Recommendation 14–1 Adult safeguarding laws should be enacted in each state and territory. These laws should give adult safeguarding agencies the role of safeguarding and supporting ‘at-risk adults’.
A duty to protect
14.12 The starting point for responding to elder abuse, Professor Jonathan Herring has written, should be that
older people have a fundamental human right to protection from abuse. That obliges the state to put in place legal and social structures to combat elder abuse.
14.13 Abuse will often violate a person’s human rights. Where it results in death, abuse will violate a person’s right to life. More commonly, abuse will violate a person’s right not to be subject to cruel or degrading treatment, which is considered an absolute right. A person locked in a room or restrained will be denied their liberty.
14.14 Respect for private life is also a human right. It has been taken to include a right to bodily integrity, psychological integrity, personal development, and ‘the right to establish and develop relationships with other human beings and the outside world’. Elder abuse will commonly violate this human right. For example, physical and sexual assault violates a person’s bodily integrity; emotional abuse may violate their psychological integrity.
14.15 Properly enforced criminal law is perhaps the primary state protection against elder abuse. However, the adult safeguarding laws recommended in this chapter are a further way the state can seek to protect at-risk adults from abuse. Protecting people from abuse, Herring writes, requires ‘a clear set of duties’ on relevant government agencies to ‘investigate, intervene and protect older people who are being, or are at risk of, abuse’.
14.16 As discussed later in this chapter, providing this protection will usually support people’s autonomy and show respect for their dignity. However, in some cases, a person subjected to abuse may refuse the support and protection of the state. In such cases, there may be a conflict between a person’s present and future autonomy interests. There can also be a conflict between the state’s duty to protect people from abuse and its duty to respect people’s freedom and autonomy. The adult safeguarding policy recommended in this chapter is designed to give great weight to the autonomy interests of people affected by abuse but, in some limited circumstances, state intervention will be justified even without the adult’s consent.
14.17 Abuse is also an assault on a person’s dignity. Physical and sexual assault are clear cases, but neglect, psychological and social abuse also show a marked disrespect for a person’s dignity. For this reason, protections from abuse, particularly when given with consent, will also serve to protect people’s dignity.
14.18 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;
medical and ambulance services;
elder abuse help lines, which can provide information and refer people to other 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.
14.19 Despite this, the protection and support available to adults at risk of abuse may be inadequate. Some of the reasons for this are discussed below.
Police and the criminal law
14.20 Elder abuse will often be a crime, and may be reported to and investigated by the police. Indeed, the criminal law may be the primary state response to elder abuse. Although not targeted specifically at older people, criminal laws prohibiting murder, assault, theft and other abusive actions also serve to protect older people from abuse.
14.21 While police have a vital role to play, and are often the ‘default’ agency of last resort for all kinds of social problems, there are a number of reasons why additional support and protection should be available to vulnerable adults suffering abuse. Many people suffering elder abuse may be reluctant to report abuse to the police, particularly when it is committed by a son or daughter or other family member of the abused person. They may fear a loved one will be prosecuted and fined or even imprisoned. They may also fear harming their relationship with the abusive person, or how the abusive person may react if the police are involved. Legal Aid ACT submitted that ‘there is a significant risk that older Australians may be reluctant to report instances of abuse due to fear of reprisal, feelings of shame, or a desire not to jeopardise familial relationships’.
14.22 No doubt some of these concerns will remain where another state agency, other than the police, is involved in the response. However, some people may be more likely to contact an agency that does not prosecute crimes and employs people who specialise in the needs of vulnerable adults suffering abuse.
14.23 Some people subject to abuse may also consider the abuse too trivial to involve the police, and police priorities may mean that reports of less serious abuse are not fully investigated. The safeguarding agencies recommended in this chapter may be particularly useful where abuse either falls short of criminal activity, or is perceived to be at the lower range of criminal activity and, for this reason, not fully investigated.
14.24 Other reasons for not relying entirely on the criminal justice system to respond to elder abuse include the high standard of proof required for a criminal conviction and the fact that police may have limited resources to devote to the often complex social issues involved in an abusive situation. The Scottish Borders Inquiry, which led to the introduction of adult safeguarding legislation in Scotland, found that certain social workers had failed to appreciate why the criminal law cannot always provide sufficient protection against abuse:
A recurring theme … is the view that if an allegation is withdrawn or does not result in criminal charges or a conviction, social work has no locus to act. This attitude fails to take account of social work authorities’ duty to assess need, to provide services and to protect, regardless of whether criminal behaviour has been established in accordance with a criminal standard of proof. …
Sexual abuse allegations are very often retracted, particularly when the complainant is put under pressure, is not offered effective support, remains in the same household as the abuser and does not feel that protection will be provided as a result of the allegation. Social work staff showed insufficient understanding of this dynamic of sexual abuse. The result of this lack of understanding was ill-informed assumptions about the truth of the allegations and a failure to base service provision on a comprehensive assessment of need and risk in relation to each incident or allegation.
