Proposal 3–5 Any person who reports elder abuse to the public advocate or public guardian in good faith and based on a reasonable suspicion should not, as a consequence of their report, be:
(a) liable, civilly, criminally or under an administrative process;
(b) found to have departed from standards of professional conduct;
(c) dismissed or threatened in the course of their employment; or
(d) discriminated against with respect to employment or membership in a profession or trade union.
3.46 This is not a proposal for mandatory reporting. It encourages a ‘no wrong door’ approach to reporting elder abuse by ensuring that a concerned bystander is not dissuaded from or disadvantaged by reporting elder abuse to the public advocate or public guardian. The proposed protections are similar to those provided for in the Public Guardian Act 2014 (Qld) and the Adult Guardianship Act 1996 (British Columbia).
3.47 Stakeholders suggested that health professionals, banks, and aged care workers are concerned about disclosing suspicions of elder abuse for fear of breaching confidentiality and privacy laws. As discussed in Chapter 12, reporting suspicions of abuse to bodies such as the public advocate or guardian may not be covered by existing exceptions to the use and disclosure of sensitive information under Commonwealth, state and territory privacy laws. However, there is a general exception where disclosure is required or authorised by or under an Australian law or a court/tribunal order. This proposal would mean that a disclosure made in good faith, and based on a reasonable suspicion would fall under the general exception, and a person would not breach existing confidentiality and privacy laws. State and territory governments may wish to consider the approach taken in the Public Guardian Act 2014 (Qld), which states:
[w]ithout limiting subsections (3) and (4) [which discuss civil and criminal liability and breaches of codes of conduct and accepted standards of professional conduct]— …
(b) if the person would otherwise be required to maintain confidentiality about the information under an Act, oath or rule of law or practice, the person—
(i) does not contravene the Act, oath or rule of law or practice by giving the information; and
(ii) is not liable to disciplinary action for giving the information.
3.48 A number of stakeholders also raised fears of reprisals from employers for reporting concerns about abuse in residential aged care facilities and other supported accommodation. Proposal 3-5 addresses these concerns.
See, eg, Seniors Rights Service, Submission 169; Australian Association of Social Workers, Submission 153; Australian College of Nursing, Submission 147; Legal Aid NSW, Submission 137; Older Women’s Network NSW, Submission 136; Capacity Australia, Submission 134; Protecting Seniors Wealth, Submission 111; Australian Bankers’ Association, Submission 107.
Privacy Act 1988 (Cth) sch 1 cl 6.2(b). This exception is also available under relevant state and territory privacy laws.
See, eg, Australian Nursing & Midwifery Federation, Submission 163; ACT Disability, Aged and Carer Advocacy Service, Submission 139; NSW Nurses and Midwives’ Association, Submission 29. Similar concerns may also exist for staff working in agencies providing support and services in the home.