Coercive powers

Recommendation 14–6            Adult safeguarding laws should provide adult safeguarding agencies with necessary coercive information-gathering powers, such as the power to require a person to answer questions and produce documents. Agencies should only be able to exercise such powers where they have reasonable grounds to suspect that there is ‘serious abuse’ of an at-risk adult, and only to the extent that it is necessary to safeguard and support the at-risk adult.

14.147       Adult safeguarding agencies will in some cases need to exercise coercive information-gathering powers to perform their functions effectively. Most importantly, they will need to gather information and evidence to determine whether a person is being abused, so that appropriate action might be taken to stop the abuse and support the affected adult.[140]

14.148       The Administrative Review Council report, The Coercive Information-Gathering Powers of Government Agencies, explains that such statutory powers are ‘conferred on many government agencies to enable them to obtain information associated with the performance of their statutory functions’.

Such powers typically permit agency officers to enter and search premises, to require the production of information or documents, and to require provision of information relevant to their statutory functions by way of oral examination or hearing without the issuing of a warrant or other external authorisation.[141]

14.149       The Public Guardian Act 2014 (Qld) provides for some of these powers, to be exercised by the Public Guardian when investigating a complaint that an adult has been ‘neglected, exploited or abused’ or ‘has inappropriate or inadequate decision-making arrangements’.[142] The Public Guardian may, by written notice, require a person to give information to the Public Guardian and, depending on the circumstances, either give the document to the Public Guardian or allow the Public Guardian to inspect the document and take a copy of it.[143]

14.150       In England, Safeguarding Adult Boards have the power to require, in some circumstances, that a body or person provide it with information that would help the Board exercise its functions.[144] For example, information might be requested of a GP who treated the adult; a volunteer who had helped the adult; a family member or carer of the adult; or a minister of a church attended by the adult.[145] The information can only be used for the purpose of exercising the Board’s functions.[146]

14.151       When investigating abuse, designated agencies in British Columbia ‘must make every reasonable effort to interview the adult’ and may also:

(a)     interview the adult’s spouse, the adult’s near relatives, the adult’s friends or anyone else who may assist in the investigation, and

(b)     obtain any information that the circumstances require, including a report from

         (i)     a health care provider who has examined the adult,

         (ii)    any agency that provides or has provided health or social services to the adult, and

         (iii)   any person that manages the adult’s financial affairs.[147]

14.152       Most stakeholders who commented on the matter agreed that agencies investigating the abuse of at-risk adults should have powers to require people to answer questions and produce documents, although some had reservations.[148]

14.153       A 2016 NSW Parliamentary inquiry into elder abuse recommended that a Public Advocate with the power to investigate complaints of abuse of vulnerable adults should be able to ‘require specified documents, written answers to questions, and attendance at a conference for the purpose of resolving a matter under investigation’.[149]

14.154       The Law Council and Legal Aid NSW, while supporting the proposal, also suggested there should be protections against self-incrimination.[150] The Law Council said it ‘welcomes a more robust investigative regime, but submits that fundamental rights built on established criminal law protections need to be maintained’.[151]

14.155       The ALRC agrees that the legislation should protect people’s rights against self-incrimination and other legal safeguards, such as the right to silence and to seek legal advice. The Administrative Review Council’s report states:

It is essential that, when using [coercive information-gathering powers], agencies impinge on the rights of individuals only in a proportionate and justifiable way. Among the individual’s rights are those associated with the protection of property and privacy, the right to silence, and statutory rights to the protection of personal information. Related rights are the right to privilege against self-incrimination or self-exposure to penalty and client legal privilege.[152]

14.156       Others objected to the introduction of these powers, particularly if abuse is defined too broadly. In one submission, the proposed powers were said to be ‘more consistent with anti-terrorism powers given to ASIO or the police, than investigation of suspected abuse, very loosely defined’:

Any such powers requiring provision of evidence should be exercised in accordance with established legal principle, by police or the courts, and restricted to circumstances those entities would typically regard as warranting the exercise of those powers, ie serious and intentional injury, for example, noting that other legal requirements regarding rights against self-incrimination and the rules of evidence should also be applied.[153]

14.157       Some may also object that a safeguarding agency may not exercise these intrusive powers fairly or impartially, particularly if the safeguarding role were given to public advocates or guardians, who advocate for and sometimes represent people with impaired decision-making ability. Some may fear that safeguarding agencies will not treat family members and carers fairly.

14.158       In light of some of the concerns expressed in submissions, the ALRC has modified the original proposal to introduce two further limitations on the investigative powers: first, the powers should only be exercised to investigate ‘serious’ abuse; and second, the powers should only be exercised to the extent that it is necessary to safeguard and support the affected adult.

14.159       Safeguarding agencies should exercise coercive powers cautiously and reluctantly, and only for the purpose of safeguarding and supporting the at-risk adult. It is not proposed that the safeguarding agency be a quasi-criminal investigation body. Where possible, safeguarding and support should be provided without forcing family members and carers to answer questions. The ALRC therefore recommends that the legislation should make clear that these powers should only be exercised to the extent that it is necessary to safeguard and support the affected adult.