14.25 Finally, police officers may feel that they are not trained or equipped to provide the necessary support an at-risk adult may need. Safeguarding agencies will in some cases need to coordinate a number of services for the affected adult over an extended period of time. In fact, police are likely to value being able to refer some cases of elder abuse to people trained and focused on supporting vulnerable adults.
Helplines and advocacy services
14.26 Elder abuse helplines, established in all states and territories, provide an invaluable service. However, they are largely confined to giving information and referring people to other services. Many are not-for-profit bodies, which may not be equipped to provide an ongoing, personalised support service. They also do not have the legal powers to investigate accusations of abuse (for example, powers to compel people to answer questions) and they are also not in a position to authoritatively coordinate the services of other government agencies. This might also be said of advocacy services, such as Seniors Rights Victoria, Senior Rights Service in NSW and Caxton Legal Centre in Queensland, which provide legal advice to older persons in relation to elder abuse.
Aged care providers
14.27 Measures to protect people from abuse in residential care facilities and from abuse from those who deliver in-home care are discussed in Chapter 4. While carers, nurses and others who provide services to older people play a vital role in protecting older people from abuse, particularly neglect, most vulnerable adults, and indeed most older people, do not live in residential care facilities, and many do not receive other in-home services.
Public Advocates and Public Guardians
14.28 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. For example, in Queensland, the Public Guardian may investigate any complaint or allegation that an adult with impaired capacity ‘is being or has been neglected, exploited or abused’. In the NT, there is power to investigate abuse by someone’s guardian or administrator. In Tasmania, they may investigate abuse by people acting or purporting to act under an enduring power of attorney.
14.29 In Victoria and Western Australia, abuse is investigated where it would be appropriate to make or change a guardianship or financial administration order. The Victorian Law Reform Commission has recommended that the powers of the Office of the Public Advocate (Vic) should be expanded to allow investigations of the abuse, neglect or exploitation of ‘people with impaired decision-making ability due to a disability’.
14.30 In the ACT, one of the functions of the Public Advocate is ‘promoting the protection of people with a disability from abuse and exploitation’. ‘Disability’ includes ‘a physical, mental, psychological or intellectual condition’, if the condition ‘gives rise to a need for protection from abuse, exploitation or neglect’. In New South Wales, the Public Guardian has no express statutory power to investigate abuse.
14.31 Harmonising the existing powers to investigate abuse held by state and territory public advocates may go some way towards reducing elder abuse. Inconsistencies between state and territory laws can cause confusion in the community and inhibit nationwide initiatives designed to educate the community about investigating abuse. Inconsistencies may also inhibit cooperation between state public advocates—if their laws were more consistent, they may be in an even better position to learn from each other and cooperate to reduce abuse. However, these benefits of harmonisation must be balanced against one of the benefits of a federation, namely, that different states and territories might try different approaches and later adopt best practice.
14.32 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, as recommended by the Victorian Law Reform Commission. However, many vulnerable and older people do not have such decision-making limited ability but nevertheless also need support and protection. In this chapter, the ALRC recommends that adult safeguarding services be provided to other at-risk adults.
Need to fill the gaps
14.33 A 2016 NSW Parliamentary inquiry into elder abuse reported that there was a ‘clear call across a range of stakeholders for a body that has the power to investigate allegations of elder abuse’:
The committee heard that powers of the police, the Helpline, the Guardianship Division of NCAT [the NSW Civil and Administrative Tribunal] and the Public Guardian are all circumscribed and that the gap between them leaves people unprotected when they are very much at risk. There was also a clear call among many participants that the investigation gap should be filled by a statutory office of the Public Advocate, with that body being responsible for both investigating allegations and facilitating their resolution.
14.34 The committee said it ‘strongly supports the establishment of a Public Advocate in New South Wales with the power to investigate complaints about abuse and also to initiate its own investigations’.
14.35 A 2011 South Australian report into elder abuse, Closing the Gaps, alsorecommended the introduction of adult safeguarding legislation in Australia. The report stated:
The present legal framework … provides protective frameworks for serious cases of abuse and for those who are particularly vulnerable due to mental illness or incapacity, but it does not provide a framework for less intrusive methods of intervention, or early intervention, and at a time when serious abuse or neglect could be avoided.
