At-risk adults

Recommendation 14–3            Adult safeguarding laws should define ‘at-risk adults’ to mean people aged 18 years and over who:

(a)     have care and support needs;

(b)     are being abused or neglected, or are at risk of abuse or neglect; and

(c)     are unable to protect themselves from abuse or neglect because of their care and support needs.

14.55  Should safeguarding services be available to all adults who are at risk of abuse, or should it be confined to a subcategory of people, such as older adults or vulnerable adults? The ALRC recommends that adult safeguarding services should be available to vulnerable or ‘at-risk’ adults, as defined in the recommendation above.[55] This is broadly in line with safeguarding laws in other jurisdictions and will focus safeguarding agencies on those who are most in need of protection and support.

14.56  ‘At-risk adult’ is not a proxy for older adult. Many people over the age of 65 years do not have care and support needs and are able to protect themselves. But many ‘at-risk’ adults will be older people, and therefore the recommendation is a suitable measure to address some forms of elder abuse.

14.57  Also, a 65-year-old age threshold in the legislation would present a number of problems. For one thing, it would seem perverse that a 64 year old with advanced dementia or a serious physical disability would not have access to safeguarding services, while a 66 year old with full decision-making ability and no physical limitations would. State Trustees submitted that safeguarding agencies should ‘investigate cases of abuse involving all vulnerable adults’, not just older people.[56]

14.58  The ALRC’s recommendation is broadly in line with safeguarding laws in other countries. It is modelled on the provision in the UK Care Act, under which local authorities have a duty to enquire into cases of suspected abuse where they have ‘reasonable cause to suspect’ that an adult:

(a)     has needs for care and support (whether or not the authority is meeting any of those needs),

(b)     is experiencing, or is at risk of, abuse or neglect, and

(c)     as a result of those needs is unable to protect himself or herself against the abuse or neglect or the risk of it.[57]

14.59  Although the adult must need ‘care and support’, notes to the Act explain that this should be understood broadly, and that this was not intended to confine the operation of the section to people who are eligible for other social services.[58]

14.60  This appears to draw upon the UK policy document, Who Decides?, which defined vulnerable adult to mean:

someone over the age of 18 who is or may be in need of community care services by reason of mental or other disability, age or illness and who is or may be unable to take care of him/herself or unable to protect him/herself against significant harm or exploitation.[59]

14.61  In Scotland, the term ‘adults at risk’ is defined in the legislation to mean adults who:

(a) are unable to safeguard their own well-being, property, rights or other interests,

(b) are at risk of harm, and

(c) because they are affected by disability, mental disorder, illness or physical or mental infirmity, are more vulnerable to being harmed than adults who are not so affected.[60]

14.62  An adult may be taken to be ‘at risk of harm’ for this purpose if: ‘another person’s conduct is causing (or is likely to cause) the adult to be harmed’; or ‘the adult is engaging (or is likely to engage) in conduct which causes (or is likely to cause) self-harm’.[61]

14.63  In both jurisdictions, the fact of abuse itself is not sufficient to trigger the intervention of the safeguarding agency. The affected adult must also be vulnerable; the vulnerability must stem from certain prescribed factors; and the vulnerability must render them unable to protect themselves.

14.64  Many stakeholders broadly supported the approach proposed in the ALRC’s Discussion Paper.[62] One person called it a ‘significant and welcome move forward’.[63] Speech Pathology Australia said it supported the proposed consent-based ‘support and assist’ model, which would ‘preserve the dignity and autonomy of older people even when they are vulnerable and unable to make decisions about abuse and neglect’.[64]

14.65  Some stakeholders expressed reservations about the need for additional vulnerability criteria, namely, that the adult must have care and support needs and be unable to protect themselves. Some feared that such restrictions may leave many older and vulnerable people to ‘fall through the cracks’.[65] Legal Aid NSW said that ‘determining whether those conditions are satisfied would require the exercise of judgement regarding complex matters’ and ‘could leave investigators hesitant to use the power’:

It might be difficult to establish reasonable cause to suspect all of these matters before an investigation commences. For example, it may be unclear, without specialist medical advice, if the person is in fact unable to protect themselves, or if they have chosen not to take steps to protect themselves.[66]

14.66  The National Older Persons Legal Services Network said that ‘the proposed trigger for investigation is too narrow’. A person should not be required to have care and support needs, they suggested, to receive adult safeguarding services:

The triggers may exclude cases where the abuse of the older person arises not because of any care and support needs per se, but rather because of the actions of a third party or as a direct result of an abuse of power within a relationship of trust or where one might be expected. This is particularly relevant to cases of financial abuse, where for example, a perpetrator may be trusted with banking facilities notwithstanding the capacity of the older person. In such a case, the inability of the older person to protect themselves may not be because of their support needs but rather the abusive, coercive or fraudulent actions of the other person, usually a close relative.[67]

