Elder abuse: laws needed to protect the vulnerable

November 23, 2014
elder abuse

They get hit, robbed and shockingly neglected. But older people who are abused or mistreated by their adult children or others are often too afraid or embarrassed to tell anyone. They love their children and may be totally dependent on them. If a neighbour, bank manager, or relative suspects an older person needs protection, it’s likely they won’t know where to turn for help. Unlike child protection, there’s no single agency in any state with legal power to investigate possible cases of elder abuse, and to ensure the rights of the older person are protected. Is it time for that to change? Or are special laws for older people ageist and paternalistic?

Concern about elder abuse is growing in Australia and a chorus of voices is calling for stronger laws to protect vulnerable adults. The professor of law at the University of South Australia, Wendy Lacey, who’s speaking at a major conference tomorrow, has called on the Australian Human Rights Commission to hold a national inquiry into elder abuse to generate awareness and look at options for reform.

The case for law reform was given impetus after the coronial inquest last year into the terrible death of 88 year-old Cynthia Thoresen. Here’s what I wrote then: Mrs Thoresen, who suffered dementia was “found by ambulance paramedics screaming in pain, covered in faeces and pressure sores, malnourished, and with a broken leg. Since a fall three weeks earlier she had been bedbound but no doctor had been called; in fact the mother, totally reliant on her daughter, had not seen a doctor since 2007.”  The mother died two weeks after the paramedics took her to hospital. Despite the shocking neglect, the daughter could not be prosecuted under existing Queensland criminal law as the investigating officer considered there wasn’t enough evidence to support a successful prosecution.

Older people can fall through the cracks of our current system. If assaults are bad enough, the police can be called. If a person has dementia, for example, and is at risk of financial or other abuse, the matter can be taken to a Guardianship Tribunal and a guardian appointed to manage the person’s affairs.

But this is hopelessly inadequate, the critics say. In the case of police intervention, it’s a case of leaving matters too late when early intervention by a more appropriate agency might have helped. With guardianship, it can be a matter of overkill in the absence of less intrusive alternatives. Welfare agencies can access a home only with residents’ permission and have no statutory powers, akin to the powers of state child protection workers, to ensure action is taken. Privacy laws may inhibit them from sharing information with other organisations.

“That Australia’s legal and policy frameworks for dealing with elder abuse are so weak is a national disgrace,” Professor Lacey has written, calling on her fellow lawyers to demand a better system.

Take the real-life example of a bank manager who suspects an elderly woman is being co-erced by her son into withdrawing large amounts from a joint account. Without hard evidence of the woman’s incapacity, and concerned about privacy laws, the bank manager doesn’t know to do. The Office of the Public Advocate in Victoria tells him to conduct his own initial inquiry into the woman’s ability to make her own decisions…..There’s no agency with the legal power to conduct such an investigation.

What might a different system look like? Law professor, Eileen Webb, from the University of WA, has suggested creation of a specific crime of elder abuse. Although some crimes against older people such as assault and fraud are already found in the criminal law, she says attitudes and policies of police and other officials mean “the circumstances of many abused and neglected older adults are not treated as crimes.”

Other countries, including Canada, the US and Scotland have pioneered stronger elder protection systems. Some include mandatory reporting by designated professions. Sometimes a new agency is set up – or a section of an existing government department – is given powers to investigate, and to co-ordinate responses from other agencies.

Scotland’s regime, in place since 2007, is particularly interesting. It confers on local councils (equivalent to our state governments) the power to inquire, investigate and visit where there are concerns a vulnerable adult is at risk of harm. Members of the public can report suspected cases. The council has the power to seek formal assessments, removal, banning and protection orders from courts. But importantly it must respect the autonomy and rights of the older person. An adult can object to the placement of a protective order over them, and intervention can only be taken in a way that’s least restrictive of an adult’s freedom.

Recently major reports on law reform from Victoria and South Australia have made sensible recommendations in this area. They provide a strong basis for action. But how to avoid all this becoming paternalistic? Vulnerable adults aren’t children. Sometimes out of love and loyalty, they may accede, for example, to being robbed blind by one of their children. Both Professors Lacey and Webb say legal change must be based on protecting the human rights of older people. The aim is to empower them, not erode their autonomy under the guise of protecting them. It’s a delicate task. But a national inquiry into elder abuse may be the way to start the conversation.

What do you think? Please leave a comment.

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