Consent

14.79  Whether state agencies should investigate and prosecute abuse when an abused person does not want the abuse investigated or prosecuted is a contested question that figures prominently in debates about responses to family violence. It is also an important question in relation to elder abuse.

14.80  Securing consent before taking action that will affect someone is one way of respecting that person’s autonomy. Respecting autonomy is a guiding principle in this inquiry, and its importance has been widely stressed by stakeholders.^[76] Many consider that help should not be forced upon adults.

14.81  Some fear that adult safeguarding laws will result in the state second-guessing or undermining people’s choices, and that vulnerable people will be given less liberty and autonomy than other people. The ALRC therefore recommends that adult safeguarding legislation should provide that consent should be obtained before an adult safeguarding agency investigates or responds to suspected abuse, except in limited circumstances.

14.82  A person’s subjective feeling of vulnerability may be as important as objective risk factors, in determining their need for greater protection from abuse:

The vast majority of adults who fulfil the criteria for an inherent vulnerability will be able to live full, meaningful and autonomous lives, and should not be judged to be automatically at heightened risk of being constrained, coerced, or unduly influenced, relative to other adults, regardless of their circumstances.^[77]

14.83  In the Discussion Paper, the ALRC proposed that a set of principles be included in adult safeguarding legislation that emphasise respecting the autonomy of people affected by abuse:

(a)     older people experiencing abuse or neglect have the right to refuse support, assistance or protection;

(b)     the need to protect someone from abuse or neglect must be balanced with respect for the person’s right to make their own decisions about their care; and

(c)     the will, preferences and rights of the older person must be respected.^[78]

14.84  These principles attempt to strike a balance between respecting people’s autonomy and protecting people from abuse, but give greater weight to respecting autonomy. The principles acknowledge people’s right to take risks and make decisions that some others may regard as poor ones. The principles also seek to ensure that people are involved in decisions about how the agency will respond to elder abuse, and suggest that safeguarding agencies should play a supportive role.

14.85  Similar principles appear in adult safeguarding legislation in other countries. For example, the legislation in British Columbia features the following principles:

(a)     all adults are entitled to live in the manner they wish and to accept or refuse support, assistance or protection as long as they do not harm others and they are capable of making decisions about those matters;

(b)     all adults should receive the most effective, but the least restrictive and intrusive, form of support, assistance or protection when they are unable to care for themselves or their financial affairs;

(c)     the court should not be asked to appoint, and should not appoint, guardians unless alternatives, such as the provision of support and assistance, have been tried or carefully considered.^[79]

14.86  In England and Wales, and Scotland, guiding principles also require the investigating body to have regard to the adult’s wishes, and ensure that the adult participates in decisions about investigation, support and assistance. The support and assistance provided should be least restrictive.^[80]

14.87  The principles proposed in the ALRC’s Discussion Paper were widely supported in submissions.^[81] Disabled People’s Organisations Australia said it supported the proposed principles,

including the right for older people experiencing violence to refuse assistance or support, and that they have the right to make their own decisions about their care. This should form the basis of any investigations around elder abuse and violence against people with disability, as individuals are entitled to make their own decisions and have their legal capacity upheld.^[82]

14.88  The Law Council noted that The Principles for Older Persons, adopted by the United Nations General Assembly, affirm the right of older persons to make decisions about their care and quality of their lives. But the guiding principles proposed by the ALRC ‘could be strengthened by specifically allowing an older person to stop an investigation from commencing or continuing’.^[83]

14.89  Some suggested that older adults and vulnerable adults should be free to take risks, and that this was one way to treat them with respect and dignity. For example, the Women’s Electoral Lobby submitted:

The right of older people to take risks, just as people of all ages do every day, is often referred to as ‘the dignity of risk’—to retain the dignity of control over one’s life and key decisions, even where there might be some risk of harm or exploitation. This issue is possibly more relevant for women where society has a view that we need to be ‘looked after’ and are less able to manage on our own than a man might be.^[84]

14.90  Additional autonomy-respecting principles were suggested by some stakeholders. For example, the National Older Persons Legal Services Network said:

There should be a guiding principle that the older person has the right to be informed about all investigations and supported (where necessary) to participate in the process. This includes the right to access timely, tailored and independent advice (including legal and financial advice) at all stages of any relevant processes.^[85]

14.91  As discussed further below, some stakeholders noted that some people will not have the decision-making ability to accept or refuse support or other actions.^[86] For example, the Office of the Public Advocate (SA) submitted that

some older people will be unable to refuse or accept support, assistance or protection, or to make their own decisions about their care, due to impaired decision-making capacity. Therefore, there may be a case for more specific practice guidance about that class of person.^[87]

