resident on resident assault. We’ve heard a few highly publicised reports of even fatal assaults by one aged care resident upon another. Now often these residents have some form of cognitive impairment, like dementia. We’re suggesting that it is important that these be captured and reported on and appropriately responded to, to ensure that there’s a safe place for older people when they’re in aged care facilities.
The other thing we’ve recommended, and it’s linked to this serious incident response scheme, is enhanced employment screening for workers in aged care. So we’ve recommended that there be screening of a person’s suitability to work in aged care based on relevant criminal history, but also incidents, relevant incidents, from our new serious incident response scheme. So capturing relevant non-criminal information so we won’t end up in a situation which we sometimes heard about over the course of the inquiry where a person who perhaps has exhibited some inappropriate behaviour in one aged care facility moves on to another before anything formal can occur in relation to that person. So attempting to provide a greater and enhanced safeguarding for older people through making sure that the people that are working in aged care are the right people.
MCM: So would it be right to characterise that as being akin to the Working with Children Register?
JM: Yes that’s right. It’d be a similar type of scheme as the working with children check and there’s a similar scheme that’s been proposed for the National Disability Insurance Scheme as that’s been rolled out as well, a screening system for people working in the NDIS. So we’re recommending something similar for aged care.
MCM: Great. Ok, other areas of reform?
JM: One thing we heard in response to the Oakden review was also inappropriate use of what gets called ‘restrictive practices’. So that’s forms of restraint like physical and mechanical restraint, holding someone down, using lap belts on wheelchairs for instance, locking someone in a room. Also something we heard a lot of concern about in aged care are what gets called chemical restraints, so that’s use of sedatives or anti-psychotics. What we’ve recommended is there be legislative regulation of the use of restrictive practices in aged care with the aim of reducing or even eliminating their use. So we’ve recommended that the use of restrictive practices be subject to a number of conditions, but broadly used only as a last resort and also, when used, that they’re the least restrictive form of restraint. So used for the least amount of time possible and also the least restrictive for that time period.
MCM: Another issue I know came up a bit in consultations and in the submissions that we received was around staffing levels and sometimes understaffing in aged care facilities. What has the ALRC said about this?
JM: Leading on from restrictive practices for instance, there was a concern that restrictive practices were sometimes used to manage residents when there weren’t sufficient staff, or that neglect could be a result of understaffing. So there was a real concern that abuse or neglect could result from inappropriate or insufficient levels of staff. What we’ve recommended in response to this is that there be an independent evaluation of staffing models and levels in aged care and that the results of this independent evaluation be used then to inform accreditation processes, so when facilities are audited using the results of that independent evaluation to access whether or not the staffing levels are adequate to meet quality standards.
MCM: OK, well thanks Julie very much for talking us through that. There are some other recommendations in the aged care area and there are also recommendations about elder abuse in a whole range of areas, for example banking, guardianship and financial administration, superannuation, a range of other areas. You can find the full suite of recommendations and the report which includes discussion around that on the ALRC website at www.alrc.gov.au. Thanks.
Marie-Claire Muir: Hi I’m Marie-Claire Muir, Communications Manager at the Australian Law Reform Commission. The ALRC Final Report for its Elder Abuse Inquiry, Elder Abuse—A National Legal Response,was tabled in Parliament on 14 June 2017 with final recommendations for reform. I’m here with Matt Corrigan today. He’s a Principal Legal Officer at the ALRC and he was working on the elder abuse Report. Matt, one of the particular areas you were looking at was enduring documents. Perhaps you could start by telling us what enduring documents are?
Matthew Corrigan: There’s really two principle types of enduring documents and with the added complexity that some of those documents are combined in other states and territories. Essentially, enduring documents are documents where an individual, which we’d call the Principal, gives legal power to another person, either an enduring attorney or an enduring guardian, to make financial or property decisions in the case of enduring attorney appointments, and health, lifestyle and medical decisions with respect to enduring guardianship arrangements.
Marie-Claire: Ok. So why are they important?
Matt: Well they’re important part for everyone in planning for circumstances that might arise as we get older, as we age. One of the things that happens is that we may be more susceptible to losing or having impaired decision-making ability and in that circumstance it’s important to have someone who we know and trust to make decisions for us, if that eventuality were to arise.
Marie-Claire: If enduring documents are commonly used as part of elder abuse, why should people continue to make enduring documents?
Matt: So it is true that the evidence that we have from a range of sources that enduring documents are used in some form in a significant minority of cases of elder abuse, principally financial abuse – so using the power of attorney to undertake transactions that are not in accordance with the wishes of the person who’s the Principal. The reason that we’re saying that, not withstanding those concerns and those instances of elder abuse, that people should continue to make enduring documents is that they are really important tools that allow the older person choice as to who will make that decision if they lose or have impaired decision-making ability. In the absence of making enduring documents, if that eventuality were to arise it would be left to a tribunal to appoint someone, perhaps even a trustee company where the person doesn’t even have a personal relationship with the decision maker on their behalf. So what our recommendations do, Marie-Claire, in this report, is really try and make reforms to enduring documents to ensure that the risk of elder abuse through enduring documents is minimised and we strengthen the positive aspects of those enduring documents in terms of having individual choice and control over the person who will be making decisions on our behalf if we lose decision-making ability.
