Date: 
Thursday 22 November 2018

Author

Rosalind.Croucher

DAVID WALLACE ADDRESS 2018
51ST AUSTRALIAN ASSOCIATION OF GERONTOLOGY CONFERENCE—
‘ADVANCING, NOT RETIRING: ACTIVE PLAYERS, A FAIR FUTURE’

22 November 2018

EMERITUS PROFESSOR ROSALIND F CROUCHER AM
PRESIDENT, AUSTRALIAN HUMAN RIGHTS COMMISSION
[Professor Croucher spoke to this paper]

Introduction

I would like to begin my presentation by acknowledging the ancestral owners of this land, the Wurundjeri people of the Kulin Nation, and to pay my respect to elders, past, present and emerging. I also extend my respect to all Aboriginal and Torres Strait Islander participants here today.

Nearly a year ago I was invited by Associate Professor Christine Stirling and Associate Professor Briony Dow to present this address. I am greatly honoured by the invitation and your excellent forward planning!

Being asked to present an address in honour of a person is both humbling and a challenge. Humbling, because of what you learn about the person being honoured; and a challenge because they clearly left ‘big shoes’ to fill, and the speakers who have been asked before are a ‘Who’s Who’ in the particular world of the honoured one. As I am a lawyer, I sit on the outer peripheries of the central work of gerontology—both through professional and personal interest. I am very proud of the fact that my final work at the Australian Law Reform Commission was to lead the inquiry into Elder Abuse,  which brings me here today.

David Wallace

I learned that David Wallace was a founding member of the Association, a pioneer in the field of gerontology and geriatric medicine in Australia.

I was intrigued to learn that David’s father became the Director General of Health of New South Wales, which clearly inspired his career choice to pursue medicine at Sydney University in the 1940s. As an example of life’s curious parallels, there David would have walked past the School of Public Health and Tropical Medicine, opened in 1930, following an arrangement between the Commonwealth government and the University of Sydney, led by my grandfather, the Commonwealth Director General of Public Health, Dr John Howard Lidgett Cumpston, whose picture hangs somewhere in the foyer of the old school.

The Australian Dictionary of Biography entry for my grandfather speaks of him in the 1930s and of his ‘belief in the need to cherish health rather than treat illness’, including the transformation of the National Health & Medical Research Council. I know that he saved Australia from the Spanish flu in 1919 because of the swift quarantine response he led. Dr Cumpston was also an avid historian, which seems to be genetically transmitted to his children, including my mother, and mixed in with law, to my passion for legal history.

In another parallel with my grandfather, I note that David ‘sacrificed much for the education of his children’, two of the four following him into medicine.  I remember my aunt, my mother’s oldest sibling, saying to me that her father had said to her, ‘I can’t give you capital, but I can give you an education’. He was an enlightened man and ensured his four daughters were educated as well as his three sons.

David Wallace was only fifty-three when he died. He left the world far too soon.

The Elder Abuse Report

The Elder Abuse Inquiry was most timely—given the problem, the challenge, and the opportunity of an ageing demographic. The Australian population, like other developed countries, is an ageing one—the result of a combination of increasing life expectancy and lower fertility levels.  Approximately 15% of the population was aged 65 or over in 2014–15, and this is expected to rise to around 23% by 2055. A female child born in 1900 could expect to live to 59, but in 2017 can expect to live to 85.

The statistics are quite confronting, however you look at them: whether it’s in terms of the numbers of workers that will be needed to support an ageing population, or whether it’s the extent to which health services, aged care services and disability services will be needed in future, an ageing demographic provides a very intense opportunity for public policy concern. In fact a parliamentary report in 2007 referred to this as the ‘inescapable demographic destiny’ of an ageing population.

By way of personal reflection, my mother turned 97 last month, and Dad will on 30 December. They are living independently. Dad still drives—retaining a full unrestricted licence—but also loves the ride-on lawnmower, a new career of sorts after being one of the longest serving judicial officers in NSW.

In thinking about my own parents, and what I would expect when I am their age, it is not to be infantilised, treated as a child, but to be respected. This was a guiding mantra of sorts for me in leading the Elder Abuse inquiry: a combination of ‘honour thy father and thy mother’, and ‘do unto others as you would have them do unto you’. The UN Principles for Older Persons express such commitments thus:
Older persons should be able to live in dignity and security and be free of exploitation and physical or mental abuse.

