Health professionals

12.4       Doctors, nurses, pharmacists and other health professionals are often in an ideal position to identify elder abuse, since most elderly people trust them.[1] Such professionals are also well-placed to identify risks and signs of abuse as part of their clinical assessment.[2] In 2014–15, people aged between 65 and 74 years accounted for 28.8 million unreferred GP visits. People aged 85 years and over accounted for 6.2 million visits.[3]

12.5       In a joint submission, cohealth and Justice Connect  Seniors Law stated that ‘in relation to any legal problem, not just elder abuse, nearly 30% of people will initially seek the advice of a doctor or another trusted health professional or welfare adviser.’[4] However, a number of factors limit health professionals’ ability to identify and respond to elder abuse:

  • confidentiality and privacy concerns;

  • a limited understanding of what constitutes elder abuse;

  • difficulties detecting signs of elder abuse, particularly where the signs are subtle;

  • limited knowledge of reporting or referral pathways and available services; and

  • views that responding to elder abuse is outside the scope of their professional responsibility.[5]

Multidisciplinary approaches

12.6       Stakeholders emphasised the need for a multidisciplinary response to elder abuse.[6] Many were supportive of the development of health-justice partnerships and other integrated care models.[7] Health-justice partnerships rely on utilising pro bono legal resources to embed legal services in a health service. Key elements are:

  • locating a lawyer at a health service or hospital;

  • integrating the lawyer as part of the health service;

  • secondary consultations with the lawyers; and

  • training health professionals on legal issues.[8]

12.7       Evidence suggests that older people are reluctant to come forward about elder abuse for a number of reasons, including shame and fear.[9] An older person may be reluctant to repeat their concerns numerous times to different professionals. They may also be unable to seek legal assistance discreetly. These concerns may be magnified in smaller rural and regional communities, where an older person may face greater fears of discovery.

12.8       Joubert and Posenelli suggest that ‘the “window of opportunity” for responding to aged abuse in a health service is brief’.[10] Health-justice partnerships have great potential to use this window effectively because they can build on the trust developed between health professionals and older persons, and can provide legal advice and assistance discreetly and conveniently. In a health-justice partnership, the health professional can confer with a lawyer to determine appropriate pathways for referrals. With the consent of their patient, the health professional could also brief a lawyer of the older person’s concerns and organise for a lawyer to discreetly speak with the older person either as part of a medical appointment, or in a separate consultation. An integrated care model which incorporates legal practitioners into a health practice may reduce the number of separate appointments and interactions required to seek assistance.

12.9       The case study of ‘Li’s story’ provided by cohealth and Justice Connect  Seniors Law is illustrative. Ms Li was receiving physiotherapy treatment following a stroke, when she raised concerns about pressure from her husband to access her superannuation funds and savings to make mortgage payments on a house bought in his name. Her husband is very controlling, and does not allow her to go out on her own and manages the family finances. He has also been physically and verbally abusive. Due to her complex health needs, there is limited scope for Ms Li to live independently of her husband. The police have taken out an intervention order which permits him to remain in the house, but prohibits family violence. Ms Li wishes to prepare a will and protect her interest in the family home. She is concerned that her husband may become violent if he hears of her plans. Ms Li’s care coordinator organised, with Ms Li’s consent, for a health-justice partnership lawyer to attend her next physiotherapy appointment, who advised Ms Li on preparing a will and checked on Ms Li’s ongoing compliance with the intervention order. The lawyer arranged for specialist pro bono lawyers to prepare a will and attend the next physiotherapy appointment, where Ms Li signed the will and binding death nomination form for her superannuation. The pro bono lawyers agreed to store the will at their offices so Ms Li’s husband would not find it.[11]