Marie-Claire: So they’re important tools for helping people make choices about their future but going back to how they can be used to perpetrate elder abuse, what would be some common examples of how that happens?
Matt: We’ve heard a range of examples of what we would consider either abuse or misuse of enduring documents. A lot of the cases that were presented to us as part of our elder abuse inquiry were not cases of people doing bad things, but they were cases where perhaps the attorney or the guardian didn’t really understand the nature of their role and what their powers were and what the limitations were. You’ll see in our Report a lot of our recommendations go to ensuring that when people are appointed as an enduring attorney or guardian that they understand the nature of their role and their responsibilities. To a lesser extent there is some deliberate abuse of enduring documents and some of the examples we saw were essentially arranging for an older person to make an enduring document appointing a person in circumstances where it was alleged that that person really didn’t have decision-making ability. We have examples where there were multiple enduring documents signed and it was unclear as to the order of those documents. They hadn’t be properly revoked and so there were multiple people alleging they had authority to act. We’ve also seen examples where a forgery or amendments to enduring documents in circumstances where there wasn’t consent to those arrangements. There’s a broad spectrum from unintentional misguided conduct through to fraud, and I think in that context it is always mindful to remember that these are voluntary appointments and the vast majority of people are acting as an attorney or guardian with the best of intentions and often in very difficult circumstances.
Marie-Claire: What are some of the key recommendations we’ve made in this area and given the examples you were just talking about of elder abuse in relation to enduring documents, how would these recommendations help prevent those situations from arising?
Matt: We’ve got, essentially, three key recommendations in respect of enduring documents. The first is to establish a register of enduring documents. The register is really designed to enable people to identify documents that have been made so when someone goes to the bank and presents an enduring power of attorney the bank can quickly look online to confirm that that is a current and non-revoked power of attorney. That addresses one of the key concerns in terms of multiple documents being potentially floating around and a lack of clarity as to which is the most current one. And that’s of great concern in terms of the older person’s wishes, but also creates difficulties for banks and other institutions that are trying to facilitate transactions that rely on that enduring document.
The register will also help identify when an enduring document has been appropriately, what we call ‘activated’, which means that the attorney is actually using the document, recognising that in a lot of cases these are made often decades in advance and they’re not used and they don’t come into force until someone has lost or has impaired decision-making ability.
The second suite of reforms that we proposed are really designed to build in safeguards and this goes to the idea that, we said at the start of this chat, that enduring documents are both really, really important in terms of upholding individual choice and autonomy, but they can be abused. The types of safeguards that we think are important are ensuring that these documents are appropriately witnessed and part of that witnessing requirement is ensuring that the attorney and the guardian actually understands the nature of these appointments, that they don’t just sign it without thinking about the obligations that they’re taking on. We think that’s a really important reform to improve understanding of these documents.
The third reform that we’re proposing is that state and territory tribunals have the jurisdiction to provide compensation where these documents are abused and we think having an easily accessible forum for address will provide greater access to remedy in the rare event that these documents are abused. We think taken together the register, the safeguards and the compensation through the tribunal, that we can provide a robust framework for enduring documents that recognises that they are important planning tools and to help minimise the risk of elder financial abuse
Marie-Claire: Great, well thank you for talking us through that. Enduring documents are just one aspect of the Elder Abuse Inquiry and the recommendations for reform. To find out more, you can download the whole report at www.alrc.gov.au. Thanks Matt and congratulations on a great report.
Matt: Thank you.
Marie-Claire Muir: Hi, my name’s Marie-Claire Muir I’m the Communications Manager at the Australian Law Reform Commission. The ALRC has just released its Report for its Inquiry into Elder Abuse. I’m here today with Shreeya Smith, a Legal Officer who has been working on that inquiry. Shreeya, I understand that in your role in the inquiry you were focusing on the area of guardianship and financial administration. Perhaps we could kick-off, if you could explain to us what we’re really talking about in terms of guardianship and financial administration.
Shreeya Smith: When you are looking to figure out what should happen if you were to lose your ability to make decisions about your life and affairs, there are two things that could happen: one is that you can plan ahead and you can appoint someone to look after your affairs for you. If you don’t do that, that’s when guardians or financial administrator become involved.
So if you haven’t appointed someone, then you or somebody on your behalf, say a doctor or family member or an aged-care facility, can make an application to a tribunal and ask that someone be appointed to look after your affairs. Where the person looking after your affairs is looking after personal and lifestyle decisions that person is called a guardian. Where that person is looking after your financial affairs, so paying your bills, dealing with any property transactions, those sorts of things, that person is called a financial administrator.