14.36 Professor Wendy Lacey, a co-author of the Closing the Gaps report and the Co-Convenor of the Australian Research Network on Law and Ageing, has summarised the need for adult protection legislation in Australia:
Until strategies are backed by legislative reform, vulnerable adults will continue to fall through the cracks of existing protective mechanisms and specialist services. State-based frameworks presently contain a number of significant flaws: there is no dedicated agency with statutorily mandated responsibility to investigate cases of elder abuse, coordinate interagency responses and seek intervention orders where necessary; … referral services between agencies can provide partial solutions in cases of elder abuse, but do not encourage a multi-disciplinary and multi-agency response in complex cases.
14.37 The ALRC agrees with this assessment and recommends the introduction of adult safeguarding laws throughout Australia as an important measure towards filling this gap. Such laws have been introduced in a number of other jurisdictions, including in the United Kingdom and Canada. Reflecting on safeguarding laws in England before the enactment of the Care Act 2014 (UK), Lord Justice Munby said:
There is the remarkable fact that the formal safeguarding agenda in relation to vulnerable adults rests entirely upon Ministerial guidance and otherwise lacks any statutory basis—a state of affairs that, unsurprisingly, can leave local authorities uncertain as to their function and responsibilities in this vital area.
14.38 The Law Council of Australia recognised the need for an organisation responsible for investigating elder abuse:
without proper investigation it is often impossible to identify or respond to individual allegations of abuse. Unless a particular organisation is tasked with the investigation process, there will be no accountability for conducting this work and victims of abuse will continue to fall between the cracks.
14.39 Disabled People’s Organisations Australia said it supported the establishment of ‘an independent, statutory, national protection mechanism’, which it said was in line with the recommendations from the 2015 Senate Inquiry into Violence, Abuse and Neglect against People with Disability in Institutional and Residential Settings.
14.40 No government agency in Australia has the clear statutory role of safeguarding and supporting adults who, despite having full decision-making ability, are nevertheless at risk of abuse. In the ALRC’s view, this protection and support should be provided by state adult safeguarding agencies.
Jonathan Herring, ‘Elder Abuse: A Human Rights Agenda for the Future’ in Israel Doron and Ann M Soden (eds), Beyond Elder Law: New Directions in Law and Aging (Springer Science & Business Media, 2012) 175. See also Jonathan Herring, Vulnerable Adults and the Law (Oxford University Press, 2016) ch 5.
‘Human rights treaties do not directly bind non-state actors such as individuals, groups or corporations’: Parliamentary Joint Committee on Human Rights, Parliament of Australia, Guide to Human Rights (2014) [1.4]. However, this is not to say that individuals cannot themselves violate the human rights of other individuals. ‘Human rights do not only come into play when a state abuses a citizen but are as much in play when one citizen abuses another. If you are tortured, your human rights are seriously infringed, whoever is doing the torturing’: Herring, above n 1, 133. ‘[D]omestic and family violence violates a wide range of human rights’, including the right to life, freedom of expression, and the right to be free from cruel, inhuman or degrading treatment: Australian Human Rights Commission, Why Is Domestic Violence a Human Rights Issue? <www.humanrights.gov.au/our-work/family-and-domestic-violence/why-domestic-violence-human-rights-issue>.
Herring, ‘Elder Abuse: A Human Rights Agenda for the Future’, above n 1, 178–79.
‘Under international human rights law a state is bound to take all reasonable measures, including having in place appropriate laws or practices, to prevent individuals, groups or companies from breaching the rights of others, and to provide remedies where such breaches take place’: Parliamentary Joint Committee on Human Rights, Parliament of Australia, Guide to Human Rights (2014) [1.4]. The ALRC is not suggesting that adult safeguarding laws must necessarily be enacted for Australia to meet its international human rights obligations, but only that such laws would serve to better protect at-risk adults from abuse—abuse which will sometimes amount to a violation of a person’s human rights.
Herring, ‘Elder Abuse: A Human Rights Agenda for the Future’, above n 1.
See also ch 2.
This is discussed further below, in the section about consent. The need to protect people with impaired decision-making ability from harm is also recognised in the safeguarding principles discussed in Australian Law Reform Commission, Equality, Capacity and Disability in Commonwealth Laws, Report No 124 (2014).
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.
See ch 13.
WA Police, Submission 190. See also Commissioner for Senior Victorians, Submission 187; Justice Connect, Submission 182; People with Disability Australia, Submission 167; Australian Association of Social Workers, Submission 153; Legal Aid NSW, Submission 137; UNSW Law Society, Submission 117; National LGBTI Health Alliance, Submission 116; Macarthur Legal Centre, Submission 110; Australian Research Network on Law and Ageing, Submission 90; Legal Aid ACT, Submission 58; P Horsley, Submission 62; Legislative Council General Purpose Standing Committee No 2, Parliament of New South Wales, Elder Abuse in New South Wales (2016) [8.1]–[8.2].
