Recommendation 14–5 Adult safeguarding laws should provide that, where a safeguarding agency has reasonable grounds to conclude that a person is an at-risk adult, the agency may take the following actions, with the adult’s consent:
(a) coordinate legal, medical and other services for the adult;
(b) meet with relevant government agencies and other bodies and professionals to prepare a plan to stop the abuse and support the adult;
(c) report the abuse to the police;
(d) apply for a court order in relation to the person thought to be committing the abuse (for example, a violence intervention order); or
(e) decide to take no further action.
14.129 This recommendation highlights the primary objective of adult safeguarding laws—the actions that might be taken to support and protect at-risk adults. In some cases, the response might be relatively straightforward: for example, arranging for the adult to see a doctor, counsellor or lawyer. In more complex cases, a detailed plan might need to be made, with the cooperation and input of multiple government agencies and other service providers. The safeguarding agency should be given the role of coordinating this work.
14.130 As discussed above, the at-risk adult’s consent should be secured before taking any action, except in limited circumstances. Safeguarding agencies should work with at-risk adults to determine what support and services may be needed to recover from and stop the abuse.
14.131 The legislation need not prescribe specific responses to specific scenarios. Not only will different cases call for different responses, but the agency should only act with the consent of the affected adult, and the adult may prefer one response to another. However, the legislation might be more prescriptive about the actions that might be taken where consent is not required.
14.132 Responding effectively to elder abuse may often require the cooperation and expertise of people from multiple disciplines and multiple agencies. Safeguarding agencies should be empowered to lead and coordinate this work. A lack of collaboration and the absence of a lead agency to coordinate the provision of services was identified as a key limitation of existing elder abuse strategies and responses.
14.133 Adult safeguarding agencies should be empowered and encouraged to play this crucial crisis case management and coordination role. This should be made clear in the legislation. This would require safeguarding agencies, other government agencies and service providers to share information and coordinate their services.
14.134 In England and Wales, Safeguarding Adults Boards are established to ‘help and protect’ at-risk adults. They should seek to achieve this objective by ‘co-ordinating and ensuring the effectiveness of what each of its members does’. In British Columbia, the investigative body may report the case to another agency, including the Public Guardian, refer the adult to available services, or prepare a support and assistance plan specifying the services the adult requires if, for instance, the adult has complex needs that require case management and ongoing coordination.
14.135 The Office of the Public Advocate (SA) submitted that adult safeguarding agencies should have responsibility for ‘convening multi-agency adult protection case conferences and coordinating an interagency response in cases of reported abuse’.
14.136 Carers NSW said that ‘the NSW response to elder abuse lacks coordination and relies on interagency initiatives in partnership with the NSW Elder Abuse Helpline and Seniors Rights Service’:
Service providers and consumers would undoubtedly benefit from a central agency leading stakeholder engagement, preventative education, data collection and legal intervention.
14.137 The NSW Ombudsman submitted that, in its experience, a comprehensive adult safeguarding mechanism would feature a ‘lead agency to coordinate (where required) an effective response—with appropriate information sharing provisions relating to the safety of individuals, and appropriate powers on the part of the lead agency to require information and to monitor the implementation of agreed actions’. The NSW Ombudsman, in relation to the potential abuse, neglect or exploitation of a person with disability, will:
bring relevant agencies together to discuss the information that is known about the person’s current care, circumstances and risks—and to reach agreement on what action is required. These agencies may include any disability service currently or formerly involved with the person, the NSW Police, the Public Guardian, and mainstream services such as housing and health services. We facilitate the exchange of relevant information, the coordination of the safeguarding approach for the person with disability, and the oversight of the agreed actions.
14.138 The ALRC recommends that adult safeguarding agencies should have a similar role in relation to at-risk adults. The Closing the Gaps report states that the government response ‘needs leadership and coordination’ and recommends that there be a ‘clear point of accountability within the government’.
Service providers and community members need to know where to go if they have a concern about a vulnerable older people and to have confidence that a response will be offered. A central body would provide the point of accountability and carry responsibility for leadership in these reforms both at a policy and a practical level.
14.139 Reporting abuse to the police will be one action that safeguarding agencies should take, in some circumstances. There should be clear protocols for when this would be appropriate. The safeguarding agencies recommended in this Report are not intended to investigate abuse with a view to prosecuting offenders, nor to substitute for a criminal justice response when this would be appropriate, but their capacity to work collaboratively with the police will be crucial.
14.140 Safeguarding agencies should also be able to help an at-risk adult apply for an apprehended violence order, in serious cases of abuse or when otherwise appropriate, or find another way to have an abusive person removed from the at-risk adult’s home, particularly where that person has no right to live there. In other cases, safeguarding agencies may need to help an at-risk adult find other accommodation.
