Reporting abuse

Recommendation 14–7            Adult safeguarding laws should provide that any person who, in good faith, reports abuse to an adult safeguarding agency 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.

Recommendation 14–8            Adult safeguarding agencies should work with relevant professional bodies to develop protocols for when prescribed professionals, such as medical practitioners, should refer the abuse of at-risk adults to adult safeguarding agencies.

Protections

14.175       People should be encouraged to report abuse to adult safeguarding agencies, particularly where the at-risk adult indicates that they would like the abuse reported. Recommendation 14–7 is designed to encourage people to report abuse by protecting them from legal liability or other consequences when they report abuse.

14.176       Health professionals, banks, and aged care workers have expressed concerns about disclosing suspicions of elder abuse for fear of breaching confidentiality and privacy laws.[168] The Law Council submitted:

stakeholders such as health professionals, financial institutions and employees in the aged care sector may not report elder abuse for a number of reasons. These include fear of contravening state, territory or Commonwealth privacy laws, fear of dismissal or adverse treatment by employers, fear of breaching their clients’ trust and lack of education around what constituted elder abuse.[169]

14.177       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.[170]

14.178       Privacy laws commonly contain a general exception for the disclosure of private information where the disclosure is required or authorised by law.[171] Adult safeguarding legislation should clearly authorise the reporting of suspected abuse to an adult safeguarding agency, to ensure that this exception to privacy laws applies.

14.179       The proposed protections are similar to those provided for in the Public Guardian Act 2014 (Qld). The Victorian Interagency Guideline for Addressing Violence, Neglect and Abuse states that the head of an organisation or senior departmental officer should ‘protect whistleblowers’, that is, ‘ensure that any person who reports an instance of violence, neglect or abuse is not thereby subject to adverse consequences’.[172]

14.180       The proposal in the Discussion Paper concerning the consequences of reporting abuse, similar to the above recommendation, was widely supported in submissions.[173] The NSW Nurses and Midwives’ Association said that ‘aged care workers/employers and members of the public would also benefit from an information campaign to ensure they are fully aware of such protections’:

We cannot over-emphasise the power imbalance between employer and employee in many aged care settings. The more protections are afforded in legislation the more security this offers our members.[174]

14.181       Some stakeholders noted more subtle ways people can be punished for reporting abuse. One stakeholder referred to people threatening to ‘restrict or prevent visitation with the older person by the person who reports the abuse’.[175] Reducing a worker’s shifts following an unwanted report of abuse was called ‘a very subtle form of discrimination’ and punishment, one stakeholder said.[176] The NSW Nurses and Midwives’ Association similarly observed:

Not all reprisals are overt and our members have cited circumstances such as being given unfavourable shift patterns or ostracised by management as a result of raising matters with external agencies.[177]

14.182       The Institute of Legal Executives noted that the professional rules for legal practitioners in various jurisdictions might need to be reviewed to ensure lawyers can report abuse without facing professional sanctions.[178]

14.183       Some have suggested that a provision such as the one recommended above might inadvertently protect a person who reports abuse that they themselves commit.[179] However, the provision is intended to protect people from liability that might otherwise follow from, or ‘as a consequence of’, the making of the report. It will not protect people from the consequences of their abusive actions.

14.184       In the Discussion Paper, the ALRC suggested that to be protected from liability, the report should have been based on a ‘reasonable suspicion’. On further reflection, a good faith proviso should be enough. If the suspicion is unreasonable, but the report is made in good faith, the reporter should still not suffer adverse consequences for making the report. Also, requiring people to have a ‘reasonable suspicion’ of abuse to be protected from liability may be too high a threshold and inhibit people from reporting abuse that should be reported.

