1.1 Preventing elder abuse in an ageing world is ‘everybody’s business’, announced the Toronto Declaration on the Global Prevention of Elder Abuse (2002).[1] The World Health Organization (WHO) has estimated that the prevalence rate of elder abuse in high- or middle-income countries ranges from 2% to 14%. As Australia faces the ‘inescapable demographic destiny’[2] of an ageing population, the potential reach of elder abuse may grow. In this context, this Report and the 43 recommendations it contains are timely.
1.2 Australia’s population is ageing, as people live longer and have fewer children. Approximately 15% of the population was aged 65 or over in 2014–15, and this is expected to rise to 23% by 2055. A female child born in 1900 could expect to live to 59, but in 2017 can expect to live to 85. Australians are not only living longer, they are staying healthy for longer.[3]
1.3 That Australians are living longer and healthier lives is great cause for celebration. In her book, In Praise of Ageing, Patricia Edgar writes that for many,
ageing is a liberating experience; we are consoled for any losses by a new sense of freedom and confidence–we don’t fear the future and we don’t worry so much about the opinions of others. But persistent assumptions about our incapacity undermine our well-being. The main mantra in the media is: ‘Now that they are living longer we can’t afford them; they are all going to get sick and be a drain on the rest of society.’ While this myth is gathering momentum there is another side to the story. … [It] is about active, engaged older people who are enjoying their lives and continuing to contribute.[4]
1.4 While older people should not be considered vulnerable merely because of their age, some factors commonly associated with age can make certain older people more vulnerable to abuse. Disability, for example, is more common among older people. More than 80% of people aged 85 years or over have some disability. While fewer than one in 20 Australians under 55 years have ‘severe or profound core activity limitations’, almost one-third of people aged 75 years or over have such limitations.[5]
1.5 The prevalence of cognitive impairment also increases with age. From age 65, the prevalence of dementia doubles every 5 or 6 years. 30% of people aged over 85 have dementia, and over 1.1 million Australians are expected to have dementia by 2056. More generally, people aged 85 years and over need significantly more assistance and care than people aged 65–84.
1.6 Vulnerability does not only stem from intrinsic factors such as health, but also from social or structural factors, like isolation and community attitudes such as ageism. All of these factors contribute to elder abuse.
1.7 The Attorney-General of Australia, Senator the Hon George Brandis QC, asked the ALRC to conduct this Inquiry into elder abuse in February 2016. The Inquiry forms part of a range of initiatives at the Commonwealth level towards addressing elder abuse and builds on a number of other reviews, including: the 2007 report of the House of Representatives Standing Committee on Legal and Constitutional Affairs, Older People and the Law; the 2015 report of the Senate Community Affairs References Committee into violence, abuse and neglect against people with disability in institutional and residential settings; the 2016 research report by the Australian Institute of Family Studies, Elder Abuse: Understanding Issues, Frameworks and Responses; and the ALRC’s 2014 report, Equality, Capacity and Disability in Commonwealth Laws.
1.8 Elder abuse, as described by the WHO, is ‘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’.[6] It can take various forms, such as physical abuse, psychological or emotional abuse, financial abuse, sexual abuse, and neglect.
1.9 Psychological or emotional abuse appears to be one of the most common types of elder abuse, and includes verbal abuse, name-calling, bullying and harassment. Other examples of psychological abuse include: treating an older person like a child; repeatedly telling them they have dementia; threatening to withdraw affection; and threatening to put them in a nursing home. Stopping an older person from seeing family and friends may also be psychological abuse or ‘social abuse’.
1.10 Financial abuse is another common type of elder abuse, and includes: incurring bills for which an older person is responsible; stealing money or goods; and abusing power of attorney arrangements. Other behaviours that may, in some circumstances, be financial abuse include: refusing to repay a loan; living with someone without helping to pay for expenses; failing to care for someone after agreeing to do so in exchange for money or property; and forcing someone to sign a will, contract or power of attorney document.
