13 The key terms in the Terms of Reference are ‘older Australians’ and ‘abuse’. Definitions may be used for a number of purposes. For example, they may be used as general descriptions to inform discussion or to inform service responses. They may also be used to define criminal offences, where particularity and precision become crucial. Definitions may also be significant where data about prevalence of abuse is to be collected.
14 The context in which a definition of ‘elder abuse’ is required for definition is therefore important. In this section the various terms are being considered in a descriptive, general sense. In later sections of this Issues Paper, and as the Inquiry develops, more specific definitions for particular legal purposes may be considered.
15 In the Toronto Declaration on the Global Prevention of Elder Abuse, the WHO described ‘elder abuse’ in this way:
Elder abuse can be defined as ‘a single, or repeated act, or lack of appropriate action, occurring within any relationship where there is an expectation of trust which causes harm or distress to an older person’. Elder abuse can take various forms such as physical, psychological or emotional, sexual and financial abuse. It can also be the result of intentional or unintentional neglect.
16 This description is used across a range of government and non-government bodies and was used in the AIFS study. It will be used as a starting point in this Inquiry.
17 There are several elements in this definition of elder abuse: the type of act or omission; the element of harm or distress; the question of intention; the person who is the ‘abuser’—the kind of relationship involved; and the target of the abuse, namely an ‘older person’. Further questions include the relationship between elder abuse and family violence and the dynamics within particular contexts.
Types of abuse
18 There are instructive guidelines in several states and territories for recognising abuse of older persons. Types of abuse include:
- financial abuse;
- psychological abuse (including social abuse);
- physical abuse or neglect;
- sexual abuse (including non-physical actions such as obscene language); and
- chemical abuse (including inappropriate use, underuse or overuse, of prescribed medication).
Harm or distress
19 The WHO definition concerns ‘harm or distress’ to an older person. Harm may be defined by virtue of certain conduct being considered wrongful—such as fraud or physical abuse.
20 Harm may also be seen where the relevant conduct is directed towards personal benefit after the older person’s death. Forcing or coercing changes to a will, for example, is included in some lists as financial abuse.
21 The WHO definition of elder abuse includes unintentional conduct in relation to neglect. Tasmanian and Victorian elder abuse guidelines note that abuse may occur as a result of ignorance or negligence, or it may be deliberate.
22 The Tasmanian guidelines also suggest that for the purposes of identifying and defining abuse of older persons, ‘the focus should be on the effects on the older person, rather than the intention of the perpetrator’.
23 The question of intention raises a number of issues. One is identifying abuse, where an older person is affected. A further issue concerns the development of appropriate responses. Elder abuse may include criminal and non-criminal conduct. In some of these, such as responses involving the criminal law, matters of intention may be crucial. In others, where the abuse arises for example through ignorance rather than, say, malevolence or greed, the response may be to provide better understanding to those undertaking roles like carers or attorneys.
Abuser—types of relationship
24 The Terms of Reference for this Inquiry refer to abuse of an ‘older person’ by ‘formal and informal carers, supporters, representatives and others’. The WHO definition of elder abuse refers to abuse occurring within any relationship where there is an ‘expectation of trust’.
25 Elder abuse is often committed by a family member of the older person—notably, by adult children, but also the older person’s spouse or partner. The approach reflected in the WHO definition is wider than the concept of ‘family violence’, in that the relationships of trust may be wider than ‘family’ and the group of relationships listed in the Terms of Reference. However, elder abuse is closely related to family violence. Like family violence, elder abuse can be physical, sexual, psychological or financial in nature, and is usually committed by a family member. Like family violence, available research also suggests that women are more likely to experience elder abuse than men.
26 There may be some differences in the dynamics of family violence and elder abuse. Family violence is often characterised as a manifestation of power and control. There is less agreement about the dynamics of elder abuse. In 1999, it was said that ‘research to date has not been successful in identifying theoretical frameworks that are useful in understanding the issue as a social phenomenon’ and this may still be true today.
27 Some instances of elder abuse may be a continuation of family violence that began when the perpetrator and victim were not old. In other cases, ageism, cognitive impairment, social isolation or relationships of dependence may contribute to the risk of elder abuse.
