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 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.