1.11 Physical abuse might include pushing, shoving and rough handling. Australian crime statistics suggest that older people are less likely to be murdered or physically assaulted than younger people, but some types of physical abuse of older people may not be caught by these statistics–for example, the improper use of ‘restrictive practices’ in hospitals and residential care facilities.
1.12 Sexual abuse includes rape and other unwanted sexual contact. It may also include inappropriate touching and the use of sexually offensive language.
1.13 Neglect includes failing to provide someone with such things as food, shelter or medical care. Family members may be responsible for providing such ‘necessities of life’ and some may receive a social security payment for doing so. Staff in residential care facilities and others who provide in-home care may also be responsible for providing such care.
1.14 Further research is needed on risk factors for abuse, but there is evidence that people who suffer elder abuse are more likely to be dependent on others and have: significant disability; poor physical health; mental disorders, such as depression; low income or socioeconomic status; cognitive impairment; and social isolation. Other risk factors include living alone with the perpetrator; and being aged older than 74 years. There is also some evidence that women are more at risk of elder abuse than men.
1.15 Risk factors for people who commit elder abuse include depression, substance abuse and financial, emotional and relational dependence.
1.16 Elder abuse is commonly defined to refer to abuse by people ‘in a position of trust’. Although this will include paid carers, 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. Elder abuse will therefore often also be family or domestic violence. While not as ‘gendered’ as family violence, elder abuse is suffered more often by women than men, and not only because women live longer than men. The dynamics of the abuse tend to be somewhat different, but elder abuse policy may learn much from initiatives to prevent family violence.
1.17 The recommendations in this Report seek to balance two framing principles: dignity and autonomy, on the one hand; and protection and safeguarding, on the other. The ALRC recognises that autonomy and safeguarding are not mutually inconsistent, as safeguarding responses also act to support and promote the autonomy of older people.
1.18 Elder abuse undermines dignity and autonomy. Abuse and living in fear can inhibit a person’s ability to make choices about their own lives, to pursue what they value. Protecting older people from abuse can therefore be seen to support them to live autonomous and dignified lives. The UN Principles for Older Persons state:
Older persons should be able to live in dignity and security and be free of exploitation and physical or mental abuse.
Older persons should be treated fairly regardless of age, gender, racial or ethnic background, disability or other status and be valued independently of their economic contribution.[7]
1.19 Sometimes, protective measures may conflict with a person’s autonomy, such as where an older person refuses to accept support, or to report abuse to police. Where possible, the ALRC has sought to recommend changes to the law that both uphold autonomy and provide protection from harm, but where this is not possible, greater weight is often given to the principle of autonomy. Older people, like most adults, prize their freedom and independence, and do not wish to be treated like children or sheltered from all risk. The autonomy of older people should not be afforded less respect than the autonomy of others. However, in limited cases, where there is particularly serious abuse of vulnerable people, protection should be given additional weight.
1.20 As stakeholders observed, elder abuse is ‘complex and multidimensional’ and requires a ‘multi-faceted response’. In this Report, the ALRC contributes to that response with a set of recommendations–traversing laws and legal frameworks across Commonwealth, state and territory laws–aimed at achieving a nationally consistent response to elder abuse. The ALRC has looked to the horizon and developed a conceptual template to guide future reform, and has identified immediate strategies and specific reforms to support older people’s autonomy and to safeguard against abuse.
1.21 In Chapter 3 the ALRC recommends that a National Plan be developed to combat elder abuse. It is a capstone recommendation of this Report and provides the basis for a longer term approach to the protection of older people from abuse. The Plan will provide the opportunity for integrated planning and policy development. In a practical sense, much work already undertaken and in train, both at the Commonwealth level and in states and territories, together with recommendations throughout this Report, may be seen to constitute strategies in implementation of a commitment to combat elder abuse.
1.22 A national planning process offers the opportunity to develop strategies beyond legal reforms, including: national awareness and community education campaigns; training for people working with older people; elder abuse helplines; and future research agendas.
1.23 Concerning research, the ALRC particularly recommends that a national prevalence study of elder abuse be conducted, to improve the evidence base and inform policy responses. The Australian Government has already committed to a prevalence study,[8] and steps have been taken in this direction with the completion of a scoping study by the Australian Institute of Family Studies in May 2017.
