The concept of mandating the reporting of elder abuse is controversial and draws parallels with mandatory reporting of child abuse. While mandatory reporting has existed in some US states for some time, there still seems to be resistance to mandatory reporting in Australia.
The team at Catherine Henry Lawyers believe that before attention is focussed on mandatory reporting, there should be specific legislation to make elder abuse a criminal offence.
The case against mandatory reporting
Some argue that mandatory reporting undermines the rights of older Australians. And that it casts elders essentially as children – potentially reinforcing ageist attitudes.
The Law Council of Australia does not support mandatory reporting of elder abuse where the victim is still capable of making their own decisions e.g. “From a rights-based approach, it is vital that the older person retains the right to decide whether to report the abuse or not.”
The Legal Services Commission (SA) said it, “supports the reporting of incidents of elder abuse to appropriate authorities such as the police and public advocates.” However, as the mandatory reporting of child abuse has shown, lack of resourcing to triage reports and over reporting of minor matters can paralyse the agencies tasked with taking action. It says there is little point in requiring professionals to report abuse to safeguarding agencies, if safeguarding agencies do not have the resources to respond to the abuse.
State Trustees Victoria says mandatory reporting requirements may be seen by the elderly as ‘intrusive and patronising.’ Some objections to mandatory reporting of ‘elder abuse’ might be met by requiring professionals to report only serious abuse of ‘at-risk’ adults, rather than any abuse of all older people.
Seniors Rights Service does not consider that mandatory reporting of elder abuse would prevent or respond adequately to the abuse of older persons.
National Seniors Australia says a mandatory reporting regime is likely to lead to over reporting from well-meaning individuals worried they might be prosecuted if they do not (14.193).
Aged and Community Services Australia does not support mandatory reporting laws but has noted that they can help put elder abuse ‘on the social agenda’ and provide ‘clear procedures to be followed when abuse is identified.’ It has summarised several objections to laws mandating the reporting of elder abuse:
‘Approaches to elder abuse need to be based on an empowering approach, respecting the older person’s autonomy, right and ability to made decisions for themselves. It is important that paternalistic and stereotypical views of older people as being frail, dependent and cognitively impaired do not high-jack the agenda, treating elder abuse in the same way as child abuse, but rather recognise its greater similarities with other forms of family or domestic violence.
It is important not to take away the right of the older person to make their own decisions thus further dis-empowering them at a time when they may already be feeling vulnerable. Mandatory reporting can lead to older people not seeking help for fear of a report being made whether they want it to be or not.’
The Victorian Interagency Guideline for Addressing Violence, Neglect and Abuse states that the head of an organisation or senior departmental officer should ‘protect whistle-blowers,’ that is, ‘ensure that any person who reports an instance of violence, neglect or abuse is not thereby subject to adverse consequences.’
Australian Law Reform Commission (ALRC) position
Although it says there may be a case for mandatory reporting of some types of serious abuse of at-risk adults, given the widespread concerns about mandatory reporting policies, the ALRC does not recommend that such laws be introduced at this time. Instead it says clear protocols should be created setting out when it might be appropriate for professionals to report abuse to safeguarding agencies.
ALRC Recommendation 14–7
Adult safeguarding laws should provide that any person who, in good faith, reports abuse to an adult safeguarding agency should not, as a consequence of their report, be:
(a) liable civilly, criminally or under an administrative process;
(b) found to have departed from standards of professional conduct;
(c) dismissed or threatened in the course of their employment; or
(d) discriminated against with respect to employment or membership in a profession or trade union.
Adult safeguarding agencies should work with relevant professional bodies to develop protocols for when prescribed professionals, such as medical practitioners, should refer the abuse of at-risk adults to adult safeguarding agencies.
Response to Adult Safeguarding
While the Australian Law Reform Commission (ALRC) Report 131, 2017 recommended the introduction of “adult safeguarding” legislation, only the South Australian Government has passed legislation – presumably as a result of the Oakden aged care facility scandal in that state.
A WA parliamentary committee determined it was not necessary to introduce new elder abuse laws and instead recommended strengthening existing laws to protect older citizens.
The case for mandatory reporting
Financial Services Institute of Australasia says some if its members support the mandatory reporting of financial elder abuse.
‘The vulnerability of this sector of the population to cognitive decline and abuse by family members or persons in caring or decision-making roles presents a compelling argument to establish mandatory reporting for professionals, including those in financial services.’
Elder abuse laws and mandatory reporting – the Californian case study
With growing awareness of the problem of elder abuse, the California Legislature enacted the Elder Adult and Dependent Adult Civil Protection Act (EADACPA, or the Elder Abuse Act) in 1991 to help protect elders and dependent adults from physical abuse, mental abuse, financial abuse, as well as neglect and false imprisonment.
Mandatory reporters include caregivers, front line police officers, priests and bank tellers. The legislation, added to existing procedures for reporting elder abuse to enforcement authorities, was intended to assist interested persons hire lawyers on behalf of elderly or dependent adults. However, these protections have remained unfamiliar to many lawyers.
Under the Elder Abuse Act, a dependent adult is any Californian resident between the ages of 18 and 64 who has physical or mental limitations that restrict the ability to carry out normal activities or to protect his or her rights, or who is an inpatient at a 24-hour health care facility.
Abuse is defined broadly. It can mean physical abuse, neglect, financial abuse, abandonment, isolation, abduction, or other treatment resulting in physical harm or pain or mental suffering, or it can mean a care custodian’s deprivation of goods or services that are necessary to avoid physical harm or mental suffering.
- Physical abuse is defined to include unreasonable physical constraint, or prolonged or continual deprivation of food or water.
- Financial abuse includes a situation in which a person or entity takes, secrets, appropriates, or retains the money or property of an elder or a dependent person for wrongful use, with intent to defraud, or in bad faith.
- Potential defendants thus include banks, trust and insurance companies, lenders, and financial planners.
- Neglect includes the negligent failure by any caretaker to exercise the degree of care that a reasonable person would exercise, including assistance in personal hygiene; provision of food, clothing, shelter, and medical care; and protection from health and safety hazards.
San Diego and the case for mandatory reporting – Paul Greenwood
Former San Diego District Attorney Paul Greenwood prosecuted more than 750 cases — including 10 cases of murder and hundreds of cases of financial abuse — during his 20 years with the elder abuse unit. Now an elder abuse consultant, Mr Greenwood is a big supporter of the elder abuse laws and said they are a big deterrent to would-be exploiters of the elderly. He says they were particularly effective in San Diego because of the collaboration between police, prosecutors and social service workers who specialised in older adult protection.
Mr Greenwood has said that once the UK and Australia get to the point where they agree elder abuse is a crime, like domestic violence and stalking or child abuse, then there will be a significant improvement in the response by local police.
He points out that most of his victims never reported the crime or wanted their relatives to get in trouble with the police. This is where elder abuse law is important because with that law comes mandatory reporting.
This firm has assisted several individuals who have been affected by elder abuse or whose aged family member has been exploited. This abuse can take many forms including physical, psychological, sexual, neglect or, the most common form, financial.
We believe before attention is focussed on mandatory reporting, there should be specific legislation to make elder abuse a criminal offence.
Our current legal system does not adequately support people who want to blow the whistle on potential financial exploitation. Police have been shown to typically respond by saying, “This is a family matter… see a lawyer.”
Many feel elder abuse is at the same stage as domestic violence and child abuse was 20 years ago. Many perpetrators think they are above the law.
Elder abuse should be viewed as a crime. Police need greater authority to act in elder abuse cases. New elder abuse laws would significantly improve the response by local police and act as a deterrent to would be exploiters of the elderly.