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Precedent (Australian Lawyers Alliance) |
ADDRESSING ELDER ABUSE IN AUSTRALIA
THE CASE FOR AN ELDER JUSTICE LAW
Because in its many manifestations elder abuse can intersect with close family relationships, our society has been cautious, if not timid, in its approach to proscribing abusive conduct and slow to criminalise, or at least to intervene legally and regulate, behaviour between strangers that has long been outlawed. The obvious examples from our recent legal history have been domestic violence and also family conflict over care and control of children (family law and child protection legislation). In each case our society has recently made great progress in recognising and dealing with these issues, and an important part of that progress has included legal reforms.
Elder abuse is a social phenomenon which doubtless has always been with us. However, until perhaps the late 20th century, older generations could rely upon their experience for wisdom and authority, thus to some extent maintaining the respect which they claimed as their due.
With the advent of mass media and the internet, experience today counts for little and wisdom has been undermined by Professor Google and the University of Wikipedia. Perhaps elder abuse is on the rise just as respect for elders is on the decline. What is unarguable, however, is that the number of elders in the community is increasing and the problems of elder abuse must be addressed because they will not go away if left untackled.
In its final Report, the ALRC discussed the US experience in legislating for specific criminal offences involving the abuse of older persons.[3] But its conclusion was that:
‘... a range of types of conduct, which might be described as “elder abuse”, are covered in all jurisdictions under offence provisions relating to personal violence and property offences. These include assault, sexual offence, kidnap and detain offences, and fraud and theft offences. Some jurisdictions have offences for neglect, although these are rarely utilised in respect of older people.’[4]
The World Health Organisation (WHO) has defined ‘elder abuse’ in the following terms:
‘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’.[5]
In this article reference is made (see below) to an offence of aggravated elder abuse for which a special definition, intended for the proposed EJL, is offered.
Who, then, is ‘an elder’? Many meanings have been suggested, and many resisted. Possible definitions have been described[6] as including:
• The age of ‘retirement’ of men aged 65 years and of women aged 60 years;
• The age of access to a government pension;
• The age of access to superannuation;
• The age of access to a state government’s Senior’s Card when no longer working full time and aged 60 years; and
• The age of 50 years or younger for older Aboriginal people.
Resistance arises from what some view as disrespect for Indigenous cultural understanding of an elder. Bearing in mind that the term needs to be clarified if it is to be part of criminal legislation, its meaning has been reduced to the age of 65 years and over, with leave of the court required to include a person of 55 years or older.
The EJL addresses the situation for vulnerable elders, not elders in general. A person would be considered vulnerable (put generally) if they have a physical, mental, psychological or psychiatric disability coupled with an inability to defend themselves against abuse and exploitation, or are unable to understand the nature and effect of their decisions, or make and communicate decisions freely and voluntarily.
A disability may include impaired cognition; dependence upon the offender or a position of deference or submission to the position or authority of the offender; social isolation or any other matter which contributes to the victim’s vulnerability.
CONNECTING ELDER ABUSE TO ELDER LAW
Psychological abuse can also be identified by reference to demands of family members for (usually financial) assistance and the consequences for the elder parent if they are not compliant. These kinds of cases are typically illustrated by phrases such as: “If you don’t lend me the money I will go broke and you won’t see your grandchildren again”, or “If you won’t give me the money which I am going to get anyway when you die, I will kill myself.”
There is also a perpetrator model where a controlling adult child isolates their elder parent from social contact, including other family members. Social elder abuse may include forms of neglect and deliberate isolation caused by the offender.
These and similar instances are not situations which readily lend themselves to legal action or remedy unless there is violence, whether actual or apprehended. Even then, there is little in the way of support for people who become complainants before the courts. There is also the reluctance of police to interfere in such family relationships.
Physical and sexual elder abuse, on the other hand, are well known and should be appropriately managed by the law and police. There may be evidentiary problems in cases which involve vulnerable elders affected by dementia, but that is a problem that is not easily resolved and it is not addressed by this proposal for a new law.
In its recent study on elder abuse,[9] the National Ageing Research Institute identified risk factors which sometimes characterise the elder and the offender respectively. The risk factors do not always identify either a victim or an offender. However, they are markers that may assist others in taking more care and paying greater attention when considering advice, support and assistance. Lawyers are often in the frontline in many instances of elder abuse.
The risk factors for an elder include cognitive impairment, dependence, poor health including psychiatric illness, social isolation and co-residence with another person who themselves may display some of the risk factors for an offender. Those factors include psychiatric illness, substance abuse, lack of social support, caregiver stress, controlling personality, financial problems and dependence upon an elder.
