Queensland Law Society and the Public Advocate of Queensland have this week released the ‘Elder Abuse Joint Issues Paper’ (Paper).
The Paper represents the culmination of work by a working group established by QLS and the Public Advocate, led by the QLS Elder Law Committee. As part of its mandate, the Committee seeks to identify areas of law that impact on older people or the provision of services to them and advocate for improvements to the law.1 The Public Advocate is an independent statutory role established to provide systemic advocacy for adult Queenslanders with impaired decision-making capacity.2
A decade of law reform
QLS and the Public Advocate’s previous joint publication, ‘Elder Abuse: How well does the law cope in Queensland?’ was released in June 2010, now more than a decade ago. At that time, elder abuse was a relatively recently recognised phenomenon, both globally and in the Australian context.
Since the publication of the first edition, Australian society has become more aware of the issues of violence, abuse and neglect of older persons and there have been significant advances at the international, federal and state levels in both our understanding of, and responses to, elder abuse.
In response to these developments, QLS and the Public Advocate agreed to collaborate on an updated Paper. The Paper provides an overview of important recent reform developments to the elder abuse legal landscape in an effort to stimulate discussion and debate on the current legal issues associated with elder abuse. The Paper also makes a number of recommendations for law and policy reform.
One in six subject to elder abuse
The Paper’s release is timely given the Australian Institute of Family Studies (AIFS) has just released the findings of the first ever national systemic study of elder abuse prevalence in Australia.3 The study, which surveyed 7000 people aged 65 and over living in the community, identified that 14.8% of older people had been subject to elder abuse in the preceding 12 months.4 Given the study did not include older people living in residential aged care settings or older people with impaired decision-making capacity, the true prevalence of elder abuse is likely to be higher.
The cohort of Australians aged 65 and over is expected to more than double from 3.8 million to 8.8 million in the next 25 years,5 equating to a significant amount of older people who may be subjected to elder abuse.
What is elder abuse?
Important work has also been done by the AIFS to appropriately define ‘elder abuse’ and the Paper explores how the way we see and describe elder abuse has evolved. A shift in terminology has occurred, from ‘elder’ and ‘elderly’ to ‘older persons’, with a focus on vulnerability as opposed to age.
While the term ‘elder abuse’ or ‘abuse of older persons’ is not defined by common law or in any legislative framework, recent exploratory studies have proposed updated definitions of elder abuse that seek to capture a broad range of situations of violence, abuse and neglect, including (non-exhaustively):
- physical abuse
- emotional/psychological abuse
- financial/economic abuse
- sexual abuse
- social abuse
- chemical abuse (including undermedicating and overmedicating a person, or controlling their access to medications)
The current AIFS working definition of elder abuse is6:
“A single or repeated act or failure to act, including threats, that results in harm or distress to an older person. These occur where there is an expectation of trust and/or where there is a power imbalance between the party responsible and the older person.”
Who experiences elder abuse?
Any older Australian can experience elder abuse. However, there are individual factors or life circumstances that can increase an older person’s vulnerability and/or influence their risk of experiencing violence, abuse or neglect.7 The nature and dynamics of abuse experienced by older people may be influenced by their being part of one or more particular communities. These include Aboriginal and Torres Strait Islander persons, culturally and linguistically diverse communities, persons with disability, women, LGBTI+ communities, and carers.
It is widely acknowledged that elder abuse, including financial abuse, is significantly under-reported. There are gaps in the research that perpetuate a lack of understanding about both the motivations for, and consequences of, abuse of older persons, and highlight serious under-reporting of elder abuse. This was reinforced by the ‘Inquiry into the adequacy of existing financial protections for Queensland’s seniors’ when it identified the potential failure to identify financial abuse as a crime, and noted that feelings of shame and embarrassment were factors contributing to high levels of underreporting.8
Who perpetrates elder abuse?
As knowledge about the abuse of older persons has increased in recent years, so too has our knowledge of those who perpetrate the abuse. Perpetrators are most often family members, with the overwhelming majority being the victim’s adult children, followed by a spouse, partner or other relative, and, to a lesser extent, informal or paid carers. Yet, we know that perpetrators may also be an older person’s friends, neighbours and acquaintances.
How does the law respond to elder abuse?
Laws relating to elder abuse exist across Commonwealth, state and territory jurisdictions, and span a variety of areas. The Commonwealth has the power to make laws relating to financial institutions, social security, superannuation and aged care. Meanwhile, laws relating to guardianship and administration, powers of attorney and most criminal laws, lie with the Australian states and territories. Traditionally, it has been the responsibility of the states and territories to provide the frameworks in which to coordinate responses to elder abuse.