Protocols

14.185       There is also a need for guidance and protocols to ‘support health, aged care and other relevant professionals with the decision to make a report’, as noted by the Australian Association of Gerontology and the National Ageing Research Institute.[180] The Financial Services Institute of Australasia said that the ‘lack of clarity in reporting pathways is a significant issue for the financial services professionals’.[181]

14.186       The ALRC has therefore recommended that adult safeguarding agencies work with relevant professional bodies to develop protocols for when prescribed professionals, particularly medical practitioners, should refer the abuse of at-risk adults to adult safeguarding agencies.

14.187       Another way to encourage people to report suspected abuse is to make it an offence to fail to do so. This is known as mandatory reporting. It is mandatory for aged care facilities to report certain assaults to the police and to the relevant government department.[182] Broadly speaking, it is also mandatory for doctors, teachers, police, nurses and other designated professionals to report child abuse.[183]

14.188       The ‘core principle’ motivating mandatory reporting of child abuse is said to be that ‘many cases of severe child abuse and neglect occur in private, cause substantial harm to extremely vulnerable children, and are unlikely to be brought to the attention of helping agencies’.[184] ‘Generally, the primary aim is to protect the children from significant harm.’[185]

14.189       Older people must not be treated like children, and the ALRC considers that professionals should not be required to report all types of elder abuse. Elder abuse is a broad category, and older people should generally be free to decide whether to report abuse they have suffered to the police or a safeguarding agency or to not report the abuse at all. However, although not recommended in this report, there is a case for requiring professionals to report serious abuse of particularly vulnerable adults. The Financial Services Institute of Australasia submitted that some if its members supported the mandatory reporting of financial elder abuse:

the vulnerability of this sector of the population to cognitive decline and abuse by family members or persons in caring or decision-making roles presents a compelling argument to establish mandatory reporting for professionals, including those in financial services.[186]

14.190        While it did not support mandatory reporting laws, Aged and Community Services Australia noted that they can help put elder abuse ‘on the social agenda’ and provide ‘clear procedures to be followed when abuse is identified’.[187] The North Australian Aboriginal Legal Service acknowledged ‘the limitations of mandatory reporting but also the exposure to problems that it brings’.[188]

14.191       Many stakeholders said they were opposed to mandatory reporting of elder abuse. State Trustees Victoria said mandatory reporting requirements may be seen by the elderly as ‘intrusive and patronising’.[189] Relationships Australia said ‘the concept of mandatory reporting is fraught with difficulty in this area since it casts elders essentially as children reinforcing ageist attitudes’.[190] National Seniors similarly said that mandatory reporting of elder abuse ‘undermines the rights of older people to make their own decisions’.[191]

14.192       Aged and Community Services Australia summarised a number of the objections to laws mandating the reporting of elder abuse:

Approaches to elder abuse need to be based on an empowering approach, respecting the older person’s autonomy, right and ability to made decisions for themselves. It is important that paternalistic and stereotypical views of older people as being frail, dependent and cognitively impaired do not highjack the agenda, treating elder abuse in the same way as child abuse, but rather recognise its greater similarities with other forms of family or domestic violence.

It is important not to take away the right of the older person to make their own decision thus further disempowering them at a time when they may already be feeling vulnerable. Mandatory reporting can lead to older people not seeking help for fear of a report being made whether they want it to be or not.[192]

14.193       Another objection to mandatory reporting laws is that they might be counterproductive. They may, for example, result in too many reports of trivial cases. National Seniors Australia said they could even be harmful:

A mandatory reporting regime is likely to lead to over reporting from well-meaning individuals worried they might be prosecuted if they do not. This could be extremely problematic if there were inadequate resources available to field and investigate high volumes of reports.[193]

14.194       The Legal Services Commission (SA) said it ‘supports the reporting of incidents of elder abuse to appropriate authorities such as the police and public advocates’, however,

as the mandatory reporting of child abuse has shown, lack of resourcing to triage reports and over reporting of minor matters can paralyse the agencies tasked with taking action.[194]

14.195       There is little point in requiring professionals to report abuse to safeguarding agencies, if safeguarding agencies do not have the resources to respond to the abuse.

