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Elder Abuse - developing a national approach to protecting the rights of elder Australians

Newsletter 21 September 2016

Individuals and organisations were given the opportunity to make submissions in relation to an inquiry by the Australian Law Reform Commission (‘ALRC’) which is considering the existing Commonwealth laws and frameworks which safeguard older Australians from abuse.                                 

The ‘Protecting the Rights of Older Australians from Abuse’ inquiry (‘the Inquiry’) was announced by the Attorney-General, Senator the Hon George Brandis QC, on 24 February 2016. The purpose of the Inquiry is to assist the Federal Government to identify the best practices for protecting older Australians while promoting respect for their rights and preferences.

The Inquiry is being considered by some as the first step in developing a national approach to protecting the rights of elder Australians. The issue of elder abuse has become an area of increasing concern as Australia faces the reality of an ageing population. In 2011, fourteen per cent of the population were 65 years and older however, the Australian Bureau of Statistics estimates that by 2040, this figure will rise to 25 per cent.     

The ALRC has been directed to consider the relationship between the legislation of the Commonwealth, States and Territories in order to identify legal frameworks which promote and support the ability of older Australians to equally participate in their community. In addition to legislation, the Inquiry is considering frameworks including policy and practice guides, codes of conduct, standards, education and information sharing. This dual approach acknowledges that multiple legislative and policy frameworks are utilised to deal with elder abuse across both government and non-government organisations.                   
To coincide with World Elder Abuse Awareness Day, the ALRC released an Issues Paper on 15 June 2016 in relation to the Inquiry. The Issues Paper called for submissions from the public in relation to a range of areas associated with elder abuse including social security, the National Disability Insurance Scheme, superannuation, family agreements, financial institutions and health services.                  

Within the scope of aged care, the Issues Paper recognised that older Australians may experience abuse or neglect in aged care which may be committed by paid staff, other residents in residential care settings, family members or friends.                                     

The ALRC is seeking case studies from the public in relation to examples of elder abuse committed in aged care including in residential, home and flexible care settings. The ALRC is also welcoming suggestions as to changes that should be made to aged care legislation and frameworks to improve safeguards against elder abuse which arise from decisions made on a care recipient’s behalf.                                    

Further, the Inquiry is considering changes that should be made to aged care complaints mechanisms and to the aged care sanctions regime to improve responses to elder abuse. The current sanctions regime, which is administered by the Department of Health, may be imposed on an aged care provider that does not comply with its responsibilities. Sanctions may include revoking or suspending the provider’s approval as an aged care service provider or revoking or suspending the allocation of some or all of the places allocated to a provider. The Issues Paper recognised that there have previously been suggestions that individual remedies should be made available for breaches of the care recipients’ rights and responsibilities which are outlined in the User Rights Principles 2014 (Cth).      

The aged care community welcomed the Inquiry during a conference to mark World Elder Abuse Awareness Day in Adelaide on 15 June 2016.  The Aged Care Complaints Commissioner, Ms Rae Lamb, noted that speaking openly about elder abuse, including by making submissions to the Issues Paper, promotes awareness and is a ‘really powerful weapon’ against elder abuse.                          

It was also noted during the conference that, in addition to the Inquiry, there is a strong focus within the aged care sector on developing an education campaign to raise awareness of elder abuse. This approach has been reflected through the ‘Preventing and Responding to Abuse of Older People Interagency Policy’ (‘the Policy’) which the New South Wales government released in November 2015. The Policy outlines the government’s commitment to minimising the risk of abuse for those living in community settings and providing direction to government agencies, non-government agencies and community organisations working with older people. The Policy also supports the ongoing development of the Elder Abuse Helpline and Resource Unit which provides support, information and referrals to the elderly.    

Submissions to the ALRC closed on 18 August 2016. It is anticipated the ALRC will release a Discussion Paper in November 2016 followed by a report to the Attorney-General in May 2017.                        

Dominique Egan, Partner

Patricia Marninovic, Solicitor

Newsletter 21 September 2016
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