1.24 Older people receiving aged care–whether in the home or in residential aged care–may experience abuse or neglect. Abuse may be committed by paid staff, other residents in residential care settings, family members or friends.
1.25 In Chapter 4 the ALRC recommends reform to enhance safeguards against such abuse, including:
1.26 The ALRC also addresses decision making in aged care and recommends that aged care laws be reformed consistently with the Commonwealth Decision-Making Model in the ALRC Report, Equality, Capacity and Disability in Commonwealth Laws (2014). The ALRC also recommends that aged care agreements should not require that a person has formally appointed a substitute decision maker.
1.27 Enduring powers of attorney and enduring guardianship (together referred to as ‘enduring documents’) are important tools that allow people to choose who will make decisions for them, should they later lose decision-making ability. These decision-makers can play an important role in protecting people with impaired decision-making ability from abuse.
1.28 However, these arrangements may also facilitate abuse by the decision maker themselves. In Chapter 5, the ALRC recommends reforms to laws relating to enduring documents, including: adopting nationally consistent safeguards; giving tribunals jurisdiction to award compensation when duties are breached; and establishing a national online register
1.29 Some ‘family agreements’ involve an older person transferring the title to their home, or the proceeds from the sale of the home or other assets, to an adult child in exchange for ongoing care, support and housing. These ‘assets for care’ arrangements are typically made without legal advice and are often not put in writing. There can be serious consequences for the older person if the promise of ongoing care is not fulfilled, or the relationship breaks down. The older person may even be left without a place to live.
1.30 The ALRC recommends in Chapter 6 that tribunals be given jurisdiction over disputes within families with respect to these arrangements. Tribunals provide a low cost and less formal forum for resolving such disputes. The ALRC also recommends that the Social Security Act 1991 (Cth) be amended to require that assets for care agreements (which give what is described as a ‘granny flat interest’) be expressed in writing, for the purpose of calculating the Age Pension.
1.31 A significant proportion of the wealth of older people is held in superannuation funds. Elder abuse may include using deception, threats or violence to coerce someone to contribute, withdraw or transfer superannuation funds, for the benefit of the abuser. Improperly influencing superannuation investment decisions might also be abuse.
1.32 As discussed in Chapter 7, there is much uncertainty and ambiguity concerning ‘binding death benefit nominations’ (BDBNs), particularly regarding whether an enduring attorney may sign a BDBN on behalf of a member. The ALRC recommends that these uncertainties and ambiguities need to be resolved in a focused review of the provisions. The central legal issue concerns the ability of fund members to direct trustees with respect to the payment of funds on the member’s death.
1.33 Self-managed superannuation funds (SMSFs) are subject to limited regulation. This may present problems when a fund comes under the control of someone with impaired decision-making ability. The ALRC’s recommendations in relation to SMSFs are designed to:
1.34 Pressuring someone to make or change their will may, in some cases, be financial abuse. To help combat elder abuse and to reduce undue influence in the making of wills, the ALRC recommends in Chapter 8 that there be a national coordinated response to improving lawyers’ understanding of the potential for elder abuse using wills, through national best practice guidelines. Other professionals, such as financial advisers, may also benefit from improved understanding.
1.35 The ALRC also recommends community education about the dangers and difficulties associated with ‘do-it-yourself’ wills and discusses other aspects of succession law that might benefit from further review.
1.36 Banks and other financial institutions are in a good position to detect and prevent the financial abuse of their older and at-risk customers. In Chapter 9, the ALRC recommends that the Code of Banking Practice be amended to require banks to take ‘reasonable steps’ to identify and prevent the financial abuse of vulnerable customers.
1.37 Steps include training staff in how to respond appropriately to elder abuse and setting up systems to detect unusual transactions and other avenues for abuse. Banks should also speak with vulnerable customers directly, or otherwise check arrangements, when a form purports to authorise another person to operate someone’s bank account. They should also warn customers, train staff, and take other steps to ensure people are not being financially abused when they guarantee a loan.