12.10   Surveys of medico-legal partnerships in the United States of America have shown that they provide financial benefits to clients, improve their health and well-being, and increase the knowledge and confidence of health professionals.[12] In Australia, an evaluation of a health-justice partnership established in Victoria between Inner Melbourne Community Legal and the Royal Women’s Hospital Victoria aimed at addressing family violence made similar findings.[13] A number of health-justice partnerships targeted at older people have been trialled, and are under development, including between cohealth and Justice Connect  Seniors Law and Justice Connect and St Vincent’s Hospital Melbourne. The partnership between Justice Connect and St Vincent’s Hospital Melbourne is part of a broader multi-disciplinary approach to detecting and responding to elder abuse. It seeks to ‘deliver an integrated and consistent approach to the detection and management of suspected elder abuse across the health service’.[14]

12.11   The ALRC is supportive of continued work toward implementing such models of service provision.

Confidentiality and privacy concerns

12.12   The privacy and confidentiality of health information is governed by Commonwealth, state and territory legislation and the common law duty of confidence. Exemptions allowing the use and disclosure of health information under state and territory legislation are similar to the exemptions set out in the Australian Privacy Principles.[15]

12.13   A common theme in submissions was that health professionals may be reluctant to report elder abuse or discuss it with other professionals because of concerns about confidentiality and compliance with privacy laws.[16] Some stakeholders submitted that privacy laws may need to be amended to clarify that health professionals can report instances of elder abuse to the police.[17] Stakeholders also submitted that reports or referrals to other public authorities with an investigative role should be exempt from privacy laws.[18]

12.14   However, the Office of the Australian Information Commissioner submitted that privacy is ‘often named as a barrier to sharing or accessing personal information, but upon closer examination that it is not usually the case’.[19]

12.15   Although it is generally prohibited to disclose a person’s sensitive personal information without their consent, there are exceptions for, among other things, where:

  • the person would ‘reasonably expect’ the disclosure, and the disclosure is ‘directly related’ to the primary purpose for which the information was collected (secondary purpose exception);[20]

  • the disclosure is authorised by or under an Australian law or a court or tribunal order (authorised by law exception);[21]

  • the disclosure is required to prevent a serious (or in some jurisdictions ‘serious and imminent’) threat to the life, health or safety of a person, and it is unreasonable or impracticable to obtain the patient’s consent (serious threat exception);[22] or

  • the disclosure is ‘reasonably necessary for an activity related to law enforcement (law enforcement exception).[23]

12.16   Under the secondary purpose exception, a health professional may, in some circumstances, be able to confer with and discuss an older person’s situation with other service providers in order to assist an older person to address elder abuse. In order to rely on this exception, the health professional will need to establish clear expectations with the patient, so the patient understands how their information might be used and to whom it might be disclosed.[24] An open discussion with the older person about a care plan can establish reasonable expectations about what services may be included as part of a multi-disciplinary response to elder abuse.

12.17   A health professional may be able to report elder abuse to police or a public authority under a number of existing exemptions to Commonwealth, state and territory privacy laws. Where a common law duty of care owed by an organisation would require that a health professional report elder abuse, the disclosure would be exempt under the ‘authorised by law’ exception, as the definition of ‘Australian law’ includes a rule of common law or equity.[25]

12.18   Under the serious threat exception, if there is a threat to the life, physical or mental health or safety of an older person, and it is potentially life threatening, or could cause other serious injury or illness, a health professional may, without consent, disclose information to relevant authorities in circumstances where it would be unreasonable or impracticable to get the older person’s consent prior to disclosure.

12.19   Under the ‘law enforcement exception’, a health professional may report elder abuse to the police, but  not to the public advocate or public guardian. An enforcement body is relevantly defined to mean a state or territory police force or other state or territory body with the power to conduct criminal investigations or inquiries, or impose penalties or sanctions.[26] An enforcement related activity is defined to include the prevention, detection and investigation of criminal offences.[27]

