Podcast: Elder Abuse and reform proposals on powers of investigation



MC: Hi I’m Marie-Claire Muir, Communications Manager at the Australian Law Reform Commission. I’m here with Shreeya Smith who is a Legal Officer who’s been working on the Elder Abuse Inquiry. In December we released a Discussion Paper that contains proposals for law reform in the area of elder abuse and we’re currently looking for feedback on those proposals. Now, Shreeya has been working specifically in the area of powers of investigation. Hi Shreeya.

SS: Hi Marie-Claire.

MC: So can you tell us in the first instance why do we need to expand powers of investigation?

SS: Of course. The issue Marie-Claire is that there’s an investigation gap which may limit the identification response to elder abuse. You’ve got a number of options if you are either experiencing elder abuse or you think that someone that you know might be experiencing elder abuse. The first is you might contact an elder abuse hotline which is available in each of the states and territories. The limitation there is that they can’t investigate, they can only provide information or referrals. Second step might be you might contact an advocacy service, such as Senior Rights Service here in NSW. Whilst they provide a very useful and valuable service, the limitation they face is that they need to be able to speak to the older person themselves in order to investigate, and in a number of circumstances that might not be possible. Of course, there is a body that can investigate currently and that’s the police, but older people and people who are concerned about someone experiencing elder abuse can often be quite reluctant to get the police involved.

MC: And why is that, why would somebody be reluctant to report elder abuse to the police?

SS: The stakeholders to our inquiry have suggested a number of reasons, including, concerns about losing the relationship with the person or what might happen to them as a result of the investigation.

MC: So if we’re expanding these powers of investigation and they’re not for the police, then who?

SS: What we’ve got in each of the states and territories is someone called the Public Advocate or Public Guardian and they, in most of the states and territories, already have a limited investigation power. Basically as it currently stands in most states and territories if a person has impaired decision-making ability or doesn’t have capacity, then the Public Advocate or Guardian can investigate instances of abuse or neglect. With older people, what that often translates to is where an older person has dementia, for instance, or Alzheimer’s and it’s fairly advanced stage and they can’t either make a decision or can’t communicate their decision, then you might get someone in to make decisions for them. In those circumstances where you’ve got that sort of situation, under the existing regime, the Public Advocate or Public Guardian in most states and territories can come in and investigate. So they already have an existing body of knowledge and experience with investigating abuse and we think that they’re the most logical body to be vested with an expanded power.

MC: OK, so under the ALRC proposals what would that expanded power look like?

SS: The expanded power would be that they would have a power to investigate if they’ve got a reasonable cause to suspect that an older person, first has care and support needs, second that they’re at risk or are being abused or neglected, and third that they cannot protect themselves from the abuse or neglect because of their care or support needs. In framing what care and support needs are, the ALRC recognises that an older person may be unable to seek support and assistance for reasons other than a lack of capacity, and so we’re suggesting that the conception include needs arising from a physical impairment, or illness, or physical restraint in addition to what currently already exists.

MC: In the instance that a Public Advocate has gone in and found that an older person is being abused, what can they do about it?

SS: The role of the Public Advocate or Guardian, as the ALRC sees it, is to support and assist the older person. What that means is that they can refer them to services whether it’s accommodation, it might be legal services, it could be health services, it could be a whole host of things. They can also help them actually get access to the services rather than just provide a referral, and they might also be in a position to prepare a plan that coordinates the range of services that a person requires in order to be able to respond to the abuse. That last option would only really arise in a more complex abuse scenario.

MC: What about a scenario where somebody has reported abuse of an older person to the Public Guardian, they investigate and they get in touch with the person who is experiencing the abuse and that person, the older person, says ‘look thanks but no thanks, you know, my situation might not be great but it’s what I’m prepared to accept’.

SS: Ultimately, the ALRC proposes that there should be guiding principles that sit underneath the entire investigative function, and what that boils down to is that the older person has the right to refuse any support assistance or protection. So they can say thank you, close the door and not be bothered again.

MC: OK, so in that scenario where somebody else has reported the abuse, the investigation has happened, the older person has said ‘actually leave me alone I’m fine as I am’, is there any comeuppance for the person who, with all the right intentions, reported the abuse in the first place?

SS: No, so long as the person that’s making the report does so in good faith and based on a reasonable suspicion they will not be civilly or criminally liable, they can’t be brought to heel under professional codes of conduct for breach of codes of conduct. They can’t be dismissed or threatened in the course of their employment and they certainly can’t be discriminated against with respect to employment or membership in a professional trade union. That’s the proposal that we’re putting forward.

MC: OK, great, thank you Shreeya. I’d just like to add that at this stage these are proposals. This is the final consultation stage for the inquiry and we’re looking for feedback at the moment on these proposals so we can work out if they get carried through to be final recommendations in our final report. If you have an interest in this area please get your submissions to us by 27 February. You can find more information and the Discussion Paper on www.alrc.gov.au.

Thanks very much.