28 The idea of someone being an ‘older’ person is a relative concept—chronologically, medically and culturally. It does not have a precise definition; and specific ages may be used for particular purposes. For example, the Australian Bureau of Statistics groups people into population age cohorts, and differentiates between 15–64, ‘65 years and over’ and ‘85 years and over’. In an earlier ALRC Inquiry, into barriers to work for older Australians, the Terms of Reference defined ‘older persons’ as anyone over the age of 45 years, which is consistent with the definition of ‘mature age worker’ used by the Australian Bureau of Statistics.
29 For some purposes, treating all people of over a particular age as warranting special treatment under the law may be appropriate. Whether someone may access their superannuation funds, for example, turns on the person’s age. For some other purposes, however, it may be better to consider people in light of whether they have a particular vulnerability. Some law reform options might be targeted at people who require decision-making support, for example because of dementia, rather than a category of people who are over a certain age. Other law reform options might be best directed at people with a physical frailty or disability, rather than all older people, even though most frail people are also likely to be old.
Legal responses to elder abuse
30 Issues surrounding elder abuse relate to areas of Commonwealth, state and territory and possibly local government responsibility. For example, the Commonwealth makes laws relating to financial institutions, superannuation and aged care. Laws relating to representative decision-making, including guardianship and powers of attorney, are the province of the states and territories. This makes responding to elder abuse a complex issue. AIFS commented that:
Fundamentally a human rights issue, responses to the management and prevention of elder abuse sit within a range of complex policy and practice structures across different levels of government, and various justice system frameworks within the private sector and across non-government organisations.
31 Safeguarding against elder abuse requires addressing a range of points of intervention, including those related to:
- Risk—how is a person at risk of elder abuse identified, and how can the risk of abuse be minimised?
- Reporting—how and to whom are complaints about elder abuse made, who should have a responsibility to report elder abuse, and what data should be collected about elder abuse?
- Response—how are suspected or alleged cases of elder abuse investigated, and what service provision should be associated with such investigation?
- Redress—what forums can people go to for redressing elder abuse, and what legal remedies are available?
32 The ALRC is interested in comment about how elder abuse is defined and about best practice legal responses to elder abuse, including examples from other jurisdictions.
Question 1 To what extent should the following elements, or any others, be taken into account in describing or defining elder abuse:
- harm or distress;
- payment for services?
Question 2 What are the key elements of best practice legal responses to elder abuse?
Older people from particular communities
33 The nature and dynamics of abuse experienced by older people may be influenced by their being part of one or more particular communities. In answering questions raised throughout this Issues Paper, stakeholders are encouraged to note any specific concerns that might arise in particular communities, including: Aboriginal and Torres Strait Islander (ATSI), culturally and linguistically diverse (CALD), and lesbian, gay, bisexual, transgender or intersex (LGBTI) communities; older people with disability; and older people from rural, regional and remote areas. The ALRC is also interested in receiving any evidence of the types of elder abuse that might commonly occur in these communities.
Older Aboriginal and Torres Strait Islander people
34 Older people in ATSI communities are often designated as those 50 years and above.
35 There has been limited research on elder abuse in ATSI communities, and there may be some concerns about the appropriateness of using the term ‘elder’ abuse, because of its specific meaning in these communities. AIFS has concluded that ‘substantially more work is required to understand and conceptualise elder abuse in the Aboriginal context, especially among different groups in different circumstances, given the diversity among ATSI communities’.
36 A Western Australian study has suggested that most concerns about abuse in Aboriginal communities relate to taking advantage of an older person’s financial resources. However, cultural expectations relating to kinship structures and sharing and reciprocity may complicate the way in which abuse is experienced and understood in those communities.
Older culturally and linguistically diverse people
37 People from CALD backgrounds make up a growing proportion of the total number of older people in Australia. In 2011, 36% of Australia’s older people were not born in Australia.
38 Cultural expectations relating to family responsibilities may inform the way in which abuse is experienced and understood in different communities. For example, it may be that a cultural norm in some communities exists that adult children are responsible for decision-making concerning their elderly parents.
39 For some older CALD people, limited English skills may contribute to social isolation, increase dependence on family members, and in turn increase vulnerability to exploitation and abuse. There may also be issues with culturally appropriate service responses to elder abuse.
