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Elder Abuse and the Law Marbury Chambers CPD Conference 31March 2019

Explore the definitions of elder abuse, SRS involvement, recommendations, and the national legal response to elder abuse at the Marbury Chambers CPD Conference presented by Rosalie Gibson.

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Elder Abuse and the Law Marbury Chambers CPD Conference 31March 2019

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  1. Elder Abuse and the LawMarbury Chambers CPD Conference 31March 2019 PRESENTED BY Rosalie Gibson

  2. Topics for Presentation • DEFINITIONof Elder Abuse • SRS INVOLVEMENT SRS final report (2018) • RECOMMENDATIONS ALRC Report 131 (2017) • RESPONSECth Attorney General’s Report (Mar, 2019)

  3. DEFINITION Elder Abuse

  4. There are two definitions of elder abuse used in Australia: 1. The World Health Organisation defines elder abuse as: “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” World Health Organisation, Toronto Declaration on the Global Prevention of Elder Abuse 2002

  5. There are two definitions of elder abuse used in Australia: 2. The Australian Network for the Prevention of Elder Abuse: “Any act occurring within a relationship where there is an implication of trust, which results in harm to an older person. Abuse may be physical, sexual, financial, psychological, social and/or neglect” Australian Network for the Prevention of Elder Abuse, 1999

  6. Abuse of Older People • The abuse of older Australians is complex and multi–faceted • Abuse occurs in all cultures and across all levels of society World health Organization Elder Abuse Fact Sheet January 2018 Elder abuse: Understanding Issues, Frameworks and Responses, 2015 Australian Longitudinal Study on Women’s Health 2014

  7. SRS INVOLVEMENT SRS final report (2018)

  8. Seniors Rights Service Conference • We hosted Australia’s 5th National Elder Abuse Conference in Sydney, February 2018 www.seniorsrightsservice.org.au/community-response/

  9. Recommendations to Government “There is no excuse not to act nationally NOW to address the abuse of older people in Australia” SRS Abuse of Older People: A community Response Final Report 2018

  10. Abuse of older people is a complex problem • In Australia we don’t yet have a detailed picture of how extensive the problem is for older people • It has been estimates that as many as 185,000 older people in Australia experience some form of abuse or neglect each year SRS Abuse of Older People: A community Response Final Report 2018

  11. Five commonly recognised forms of abuse of older people • Financial abuse • Psychological or emotional abuse • Neglect • Physical abuse • Sexual abuse SRS Abuse of Older People: A community Response Final Report 2018

  12. RECOMMENDATIONS ALRC Report 131 (2017)

  13. All Australian governments should endorse an Australian definition Australian definition of Elder Abuse should: • develop an agreed and fully funded National Plan that works to eradicate elder abuse

  14. All Australian governments should endorse an Australian definition Australian definition of Elder Abuse should: • develop an agreed and fully funded National Plan that works to eradicate elder abuse • achieve an agreement by all governments to act against the abuse of older people

  15. All Australian governments should endorse an Australian definition Australian definition of Elder Abuse should: • develop an agreed and fully funded National Plan that works to eradicate elder abuse • achieve an agreement by all governments to act against the abuse of older people • gain commitment and support from the Council of Australian Governments (COAG) for the national plan needs

  16. All Australian governments should endorse an Australian definition Australian definition of Elder Abuse should: • develop an agreed and fully funded National Plan that works to eradicate elder abuse • achieve an agreement by all governments to act against the abuse of older people • gain commitment and support from the Council of Australian Governments (COAG) for the national plan needs • provide a framework that must be rights-based

  17. Overview of ALRC Report • National Plan to combat elder abuse • Aged Care • Enduring appointments • Family Agreements • Superannuation • Wills • Banking • Guardianship and Administration • Health and National Disability Insurance Scheme • Social Security • Criminal Justice Responses Elder Abuse- A National Legal Response (ALRC Report 131)

  18. Enduring Appointments • Powers of Attorney • Enduring Guardianship

  19. Family Agreements • Assets for Care

  20. Superannuation • Self managed super funds

  21. Wills • Probate matters • Undue influence • Testamentary matters

  22. Banking • Financial abuse • Guaranteeing mortgages and other loans • Checking “ Authority to Operate” forms

  23. ALRC Elder Abuse Report 2017 43 recommendations for law reform in the following areas: • Improved responses to elder abuse in residential aged care. Elder Abuse- A National Legal Response (ALRC Report 131)

  24. ALRC Elder Abuse Report 2017 43 recommendations for law reform in the following areas: • Improved responses to elder abuse in residential aged care. • Enhanced employment screening of care workers. Elder Abuse- A National Legal Response (ALRC Report 131)

  25. ALRC Elder Abuse Report 2017 43 recommendations for law reform in the following areas: • Improved responses to elder abuse in residential aged care. • Enhanced employment screening of care workers. • Enduring documents. Elder Abuse- A National Legal Response (ALRC Report 131)

  26. ALRC Elder Abuse Report 2017 43 recommendations for law reform in the following areas: • Improved responses to elder abuse in residential aged care. • Enhanced employment screening of care workers. • Enduring documents. • Banks and financial institutions. Elder Abuse- A National Legal Response (ALRC Report 131)