14.92  While many stakeholders emphasised the need to respect the autonomy of people subjected to abuse, many also noted that it was difficult to balance protecting vulnerable people with respecting their autonomy.^[88] Aged Care Steps agreed that

the rights of the individual to make their own decisions about how to deal with issues of abuse are paramount. However, as many of these people face an imbalance in power or may not be in a position to exert these rights, there need to be guidelines in place that balance the need for an investigation while respecting the privacy and peace of mind of the elderly person.^[89]

14.93  Dr Kelly Purser and others from the Queensland University of Technology said that ‘a balance must be achieved between respect for personal autonomy, self-sufficiency and privacy on the one hand, and protection and security on the other’:

While the physical security and well-being of each individual must be protected, such protective measures must respect individual autonomy, liberty and dignity. An infringement of these basic rights would only be acceptable in exceptional circumstances, such as when it is necessary to protect the individual from serious harm or to protect the rights of others, and only to the extent justified by those circumstances.^[90]

14.94  The Office of the Public Advocate (SA) noted that people experiencing abuse ‘may be unable or unwilling to take or accept protective measures for reasons relating to complex family dynamics and relationships of power and control’.^[91] In this respect, it suggested, elder abuse was similar to other types of family violence:

This issue is complex and, when it comes to serious crimes and risk of serious harm, we believe that there must be careful consideration of how public authorities respond to the risk.^[92]

14.95  Other stakeholders expressed their concerns with the proposed principles, and emphasised that abuse itself undermines people’s autonomy and that abused people may refuse support because they are ‘scared, bullied or suffering cognitive impairment’.^[93]

14.96  Some suggested that failing to protect people from abuse is itself a form of abuse or neglect, and possibly a violation of a person’s human rights.^[94] Concerning people with limited decision-making ability, one stakeholder said that it is ‘often in their best interest for someone to step in to protect them’:

Whilst every attempt should be made to respect the wishes of the represented person, there are times when this is not possible as the ‘wishes’ can be outright unreasonable, illegal or dangerous. Any Carer will tell you this.^[95]

14.97  The GRC Institute said that if someone is being abused and they refuse support or protection, ‘the refusal should be tested’:

At the least it might need a doctor or psychologist’s report to determine the reasonableness of the refusal. We can see scenarios where financial institutions would have potentially significant issues if they were to accept at face value an older person changing financial arrangements with a pressuring adult child beside them.^[96]

14.98  Paul Greenwood, a US lawyer with many years’ experience in prosecuting elder abuse, said that it was ‘vital that we do not allow elder abuse victims to self determine whether a case gets investigated or prosecuted’:

40 years ago in San Diego we allowed domestic violence victims to determine which cases were prosecuted. We don’t do that now because too many victims 40 years ago—who ‘declined to prosecute’—ended up as homicide victims. Elder abuse victims must not be allowed to dictate what cases get investigated. For example, one of the most common physical elder abuse incidents is that involving an elderly mother who allows her middle aged son to ‘mooch’ off her. He is addicted to drugs, alcohol or gambling and is lazy. He steals from his mother and when she confronts him, he physically assaults her. Many of those elderly mothers do not want us to prosecute. But we must.^[97]

14.99  However, given concerns about the potential for adult safeguarding schemes to undermine people’s autonomy, the ALRC has recommended that the legislation, rather than only feature guiding principles, should specifically require an adult safeguarding agency to obtain a person’s consent before taking action to support or protect them. The recommended consent provision, set out above, is intended to give more concrete effect to the principles proposed in the Discussion Paper.^[98]

14.100       Where someone consents to accepting safeguarding services, the policy justification for providing the support is relatively unproblematic. Questions will remain about the coercive powers the agency should have when dealing with other people, such as the person suspected of committing the abuse but, as far as the victim of the abuse is concerned, where they give consent, the policy justification for providing support is more straightforward.^[99]

14.101       However, there are circumstances in which abuse and neglect should be investigated and acted upon even without the affected adult’s consent. For the reasons discussed below, the ALRC considers that consent should not be required where the at-risk adult is being subject to ‘serious’ physical or sexual abuse or neglect; where the safeguarding agency has been unable to contact the adult, despite extensive efforts to do so; and where the adult lacks the ability to give consent. These circumstances should be set out in safeguarding legislation.