12.20   The ALRC considers that existing exemptions in privacy laws and the proposed immunity for reports to the public advocate or public guardian are sufficient. Under Proposal 3-5, health professionals who make a report of elder abuse to the public advocate or public guardian in good faith and on reasonable suspicion, should not be civilly or criminally liable, including under privacy laws. Health professionals would also not be considered to have breached standards of professional conduct under this proposal. The ALRC supports submissions calling for better information sharing and clear referral pathways to assist health professionals.[28] People with Disability Australia suggest the ‘It Stops Here Safer Pathway’ introduced in NSW in relation to domestic and family violence services provides useful guidance.[29]

12.21   Some submissions noted that healthcare staff may be reluctant to speak to relatives or significant others without an enduring power of attorney about the patient’s situation. This is seen to be of particular concern where the person exercising the enduring power of attorney is perpetrating the abuse.[30] However, existing exemptions under the My Health Records Act 2012 (Cth) and the Australian Privacy Principles allow health professionals to disclose information to persons other than someone exercising an enduring power of attorney or other enduring document.

12.22   Under the My Health Records Act 2012 (Cth), a health professional may disclose information in a healthcare recipient’s health records if it is ‘necessary to lessen or prevent a serious threat to an individual’s life, health or safety’, and it would be unreasonable or impracticable to gain the health care recipient’s consent.[31]

12.23   Under the Australian Privacy Principles, where the patient is unable to ‘communicate consent’, disclosure is permitted to a responsible person where necessary for appropriate care and treatment, or for compassionate reasons.[32] Such disclosure is not permitted where it is contrary to a patient’s wishes expressed before they became unable to communicate consent, or contrary to wishes the health professional is or could reasonably be expected to be aware of.

12.24   ‘Responsible persons’ for this purpose include:

  • parents, children or siblings;

  • spouses or de facto partners;

  • an individual’s relative, where the relative is over 18 and part of the household;

  • a guardian;

  • a person exercising an enduring power of attorney, exercisable in relation to decisions about a patient’s health;

  • a person who has an intimate personal relationship with the patient; or

  • a person nominated as an emergency contact.[33]

12.25   If a health professional is concerned that an older person with impaired capacity is being abused by someone exercising an enduring power of attorney or by an appointed decision maker, the health professional can apply to the relevant state or territory civil and administrative tribunal for a guardian or financial administrator to be appointed or replaced.[34]


12.26   Many stakeholders identified the need for training and guidance in identifying and responding to elder abuse.[35] The NSW Legislative Council in its inquiry into elder abuse recommended that the NSW Department of Family and Community Services and Ministry of Health ‘develop and fund a comprehensive plan addressing the training needs of service providers, to enable better identification of and responses to abuse’.[36]

12.27   The Clinical Guidelines published by the Royal Australasian College of General Practitioners (RACGP) include specific guidance on elder abuse.[37] An example of useful material prepared using the guidance provided by the RACGP is a GP toolkit developed through a joint partnership between the City of Canterbury-Bankstown Council and members of the Bankstown and Canterbury Domestic Violence Liaison committees. It is an eight page infographic document which discusses intimate partner family violence, including how to discuss the issue with a patient, safety planning, and referrals. Further, specific guidance is provided about immigration family violence provisions to allay fears of ‘partner visa’ applicants from culturally and linguistically diverse backgrounds.[38]

12.28   Training for health professionals should be included in the National Plan discussed in Chapter 2.

Other issues

12.29   The Federation of Ethnic Communities’ Councils Australia submitted that in interacting with older people from culturally and linguistically diverse backgrounds, there is a need for ‘appropriate language support to facilitate accurate communication’.[39] It noted that the use of family and friends as interpreters could give rise to concerns relating to the accuracy of the interpreting, confidentiality and potential conflicts of interests.[40]

12.30   Cohealth and Justice Connect  Seniors Law also recognised that language barriers, and other factors such as increased isolation and limited engagement with mainstream services, make engagement with older people from culturally and linguistically diverse backgrounds more complex. It recommended greater coordination and integration of community workers from culturally and linguistically diverse communities in the delivery of health services.[41] Such strategies could be coordinated through the National Plan discussed in Chapter 2.