To remain connected to the community that we serve, lawyers should listen and adopt the language of the community – elder abuse – and then we become useful when we can identify its legal elements. Only then can the legal responses work for the victim. The most efficient way to demonstrate the connections is to set them out together. The following table is not intended to be exhaustive:
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Elder abuse
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Unwanted behaviour
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Legal counterparts
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Financial elder abuse
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Interference with money and property without proper consent
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Undue influence; unconscionable conduct; promissory estoppel; breach of
fiduciary duty; removal of appointed attorney under power
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Psychological elder abuse
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Verbal abuse and harassment causing emotional harm and anxiety (for example
transactions following threats like isolation of an elder
from family and
friends)
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Undue influence and unconscionable conduct (transactional and will-making,
loans, guarantees, accommodation agreements)
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Elder abuse by neglect
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Withholding care and medical attention, food and drink or other necessities
where there is an obligation to provide them; isolation
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Change of legal guardian; criminal charges under the various Crimes Acts;
coronial inquest
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Physical elder abuse
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Assault; battery (for example medication error); unlawful restraint (for
example in residential aged care without lawful consent)
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Criminal charges in local courts; domestic violence proceedings; and in
relation to claims or accusations against professional carers,
professional
disciplinary tribunals; common law claims in the local or superior courts
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Sexual elder abuse
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Sexual assault and associated offences, including rape
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Criminal charges in the local or superior courts
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At first sight there seem to be legal remedies and connections for each of the headline abuse forms. However, the problems for the victims really only start there.
Consider, for example, the plight of those for whom the law is financially quite out of reach (especially the significant cost of litigation in the superior courts). In reality that means the majority of the community we serve. Most of the financial abuse remedies are to be found in the equity divisions of the various supreme courts. In cases involving residential homes and questions of ownership and entitlement, it becomes necessary to risk the house in order to save it. For many litigants, such are the risks as regards costs. How high the hurdle, then, if you are old and infirm.
Those who live in rural and remote areas of the country face other problems in addition to financial barriers. Although the legal profession is reasonably well represented in major towns, with some firms having branches in smaller townships, most supreme courts (subject to circuit arrangements) with their equity divisions are some distance away, and speak a professional language as remote as the distance from the community itself.
Reasons of cost and remoteness alone lend merit to a new Elder Justice Act in which most of the relevant remedies may be found. There are added benefits for victims and their families if restitution, recovery of money and property and a more economical means to achieve justice can be accessed.
A new law would provide the means to concentrate the resources of community support, guidance and mandatory compliance, where necessary. It could provide mechanisms designed to preserve family relationships, requiring the co-operation of the offender in seeking alternate pathways to justice without formal criminal proceedings. It could provide pathways for community and other stakeholder support by making it possible to refer victims for recourse to the law, offering meaningful outcomes while protecting victims and considering and respecting family relationships in the process.
To support and assist victims of elder abuse in remote and rural areas, the EJL proposal includes investing local courts and civil and administrative tribunals with jurisdiction. That jurisdiction may be concurrent with all other ordinary superior courts.
At present, victims of elder abuse can consult a range of community support organisations and state and territory officers and health practitioners. However, for the most part these organisations have no capacity or mandate to directly assist the victim in recovering property, or stopping the abusive behaviour.
There is no power to investigate, which usually rests with the police. With the exception of funded advocacy services, there are rarely resources or people with professional qualifications to advise or assist in recovering property or a mandatory change in the status quo (such as with orders for guardianship or financial management). The tribunals which have authority in this latter area do not have an advice function with sufficient resources to make a difference. However, they do play a very important role in addressing elder abuse, even though their legal authority is underdeveloped and falls short in terms of their potential to decide conflict issues for victims (and not just appoint decision-makers).
The most recent model of lawmaking to assist victims of family abuse are the various domestic violence initiatives agreed by the states and territories which have made an impact upon police practice, security and justice for victims and consequences for offenders.
However, there is an elder justice gap in the cohort of community organisations, government resources and social welfare groups which make up the support resources for victims of elder abuse. Some of them are shown in the diagram depicting the elder justice action gap. The diagram illustrates how many of the stakeholders and first responders in the elder abuse scene do not have any real authority. These stakeholders have almost nowhere to turn for securing tangible results enforceable against the offender – for example, compelling attendance at settlement or mediation conferences.
Eventually, stakeholders may defer to the police or to lawyers in cases where the offender must submit to compulsion for there to be any hope of achieving justice through recovery of property, or the very important need for there to be consequences for the offender for their behaviour.
Not only is there a gap, but there are serious shortcomings in the legal remedies currently available. This can be demonstrated by reviewing the proposed new offences and causes of action, and the procedures which the new law should include to maximise community support, focus upon the victim and their family and preserve relationships.
