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Expert calls for legal reform on elder abuse

Australia’s criminal laws must be reviewed in light of the low rate of prosecutions for elder abuse, according to a leading expert who has also called for the various power of attorney and guardianship laws at state level to be re-examined.

Professor Wendy Lacey, Dean of Law at the University of South Australia told the Australian Association of Gerontology national conference on Wednesday that along with legislative reform, coroners needed to be educated about elder abuse and its prevalence.

While there were mandatory reporting obligations around suspected physical and sexual abuse under the Aged Care Act, these only covered seniors living in residential aged care, and did not protect the majority of older people who were not accessing federally-funded services, she said.

Professor Wendy Lacey

Professor Wendy Lacey

Professor Lacey, who is a co-convenor of the Australian Research Network on Law and Ageing, was last year appointed to the SA Minister for Health’s Steering Committee which reviewed the state’s framework for responding to elder abuse.

She said that under the constitution, the Federal Parliament’s powers to address elder abuse were “virtually nil” with “almost no capacity to develop a comprehensive systemic framework.” Therefore, advocates needed to look the states, said Professor Lacey.

“We can seek the support of the Commonwealth around funding and doing a national review around the prevalence and types of elder abuse, but from a legal and constitutional perspective we have to look to our state governments for the answer,” she told the Adelaide audience.

“Patchy framework”

However, current state laws amounted to a “patchy framework” that did not provide an interconnected, multidisciplinary approach to early intervention, she said.

There was an inability for state agencies, other than police, to conduct an investigation around suspected abuse, she said. Professor Lacey argued that plain-clothed social workers or lawyers calling to an older person’s door to investigate would often be less threatening than uniformed police.

Further, some agencies were working “beyond the scope of their statutory mandate”, such as sharing information in breach of privacy law. “Privacy law can often provide a major hindrance to sharing information in a timely manner which would enable early intervention in elder abuse cases.”

In addition, Professor Lacey called for a review of various state guardianship and power of attorney legislation to look at how they were countering elder abuse.

Review of criminal law needed

Criminal law at the state level was similarly problematic, Professor Lacey said. While crimes such as criminal neglect were contained in state laws, they were not well tailored to deal with elder abuse or were simply not being implemented effectively by police and prosecutors.

“We need to conduct a review of how criminal law operates,” she said.

The fact was that very few cases of elder abuse were prosecuted, she said. “Coroners aren’t necessarily looking at elder abuse as being a possible cause or contributor to cause of death; that’s a real problem,” she said. “In my opinion, coroners’ offices need more education about the prevalence of elder abuse and the fact they should be alerted to it and able to prosecute it. ”

She also highlighted “old myths that older people don’t necessarily make good witnesses; they don’t give great testimony.”

Professor Lacey spoke about the need for criminal leglislation to be nuanced and recognise the complexity of elder abuse. She detailed two cases in which the adult children, both of whom had mental health issues, were successfully prosecuted for criminal neglect as they had not understood their legal responsibility to override their mother’s wishes to refuse care when she had passed decision-making capacity. She contrasted this with a third case that was labelled a “clear case of neglect” by the coroner but which prosecutors did not prosecute due to “insufficient evidence”.

Education, political leadership needed

More broadly, Professor Lacey said a major problem was that elder abuse was not widely understood in the community. While the issue had gained traction with service providers and researchers, there was a lack of understanding among politicians and parliamentarians, she said.

“There is a lot of work to be done and until we get some political traction we are going to struggle.”

The AAG’s 2014 national conference took place from Tuesday to Friday.

Australian Ageing Agenda is the media partner of the AAG.

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4 Responses to Expert calls for legal reform on elder abuse

  1. Shortwinang November 28, 2014 at 12:39 pm #

    The abuse is not being addressed because it is being committed by, and sanctioned by, generationally younger Australians (including politicians, lawyers and the judiciary).

  2. Anonymous November 28, 2014 at 3:04 pm #

    Dear Darragh and Prof. Lacey,

    Thank you for speaking out about the hidden problem of elder abuse in Australia. This article highlights a tremendous problem and also a huge opportunity for all of us to stand up against the abuse of older people.

    The NSW Elder Abuse Helpline provides information, support and referrals relating to the abuse of older people living in the community in NSW.

    If you have suspected, witnessed, or experienced elder abuse in NSW please call the NSW Elder Abuse Helpline on 1800 628 221 – anyone can make the call.

  3. Dave November 29, 2014 at 2:13 pm #

    The mandatory reporting guidelines were illconceived and poorly constructed from inception. identification and prosecution of alleged offenders is haphazard in residential care…good luck with any type of enforcement in the community setting.

    Most police officers are either uncertain about how to manage these allegations or reluctant to pursue an investigation due to the often ambiguous nature of the evidence and the perceived reliability of the victim.

    Of the very few incidents that reach the courts and result in guilty verdicts, most will quielty reappear a year or two later on appeal without the original parties receiving notification. The wise old magistrate will then approve the appeal and quash the conviction (usually because the accused is the one best prepared and there’s nobody there to challenge their appeal).

    Employers only become aware of these events once the accused then lodges an unfair dismissal claim. Great system.

    Most nurses aren’t criminal investigators…and most HR people would much rather sweep this stuff under the carpet…stern warning, supervised work restrictions, relocation to another wing, etc, etc. mandatory reporting hasn’t worked anywhere overseas (less than 0.1% conviction rate) and it isnt working here.

    The main results of the current system are distressed family members, resentful staff, ambivalent policing and frustrated managers…oh, and the continuing vulnerability of the elderly,

    Nothing will change if its left up to the industry to regulate itself. Consumers need to be educated on their rights and start using independent legal representation to create results.

    The department is toothless (The Act doesn’t provide any satisfactory means of redressing poor service or care) and until aged care cops a good dose of litigation these situiations are likely to continue.

    Family members and residents, dont call the department…call a lawyer.

  4. J. Walker March 20, 2016 at 2:44 pm #

    Dear Professor Lacey,

    When my late father became an involuntary subject of application for financial management orders to the NSW Guardianship Tribunal, he was a hidden victim of prior financial exploitation via a new friend’s interference with his wills.

    Regardless of a family member advising the tribunal that she totally distrusted the new friend and his solicitor, who for then unknown reasons, had become her father’s solicitor, the tribunal members ignored her concerns and placed the new friend in the position of the victim’s private financial manager.

    This legal decision resulted in the will interference only being substantiated after the victim’s death which occurred seven years after thr guardianship hearing.

    Another botched job by this unmonitored tribunal.

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