14.160       Safeguarding agencies should also have ‘reasonable grounds to suspect’ that there is abuse, before exercising their coercive powers. This is consistent with the first principle set out in the Administrative Review Council’s report, which suggests that coercive information-gathering powers should only be used to gather information ‘for the purposes of the relevant legislation’[154] and, when used in connection with a specific investigation,

the minimum statutory trigger for using the power should be that the person exercising it has ‘reasonable grounds’ for the belief or suspicion that is required before the power can be exercised.[155]

14.161       The ALRC also recommends that these powers should only be exercised when safeguarding agencies have reasonable grounds to suspect the abuse is ‘serious’, that is, at the higher end of the spectrum.[156] An isolated incidence of a carer shouting at an older person, for example, may not meet this threshold. In such a case, if the shouting amounted to abuse, support might need to be provided to the affected adult and steps may need to be taken to stop another such incident occurring. The agency might even ask questions of the carer and any other people who may have witnessed the incident. But such a case would not seem to justify the safeguarding agency having to power to require the carer or other people to answer questions.

14.162       However, where the abused person has limited decision-making ability, there may be a case for allowing safeguarding agencies to exercise coercive powers in less serious cases of abuse

14.163       These powers should also only be exercised to further the primary purpose of the safeguarding agency, namely, to safeguard and support the affected adult, not to determine the guilt or innocence of the person accused of abuse. Support should usually be given without using coercive investigation powers, in part because their exercise may sometimes be counterproductive or inappropriate in domestic settings. Seniors Rights Service submitted that such powers should be restricted and used carefully.[157]

Should the at-risk adult be required to answer questions?

14.164       In the Discussion Paper, the ALRC proposed that, unlike other people who may have relevant information, at-risk adults should not be required to answer questions or produce documents. It may be distressing for a person who has been abused to answer questions about that abuse; handled poorly or insensitively, the questions themselves might aggravate the abuse.

14.165       However, sometimes only the affected adult will have information, without which the safeguarding agency will have a very incomplete picture. In any event, given the affected adult will need to consent to the investigation and response,[158] they should usually be able to refuse to answer questions by withdrawing their consent to the investigation.

14.166       The ALRC therefore concludes that at-risk adults need not be specifically exempted from laws that give a safeguarding agency powers to require people to answer questions or produce documents.

Powers of entry

14.167       In some jurisdictions, adult safeguarding agencies have powers to enter a person’s home. For example, in Scotland, the investigative body’s powers include a power to enter premises without a court order.[159] In British Columbia, designated agencies may also apply to the court for an order authorising (a) someone from the agency to ‘enter the premises and interview the adult’; and/or (b) a health care provider … to ‘enter the premises to examine the adult to determine whether health care should be provided’.[160] The agency must believe it is necessary to enter the premises to interview the adult, and the agency must have been ‘denied entry to the premises by anyone, including the adult’.[161]

14.168       Should Australian safeguarding agencies have similar powers of entry? The ALRC recommends that they should not.

14.169       However, some stakeholders supported such powers, particularly where the person refusing entry is the person thought to be abusing an at-risk adult. Health professionals have reportedly stressed the ‘importance of being able to visit a person at their home to establish the existence or extent of abuse’, and the difficulty when they are refused entry.[162] Justice Connect therefore submitted that there should be ‘the power to enter premises with a warrant issued by a judicial officer … where there are reasonable grounds for suspecting a person has been neglected, abused or exploited on the premises.[163]

14.170       The Office of the Public Advocate (Vic) submitted that powers of entry were necessary, at least in relation to investigating the abuse of people with impaired decision-making ability, and that the Public Advocate should be able to apply to a court for a warrant authorising entry in such circumstances.[164]

In OPA’s experience, the circumstances of older people in private homes (even when they are under a guardianship order) are often difficult to ascertain. Where access to the person is blocked (usually by a co-resident relative), the older person is effectively out of reach and their living circumstances (including whether they are suffering abuse and neglect) hidden from view.

Of course, the police would play an essential role when and where an entry warrant is issued. To this end, it will be necessary to develop protocols between police and public advocates and public guardians in each state and territory.[165]

14.171       Powers of entry and inspection were also among the powers thought necessary for an agency investigating the abuse of vulnerable adults by a NSW Parliamentary inquiry into elder abuse.[166]

14.172       However, Legal Aid ACT submitted that ‘powers of entry and inspection without consent be restricted to police agencies’:

Unauthorised entry is inconsistent with an investigative process committed to respecting the integrity and autonomy of older persons, particularly if an older person has the right to terminate the investigation at any time. Legal Aid ACT submits that in situations where an investigative body, as a result of evidence obtained in the investigative process, has real concerns as to the personal safety of an older person, they immediately alert police. Police may then progress the matter, applying for a warrant or taking other action.[167]

14.173       The ALRC is also wary of recommending safeguarding agencies have the power to enter people’s homes without their consent. When an officer of a safeguarding agency is refused entry by someone other than the at-risk adult, and they think it is necessary to gain entry to protect an at-risk person from serious abuse, the ALRC considers that officers should consider contacting the police. The police might then, among other things, seek the at-risk adult’s consent for the safeguarding agency to take other actions.

14.174       Powers of entry are even harder to justify where it is the at-risk adult who refuses entry; provided there is no coercion, the at-risk adult’s wishes in such cases should be respected. Where there is serious physical or sexual abuse or neglect, safeguarding agencies might take other action, for example contacting the police, but this should not extend to forcing entry into the person’s home.