Older lesbian, gay, bisexual, transgender or intersex people
40 Older LGBTI people may experience abuse related to their sexual orientation or gender identity. For example, an LGBTI older person may be abused or exploited by use of threats to ‘out’ a person. Abuse of an LGBTI older person may be motivated by hostility towards their sexual orientation or gender identity. Older LGBTI people may also be at increased risk of social isolation, which may increase their vulnerability to abuse.
41 Older LGBTI people may experience invisibility of their sexual orientation or gender identity, which may affect responses to elder abuse. They may also be reluctant to disclose their sexual orientation or gender identity for fear of discrimination.
42 LGBTI people may rely on ‘families of choice’ rather than biological family members—and may face either abuse by these people, or a failure by services to recognise and include these people as family members.
Older people with disability
43 Older people with disability include people with disability acquired at an early age, as well as those who acquire disability with age. Rates of disability increase with age. In 2012, 39.5% of people aged 65–69, 78.7% of those aged 85–89, and 85.9% of those aged 90 and above had a disability. Those with a profound or severe core activity limitation increase from 9.4% of those aged 65–69 to 66.9% of those aged 90 and above.
44 Older people may have some cognitive impairment, such as dementia. In 2011, 9% of people aged 65 and above, and 30% of those aged 85 and above, had dementia. People with cognitive impairment or other forms of disability have been identified as being more vulnerable to experiencing elder abuse.
Older people from rural, regional and remote areas
45 Most older people (69%) live in major urban areas. Approximately one quarter live in smaller cities and towns, and the remainder in areas where there are populations of less than 1000 people. Older people from rural, regional and remote areas may face particular issues in relation to elder abuse. For example, they may be more socially isolated, or may face difficulty in accessing health and other services to respond to abuse.
Question 3 The ALRC is interested in hearing examples of elder abuse to provide illustrative case studies, including those concerning:
- Aboriginal and Torres Strait Islander people;
- people from culturally and linguistically diverse communities;
- lesbian, gay, bisexual, transgender or intersex people;
- people with disability; or
- people from rural, regional and remote communities.
46 The way that elder abuse is defined has particular relevance for the collection of prevalence data. As the AIFS study observed, having identified the similarity of elements in a number of definitions, ‘the absence of a precise agreed definition is considered problematic for a range of reasons, not the least of which is the difficulty in measuring elder abuse’. While there is some evidence drawn, for example, mainly from information collected by state-based elder abuse hotlines, the AIFS study pointed to the ‘emerging recognition of the need for systematic research in this area’.
Question 4 The ALRC is interested in identifying evidence about elder abuse in Australia. What further research is needed and where are the gaps in the evidence?
Department of Health and Human Services (Tas), Responding to Elder Abuse: Tasmanian Government Practice Guidelines for Government and Non-Government Employees (2012) 12; Department of Health (Vic), Elder Abuse Prevention and Response Guidelines for Action 2012–14 (2012) 2.
Kaspiew, Carson and Rhoades, above n 1, 5.
Victoria, Royal Commission into Family Violence, Summary and Recommendations (2016) 18.
Pamela Kinnear and Adam Graycar, ‘Abuse of Older People: Crime or Family Dynamics’ (Trends & Issues in Criminal Justice 113, Australian Institute of Criminology, 1999) 6; Kaspiew, Carson and Rhoades, above n 1, ch 3.
Kaspiew, Carson and Rhoades, above n 1, ch 3.
Office of the Public Advocate (WA), Mistreatment of Older People in Aboriginal Communities Project: An Investigation into Elder Abuse in Aboriginal Communities (2005) 25.
Australian Bureau of Statistics, above n 1.
Ethnic Communities’ Council of Victoria, Reclaiming Respect and Dignity: Elder Abuse Prevention in Ethnic Communities (2009) 14.
See, eg, the US research in National Center on Elder Abuse, Research Brief: Mistreatment of Lesbian, Gay, Bisexual, and Transgender (LGBT) Elders.
Australian Bureau of Statistics, Disability, Ageing and Carers, Australia: Summary of Findings, 2012 (2013).
Australian Institute of Health and Welfare, Dementia in Australia (2012) 11.
Australian Bureau of Statistics, Where and How Do Australia’s Older People Live? Reflecting a Nation: Stories from the 2011 Census (2013).
Kaspiew, Carson and Rhoades, above n 1, 4.