Australian Law Reform Commission Report on Elder Abuse - Recommendations for a National Response
On 14 June 2017 the Australian Law Reform Commission (ALRC) released a report (the Report) with 43 recommendations for affording older Australians better protection from misuse or abuse by formal and informal carers, supporters, representatives and others.
Development of a National Plan to combat elder abuse
The ALRC recommends in the Report that the Australian Government, in cooperation with state and territory governments, develops a National Plan to combat elder abuse. The Report states that the National Plan should promote autonomy and agency of older people by addressing ageism and promoting community understanding of elder abuse, achieving national consistency, safeguarding at-risk adults, and improving responses and building the evidence base for responding to elder abuse.
In achieving the above goals, it is recommended that the National Plan takes into account the different experiences and needs of older persons with respect to their gender, sexual orientation, disability and cultural and linguistic diversity.
Development of a serious incident response scheme for aged care
With respect to combatting elder abuse in aged care, the ALRC recommends that the existing aged care legislation be amended to provide for a new ‘serious incident’ response scheme. It proposes that the scheme should require approved aged care providers and their staff members to notify an independent oversight body of the outcome of any investigations of a ‘serious incident’, as well as any allegation or suspicion of a serious incident which is based on reasonable grounds.
The ALRC recommends that, in residential care, ‘serious incident’ includes cases of physical, sexual or financial abuse against a care recipient, seriously inappropriate, improper, inhumane or cruel treatment, and unexplained serious injury or neglect. Sexual or physical abuse by another care recipient should also be reported.
In home or flexible care, the ALRC states that a ‘serious incident’ should include physical, sexual or financial abuse committed by a staff member against a care recipient.
A 'serious incident’ should not include an act or omission that causes harm that is trivial or negligible.
An independent evaluation of research on optimal staffing models
The ALRC recommends that the Department of Health should commission an independent evaluation of optimal staffing models and levels in aged care, and that the results of the evaluation be made public and used to assess the adequacy of staffing in residential aged care against legislative standards.
Unregistered aged care workers subject to a code of conduct
The ALRC recommends that unregistered aged care workers who provide care should be subject to the National Code of Conduct for Health Care Workers.
National employment screening process
The ALRC recommends a national employment screening process for Commonwealth-regulated aged care. The process will dictate whether a person should be granted clearance to work in aged care, having regard to their criminal history, and any relevant serious incidents, disciplinary proceedings or complaints.
Regulation of the use of restrictive practices in residential aged care
The ALRC recommends that aged care legislation should regulate the use of restrictive practices in residential aged care, from the perspective that restrictive practises should be minimally restrictive and only used as a last resort.
The Report recommends that there be additional safeguards around the use of restrictive practises in residential aged care, with the establishment of an independent Senior Practitioner to provide expert leadership on the use of restrictive practices, a requirement for aged care providers to record and report on their use of restrictive practices in residential aged care, and consistent regulation of restrictive practices in aged care and the National Disability Insurance Scheme.
Aged care agreements cannot require an appointed decision maker
The ALRC recommends that aged care legislation be amended to provide that agreements between an approved provider and an aged care recipient cannot require that the care recipient appoint a decision maker for lifestyle, personal or financial matters.
Policies for visitors to report abuse
The ALRC recommends that the Department of Health should develop national guidelines for the community visitors scheme, which contains policies and procedures for visitors to follow if they have concerns about abuse or neglect of a care recipient.
The other recommendations made by the ALRC relate to the regulation of enduring appointments and guardianship, family agreements, superannuation, wills, banking, social security and adult safeguarding.
The full report of the ALRC can be accessed here: https://www.alrc.gov.au/publications/elder-abuse-report
Dominique Egan, Partner
Zoe Hamilton, Senior Associate