Podcast: The Elder Abuse Issues Paper


Sabina Wynn (SW): Hello I’m Sabina Wynn, the Executive Director of the Australian Law Reform Commission and I’m here with Professor Rosalind Croucher, President of the ALRC and Commissioner who’s leading our current inquiry into elder abuse.

The 15th June marked World Elder Abuse Awareness Day and on that day the ALRC released its first consultation document for the Elder Abuse Inquiry—an Issues Paper. We are going to be discussing the matters that are covered in that Issues Paper.

First of all, Ros why do we actually need an inquiry into elder abuse?

Rosalind Croucher (RC): We need an inquiry into elder abuse because it’s a growing problem. The population is ageing in Australia so much so that it’s predicted that by 2040 those aged 65 years and over will be 21% of the population and those over 85 will be up to 5% of the population by 2050. As people get older, frailties and vulnerabilities naturally increase as well and with that the potential for elder abuse is likely to grow. As was said recently, preventing elder abuse in an ageing world is everybody’s business with the stats quite staggering and the tip of an iceberg when the World Health Organisation talks about figures of up to 14% amongst an ageing population, so there is definitely a need for an inquiry like this.

SW: What is elder abuse?

RC: The definition or description perhaps is a better way to say it, the description of elder abuse, that is the reference point for many people, again from the World Health Organisation, is that elder abuse is ‘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’. So it can be acts, it can be neglect and it’s something that occurs within relationships of trust.

SW: What form does elder abuse commonly take, where do we see elder abuse happening?

RC: Yes, that’s a really good question and there are various guidelines and descriptions of the wide range of elder abuse, so it can include things like physical abuse, which is perhaps the most obvious one, but it can also include things like psychological or emotional, sexual and financial abuse and it can also be deliberate or it can even be unintentional as is perhaps the case in cases of neglect.

SW: So you’ve spoken or mentioned financial abuse, could you give us an example of how someone might experience financial elder abuse?

RC: Sure, financial abuse, in fact, is the one that causes most concern and in one of the background studies to the ALRC inquiry—the study undertaken by the Australian Institute of Financial Studies—it suggested that financial abuse is in fact the most common and it is most common, the study suggests, by adult sons of their elderly mothers and it can take many forms.

Perhaps if I give a hypothetical as an example to illustrate. The hypothetical is based on what I could describe as a perfect storm of possibilities where a person may build up a modest pool of assets including say a home and some financial resources. Now even for a person with modest assets it may well be that they have an increasing pool of superannuation. The figures in terms of the amount of superannuation that’s been built up since the compulsory super was introduced in 1993 is really quite staggering.

 Let’s just say a woman who owns her home, perhaps she’s a widow, she owns her home and has some assets in a bank account, now if you add in a dash of what’s been described as inheritance impatience and a bit of moral pressure than the pressure may turn into what might be described as a bit of moral blackmail, exploitation but it can easily slide into something that’s much more worrying into blackmail and actual fraud.

So let’s take some more examples of the financial bits in this. Perhaps we’ll call her mum, perhaps mum moves in, perhaps she gives some money towards a granny flat or maybe a renovation of the house so that she can stay there, or that’s what she thinks, to stay there for as long as she needs to, for the rest of her days, to be close to her grandchildren and be cared for by her son and daughter-in-law but then the arrangement might go south, the son and daughter-in-law are perhaps not happy with mum’s increasing demands. Their own family is growing, they want a bigger house but they don’t want mum to come with them. Well what can they do?

Add another complication to that, let’s say mum signed a power of attorney, not a bad thing to do because it’s a deliberate choice of someone to get some help when they need it. Mum signs a power of attorney in favour of her son but he starts using it, perhaps he thinks as the use increases well she doesn’t need it, I do, and withdraws money from her bank account.

Perhaps mum is dependent on some prescription medications, this is not financial but it’s another extension of my story now that I’m going on this. Mum’s medications need to be taken at specific times and in prescribed doses but because she is getting increasingly forgetful her daughter-in-law helps, but let’s say daughter-in-law’s getting a bit tired of doing it she’s very busy after all with her kids. Mum’s not getting her medications, the pharmacist is a bit worried he hasn’t seen mum, the scripts haven’t been filled. What can anyone do in a circumstance like this?

So these are just illustrations of how financial abuse can happen through powers of attorney, through banking arrangements, things that might be set up with all the good will in the world but things happen and they don’t go as planned and perhaps exploitation turns into actual abuse.

SW: Well, you’ve outlined a lot of potential in that scenario for elder abuse to occur. The Terms of Reference for the ALRC have asked us to look at Commonwealth laws and legal frameworks, in particular, and they’ve outlined a number of areas that the Attorney wanted us to look into—financial institutions as you say, superannuation, social security, living and care arrangements, and health. So that seems to be quite a large task, so how’s the ALRC going to go about it?

RC: Well we approach all of our work by starting with some principles that we’ll use to frame our consideration of issues and in this case there are two key ideas that are set out in the Terms of Reference and will be the framing principles for our thinking.

The first one is about rights. That everyone has a right and the rights that you have don’t diminish as you get older. The rights are to live dignified, self-determined lives free from exploitation, violence and abuse. So that’s what we might describe as autonomy, that you as a person have a right to live a dignified life, that you can make your choices.

The other principle is one that’s a protective one. That laws and legal frameworks should provide appropriate protections and safeguards for older Australians, while minimising interference with their rights.

So autonomy and protection are our principles but taking it to the more practical, in our initial thoughts so far in our preliminary work which is reflected in the Issues Paper, we’ve taken an approach that we could describe as the four Rs:

  • Risk—how is a person at risk of elder abuse identified, and how can the risk be minimised;
  • Reporting—how and to whom are complaints about elder abuse made, who should have a responsibility to report and what data should be collected about elder abuse;
  • Response—how are suspected or alleged cases of elder abuse investigated and what service provision should be associated with such investigation;
  • Redress—what forums can people go to for redressing elder abuse and what legal remedies are available.

So a principle and a practical framework will help us get going.

SW: I said at the outset that the ALRC had just released an Issues Paper calling for submissions to the 50 or so questions in that Issues Paper. Obviously people can choose to answer as many or as few of those questions as they would like. Submissions are going to close on 18 August and I hope that we get a lot of information from our stakeholders and the public about actual elder abuse that they’ve experienced because based on those case studies that will really help us in our thinking of how we can better protect and safeguard older Australians from all the varieties of elder abuse that we’ve just outlined.

RC: It’s a fantastic inquiry, we’re thrilled to be doing it and we want you to get involved to help us finish our work. Thank you.