Older persons should be treated fairly regardless of age, gender, racial or ethnic background, disability or other status and be valued independently of their economic contribution.

While ageing is liberating, there are, however, certain realities of ageing that may make people more vulnerable to abuse. Disability, for example, is more common among older people (which is loosely used to refer to people 65 and over). More than 80% of people aged 85 years or over have some disability.  The prevalence of cognitive impairment also increases with age. From age 65, the prevalence of dementia doubles every 5 or 6 years. 30% of people aged over 85 have dementia, and over 1.1 million Australians are expected to have dementia by 2056. More generally, people aged 85 years and over need significantly more assistance and care than people aged 65–84. Such circumstances may make older people more vulnerable.

Vulnerability does not only stem from intrinsic factors such as health, but also from social or structural factors, like isolation and community attitudes such as entrenched ageism. All of these factors contribute to elder abuse.

In an audience such as this, I am not telling you anything you do not know already. In the ALRC inquiry, in which the Hon Dr Kay Patterson AO worked with me on the Advisory Committee, we had to put a legal lens over the lived realities of older Australians. Law reform writing is a particular form of policy work.

What is elder abuse?

Elder abuse usually refers to abuse by family, friends, carers and other people where there is a relationship or expectation of trust. While there is not a universally accepted definition, a widely used description is that of the World Health Organization, referring to 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. 

This description is used across a range of government and non-government bodies in Australia.  Generally, five forms of elder abuse are distinguished: physical, psychological, financial, sexual abuse, and neglect.  These types of abuse overlap, and the very nature of the abuse makes it difficult to identify and respond to. The World Health Organization has estimated that the prevalence rate of elder abuse in high- or middle-income countries ranges from 2% to 14%. So, while increasing longevity may be seen to represent triumphs for modern medicine and health care, elder abuse perhaps is the nasty underside of an ageing population.

The definition of elder abuse does not include all abuse of older persons, but is limited by the relationship between the abuser and the older person—that is, when they are in a relationship where there is an expectation of trust.

The 2016 report by the Australian Institute of Family Studies (AIFS), Elder Abuse: Understanding Issues, Frameworks and Responses, commissioned as part of the background to the ALRC inquiry, and drawing upon Queensland elder abuse helpline information, identified financial abuse as accounting for 40% of the most commonly reported type of abuse in 2014–15; and children in their 50s as the largest group of offenders.

Children in their 50s may be the biggest group of abusers—but many of these may also be carers. And for the few ‘bad eggs’ there are many angel sons and angel daughters out there. One of the personal submissions cautioned against ‘punishing those of us who are doing the right things for the sake of a few bad eggs makes a difficult situation that much more complicated and could prevent people from stepping up to care for the elderly’.

Remember that in 2017, there were 2.7 million unpaid carers in Australia. Their average age was 55, most were female and 96% were caring for family members. And in 2011, the Productivity Commission noted that, of the group aged 65+ who were needing care, 24% of primary carers were adult sons or daughters.  Many of these may well have held enduring documents in their favour. Indeed for most people in such circumstances this is an important exercise of autonomy.

There is also a difference between ‘coercion’—forcing someone to do something against their wishes; and what I describe as ‘acquiescent exploitation’—where a person knows that others may think what they are doing as unwise but they decide to do it anyway, for a whole range of often very personal, self-sacrificing reasons.

Clearly, however, there are no bright lines. 

Consensus on a definition of elder abuse is important for developing an evidence base about it. Since the conclusion of the Inquiry, progress towards both an accepted definition and an estimate of prevalence in Australia has been made. AIFS is leading an Elder Abuse National Research project to develop an Australian definition of elder abuse, to develop and test instruments to measure elder abuse against the Australian definition and to develop a data analysis plan and conduct secondary data analysis to answer key research questions on elder abuse.

What can law do?