  27. ALRC Elder Abuse Report 2017 43 recommendations for law reform in the following areas: • Improved responses to elder abuse in residential aged care. • Enhanced employment screening of care workers. • Enduring documents. • Banks and financial institutions. • Self-managed superannuation sector. Elder Abuse- A National Legal Response (ALRC Report 131)

  28. ALRC Elder Abuse Report 2017 43 recommendations for law reform in the following areas: • Improved responses to elder abuse in residential aged care. • Enhanced employment screening of care workers. • Enduring documents. • Banks and financial institutions. • Self-managed superannuation sector. • Governments in Australia to work together to develop a National Plan to combat elder abuse. Elder Abuse- A National Legal Response (ALRC Report 131)

  29. ALRC Elder Abuse Report 2017 Five key objectives of a National Plan: • Empower all older Australians to live with autonomy. • Promote positive views of ageing in the community. • Ensure there’s somewhere to turn to for help. • Develop a nationally consistent approach. • Understanding of abuse and its effects. Elder Abuse- A National Legal Response (ALRC Report 131)

  30. At-risk groups identified At risk groups tend to be older people who are: • female, • socially isolated, • carers • experiencing significant disability, • of poor physical and/or mental health, • living in rural and remote areas, • experiencing poverty, • living in an Aboriginal or Torres Strait Islander communities, • living in culturally and linguistically diverse communities, • lesbian, gay, bisexual, transgender and intersex people. Elder Abuse- A National Legal Response (ALRC Report 131)

  31. Proposed Legislative Reviews • No Australian state or territory has introduced specific legislation to protect older people from abuse • All jurisdictions to address conduct Elder Abuse- A National Legal Response (ALRC Report 131)

  32. National Plan to Combat Elder Abuse • The Australian Government, in cooperation with state and territory governments, should develop a National Plan to combat elder abuse. • The National Plan should: (a) establish a national policy framework; (b) outline strategies and actions by government and the community; (c) set priorities for the implementation of agreed actions; and (d) provide for further research and evaluation. Elder Abuse- A National Legal Response (ALRC Report 131)

  33. National Plan to Combat Elder Abuse The National Plan to identify goals, including: (a) promoting the autonomy and agency of older people; (b) addressing ageism and promoting community understanding of elder abuse; (c) achieving national consistency; (d) safeguarding at-risk adults and improving responses; and (e) building the evidence base. Elder Abuse- A National Legal Response (ALRC Report 131)

  34. The National Plan (cont) • The National Plan should take into account the different experiences and needs of older persons with respect to : (a) gender (b) sexual orientation (c) disability; and (d) cultural and linguistic diversity (e) older Aboriginal and Torres Strait Islander people; and (f) older people living in rural and remote communities Elder Abuse- A National Legal Response (ALRC Report 131)

  35. Senior Rights Service resources Hon. Justice Sarah Derrington and Mr Matt Corrigan discuss the 43 recommendations for law reform within the ALRC report. https://www.youtube.com/embed/zyrvaDDy3oY?start=0&end=249

  36. RESPONSE Cth Attorney General’s Report (Mar, 2019)

  37. The National Plan is ready • Council of Attorneys-General report was released 19 March 2019 • The release meets a key recommendation of the Australian Law reform Commission’s 2017 report, Elder Abuse: A National Legal Response. National Plan to Respond to the Abuse of Older Australians (Elder Abuse) 2019-2023

  38. National Research Program • The government is focused on strengthening the evidence base on the nature and prevalence of elder abuse in Australia National Plan to Respond to the Abuse of Older Australians (Elder Abuse) 2019-2023

  39. The National Plan • Since 2016, the Australian Government has funded a National Research Agenda on abuse of older people • The first national prevalence study will commence in 2019 National Plan to Respond to the Abuse of Older Australians (Elder Abuse) 2019-2023

  40. 2019 Australia’s first National Study • An older persons survey • A general community survey • Findings from the study will be available in mid 2020 National Plan to Respond to the Abuse of Older Australians (Elder Abuse) 2019-2023

  41. Key Priority Areas • Enhancing our understanding. • Improving community awareness and access to information. • Strengthening service responses. • Planning for future decision-making. • Strengthening safeguards for vulnerable older adults. National Plan to Respond to the Abuse of Older Australians (Elder Abuse) 2019-2023

  42. Implementation and governance of the National Plan • Because each state has its own laws, institutions and frameworks and will develop individual responses to the National Plan’s five priority action areas; • an Implementation Executive Group will be formed. National Plan to Respond to the Abuse of Older Australians (Elder Abuse) 2019-2023

  43. Evidence Base • For example, data on physical abuse collected by the Australian Bureau of Statistics as part of its Personal Safety Surveys gives some information to: • estimate how many people are impacted by physical abuse, and • identify the older people who might be most likely to experience this type of abuse National Plan to Respond to the Abuse of Older Australians (Elder Abuse) 2019-2023

  44. Improving community awareness and access to information • Raising community awareness is an important pillar on which the National Plan rests. • Educating the community is vitally important. National Plan to Respond to the Abuse of Older Australians (Elder Abuse) 2019-2023

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