1.38 Chapter 10 considers how guardianship and financial administration schemes can safeguard against elder abuse. The ALRC recommends that private guardians and private financial administrators be required to sign an undertaking about their obligations and responsibilities. The ALRC also recommends that state and territory tribunals take additional measures to help people who are the subject of an application for a guardianship or financial administration order to participate in the process to the greatest extent possible.
1.39 Health professionals play an important role in identifying and responding to elder abuse. While no recommendations are made in Chapter 11, the ALRC discusses how health professions might be encouraged to take advantage of the opportunity to respond to elder abuse, for example through: training health professionals about recognising elder abuse and relevant privacy considerations; improving referral pathways; and developing multidisciplinary responses to elder abuse.
1.40 The chapter also discusses the National Disability Insurance Scheme, but the ALRC considers that it is too early to determine whether the scheme is an avenue for elder abuse or to test the effectiveness of the safeguards.
1.41 Engaging with social security through Centrelink is a part of life for most older Australians. This gives Centrelink a distinct opportunity to assist with the detection and prevention of elder abuse–especially financial abuse through, for example, Carer Payments and payment nominee arrangements.
1.42 In Chapter 12, the ALRC recommends that monies paid to nominees should be required to be kept separately from the nominee’s own funds and that Centrelink speak directly with people of Age Pension age when they enter into arrangements with others that concern their social security payments. More generally, the ALRC recommends that the Department of Human Services (Cth) develop an elder abuse strategy.
1.43 Chapter 13 discusses the criminal justice response to elder abuse, but makes no recommendations for reform. The ALRC concludes that existing criminal laws adequately cover conduct which constitutes elder abuse, and does not recommend the enactment of new offences for ‘elder abuse’, ‘elder neglect’ or ‘misuse of powers of attorney’.
1.44 The chapter discusses other ways to improve the criminal justice response to elder abuse, including in relation to how police respond to such abuse, and helping witnesses who need support to participate in the criminal justice system.
1.45 In Chapter 14, the ALRC recommends the introduction of adult safeguarding laws in each state and territory. Most public advocates and guardians already have a role in investigating abuse, particularly abuse of people with impaired decision-making ability, but there are other vulnerable adults who are being abused, many of them older people. The ALRC recommends that these other vulnerable adults should be better protected from abuse.
1.46 Safeguarding services should be available to ‘at-risk adults’, which should be defined to mean adults who: (a) need care and support; (b) are being abused or neglected, or are at risk of abuse or neglect; and (c) cannot protect themselves from the abuse. Some, but by no means all, older people will meet this definition.
1.47 In most cases, safeguarding and support should involve working with the at-risk adult to arrange for health, medical, legal and other services. In some cases, it might also involve seeking court orders to prevent someone suspected of abuse from contacting the at-risk adult. Where necessary, adult safeguarding agencies should lead and coordinate the work of other agencies and services to protect at-risk adults.
1.48 Existing public advocates and public guardians have expertise in responding to abuse, and may be appropriate for this broader safeguarding function, if given additional funding and training. However, some states or territories may prefer to give this role to another existing body or to create a new statutory body.
1.49 The ALRC recommends that consent should be obtained from the at-risk adult, before safeguarding agencies investigate or take action about suspected abuse. This avoids unwanted paternalism and shows respect for people’s autonomy. However, in particularly serious cases of physical abuse, sexual abuse or neglect, the safety of an at-risk person may sometimes need to be secured, even without their consent. Where there is serious abuse, safeguarding agencies should also have coercive information-gathering powers, such as the power to require people to answer questions and produce documents.
1.50 The chapter also recommends statutory protections from civil liability, workplace discrimination laws and other consequences that might follow from reporting suspected abuse to authorities. Protocols about reporting abuse should also be developed for certain professionals who routinely encounter elder abuse.
1.51 The scope of each ALRC inquiry is defined by the Terms of Reference. The recommendations for reform must sit within this scope and need to be built on an appropriate conceptual framework and evidence base.