14.196       Some objections to mandatory reporting of ‘elder abuse’ might be met by requiring professionals to report only serious abuse of ‘at-risk’ adults, rather than any abuse of all older people.[195] Confining the requirement to ‘serious’ abuse might also address concerns about overwhelming agencies with trivial reports. Safeguarding agencies might also be given the discretion not to inquire into trivial cases.

14.197       However, although there may be a case for mandatory reporting of some types of serious abuse of at-risk adults, given the widespread concerns about mandatory reporting policies, the ALRC does not recommend that such laws be introduced at this time. Instead, as discussed above, clear protocols should be created setting out when it might be appropriate for professionals to report abuse to safeguarding agencies.

[168]         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.

[169]         Law Council of Australia, Submission 351.

[170]         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.

[171]         Privacy Act 1988 (Cth) sch 1 cl 6.2(b). This exception is also available under relevant state and territory privacy laws.

[172]         Office of the Public Advocate (Vic), Interagency Guideline for Addressing Violence, Neglect and Abuse (IGUANA).

[173]         State Trustees (Vic), Submission 367; National Older Persons Legal Services Network, Submission 363; Eastern Community Legal Centre, Submission 357; Legal Aid NSW, Submission 352; Law Council of Australia, Submission 351; Office of the Public Advocate (SA), Submission 347; M Winterton, Submission 336; Institute of Legal Executives (Vic), Submission 320; Australian Nursing and Midwifery Federation, Submission 319; AnglicareSA, Submission 299; Office of the Public Advocate (Vic), Submission 246; NSW Nurses and Midwives’ Association, Submission 248; Public Trustee of Queensland, Submission 249; FMC Mediation & Counselling, Submission 284; Australian Association of Gerontology (AAG) and the National Ageing Research Institute (NARI), Submission 291.

[174]         NSW Nurses and Midwives’ Association, Submission 248.

[175]         A Salt, Submission 278.

[176]         Name Withheld, Submission 240.

[177]         NSW Nurses and Midwives’ Association, Submission 248.

[178]         Institute of Legal Executives (Vic), Submission 320.

[179]         ‘The Network is also wary of providing a statutory defence to perpetrators of abuse who use reporting procedures to avoid sanctions. Any protections should only be available to those reporters who are not perpetrators of abuse’: National Older Persons Legal Services Network, Submission 363.

[180]         Australian Association of Gerontology (AAG) and the National Ageing Research Institute (NARI), Submission 291.

[181]         Financial Services Institute of Australasia, Submission 137.

[182]         The ALRC recommends changes to this scheme in ch 4.

[183]         See Ben Matthews and Kerryann Walsh, ‘Mandatory Reporting Laws’ in Alan Hayes and Daryl Higgins (eds), Families, Policy and the Law: Selected Essays on Contemporary Issues for Australia (2014).

[184]         Ibid 132.

[185]         Ibid 133.

[186]         Financial Services Institute of Australasia, Submission 137. The ABA, on the other hand, said it did not support mandatory reporting: Australian Bankers’ Association, Submission 107.

[187]         Aged and Community Services Australia, Submission 102.

[188]         North Australian Aboriginal Legal Service, Submission 116.

[189]         State Trustees Victoria, Submission 138.

[190]         Relationships Australia, Victoria, Submission 125.

[191]         National Seniors Australia, Submission 154. They noted that the Elder Abuse Prevention Unit in Queensland rejected mandatory reporting on the grounds that it ‘denies the rights of seniors to make their own decisions, thereby reinforcing ageist stereotypes of all older people’.

[192]         Aged and Community Services Australia, Submission 102.

[193]         National Seniors Australia, Submission 154.

[194]         Legal Services Commission SA, Submission 128.

[195]         While many ‘at-risk’ adults may be older people, most older people are not ‘at-risk’, as this is defined earlier in the chapter.