14.1 Adult safeguarding laws in each state and territory should provide for the safeguarding and support of at-risk adults. This chapter sets out the broad contours of these adult safeguarding laws, for further consideration and development by the states and territories working with the Council of Australian Governments.
14.2 Most public advocates and guardians already have a role in investigating abuse, particularly abuse of people with impaired decision-making ability by their guardians, financial administrators or those with powers of attorney. But there are other vulnerable adults who are being abused, many of them older people. The ALRC recommends that these other vulnerable adults should be better protected from abuse.
14.3 Safeguarding services should be available to ‘at-risk adults’, which should be defined to mean adults who: (a) need care and support; (b) are being abused or neglected, or are at risk of abuse or neglect; and (c) cannot protect themselves from the abuse.
14.4 Some, but by no means all, older people will meet this definition of ‘at-risk adult’. Poor physical or mental health, conditions such as dementia, and social factors such as isolation, will make some people more vulnerable to abuse and less able to protect themselves from serious harm. ‘At-risk adult’ will also capture adults who are not over 65 years, but are also vulnerable for these and other reasons. This ‘functional’ approach to vulnerability is preferable to providing safeguarding services to all people over a certain age. Most people over 65 are not particularly vulnerable and will not need safeguarding services, while some people under 65 will need these services.
14.5 In most cases, safeguarding and support should involve working with the at-risk adult to arrange for health, medical, legal and other services. In some cases, it might also involve seeking court orders to prevent someone suspected of abuse from contacting the at-risk adult. Where necessary, adult safeguarding agencies should lead and coordinate the work of other agencies and services to protect at-risk adults from abuse.
14.6 Consent should be obtained from the at-risk adult, before safeguarding agencies further investigate or take action about suspected abuse. This avoids unwanted paternalism and shows respect for people’s autonomy. In addition a clear rule about consent, the legislation should include general principles to guide safeguarding agencies, stressing that adults generally have the right to make their own decisions about their care and safety.
14.7 However, in particularly serious cases, the safety of an at-risk person may need to be secured, even against their wishes. Although consent should always be sought, it should not be required in serious cases of physical abuse, sexual abuse or neglect. This may be seen to follow from the state’s responsibility to protect citizens from violations of fundamental human rights, such as the right not to be subject to degrading treatment.
14.8 Consent should also not be necessary where safeguarding agencies cannot contact the at-risk adult, despite extensive efforts to do so, or where an adult lacks the decision-making ability to give this consent.
14.9 The legislation should give safeguarding agencies limited coercive information-gathering powers, including, in some circumstances, the power to require certain people to answer questions and produce documents. These powers should be confined to cases of serious abuse.
14.10 People should be encouraged to report suspected abuse to safeguarding agencies and they should be protected from adverse consequences when they do. For this reason, the relevant legislation should include protections from civil liability, workplace discrimination and other consequences that might otherwise follow from reporting suspected abuse. These protections should only be available for reports made in good faith.
14.11 Existing public advocates and public guardians have expertise in responding to abuse, and may be an appropriate body for this broader safeguarding function, if given additional funding and training. However, some states or territories may prefer to give this role to another existing body or to create a new statutory body.