In the Elder Abuse Inquiry we looked at Commonwealth laws and frameworks that seek to safeguard and protect older persons from misuse or abuse by formal and informal carers, supporters, representatives and others. There were Commonwealth laws, like banking, superannuation, social security and, of growing interest, aged care. But we were also asked to examine the interaction and relationship of Commonwealth laws with state and territory laws. This clearly took us into the realm of guardianship and administration; and into laws dealing with ‘private’ appointments of substitute decision makers through enduring powers of attorney and the appointment of enduring guardians. A great deal of our work therefore involved state and territory bodies and agencies. The crossing of state and federal borders makes responding to elder abuse a complex issue—both from the perspective of laws, but also in terms of practical responsibility.

The ALRC was well placed to consider reforms in this fragmented legal landscape, given that its legislative functions include considering proposals for uniformity between state and territory laws, as well as proposals for complementary Commonwealth, state and territory laws.  In the ALRC’s 2010 Family Violence Inquiry, we considered the complex interactions across the federal landscape, particularly between the Family Law Act 1975 (Cth) and state and territory family violence and child protection laws.  In that context we identified the aspiration of ‘seamlessness’ as a key policy goal. In the Elder Abuse Report too, the ALRC made recommendations directed at both Commonwealth, state and territory laws and legal frameworks, in order to comprehensively address the range of legal mechanisms available to safeguard older people from abuse.

As stakeholders in the Elder Abuse inquiry observed, because elder abuse is ‘complex and multidimensional’, it requires a ‘multi-faceted response’. The ALRC contributed to that response with a set of 43 recommendations aimed at achieving a nationally consistent response to elder abuse. We also looked to the horizon and developed a conceptual template to guide future reform through a National Plan—to establish a national policy framework, act as a vehicle for coordination, and to promote a long-term approach for the protection of older people from abuse.  The Australian Government has accepted this key recommendation, and signalled that it will develop a National Plan with the goals identified by the ALRC:
• promoting the autonomy and agency of older people;
• addressing ageism and promoting community understanding of elder abuse;
• achieving national consistency;
• safeguarding at-risk adults and improving responses; and
• building the evidence base. 

A draft is expected by the end of 2018.  Dr Patterson has also indicated that implementation of the recommendations from the Elder Abuse Report will be one of her advocacy priorities.

Framing principles

A key aspect of any report writing, as indeed any extended research writing, is identifying the essential framework of ideas that will be the basis of all developed thinking for the report.
The recommendations in the Elder Abuse Report sought to balance two framing principles: dignity and autonomy, on the one hand; and protection and safeguarding, on the other.

Elder abuse clearly undermines dignity and autonomy. However, protection from abuse is sometimes seen as infringing on autonomy—that is, protection and autonomy are sometimes seen as opposing considerations that need to be balanced, or traded off against each other, when issues of whether and how to intervene to protect a person from abuse arise.

Such concerns are particularly acute in relation to older people in regard to overly interventionist or paternalist approaches to ‘protecting’ them. I had an immersion in the delicacy of these issues in the context of people with disability when I led the ALRC inquiry on capacity and disability that ended in the report, Equality, Capacity and Disability in Commonwealth Laws, tabled on 24 November 2014. We had to tackle what the Convention on the Rights of Persons with Disabilities means for people with disability in relation to questions of ‘capacity’, especially the shift toward full recognition of their equal right to make decisions that affect their lives. This shift, from others making decisions based on a judgement about a person’s ‘best interests’ to recognising that a person’s will, preferences and rights should guide decisions that affect their lives, was expressed in our final report in the form of National Decision-Making Principles.  This also involved conceiving of autonomy as not only involving a sphere of non-interference, but also in terms of considering what support is needed for a person to exercise their autonomy and decision-making ability.

Principles of autonomy and safeguarding, however, are not mutually inconsistent, as safeguarding responses also act to support and promote the autonomy of older people.  Where possible, we sought to recommend changes to the law that both uphold autonomy and provide protection from harm. Where this was not possible, greater weight was generally given to the principle of autonomy. However, in limited cases, where there is serious abuse of vulnerable people, additional weight was given to protection.

I will work through the recommendations through the lens of these principles. We needed to respond to the plea running through many of the personal submissions, that ‘someone’s got to do something!’ But, at the same time, to resist overzealousness, otherwise the balance between the principles is pushed too much to the ‘protective’ side.