14.141 In some jurisdictions, safeguarding agencies can remove an at-risk person from their home for a period of time, to remove them from danger or to assess their health and safety. For example, in Scotland, a safeguarding agency may apply to the sheriff for assessment, banning and removal orders. Assessment orders permit it to take a person suspected to be an adult at risk from the premises for an interview in private, or for a medical examination conducted by a nominated health professional. Removal orders authorise it to remove the adult at risk from their premises to protect them from harm. Banning orders restrict access to the adult at risk, or require the preservation of moveable property owned or controlled by the person subject to the order.
14.142 In British Columbia, safeguarding bodies may apply to a court for an order that a person who has abused an at-risk adult:
(i) to stop residing at and stay away from the premises where the adult lives, unless the person is the owner or lessee of the premises,
(ii) not to visit, communicate with, harass or interfere with the adult,
(iii) not to have any contact or association with the adult or the adult’s financial affairs, or
(iv) to comply with any other restriction of relations with the adult,
for a period of up to 90 days.
14.143 The Law Commission in the UK proposed the introduction of removal orders, but there was widespread objection to the introduction, and they were not introduced in the Care Act. In fact, the Care Act repealed the existing power of local authorities to remove people in need of care from their homes.
14.144 The ALRC does not recommend that safeguarding agencies have the power to remove an at-risk person from their home without the adult’s consent, even where the agencies can otherwise act without the person’s consent. Even though there may be circumstances in which removing a person from their home without their consent might be in that person’s interests, the response may be considered overly intrusive and protectionist.
14.145 Safeguarding agencies might also be given a role in referring a person accused of abuse to services that provide them with help and support. This might include access to services such as anger management and gambling counselling. This could be included in the functions of safeguarding agencies, without giving the agencies the power to compel people to accept such services.
14.146 In introducing adult safeguarding laws, state and territory governments should give further consideration to the need for safeguarding agencies to take some of the actions considered necessary in other jurisdictions.
For example, some may not wish to report the abuse to the police. For some abuse, the agency would be required to report the abuse to the police anyway, but it may have some discretion in relation to less serious types of abuse.
This new body should be ‘supported by a legislative mandate to coordinate and lead the response of multiple agencies working collaboratively’: Office of the Public Advocate (SA), above n 14, 26.
See, eg, John Chesterman, ‘Taking Control: Putting Older People at the Centre of Elder Abuse Response Strategies’ (2016) 69(1) Australian Social Work 115, 119–20. See also National Legal Aid, Submission 192; Commissioner for Senior Victorians, Submission 187; Office of the Public Advocate (SA), Submission 170; Seniors Rights Service, Submission 169; Speech Pathology Australia, Submission 168; NSW Ombudsman, Submission 160; Queensland Law Society, Submission 159; Australian Association of Social Workers, Submission 153; United Voice, Submission 145; Legal Services Commission SA, Submission 128; S Goegan, Submission 115; Alzheimer’s Australia, Submission 80; E Cotterell, Submission 77; Law Council of Australia, Submission 61.
Care Act 2014 (United Kingdom) s 43(2). The Board ‘must include the local authority, the relevant local health area and local police’ and other appropriate persons: Ibid sch 2 cl 1.
Care Act 2014 (United Kingdom) s 43(3).
Adult Guardianship Act 1996 (British Columbia) s 51(1). In the United States, the ‘primary activities covered by most state statutes include receiving reports; conducting investigations; evaluating client risk and capacity to agree to services; developing and implementing a case plan; counseling the client; arranging for a large variety of services and benefits and monitoring ongoing service delivery’: National Adult Protective Services Association, History of Adult Protective Services <www.napsa-now.org/about-napsa/history/history-of-adult-protective-services/>.
Office of the Public Advocate (SA), Submission 170.
Carers NSW, Submission 321.
NSW Ombudsman, Submission 160.
Office of the Public Advocate (SA), above n 14, 15.
‘[A]ny proposal to empower the public guardian or advocate to investigate allegations of elder abuse should not impinge or detract from a full criminal justice system response to such abuse’: Women’s Domestic Violence Court Advocacy Services NSW Inc, Submission 293.
Some stakeholders submitted that adult safeguarding agencies in Australia should have similar powers. See, eg, Justice Connect, Submission 182; Office of the Public Advocate (SA), Submission 170; Office of the Public Advocate (Vic), Submission 95. For a discussion of these powers in other jurisdictions, see Office of the Public Advocate (SA), above n 14, 40.
Adult Support and Protection (Scotland) Act 2007 (Scotland) s 11. Section 12 provides: ‘The sheriff may grant an assessment order only if satisfied—(a) that the council has reasonable cause to suspect that the person in respect of whom the order is sought is an adult at risk who is being, or is likely to be, seriously harmed, (b) that the assessment order is required in order to establish whether the person is an adult at risk who is being, or is likely to be, seriously harmed, and (c) as to the availability and suitability of the place at which the person is to be interviewed and examined.’ See also s 13, which provides that the person may only be taken to another place if it is ‘not practicable’ to perform the interview or medical examination where they were.
Ibid s 14.
Ibid s 19.
Adult Guardianship Act 1996 (British Columbia) s 51.
Care Act 2014 (United Kingdom) s 46.