14.102       In this regard, the principles proposed in the Discussion Paper may have placed insufficient weight on the need to protect vulnerable adults from some types of serious abuse. Although the second proposed principle referred to the need to ‘balance’ protection with respect for people’s right to make their own decisions, the first principle was that people have a ‘right to refuse support, assistance or protection’ and the third principle was that ‘the will, preferences and rights of the older person must be respected’. However, although a person’s wishes should always be respected, in some limited cases it may be appropriate to act without their consent.^[100]

14.103       Before further considering the situations in which consent should not be required, it should be emphasised that this is in the context of the abuse of at-risk adults, as defined above. This does not apply to all older people, much less all adults, but only those who need care and support and cannot protect themselves.

Serious physical or sexual abuse or neglect

14.104       The ALRC recommends that consent need not be required where there is serious physical or sexual abuse or neglect of an at-risk adult. Serious abuse will usually mean that there is a significant harm to the affected adult and significant moral culpability of the person suspected of the abuse.

14.105       All abuse is, in one sense of the word, ‘serious’. But the ALRC uses the word ‘serious’ in this context to refer to abuse at the higher end of the spectrum. An adult child who steals small amounts of money from a wealthy parent may be committing abuse, but the abuse may not be serious. A safeguarding agency should not intervene in such a matter without the parent’s consent, even if the parent is in some respects vulnerable.

14.106       If consent is not required where there is serious abuse, this should not be taken to mean that consent should not be sought. The wishes of the affected adult should always be carefully considered by the relevant agency and given significant weight. But there will be circumstances in which consent is refused, but the agency should nevertheless act.

14.107       Actions taken might include reporting abuse to the police, seeking medical assistance for the at-risk adult, and contacting other agencies who might offer support and protection. In more limited cases, it might be appropriate for safeguarding agencies to speak to friends, family members, or carers of the affected person, to discuss the health and safety of the older person, without disclosing the suspected abuse itself.

Autonomy

14.108       Some may object that intervening without the at-risk adult’s consent will undermine their autonomy. But is consent always required, to respect autonomy?

14.109       It should first be stressed that abuse itself also undermines people’s autonomy.^[101] Abuse and living in fear can inhibit a person’s ability to make choices about their own lives, to pursue what they value. Interventions to stop abuse may therefore support and enable people’s autonomy, rather than undermine it. Professor Martha Fineman has criticised how promoting autonomy is sometimes ‘cast as at odds with the provision of safety and security for the elderly’:

Not only is autonomy inappropriately prioritized in this comparison, safety and security are not conceptualized as necessary for its exercise. A vulnerability approach might well reveal the ways in which safety and security are prerequisites for the meaningful exercise of autonomy, not in conflict with it. Safety and security are necessary to have the ability to fully and freely exercise options and make choices.^[102]

14.110       Discussing the impact on autonomy of certain mandatory responses to domestic violence, Professor Marilyn Friedman has written that ‘[a]nything that succeeds in deterring an abuser’s future abusiveness promotes his victim’s long-run autonomy’.^[103]

14.111       In the UK Court of Appeal, discussing the court’s inherent jurisdiction in relation to vulnerable people, McFarlane LJ has said that ‘the will of a vulnerable adult of any age may, in certain circumstances, be overborne’ and that such individuals may sometimes ‘require and deserve the protection of the authorities and the law so that they may regain … [their] autonomy’.^[104]

14.112       Protecting people from abuse will therefore usually support their autonomy, particularly when protection is given with the adult’s consent. However, as Professor Nina Kohn has written, while ‘safety and security may support and facilitate autonomy, autonomy can also support and facilitate safety and security’:

Individuals are often in the best position to know what makes them safe and secure and in a better position than governments or other institutional actors to act quickly and efficiently in their own interest; thus, having the autonomy to act independently can itself be protective. In addition, individuals’ subjective feelings of control can enhance both their subjective sense of well-being and their objective physical and mental health.^[105]

14.113       The autonomy interests of the at-risk adult,’ while crucial, are not the only interests that might be relevant when deciding whether the state should intervene. Particularly where there is serious physical or sexual assault or neglect, the interests of others, particularly other potential victims of abuse, should also be considered. For example, where a paid carer is violent and abusive towards one person, the interests of other people they may care for might also need to be considered.^[106]

14.114       Intervention without consent can also be justified on the grounds of respecting the dignity of the affected person. Some have argued that dignity should essentially be equated with autonomy, suggesting that respecting autonomy will always also respect dignity.^[107] However, others stress that dignity is a deeper value than autonomy; that while supporting autonomy will usually respect dignity, the two values will sometimes conflict; and that where they do conflict, dignity should prevail.^[108] From this perspective, it seems hard to consider that respecting a vulnerable person’s decision to live with serious physical and sexual abuse will always respect their dignity.

14.115       As discussed earlier in this chapter, the state’s obligation to protect people’s human rights may also justify intervention in some cases, even against the wishes of the person being protected. The right to life and the right not to be tortured or subject to degrading treatment, for example, are considered absolute rights, imposing a clear duty on governments to protect people from violations of those rights.