1.52 A major aspect of building the evidence base to support the formulation of ALRC recommendations for reform is consultation, acknowledging that widespread community consultation is a hallmark of best practice law reform.[9] Pursuant to s 38 of the Australian Law Reform Commission Act 1996 (Cth), the ALRC ‘may inform itself in any way it thinks fit’ for the purposes of reviewing or considering anything that is the subject of an inquiry.
1.53 The process for each law reform project may differ according to the scope of the inquiry, the range of stakeholders, the complexity of the laws under review, and the period of time allotted for the inquiry, as set out in the Terms of Reference. For each inquiry the ALRC determines a consultation strategy in response to its particular subject matter and likely stakeholder interest groups. While the exact procedure is tailored to suit each inquiry, the ALRC usually works within an established framework, outlined on the ALRC’s website.
1.54 Following ALRC established practice, two consultation documents were released to facilitate focused consultations in a staged way throughout the Inquiry: an Issues Paper, Elder Abuse (IP 47), was released on 15 June 2016, to coincide with World Elder Abuse Awareness Day; and a Discussion Paper, Elder Abuse (DP 83), on 12 December 2016. Both consultation documents can be downloaded free of charge from the ALRC website, and hardcopies were provided if requested.
1.55 National stakeholder consultations were conducted following the release of each of the consultation documents amounting to 117 consultations. The list of those consulted is included as Appendix 3 to this Report.
1.56 The ALRC received 458 submissions,[10] from a wide range of people and organisations, including: individuals in their private capacity; academics; lawyers; law societies and representative groups; community legal centres; advocacy groups; peak bodies; and state and federal government agencies. Submissions from advocacy groups and community legal centres included many case studies, drawn from their experiences on the frontline, working with people who had been subjected to abuse. Such examples are included as illustrative case studies throughout this Report. The ALRC recognises that, particularly in small community-based organisations with limited resources, such involvement can have a significant impact and we thank all stakeholders for the important contribution they have made to our evidence base.
1.57 Special mention must be made of the many submissions from individuals, who generously shared with the ALRC personal stories of heartache and frustration, of families torn apart by elder abuse and who live with the painful knowledge that their loved ones suffered at the end of their lives. One individual referred to their submission as an ‘introduction to a nightmare’; another said, ‘I am a broken person’. These stories present a devastating picture of ongoing grief, loss, anger and powerlessness. The ALRC is indebted to the many individuals who made the dynamics and experiences of elder abuse painfully clear to us and so powerfully put the need for action, for something to be done.
1.58 The ALRC acknowledges the contribution of all those who have participated in the Inquiry. It is invaluable to the work of the ALRC and greatly enriches the law reform process. The ALRC records its deep appreciation to all stakeholders for this contribution.
1.59 In addition to the contribution of expertise by way of consultations and submissions, specific expertise is also received by the ALRC from members of its Advisory Committee and part-time Commissioners. The Advisory Committee for this Inquiry comprised seven members, who provided crucial input in relation to the consultative documents and final Report. Advisory Committee members also contributed to this Report by way of critical reading in the final stages. The ALRC was also able to call upon the expertise and experience, as part-time Commissioners, of the Hon Justice John Middleton and the Hon Nye Perram of the Federal Court of Australia. In addition, significant input was provided by a number of expert readers who commented on certain chapters of the Report. Their names appear in the list of participants for this Inquiry.
1.60 While the ultimate responsibility in each inquiry remains with the Commissioners of the ALRC, the establishment of a panel of experts as an Advisory Committee, and the enlisting of other expert readers, are invaluable aspects of ALRC inquiry processes–assisting in the identification of key issues, providing quality assurance in the research and consultation effort, and assisting with the development of reform recommendations. The ALRC acknowledges the considerable contribution made by the Advisory Committee, the part-time Commissioners and the expert readers and expresses its gratitude to them for voluntarily providing their time and expertise.
