'Neglectful to the Point of Cruelty? Elder Abuse and the Rights of Older Persons in Australia' by Wendy Lacey in (2014) 36(1)
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Australia's ageing population is growing and so too is the number of older persons who experience abuse. Divorce, ill-health, disability, the death of a partner, dependency, poverty, social isolation, gender, and even the accumulation of assets, can heighten a person's vulnerability to abuse - physical, social, sexual, psychological, financial or neglect. Addressing elder abuse from a legal and policy perspective is not, however, simple. Perceived Commonwealth dominance in the ageing portfolio, despite the lack of a comprehensive legislative mandate to safeguard older Australians; a lack of innovative legal reform at the state level; ageism; the invisibility of our older people; a lack of awareness within the community of both the prevalence, nature and the signs of elder abuse; together with the absence of an international normative framework for protecting the rights of older persons, have together created a situation where elder abuse is simply not widely acknowledged as a serious issue in Australia and is inadequately addressed under existing laws. This article examines the current legal situation in Australia and calls for a collaborative national strategy for preventing and responding to elder abuse, incorporating a rights-based approach to the review and reform of state and territory laws. Recognising that elder abuse involves the denial of a person's basic human rights, including the right to live free from abuse, exploitation or neglect, this article calls for a national inquiry into elder abuse by the Australian Human Rights Commission.
Lacey notes that
While most states and territories have demonstrated a clear desire to address the issue of elder abuse, there remain significant weaknesses in existing policy frameworks throughout Australia, including the following:
- all strategies, where they exist, are embedded in policy instruments rather than binding laws;
- beyond serious cases where the criminal law is engaged (where the police can intervene), and cases where the victim suffers from mental illness or mental capacity (where mental health and guardianship legislation can be engaged), there is a lack of clear statutory mandates for the investigation of abuse by existing agencies;
- because of the lack of a central, coordinating agency, there is no capacity for early (and statutorily mandated) interventions in suspected and actual abuse cases;
- there is no statutory provision compelling agencies to work collaboratively and to share information in appropriate cases, which would facilitate early intervention and prevention strategies and overcome the restrictions of privacy law;
- criminal provisions have not been reviewed to ensure that elder abuse is legally prohibited and susceptible to criminal prosecution;
- different definitions of elder abuse used throughout the country could inhibit the benefits gained through data collection and the capacity to identify accurate incidence rates across Australia; and,
- some state policies, in focusing very distinctly on elder abuse as abuse within a relationship of trust may be too narrowly framed to operate as comprehensive strategies for safeguarding older persons against all types of abuse (including, for example, scamming, abuse by a stranger), particularly with respect to the framing of criminal provisions and education programs.
With the exception of Queensland and the Northern Territory, every Australian state or territory has some policy framework for addressing elder abuse. Queensland does, however, have a dedicated seniors’ legal service and an information and referral service with arguably the most sophisticated approach to data collection. Most, but not all, Australian jurisdictions have a non-government agency with responsibility for handling phone enquiries and referrals in cases of elder abuse, but only three states currently have publicly funded legal services for seniors. The majority of helpline and referral services within Australia have only been established in the last five years, although both South Australia and Queensland have had services in place since 1997.
The relevant policy instruments include the following:
- ACT’s ‘Elder Abuse Prevention Program Policy 2012’;
- NSW’s ‘Interagency Protocol for Responding to Abuse of Older People 2007’;
- Tasmania’s ‘Responding to Elder Abuse: Tasmanian Government Practice Guidelines for Government and Non-Government Employees 2012’;
- Victoria’s Elder Abuse Prevention and Response Guideline for Action 2012–2014 and With Respect to Age — Victorian Government Practice Guidelines for Health Services and Community Agencies for the Prevention of Elder Abuse 2009;
- South Australia’s Draft Strategy for Safeguarding Older South Australians 2014–2021.
- Western Australia does not have a government policy, but the Alliance for the Prevention of Elder Abuse (‘APEA’) has developed a resource: Elder Abuse Protocol: Guidelines for Action.
