Approaches to filling the investigation gap

3.9          In developing proposals about how best to fill the identified investigation gap, the ALRC has had regard to a number of other jurisdictions, and the recommendations from previous inquiries. These are described briefly below.

3.10       The ACT, Queensland, Scotland, England and Wales, and British Columbia, Canada all present useful guidance. The recommendations of the Victorian Law Reform Commission (VLRC), the Office of the Public Advocate (SA) and the NSW Legislative Council’s inquiries also assist in determining how to fill the investigation gap. Key elements of these approaches relate to:

• the scope of the investigative power;

• principles that guide the exercise of such powers;

• the investigative actions and interventions available to the relevant agency; and

• protections for those who make a complaint.

3.11       The Office of the Public Advocate (SA) noted in its inquiry that British Columbia presents a constructive model to fill the investigation gap.^[13]

Scope of investigative powers

3.12       In the ACT, Scotland, and in England and Wales, a power to investigate applies if the relevant agency knows or believes that an adult with a disability is at risk of harm.^[14] In British Columbia, the power to investigate also applies if an adult is at risk of harm and is unable to seek support and assistance because they are physically restrained. This might arise, for instance, because an adult is in a locked room with no access to a phone or other means of communication.

3.13       In Queensland, the power to investigate extends to circumstances where an adult is unable to seek support or assistance due to duress or pressure. While the Public Guardian may only investigate complaints or allegations that a person with ‘impaired capacity for a matter’ is being abused, neglected or exploited, the term is broadly defined.^[15] In order to have ‘capacity’ for a matter, a person must be able to freely and voluntarily make a decision about a matter.^[16]

3.14       The VLRC recommended a more limited approach. It recommended that the powers of the Office of the Public Advocate (Vic) should be expanded to allow investigations of the abuse, neglect or exploitation of ‘people with impaired decision-making ability due to a disability’.^[17] This is broader than the existing power, which in practice, is limited to circumstances where a guardianship or financial administration order may be appropriate.^[18]

3.15       By contrast, the Closing the Gaps Report and the NSW Legislative Council’s inquiry into elder abuse both recommended that a power to investigate be extended to include the abuse, neglect or exploitation of ‘vulnerable adults’.^[19] In the Closing the Gaps Report, it was suggested that vulnerability be broadly defined and centred around the concept that an adult is vulnerable if they are unable to look after themselves, or safeguard their own well-being, property, rights or other interests.^[20]

Guiding principles

3.16       In Queensland, England and Wales, Scotland and British Columbia guiding principles 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. ^[21]

Investigative powers

3.17       In Queensland, and in England and Wales, the investigative body has the power to require that a person furnish it with information, produce documents or give evidence in relation to a matter under investigation.^[22] In British Columbia, in addition to these powers, the investigative body may apply to the court for an order authorising entry into and inspection of premises in order to speak with the adult allegedly being abused or neglected.^[23] The VLRC and the NSW Legislative Council recommended the adoption of the suite of investigative powers available in British Columbia, as well as an additional power to require attendance at a conference to facilitate a conciliated resolution to the matter under investigation.^[24]

3.18       In Scotland, the investigative body’s powers include a power to enter premises without a court order.^[25] Where the investigating officer is a health professional, they have the power to conduct a medical examination with the consent of the adult at risk.^[26]

Interventions

3.19       In England and Wales a ‘Safeguarding Adults Board’ is established to ‘help and protect’ an adult in relation to whom an investigative power exists.^[27] It must include the local authority, the relevant local health area and local police.^[28] Following consultation with the local health area and police, the local authority may also include such other persons it considers appropriate.^[29]

3.20       The Safeguarding Adults Board may ‘do anything which appears to it to be necessary or desirable’ to help and protect the adult.^[30] Its role is to coordinate and ensure the effectiveness of the actions of its members.^[31]

3.21       In British Columbia, the interventions available are largely supportive. The Adult Guardianship Act 1996 (British Columbia) specifically requires that the adult be included to the greatest extent possible in decisions about support and assistance.^[32]

3.22       The investigative body may take no further action, report the case to another agency, including the Public Guardian, refer the adult to available services, or prepare a support and assistance plan specifying the services the adult requires, if for instance, the adult has complex needs that require case management and ongoing coordination.^[33] Services specified under the support and assistance plan must not be provided to the adult if they refuse them.

3.23       Where the adult is at risk of harm because of impaired decision-making ability, the investigative body may make an application for an interim order restricting access to the adult for a period of up to 90 days.^[34] The investigative body may also make an application to the court for support and assistance orders if the adult does not have the decision-making ability to consent to a support and assistance plan.^[35]

3.24       This model has been described as a support and assistance model which ‘is intended to preserve the dignity and autonomy of adults—even when they are vulnerable and unable to make decisions about abuse and neglect’.^[36] It seeks to ensure that adults in need of support and assistance are not infantilised.^[37]

3.25       By contrast, Scotland has taken a relatively interventionist approach. The investigative body has the power to apply to the sheriff for assessment, banning and removal orders. Assessment orders permit it to take a person suspected to be an adult at risk from the premises for an interview in private, or for a medical examination conducted by a nominated health professional.^[38] Removal orders authorise it to remove the adult at risk from their premises to protect them from harm.^[39] Banning orders restrict access to the adult at risk, or require the preservation of moveable property owned or controlled by the person subject to the order.^[40]

3.26       Generally, such orders cannot be made if the adult has refused their consent. However, the sheriff may ignore the adult’s consent, if the adult was ‘unduly pressurised’ to refuse consent, and there are no steps which could be undertaken with the adult’s consent to address the harm. An example of a circumstance where an adult may be ‘unduly pressurised’ is where the adult is being abused or neglected by a person they trust, and the adult ‘would consent if the adult did not have confidence and trust in that person’.^[41]