Elder Abuse—A National Legal Response | 2017 World Elder Abuse Awareness Day Forum

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*

Transcript

[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]

Introduction

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.[1]

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’.[2]

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.[3]

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’.[4]

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.[5]

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.

Aged care

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’.[6]

Some thought this was just ‘red tape’ and made little or no difference to the safety of residents.[7] 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’.[8]

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.[9]

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[10]—and the serious incident reporting scheme planned for the National Disability Insurance Scheme (NDIS).[11]

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.[12] 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.[13] Significantly, the ALRC has not recommended that providers be required to report an incident to police.[14] 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 appointments

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.[15] 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:

1. 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;
2. require the appointed decision maker to support and represent the will, preferences and rights of the principal;
3. enhance witnessing requirements;
4. restrict conflict transactions;
5. restrict who may be an attorney;
6. set out in simple terms the types of decisions that are outside the power of a person acting under an enduring document; and
7. 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.[16]

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.[17]

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.

Family agreements

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);[18]
• 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.[19]

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.[20] 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.[21] 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.

Thank yous

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.

*              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.