In no jurisdiction is there a dedicated agency or unit with the mandate to investigate reported cases of abuse, compel another agency to provide information or cooperate in an investigation, convene multi- agency meetings or to seek specific orders to safeguard a vulnerable older person. Privacy laws around the country pose potentially significant hurdles to the sharing of information between agencies, given the lack of legislative provisions to modify their effect. In all frameworks, the centrality of human rights to the policy is generally embedded in principles underpinning the document. However, South Australia’s Draft Strategy, released for public consultation in June 2013, and containing a new ‘Charter of Rights and Freedoms of Older Persons’, is the most human rights-focused document of the existing or proposed policies. The report that triggered both the review of the previous South Australian framework and the development of the new Draft Strategy — the Closing the Gaps Report — highlighted the systemic weaknesses in the existing framework within South Australia:
The present legal framework therefore provides protective frameworks for serious cases of abuse and for those who are particularly vulnerable due to mental illness or incapacity, but it does not provide a framework for less intrusive methods of intervention, or early intervention, and at a time when serious abuse or neglect could be avoided. In these respects, the current legal system is not preventative in nature and fails to provide an incremental approach to intervention that recognises degrees of vulnerability falling short of complete incapacity. In addition, there is presently a vacuum within which agencies and organisations operate, for the purposes of providing complementary and coordinated services to older persons. The lack of a legal or policy framework which requires or promotes inter-agency collaboration, together with information sharing guidelines, creates a vacuum within which providers must operate. The result is that any collaboration and coordination between agencies is largely left to the goodwill of individuals working within those agencies and can involve instances where an agency’s legal mandate is being creatively stretched beyond its actual limits. In such cases, workers can expose themselves and their employers to considerable risk, but in these instances such action can also reflect the only possible option for supporting an older person who is vulnerable to abuse. The potential can also arise for guardianship orders to be used, as an option of last resort, where less intrusive measures would have been more appropriate and more respectful of an older person’s rights and freedoms.
None of these systemic issues — which apply equally to other jurisdictions where policy frameworks are in place — have been addressed in the new South Australian Draft Strategy. Closing the Gaps presents a compelling argument for the enactment of adult protection legislation at state level in Australia. However, the Draft Strategy is positive in that human rights are incorporated into the document, and it has the potential to encourage further innovation in the policies and protocols that are intended to be developed on the basis of it. Nonetheless, Closing the Gaps suggests that a policy framework is merely an interim option for South Australia and that only legislation in the form of adult protection legislation would effectively ‘close the gaps’ in elder abuse prevention and response protocols. Until then, any elder abuse strategy will suffer from major limitations in the capacity to intervene early in preventing — or at least preventing the escalation of — elder abuse, and in the capacity to respond effectively in reported or known cases of abuse. In Victoria, the recent Chesterman Report, while not going so far as the recommendations made in the Closing the Gaps Report, also made recommendations that would ultimately require expanding the role of the Public Advocate via legislative amendment.
A recent session at a national conference held to mark World Elder Abuse Awareness Day included a national scan of strategies to prevent elder abuse by state and territory governments. The presentations highlighted a significant level of goodwill, yet vast differences in priority and funding accorded to the issue of elder abuse. The policy frameworks in existence in the majority of states and territories are simply inadequate in setting up a legal framework where the rights of older persons can be effectively protected. It would appear that there exists a lack of political will at the state level to drive legislative reform that would provide a legally effective framework for safeguarding vulnerable older persons, and a framework that would equip agencies effectively and lawfully to respond in cases of elder abuse. This lack of political will is partly, perhaps even principally, explained by the perception that the Commonwealth controls ageing as a portfolio and that the responsibility of the states is limited to implementing federally funded programs. This perception is based on a flawed understanding of the scope of both the Commonwealth and state legislative responsibilities with respect to older Australians. There is no constitutional or legal reason why the states cannot unilaterally develop stronger legal frameworks. As public awareness of elder abuse grows, it is just as likely that the gaps in state elder abuse frameworks will be exposed, as it is likely that the Commonwealth’s Aged Care Act will be criticised for failing to prevent the abuse of vulnerable older Australians. Recent reports from both South Australia and Victoria have demonstrated alternative ways in which legislative reform can achieve significant improvements, but without significant associated costs. Thus, there are clear reform options open to the states that would provide significant improvements in the extent to which vulnerable older persons could be supported in cases of abuse, and which need not require Commonwealth funding.
One strategy that might assist in generating greater awareness of both the prevalence of elder abuse throughout Australia and options for reform or changes in practice, would be the commencement of an inquiry into elder abuse by the AHRC. The AHRC has the power to ‘inquire into any act or practice that may be inconsistent with or contrary to any human right’ under s 11(1)(f) of the Australian Human Rights Commission Act 1986 (Cth), along with the power to conduct research and educational programs that promote human rights. While the Commonwealth could certainly use its financial powers to fund a national scheme that would be implemented by the states and territories, one area where it should assume a leading role is through a concerted focus on the human rights of older persons. This could be effected through the AHRC assuming a lead role in ensuring that all Australians, particularly vulnerable persons, continue to enjoy their fundamental rights — for life, and not only while they can self-advocate and self-protect. The benefits of such an inquiry would lie in providing a more accurate picture of the true prevalence of elder abuse within Australia and a platform for a national education campaign on elder abuse and the signs of elder abuse.
