An investigative function

What should be investigated?

3.27       The ALRC proposes that the power to investigate apply in circumstances where an older person is unable to protect themselves from abuse or neglect because of care and support needs arising from impaired decision-making ability, a physical disability, or due to physical restraint.^[42]

3.28       Stakeholders overwhelmingly supported harmonising the powers of investigation of state and territory public advocates/guardians.^[43] However, there is disagreement over the appropriate scope of the power to investigate. One approach supported by some stakeholders is to limit the power to investigate to circumstances where there is a reasonable suspicion that an older person may have impaired decision-making ability.^[44] In evidence before the NSW Legislative Council, Capacity Australia said that the power must be limited to people with impaired decision-making ability because ‘otherwise everyone would be under investigation forever and no-one is interested in that’.^[45] Others argued for an extensive power to investigate the abuse or neglect of at-risk older persons or adults generally.^[46] Legal Aid NSW, while supportive of an expanded investigative power, cautioned that the scope of the power should be considered closely.^[47] A number of stakeholders emphasised the need to respect the rights of the older person to live self-determined, dignified lives.^[48]

3.29       A limited power to investigate only in circumstances where an older person may have impaired decision-making ability does not address the investigation gap identified by stakeholders. Such a power would not address situations of abuse or neglect where factors other than impaired decision-making ability limit the extent to which a person can seek support and assistance. An broad power to investigate abuse or neglect where an older person (or adult) is at risk may expand the power to investigate too far. While it represents a comprehensive model of protection and support, there are risks that it may impede an older person’s right to refuse intervention.

3.30       The ALRC’s approach sits between these two positions, and aims to strikes a balance between addressing the investigation gap identified by stakeholders and ensuring that a person’s right to refuse or accept support, assistance or protection is respected.

3.31       In its 2014 report, Equality, Capacity and Disability in Commonwealth Laws, the ALRC sought to frame concepts and terms relating to disability in a manner which reflects the dignity of people with disabilities. It sought to shift from a ‘medical’ to a ‘social’ approach to disability. In doing so, the policy focus is not on a person’s impairment, but on the supports required to assist a person to fully and effectively participate in society on an equal basis with others.^[49] Framing Proposal 3-1 by reference to ‘care and support needs’ reflects this approach.

3.32       The ALRC considers that ‘care and support needs’ should be defined as arising from or relating to:

• a physical or mental impairment or illness; or

• physical restraint.^[50]

3.33       These factors focus on situations where an older person is unable to seek support and assistance. There are a number of other factors which limit the extent to which elder abuse is reported. These include a lack of awareness of reporting options, or a reluctance to make a report. The ALRC considers that it is preferable to address these issues through community awareness and education campaigns which increase awareness and understanding of elder abuse and an older person’s rights. Such initiatives must operate in conjunction with ongoing support for existing state and territory elder abuse helplines.

3.34       The ALRC invites comment on this proposal and, in particular, whether the proposal should be extended beyond the cohort of older persons with care and support needs. The ALRC has limited its proposals to older persons in accordance with the Terms of Reference of this inquiry. However, all adults with care and support needs may find themselves in a position where they are being, or are at risk of being abused or neglected. In implementing this proposal, state and territory governments may wish to consider whether it should apply to all adults with care and support needs.

Who should investigate?

3.35       Where a power to investigate abuse exists, it generally rests with the body which acts as the guardian of last resort.^[51] In NSW, Queensland, and Tasmania this body is the Public Guardian.^[52] In Victoria, Western Australia and Victoria this body is referred to as the Public Advocate.^[53] In the ACT, this body is referred to as the Public Trustee and Guardian.^[54] However, in the ACT, the investigative power rests with a standalone public advocate.^[55] In states and territories where the public advocate/guardian already has a power to investigate, this power should be expanded in line with Proposal 3-1. In NSW, where there is no legislated power to investigate, the Office of the Public Guardian should be vested with the power to investigate.

3.36       Some stakeholders also argued that different bodies should have the power to investigate, depending on the type of abuse. For instance, State Trustees Victoria submitted that there should be a strict demarcation between the investigation of financial and non-financial abuse.^[56] Dr Chesterman noted that a number of bodies, such as the Disability Services Commissioner (Vic), Ombudsman (Vic) and Health Services Commissioner(Vic) have powers of investigation which would overlap with the Public Advocate or Guardian’s proposed investigative powers.^[57] Institutional protocols could be developed to provide guidance on which agency should investigate in circumstances where there are overlaps between multiple agencies. Dr Chesterman preferred this approach to limiting the powers of investigation of the public advocate/guardian.^[58]

When should an investigation occur?

3.37       The ALRC proposes that the public advocate/guardian be able to investigate either upon receipt of a complaint or referral or on its own motion. This reflects the approach taken in a number of jurisdictions, including British Columbia,^[59] England and Wales,^[60] and Scotland.^[61] The Victorian Law Reform Commission’s recommendations in its report into guardianship also recommended this approach.^[62]