14.67  Legal Aid ACT similarly suggested that the phrase ‘because of care and support needs’ be removed from the proposed criteria for safeguarding services:

There are many reasons older Australians may be unable to protect themselves from abuse. Geographic location, lack of access to appropriate facilities (such as a lock on the door), and general frailty (that does not constitute a physical impairment for the purposes of ‘care and support’) are a few examples.[68]

14.68  The ALRC does not intend the phrase ‘care and support needs’ to be read narrowly. Isolation and ‘general frailty’ might both suggest someone needs care and support. Further, even if it were thought desirable to offer safeguarding services to all adults, some focus on more vulnerable people is likely to be necessary. The Closing the Gaps report states:

Unlike in cases of child abuse, where the victim is automatically treated under the law as vulnerable and in need of support and protection, cases of abuse against older persons cannot be approached using the same assumption. Indeed, if the rights and freedoms of the older person are to be respected, the starting premise must always be that every older person is presumed to have the capacity to selfprotect and to make decisions for him/herself. Until incapacity and/or an inability to selfprotect are established, intervention should not be carried out.[69]

Abuse or neglect

14.69  It is in response to abuse and neglect, rather than harm caused by accident or in other ways, that the safeguarding agency should act.[70] ‘Abuse’ should be defined in adult safeguarding legislation. The definition should capture wrongful acts or omissions by a person in a relationship of trust that causes harm to an adult. It should be confined to intentional acts and omissions and neglect. Examples of common types of abuse should be included in the definition, namely, psychological or emotional abuse, financial abuse, physical abuse, sexual abuse, restrictions on liberty, and neglect.

14.70  Abuse is not the only way, or even the primary way, older people are harmed. Disease, accidents, poor health and poverty all cause harm. Falls, for example, cause many more injuries to older people than assault. Although some definitions of elder abuse are very broad, the laws recommended in this chapter are not designed to safeguard against all harms.

14.71  One reason why additional safeguarding services are needed where there is abuse or neglect, rather than in response to harm caused in other ways, is that people who commit abuse may often try to impede the provision of care and undermine people’s autonomy. These obstacles may not be faced to the same degree by those who suffer other types of harm. The need to overcome these hurdles is one of the justifications for an adult safeguarding agency.

14.72  Abuse is commonly used to refer to harm caused intentionally, but it may also capture certain types of neglect—harm caused recklessly or negligently by someone with a duty of care. Adult safeguarding agencies should also have a role in responding to these types of abuse.

14.73  Also inherent in the concept of abuse is the idea of moral blameworthiness or wrongfulness. Some actions that cause harm are willingly consented to by the harmed person. For example, buying cigarettes for an adult causes them harm, but it is generally not considered abusive. Dr Michael Dunn has argued that

harm is a necessary but not sufficient criterion for abuse. An action cannot be termed abusive if the action does not cause harm, but not all harmful actions are abusive. The justification for the involvement of an adult safeguarding service cannot therefore be determined by harm-related considerations alone, and harm is connected appropriately to abuse by attending to the wrongful behaviours that can occur within interpersonal relationships between individuals.[71]

14.74  Where the affected adult truly consents to the act or omission that causes harm, the act or omission is less likely to be wrongful or abusive.[72] Where there is such consent to the harm, there is a limited role for a safeguarding agency to intervene.[73] People are less likely to need the particular support of adult safeguarding agencies to deal with the results of this harm.

14.75  It may be implicit that ‘abuse’ concerns wrongful conduct, but this could be made explicit in legislation, to avoid doubt.[74]

Relationship of trust

14.76  Elder abuse commonly refers to abuse by those in a relationship of trust. Should an adult safeguarding agency be focused on abuse by trusted people, or should it also investigate abuse by strangers? While strangers can cause very serious harm, the ALRC considers that this type of abuse calls for a different response, often a criminal justice response, and that this should not be part of an adult safeguarding agency’s role.

14.77  Harm caused even intentionally by strangers does not have some of the features that make it more difficult for people to stop, or recover from, ‘intimate abuse’. There is not the additional pain that comes when a loved one or a trusted carer breaks that trust. The ‘harm in an abusive intimate relationship goes particularly deep’.[75] It is also less likely to come with the added complication, felt by some victims of abuse, of not wanting the abuser to be punished or suffer any other consequences. In fact, in many cases of elder abuse, an older person may wish to preserve their relationship with the abusive person.

14.78  The ALRC therefore recommends that adult safeguarding laws focus on abuse by people in a relationship of trust with the at-risk adult. This would include family members, including adult children and intimate partners, and carers, including paid carers.

[55]           In the Discussion Paper, this was confined to ‘older people’. See Australian Law Reform Commission, Elder Abuse, Discussion Paper No 83 (2016) prop 3–1.