Marie-Claire: OK, so if the tribunal’s appointing somebody to be that guardian or administrator, who are they going to appoint? Is that going to be somebody you know or a stranger? How does that work?
Shreeya: That’s a really good question Marie-Claire. The default position is that if they can they will appoint somebody that you know. It’s only in the event that they cannot find someone that you know who is willing and able to do the job, in that case in the context of the guardians they might appoint someone called the Public Guardian, whichis a state body that acts as a guardian over what we call ‘last resort’. In the financial administration space, if it’s not somebody that you know, it could be one of two parties. It could be either a professional trustee company or it could the Public Trustee. These bodies exist in all states and territories. If you want to think of it at the forefront and the most likely scenario, it is more often than not somebody that you know that will be appointed in this role.
Marie-Claire: Thanks for talking that through. Getting back to the context of elder abuse, what were the problems in relation to guardians and financial administrators?
Shreeya : Given that this is somebody that these people are appointed by a tribunal after a hearing and determination process, what we heard was that abuse by these people is less likely than abuse by, say for example, someone that is acting under a power of attorney or someone that happens to have no authority but for example steals your ATM card and starts taking money out of your account.
So it’s much less likely that it will be a guardian or financial administrator but where the abuse is committed by a guardian or a financial administrator, what we heard was that more often than not it’s because they don’t understand what their role or their responsibilities are. The reason for this is, often times this person has probably been looking after you and helping you through as you start losing your decision-making ability and then there’s this point where the appointment occurs after which there are a number of formal requirements that you need to meet and a best interest standard that you need to fulfil in order to complete your role under your statutory obligations and in compliance with your statutory obligations. So you might just keep doing what you’ve always done because that’s what you think you should do because that’s what’s always happened but it may, in fact in some circumstances, constitute financial abuse for example or elder abuse. The issue that we heard was that it’s not necessarily in this context intentional abuse but a failure to understand what it is that you ought to be doing in this space.
So that was one issue, the other issue that we heard about, as I said to you at the start of all of this discussion, the guardians and the financial administrators are appointed following a hearing process and after a tribunal’s looked at who is best placed to do this job. We heard during the course of the inquiry that sometimes in that hearing process the older person isn’t given a voice, isn’t given a chance to actually appear and put forward their view about what they would like or what they would see as appropriate. The problem, the link to abuse here, is that it is less likely that the person that is appointed might commit elder abuse if:
- they know what the person wants through the process; but also
- if that person is someone that the older person clearly says they would like to have look after their affairs.
So those were the two key concerns:
- people didn’t necessarily understand what their role was; and
- the older person isn’t always given the opportunity to get involved in the application process.
Marie-Claire: What recommendations have we made in this space that will help prevent those two things from happening?
Shreeya : For the first, the key recommendation that we’ve made is that someone that is appointed a guardian or financial administrator should have to sign an undertaking saying that they will comply with their roles and responsibilities. This provides an opportunity, then, for a lot of material and information to be provided to the person that’s appointed. We’ve suggested a few different ways that this could go, so for example, one thing we’ve suggested might work would be to give everyone that is appointed into this role a guide on what good guardianship or good administration is. There is a lot of this kind of material already available through a number of bodies including the tribunals, state trustee bodies, and public advocates and guardians but actually giving them that material.
The other thing we’ve suggested that might be useful is that the undertaking be supported by the exercise of a tribunal’s discretion to say, ‘hey look I think you will be fine in this role but it would be helpful for you to undergo some additional training so we’re making this tribunal order conditional on you completing this training’, so you need to complete it, for example, and then maybe lodge a certificate saying that you’ve completed the training.
So we’ve explored a number of different ways it could happen but the underlying recommendation is around signing an undertaking because that then is a launch pad for a lot of the education and awareness raising that can be done to improve the knowledge base of guardians and administrators.
Marie-Claire: It sounds like it’s really about improving or ensuring that guardians really understand their responsibilities and how they are expected to uphold the rights of the older person.
Shreeya : Absolutely and the signing of the undertaking in and of itself is an important and significant acknowledgement of what it is that they should be doing, it emphasises what they are meant to be doing in their role.
You’ll remember the second question and the second issue was trying to ensure that older people are able to participate in the hearing and the application process and what we have suggested around that, is that best practice guidelines be developed to facilitate older people being able to participate to the greatest extent possible. So this is geared at improving tribunal practice and also to showcase how tribunals have done it really well, as well, with the hope of bringing a certain standard across the country.
Marie-Claire: Great, it certainly sounds like that would be a good result. Thanks Shreeya for explaining that to us.
Guardianship and administration were just one area in a host of reform recommendations that were in the larger report. You can find the full Elder Abuse Report on the ALRC website www.alrc.gov.au. You’ll also find other podcasts that discuss other areas of reform in this inquiry. Thanks very much.