The draft proposed Elder Justice Law should include several new offences which address elder abuse in most of its forms. That includes provisions for the following:
i. Elder abuse by undue influence;
ii. Elder abuse by breach of fiduciary duty;
iii. Elder abuse by unlawful restraint;
iv. Elder abuse by battery;
v. Elder abuse by assault;
vi. Elder abuse by neglect; and
vii. Aggravated elder abuse.
The first six offences can be adapted from the common law. For sceptics who might claim that the legal history of some of these concepts is so steeped in the decisions of superior court judges that it would be impossible to encapsulate them in a coherent statutory format, the provisions of ss20 and 21 of the Australian Consumer Law provide a useful model.
How elder abuse should be defined however will be a matter for serious debate, since there is little to refer to which might inform the drafting except for several statutes in the United States. Few of them are likely to appeal to Australian lawyers.[10]
The EJL proposal includes a new offence of ‘aggravated elder abuse’ which would have the following elements:
(i) One or more act or omission resulting in emotional, verbal or physical abuse by a carer or other person upon whom the vulnerable elder is dependent; and
(ii) whose conduct is causing or may potentially cause serious harm; and
(iii) the perpetrator knows or ought to know the harm suffered or which may be suffered by the elder.
Apart from the offences, the inclusion of other aspects should be noted. The first is a provision which extends the forfeiture rule beyond the limits that have so far applied in Australia. The proposal is for a person convicted of the offence of Elder Abuse by Undue Influence under the EJL in respect of the making of the relevant will to be excluded wholly or partly from a benefit under the will of the elder victim. The forfeiture also applies when, in cases of recent discovery of facts and events occurring years earlier, the court, upon hearing the facts and extending time for the prosecution, convicts the accused of the offence upon the criminal standard of proof. This outcome may well be one of the most powerful deterrents in the struggle of the community to address such behaviour by perpetrators, which is often called ‘inheritance impatience’.
Another aspect is the choice of the victim to pursue a breach of the relevant section of the EJL as a cause of action in the civil courts. The criminal proceedings may be suspended by the court pending the outcome of the civil proceedings and compliance with a judgment.
A central part of the proposed law is the inclusion of mandatory conferences between the victim and her/his supporters, the offender (who may be compelled to attend if the criminal proceedings have started) and a person nominated by the police as a mediator. The procedure is modelled upon similar provisions found in the Young Offenders Act 1997 (NSW). This is the mechanism which has so far been missing from the elder abuse scene in most cases where only family is involved; namely, the mandatory requirement for the offender to face others in the family as well as the victim in a setting designed to resolve issues and preserve relationships, not to aggravate them.
Upon conviction, sentencing options should be as wide as possible to fit the circumstances. Likewise, the sentencing options[11] should be applied with appropriate programs supported by state governments, local governments, community and other purpose-specific organisations, social workers and other professionals enlisted to provide solutions for the people (victims and offenders) involved in cases brought before the court under the proposed Act.
The purposes of intervention programs include[12] promoting rehabilitation; respect for law and a safe community; encouraging remedial action by offenders; and the offender’s acceptance of accountability and responsibility for their offending behaviour.
Rodney Lewis is senior solicitor at Elderlaw – the legal firm, of Martin Place, Sydney. He is author of the text Elder Law in Australia, 2nd ed, Lexis Nexis, Sydney, 2011. He has presented many seminars on Elder Law to his legal colleagues. He sees Elder Abuse through the prism of human rights and the need to promote them for the benefit of vulnerable elders in our community. EMAIL rodney@elderlaw.com.au.
[2] Ibid, para 31.
[3] Australian Law Review Commission, Elder Abuse – A National Legal Response, Report No. 131 (2017) [13.4].
[4] Ibid, [13.5].
[6] Professor M Clare, Dr B B Blundell and Dr J Clare, Examination of the extent of elder abuse in Western Australia: A qualitative and quantitative investigation of existing agency policy, service responses and recorded data (The University of Western Australia, April 2011) 38.
[7] NSW Government, Family and Community Services, Interagency protocol for responding to abuse of older people (NSW Government, 2007) ch 2.1.
[8] Australian Institute of Health and Welfare, Australia’s welfare 2017, Australia’s welfare series No. 13 (Canberra, 2017) ch 5.
[9] M Joosten, F Vrantsidis and B Dow, ‘Risk factors for abuse’ in Understanding Elder Abuse: A Scoping Study (Melbourne: University of Melbourne and the National Ageing Research Institute, 2017) 21 and 23.
[10] For a helpful summary of US state laws and associated materials prepared by the ABA Commission on Law and Ageing see <www.americanbar.org/groups/law_aging/resources/elder_abuse.html#laws> (accessed 9 July 2018).
[11] Criminal Procedure Act 1986 (NSW), ch 7, pt 4.
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URL: http://www.austlii.edu.au/au/journals/PrecedentAULA/2018/61.html