1.61 Once tabled in the Australian Parliament, the Report becomes a public document.[11] ALRC reports are not self-executing documents. The ALRC is an advisory body and provides recommendations about the best way to proceed–but implementation is a matter for others. However, the ALRC has a strong track record of having its advice followed. The Annual Report 2015–16 records that 60% of ALRC reports are substantially implemented and 26% are partially implemented, representing an overall implementation rate of 86%.[12]
1.62 Quite apart from such statistics, an assessment of the contribution that law reform work makes must have a long view. Law reform inquiries have a far bigger impact than just the implementation of recommendations, some of which may occur shortly after a report is released, some many years later. But whether or not recommendations are implemented, ALRC reports provide enormous value. Each ALRC report provides not only a mapping of law as at a particular moment in time, but in reviewing the submissions and consultations, the reports also give a snapshot of opinion on the issues being considered–providing a considerable contribution to legal history and a rich resource for policy makers, locating the issues within their particular social and legal contexts at a given time.
1.63 In making a submission to the Senate Standing Committee on Legal and Constitutional Affairs, when the Committee conducted an inquiry into the ALRC over the summer of 2010–2011,[13] the Federal Court of Australia said that the Court benefits greatly from ALRC reports:
More often than not, an ALRC report contains the best statement or source of the current law on a complex and contentious topic that can remain the case for decades thereafter, whether or not the ALRC’s recommendations are subsequently implemented.[14]
1.64 The overall effect of the ALRC’s recommendations in this Report, Elder Abuse–A National Legal Response, will be to safeguard older people from abuse and support their choices and wishes through:
1.65 These outcomes should be further pursued through a National Plan to combat elder abuse and new empirical research into the prevalence of elder abuse.
1.66 This Inquiry has acknowledged that elder abuse is indeed ‘everybody’s business’. It is also everybody’s responsibility–a responsibility not only to recognise elder abuse, but most importantly, to respond to it effectively. The recommendations in this Report address what legal reform can do to prevent abuse from occurring and to provide clear responses and redress when abuse occurs.
1.67 Ageing eventually comes to all Australians and ensuring that all older people live dignified and autonomous lives free from the pain and degradation of elder abuse must be a priority.
[1] World Health Organization, The Toronto Declaration on the Global Prevention of Elder Abuse (2002).
[2] House of Representatives Standing Committee on Legal and Constitutional Affairs, Parliament of Australia, Older People and the Law (2007) Foreword.
[3] See ch 2.
[4] Patricia Edgar, In Praise of Ageing (Text Publishing, 2013) 8.
[5] Australian Institute of Health and Welfare, Australia’s Welfare 2011, Cat No AUS 412 (2011) 11.
[6] World Health Organization, The Toronto Declaration on the Global Prevention of Elder Abuse (2002).
[7] United Nations Principles for Older Persons, GA Res 46/91, UN GAOR, 46th Session, 74th Plen Mtg, Agenda Item 94(a), UN Doc A/RES/46/91 (16 December 1991) [17]–[18].
[8] The Coalition’s Policy to Protect the Rights of Older Australians <www.liberal.org.au/coalitions-policy-protect-rights-older-australians>; Senator the Hon George Brandis QC, Attorney-General, ‘Protecting the Rights of Older Australians’ (Media Release, 15 June 2016).
[9] Brian Opeskin, ‘Measuring Success’ in Brian Opeskin and David Weisbrot (eds), The Promise of Law Reform (Federation Press, 2005) 202.
[10] This includes 60 confidential, four anonymous, and nine oral submissions. The public submissions are published on the ALRC website.
[11] The Attorney-General is required to table the report within 15 sitting days of receiving it: Australian Law Reform Commission Act 1996 (Cth) s 23.
[12] Australian Law Reform Commission, Annual Report 2015–2016, Report No 130 (2016) 17.
[13] See the inquiry report: Senate Legal and Constitutional Affairs References Committee, Parliament of Australia, Inquiry into the Australian Law Reform Commission, (8 April 2011).
[14] Federal Court of Australia, Submission 22 to Senate Legal and Constitutional Affairs References Committee, Parliament of Australia, Inquiry into the Australian Law Reform Commission, (2011).