Dignity and autonomy

Autonomy is a significant aspect of a number of the United Nations Principles for Older Persons that underlie the ability of persons to make decisions and choices in their lives: particularly the principles of ‘independence’, ‘participation’ and ‘self-fulfilment’.

Older people, like most adults, prize their freedom and independence, and do not wish to be treated like children or sheltered from all risk. Where ‘dignity of risk’ is often heralded in the context of supporting people with disability in their decision making, perhaps in the context of older people we are speaking of another iteration of this: ‘dignity in decline’.

Dignity in the sense of the right to enjoy a self-determined life is particularly important in consideration of older persons with impaired or declining cognitive abilities. The importance of a person’s right to make decisions that affect their lives was a fundamental framing idea throughout our disability work.

I will use a simple example: this approach requires asking mum what she wants first. Just because she has some cognitive impairment doesn’t necessarily mean that she doesn’t know what she wants; even if you think you know better, and even if it takes a while for her to say what it is that she does want. Carers here play a crucial role, sometimes just bringing a framework of reference of a lifetime to fill in the words or to translate the words that are scrambled: knowing that ‘yabbies’ means ‘wallabies’, or that ‘balloons on the water’ means a hovercraft (again drawing on personal experience).

Or, to use another example of my mother.  After a few mini-strokes in March knocked a few more holes in her memory, mum has required more scans and tests.  And her vocabulary is more scrambled. She keeps referring to having a ‘temperature’ of over 20, when she is referring to high blood pressure. She gets very impatient with doctors. She got very angry when a doctor spoke to my sister, who had taken mum to the appointment, rather than to her.

I am sure that many of you know what I am talking about here.

Some recommendations were particularly targeted at empowering people to protect themselves from abuse and seeking to ensure that they are supported to make decisions that reflect their rights, will and preferences.

Reforms related to enduring documents—that is, enduring powers of attorney, enduring guardianship and advance care directives—focused on improving safeguards against misuse of an appointment by a substitute decision maker, a key example of financial abuse. Such reforms would promote people’s ability and confidence in planning for a time in the future when they may require substantial decision-making support. We recommended reforms that would ensure that a person can determine the scope and extent of their enduring appointments and not be required to give broader or unlimited powers to be able to effect certain transactions.

We also recommended that appointed decision makers be required to support and represent the will, preferences and rights of the principal.  In a similar vein, we also recommended safeguards in relation to wills and superannuation—areas of particular interest to me as a property and succession lawyer in my academic work. We recommended that national best practice guidelines be developed for legal practitioners in relation to the preparation and execution of wills and other advance planning documents to improve the understanding of legal practitioners of the dynamics of elder abuse, risk factors for undue influence, and safeguards against them in the making of wills and other advance planning documents. 

In relation to court and tribunal appointed decision makers, recommendations were directed towards maximising the possibilities for involving the person who may be the subject of a guardianship and administration order in the application process, and ensuring that guardians and financial administrators really understand their obligations to promote the autonomy and wellbeing of a person who is subject to a guardianship and administration order. 

We also sought to promote autonomy by making avenues for redress easier and more accessible, through state and territory civil and administrative tribunals, including jurisdiction to deal with family disputes involving residential property under an ‘assets for care’ arrangement.  We also made a recommendation designed to encourage formalisation of these agreements, and thus aid enforceability, and concluded that, for the purposes of calculating an entitlement to the Age Pension, the Social Security Act 1991 (Cth) should be amended to require that a ‘granny flat interest’ be expressed in writing.

Protection and safeguarding

Two areas of the Inquiry particularly engaged with questions of protection and safeguarding, our second framing principle—namely, aged care and adult safeguarding.

Our recommendations in aged care focused on buttressing the move towards greater consumer control for older people in aged care with suitable regulatory oversight to ensure accountability and transparency in the provision of quality care, including protections and safeguards against abuse or neglect. Overall, we did not see our role as one of systematically reviewing the adequacy of quality standards and processes for auditing quality in aged care in our Inquiry. Instead, we concentrated on safeguards against abuse. It is heartening to see, however, that since our work, there has been considerable interest in inquiring into quality processes in aged care, including:
• a review of aged care quality regulatory processes; 
• a Senate Standing Committee on Community Affairs Inquiry into quality assessment and accreditation framework (to report in November 2018); and
• a Senate Standing Committee on Health, Aged Care and Sport Inquiry into the Quality of care in residential aged care facilities in Australia (ongoing at the time of writing).