See also National Ageing Research Institute and Seniors Rights Victoria, ‘The Older Person’s Experience: Outcomes of Interventions into Elder Abuse’ (June 2016) 23–4. Another stakeholder expressed concern that a ‘too punitive approach will drive some older people away as they fear for the child whom they love yet who is causing them distress’: FMC Mediation & Counselling, Submission 284.
Legal Aid ACT, Submission 223.
‘[A]buse in any given situation may not constitute a crime or at least a crime that is likely to be successfully prosecuted. Anecdotal evidence also indicates that, in cases of abuse perpetrated against older persons, it can be very difficult to secure a conviction or to convince the victim that the abuse should be treated as a crime. Many perpetrators are known to the victim, are close family members or carers, and the complexities of the familial or personal relationships involved can create barriers and difficulties associated with the application of the criminal law’: Office of the Public Advocate (SA), Closing the Gaps: Enhancing South Australia’s Response to the Abuse of Vulnerable Older People (2011) 23.
Scottish Social Work Services Inspectorate, Report of the Inspection of Scottish Borders Council Social Work Services for People Affected by Learning Disabilities (2004) 13.
See ch 13.
This may be in addition to, rather than a substitute for, a criminal justice response.
These include: in the ACT—Older Persons Abuse Prevention Referral and Information Line and the ACT Disability, Aged and Carer Advocacy Service (ADACAS); NSW—NSW Elder Abuse Helpline; NT— Elder Abuse Information Line; Qld—Elder Abuse Prevention Unit; Aged and Disability Advocacy Australia (ADA Australia); SA—SA Elder Abuse Prevention phone line; Tas—Tasmanian Elder Abuse Helpline; Vic—Seniors Rights Victoria and Elder Rights Advocacy; WA—Advocare; nationally— Alzheimer’s Australia.
See chs 2 and 4.
The terminology differs between states and territories. For ease of reference, this chapter will sometimes use ‘public advocate’ to refer to public advocates or public guardians.
Public Guardian Act 2014 (Qld) s 19; Guardianship and Administration Act 2000 (Qld) sch 4. Capacity is defined to mean the person is ‘capable of—(a) understanding the nature and effect of decisions about the matter; and (b) freely and voluntarily making decisions about the matter; and (c) communicating the decisions in some way’: Ibid sch 4.
Guardianship of Adults Act 2016 (NT) s 61.
Guardianship and Administration Act 1995 (Tas) s 17.
Guardianship and Administration Act 1986 (Vic) s 16(h); Guardianship and Administration Act 1990 (WA) s 97. This power is broader than the powers in the Northern Territory and Tasmania because it includes circumstances where a person is in need of guardianship, and has not appointed an attorney under an enduring power of attorney.
Victorian Law Reform Commission, Guardianship, Final Report No 24 (2012) recs 328–329. See also Ibid [20.17].
Human Rights Commission Act 2005 (ACT) s 27B(1)(a)(iv).
Ibid s 27B(2).
However, the Public Guardian can apply to the Guardianship Division of the NSW Civil and Administrative Tribunal for a short-term order to investigate the care and circumstances of a person with impaired decision-making: see NSW Ombudsman, Submission 160. ‘It is problematic that a guardianship order is the only mechanism currently available for the Public Guardian to conduct investigations in relation to vulnerable adults who are reported to be at risk in the community. It does not enable a swift response, and is not the least restrictive option’: Ibid. NSW Trustee and Guardian said it supported the establishment of a Public Advocate with powers to investigate the abuse of people with impaired decision-making ability: NSW Trustee and Guardian, Submission 120.
Victorian Law Reform Commission, Guardianship, Final Report No 24 (2012) recs 330–34. Although, as discussed further below, some consider that coercive powers may be seen to undermine the advocacy role of public advocates.
Legislative Council General Purpose Standing Committee No 2, Parliament of New South Wales, Elder Abuse in New South Wales (2016) [8.76].
Office of the Public Advocate (SA), above n 14, 23.
Wendy Lacey, ‘Neglectful to the Point of Cruelty? Elder Abuse and the Rights of Older Persons in Australia’ (2014) 36 Sydney Law Review 99, 105.
Lord Justice Munby ‘Dignity, Happiness and Human Rights’ (2011) 1(1) Elder Law Journal 32, 34, quoted in Alison Brammer, ‘Safeguarding and the Elusive, Inclusive Vulnerable Adult’ in Julie Wallbank and Jonathan Herring (eds), Vulnerabilities, Care and Family Law (Routledge, 2013).
Law Council of Australia, Submission 351.
Disabled People’s Organisations Australia, Submission 360.