More recently, however, national attention on the issue has driven a number of responses at the federal government level; most notably:
- the Australian Law Reform Commission’s 2016 ‘Inquiry into Protecting the Rights of Older Australians from Abuse’
- the Council of Attorneys-General’s development of the ‘National Plan to Respond to the Abuse of Older Australians’
- the Royal Commission into Aged Care Quality and Safety’s final report, ‘Care, Dignity and Respect’ released in February last year.
At the state level, there are a number of statutory agencies which have the power under legislation to protect older persons who are victims of abuse, violence or neglect. The activities of Queensland’s various statutory agencies include investigation, prosecution, determination of capacity, appointment of substitute decision-makers, and substitute decision-making services.
These agencies include the Queensland Human Rights Commission, Office of the Public Guardian, Public Trustee of Queensland, Public Advocate, Queensland Civil and Administrative Tribunal, and Queensland Police Service. Additionally, the requirement to interpret laws compatibly with human rights under the Human Rights Act 2019 (Qld) may impact the way laws that limit the rights of older persons are interpreted, for example in relation to Queensland’s guardianship and administration system.
The Paper discusses the various civil and criminal law remedies that are currently available to older people experiencing elder abuse.
Policy and law reform recommendations
Elder abuse has gained significant attention in Australia in recent years as a serious problem requiring increased policy focus. The Paper makes a number of recommendations for policy and law reform.
One policy response currently under development by the Council of Attorneys-General is a national register of enduring powers of attorney for financial matters, to protect and mitigate against the financial abuse of older persons that is perpetrated through misuse of enduring documents. QLS and the Public Advocate support strategies to reduce the prevalence of abuse of older Australians and acknowledge that a national register of some form could provide certain benefits.
However, there are also significant challenges with the register as currently proposed. Most pressing is the desirability of harmonisation of the law relating to enduring documents before the register’s introduction. Both QLS and the Public Advocate agree that more nationally consistent laws governing enduring powers of attorney and a national model-enduring document should be matters of priority for Attorneys-General, and consider that this should be resolved prior to the implementation of a national register.
In relation to the application of Queensland’s guardianship and administration framework to older persons with impaired decision-making capacity, QLS and the Public Advocate also consider that supported decision-making take place whenever possible. QLS has also recommended that relevant third parties who seek to rely on documents or orders that give a person the power to make decisions on behalf of another (for example, financial institutions, health services and other service providers) should be provided with training on the distinction between supported decision-making and substitute decision-making.
In the aged care space, which is undergoing significant reform in the wake of the Royal Commission into Aged Care Quality and Safety, QLS and the Public Advocate have advocated for a rights-based approach to aged care that places greater emphasis on the realisation of human rights. A consumer rights-style protection framework has proven to be inadequate and has produced unacceptable outcomes for people in residential aged care.
Issues also remain with the authorisation framework for restrictive practices in aged care settings, and both QLS and the Public Advocate are actively engaged in advocating for an alternative authorisation framework to the current consent-based model that exists in Queensland. In October 2021, the Public Advocate released an options paper regarding restrictive practices and the issues regarding the consent model currently used in Queensland.
While there have been significant advances in the awareness of, and responses to, the abuse of older persons internationally, federally and at the Queensland level over the past decade, it is critical to recognise that barriers remain to older people accessing legal advice and support services when they fall victim to abuse due to physical, personal, economic, social and/or environmental factors.
These impediments to legal and other necessary assistance for older persons reinforce the need for continued discussion, debate and reform to develop and implement appropriate prevention and deterrence mechanisms to reduce the incidence of elder abuse in Queensland and Australia more broadly.
QLS and the Public Advocate hope the Paper will be considered a useful contribution to this developing area of law reform and will assist to achieve positive change that appropriately protects and promotes the rights of older Queenslanders.
Brooke Thompson is a Queensland Law Society Policy Solicitor.
1 Other QLS legal policy committees that contributed to the Paper are the Human Rights and Public Law Committee, Health and Disability Law Committee, and the First Nations Consulting Committee.
2 The position of Public Advocate is an independent statutory role established by s209 of the Guardianship and Administration Act 2000 (Qld).
3 L Qu et al, National Elder Abuse Prevalence Study: Final Report (Australian Institute of Family Studies, Research Report, December 2021).
5 Ibid 1.
6 Kaspiew et al, ‘Elder Abuse National Research – Strengthening the Evidence Base: Research Definition Background Paper’ (Australian Institute of Family Studies, 2019) 4.
7 Elder Abuse Prevention Unit, Year in Review 2019-20 (Report, 2020) 17.
8 Communities, Disability Services and Domestic and Family Violence Prevention Committee (Report 2015)101, 103, cited in Rae Kaspiew, Rachel Carson and Helen Rhoades, Elder abuse: Understanding issues, frameworks and responses (Research Report No 35, 2016).