These reviews are opportune, in that they have allowed the ALRC’s recommendations to be situated within a broader examination of aged care quality processes, and provided added momentum for government action to implement reform.

Further, our recommendations for a serious incident response scheme in aged care involved rethinking the aged care system’s response to abuse and neglect. In doing so, the emphasis was shifted from requiring aged care providers to report the occurrence of an alleged or suspected assault, to requiring an investigation and response to incidents by providers, along with independent oversight of that investigation and response. We also made recommendations in relation to a range of other safeguarding strategies, including enhanced employment screening processes, regulating the use of restrictive practices in aged care, and national guidelines for the community visitors scheme regarding abuse and neglect of care recipients. 

Our recommendations about adult safeguarding involved perhaps the finest negotiation of the relationship of autonomy and protection. We recommended that adult safeguarding agencies have a role in safeguarding and supporting ‘at-risk’ adults. 

Protecting these people from abuse will serve to support their autonomy and show respect for their dignity, because living in fear of abuse can prevent a person from making free choices about their lives and pursuing what they value.

Most state and territory public advocates and guardians already have a role in investigating abuse, particularly abuse of people with impaired decision-making ability by their guardians, financial administrators or those with powers of attorney. However, there exists a cohort of vulnerable adults, many of whom are old, who do not fall within the purview of this investigative function. The ALRC recommended that these other vulnerable adults should be better protected from abuse.

Rather than extending the jurisdiction of state and territory public advocates or guardians to all older adults, the ALRC made two decisions:
• that adult safeguarding laws be introduced, without recommending that they be situated in a particular body—the ALRC did not suggest that the recommended adult safeguarding function should necessarily be given to public advocates, but rather that the states and territories decide which of their agencies might perform this role, or whether a new agency might need to be created.
• that safeguarding laws apply not to older people, but to ‘at-risk adults’, defined as adults who: (a) need care and support; (b) are being abused or neglected, or are at risk of abuse or neglect; and (c) cannot protect themselves from the abuse —the ALRC concluded that this ‘functional’ approach to vulnerability was preferable to providing safeguarding services to all people over a certain age. This allows recognition that most people over 65 are not particularly vulnerable and will not need safeguarding services, while some people under 65 will need these services.
Adult safeguarding is envisaged as an intervention to support autonomy, operating in the main with the person’s consent. Most often, safeguarding and support would involve working with the at-risk adult to arrange for health, medical, legal and other services. In some cases, it might also involve seeking court orders to prevent someone suspected of abuse from contacting the at-risk adult. Where necessary, the ALRC considered that adult safeguarding agencies should lead and coordinate the work of other agencies and services to protect at-risk adults from abuse.
However, in particularly serious cases, the safety of an at-risk person may need to be secured, even against their wishes. We concluded that, although consent should always be sought, it should not be required in serious cases of physical abuse, sexual abuse or neglect.  This may be necessary to secure people’s long-term autonomy interests and their immediate dignity. We also recommended that consent should not be necessary where safeguarding agencies cannot contact the at-risk adult, despite extensive efforts to do so, or where an adult lacks the decision-making ability to give this consent.

Conclusion

The Elder Abuse Inquiry is one of a series of inquiries the ALRC has completed that have required it to consider how the law can respond to complex social policy issues—these include inquiries into family violence, barriers to work for older people, decision-making for people with disability, and incarceration rates of Aboriginal and Torres Strait Islander people. Comprehensive responses to all of these issues require broader changes than simply legal reform, but, in this Inquiry, as in the others, the ALRC has produced a blueprint for reform that can support and shape broader social change.

The Inquiry acknowledged that elder abuse is indeed ‘everybody’s business’, as the WHO states. But we took that further and said that elder abuse is also everybody’s responsibility—a responsibility not only to recognise elder abuse, but most importantly, to respond to it effectively. The recommendations in the Elder Abuse Report address what legal reform can do to prevent abuse from occurring and to provide clear responses and redress when abuse occurs.

Ageing eventually comes to all Australians and ensuring that all older people live dignified and autonomous lives free from the pain and degradation of elder abuse must be a priority.