14.116       Finally, it should be emphasised that although safeguarding agencies should have a duty to investigate abuse, they should also have discretion to decide whether further action should be taken. Later in the chapter, the ALRC sets out a number of actions the agency ‘may’ take. Where there is serious assault, but no consent to act from the affected adult, the agency may in some cases exercise its discretion and not act (other than to report the abuse to the police, where this is required). In such cases, clear records should be kept, explaining why no action was taken.

14.117       Wherever possible, action should only be taken with the older person’s consent. In the few cases in which action is taken without consent, safeguarding agencies should nevertheless work with the adult at every stage, if this is what the adult wants, and consent should continue to be sought at later stages of the process.

Limited ability to consent

14.118       Safeguarding agencies should also not require the consent of a person who does not have the decision-making ability to give such consent. This should not be confused with the idea that consent need not be required from people with limited ability to make other decisions about their life. Rather, the relevant ability is the ability to make a decision about whether to consent to an investigation or a particular response. This is consistent with the ‘functional approach’ to capacity.^[109] For example, a person may not be able to understand their banking records, but be perfectly able to consent to an investigation of their son or daughter for stealing their money.

14.119       Furthermore, as noted above, state public advocates and guardians already commonly have functions in relation to the abuse of people with limited decision-making ability.^[110]

14.120       The need to sometimes act without the consent of people with impaired decision-making ability was noted by a number of stakeholders. The Office of the Public Advocate (Vic) said that people ‘with significant cognitive impairment may not have the capacity to refuse assistance or protection’.^[111] Another stakeholder submitted that there is a need to ‘acknowledge the reality of dementia’:

The person’s right to make their own decisions must be balanced not only with the need to promote their own sense of well-being but also with their actual well-being and safety as well as the well-being and safety of others (who may themselves be elderly).^[112]

14.121       Legal Aid NSW also submitted that if an agency has concerns about a person’s ability to consent to an investigation, ‘the usual avenues regarding the appointment of a guardian are available’.^[113] The ALRC considers that this will usually be the appropriate action for safeguarding agencies to pursue, where they suspect that an at-risk adult may not have the ability to give consent, in the circumstances.

Unable to contact adult

14.122       Consent should also not be required where the safeguarding agency has been unable to contact the affected adult, despite extensive efforts to do so. This is necessary to deal with cases where someone essentially blocks access to another person. For example, an abusive carer may simply refuse to let an officer of the safeguarding agency into the home of the affected adult. The carer may always answer the phone and open the mail of the person they care for. It may be that support and protection is most necessary where such people block the efforts of safeguarding agencies to speak with an older adult.

14.123       The ALRC has not recommended that the safeguarding agency have powers of entry. As discussed below, this can be left to the police. But other actions may be called for. If serious abuse is suspected, the safeguarding agency may call the police. In other cases, the agency may seek to contact the family and friends of the older person. Usually, the agency should talk to the at-risk adult first, and secure their consent to these actions, but where they are unable to contact them, they should in some cases take action without consent.

Other countries

14.124       In Scotland, protection orders (ie, assessment orders, removal orders or banning orders) generally cannot be made without the consent of the affected adult.^[114] But a refusal of consent ‘may be ignored’ where it is reasonably believed that,

(a)     the affected adult at risk has been unduly pressurised to refuse consent, and

(b)     there are no steps which could reasonably be taken with the adult’s consent which would protect the adult from the harm which the order or action is intended to prevent.^[115]

14.125       Further, an ‘adult at risk may be considered to have been unduly pressurised to refuse to consent to the granting of an order or the taking of an action if it appears’—

(a)     that harm which the order or action is intended to prevent is being, or is likely to be, inflicted by a person in whom the adult at risk has confidence and trust, and

(b)     that the adult at risk would consent if the adult did not have confidence and trust in that person.^[116]

14.126       A refusal to consent to participate in an interview or a medical examination cannot be ignored.^[117]

14.127       Under the Care Act 2014 (UK), local authorities are not required to carry out a needs assessment of a person if a person refuses the assessment, but they must carry out an assessment if:

(a)     the adult lacks capacity to refuse the assessment and the authority is satisfied that carrying out the assessment would be in the adult’s best interests, or

(b)      the adult is experiencing, or is at risk of, abuse or neglect.^[118]

14.128       In British Columbia, the legislation provides that the adult must be involved ‘to the greatest extent possible’ in decisions about support and assistance.^[119] However, in some circumstances, the court ‘may make an order for the provision of support and assistance to the adult without his or her consent’.^[120]