[56]           State Trustees (Vic), Submission 367. It might be noted that, if resources were limited and support and protection could not be made available to all ‘at-risk’ adults, support and protection could be offered to adults who are both ‘at-risk’ and older (eg, over 65 or 80). This option is not recommended in this Report, but it would be preferable to deeming all people over 65 (or even 80) to be at-risk, which would be overly paternalistic, particularly given the ALRC recommends that, in limited cases, support and protection might be provided without the consent of the at-risk adult.

[57]           Care Act 2014 (United Kingdom) s 42(1).

[58]           ‘The eligibility criteria that the local authority sets for services and support are not relevant in relation to safeguarding. Safeguarding enquiries should be made on the understanding of the risk of neglect or abuse, irrespective of whether the individual would meet the criteria for the provision of services’: Ibid s 42 Explanatory Notes.

[59]           Cf, ‘[I]n the context of the inherent jurisdiction, I would treat as a vulnerable adult someone who, whether or not mentally incapacitated, and whether or not suffering from any mental illness, or mental disorder, is or may be unable to take care of him or herself, or unable to protect him or herself against significant harm or exploitation, or who is deaf, blind, or dumb, or who is substantially handicapped by illness, injury or congenital deformity. This, I emphasise, is not and is not intended to be a definition. It is descriptive, not definitive; indicative rather than prescriptive’: Re SA (Vulnerable Adult with Capacity: Marriage) [2006] 1 FLR 867 (Munby J). See also, Michael C Dunn, Isabel CH Clare and Anthony J Holland, ‘To Empower or to Protect? Constructing the “Vulnerable Adult” in English Law and Public Policy’ (2008) 28(2) Legal Studies 234; Brammer, above n 34.

[60]           Adult Support and Protection (Scotland) Act 2007 (Scotland) s 3(1).

[61]           Ibid s 3(2).

[62]           State Trustees (Vic), Submission 367; Australian Bankers’ Association (ABA), Submission 365; Office of the Public Advocate (Qld), Submission 361; Disabled People’s Organisations Australia, Submission 360; Eastern Community Legal Centre, Submission 357; M Berry, Submission 355; Legal Aid NSW, Submission 352; Law Council of Australia, Submission 351; R Lewis, Submission 349; Office of the Public Advocate (SA), Submission 347; ACT Human Rights Commission, Submission 337; Carers NSW, Submission 321; Speech Pathology Australia, Submission 309; Seniors Rights Service, Submission 296; Australian Association of Gerontology (AAG) and the National Ageing Research Institute (NARI), Submission 291; Alzheimer’s Australia, Submission 282; Public Trustee of Queensland, Submission 249; NSW Nurses and Midwives’ Association, Submission 248; Office of the Public Advocate (Vic), Submission 246.

[63]           R Lewis, Submission 349.

[64]           Speech Pathology Australia, Submission 309. They also submitted: ‘In determining a definition of “vulnerability”, Speech Pathology Australia recommends recognition of cognitive and communication impairment as critical factors impacting an individual’s ability to look after themselves, or safeguard their own well-being, property, rights or other interests.’

[65]           E Davidson, Submission 239.

[66]           Legal Aid NSW, Submission 352.

[67]           National Older Persons Legal Services Network, Submission 363.

[68]           Legal Aid ACT, Submission 223.

[69]           Office of the Public Advocate (SA), above n 14, 23.

[70]           In submissions, stakeholders commented on the definition of elder abuse, but few commented on the meaning of abuse in the more specific context of adult safeguarding legislation.

[71]           Michael Dunn, ‘When Are Adult Safeguarding Interventions Justified?’ in Julie Wallbank and Jonathan Herring (eds), Vulnerabilities, Care and Family Law (Routledge, 2013) (emphasis added).

[72]           People who play contact sports, for example, may consent to certain physical harm. Similarly, a person who willingly gives away $100 they cannot really afford to lose may suffer the same financial harm as they would have suffered had the $100 been stolen from them.

[73]           Whether a safeguarding agency should help people who do not consent to receiving help is a separate question, discussed further below.

[74]           In the definition of ‘abuse’ in the British Columbia legislation, this work may be done by the word ‘mistreatment’. ‘Abuse’ is there defined to mean ‘the deliberate mistreatment of an adult that causes the adult: (a) physical, mental or emotional harm, or (b) damage or loss in respect of the adult’s financial affairs, And includes intimidation, humiliation, physical assault, sexual assault, overmedication, withholding needed medication, censoring mail, invasion or denial of privacy or denial of access to visitors’: Adult Guardianship Act 1996 (British Columbia) s 1. To mistreat a person is to treat them ‘badly, cruelly, or unfairly’: Oxford Dictionary, definition of ‘mistreat’.

[75]           Jonathan Herring, Caring and the Law (Hart Publishing, 2013) np. Herring also writes that ‘intimate violence can be seen as a breach of trust. Intimate relationships involve becoming physically and emotionally vulnerable. The trust which is central to close relationships creates special obligations not to misuse that vulnerability. Intimate relationships rely on trust so that we can flourish’: Herring.