Responding to Elder Abuse

For the Helpline's 5-step approach toolkit for identifying and responding to the abuse of older people, follow this link: http://elderabusehelpline.com.au/for-professionals/EAHRU-toolkit 

Barriers to reporting experienced by your client or patient

There are myriad reasons why the older person may not wish to report abuse. These include the following:

  • Fear of repercussions, such as being placed in a residential aged care facility
  • Denial or disbelief that abuse is happening to them
  • The older person is unaware of their rights
  • The older person is ashamed to disclose abuse
  • Previous inaction or action that did not work
  • Cultural influences
  • Fear of being accused of lying, or not being believed
  • Dependence on the person who is abusing them
  • Family conflict
  • Cognitive impairment (see below for information on capacity and consent)
  • Isolation from others
  • Lack of knowledge of available support services
  • Fear of retribution or punishment

If the older person refuses assistance, and they have capacity to make decisions, leave information for them and keep the lines of communication open should they change their mind. Document non-consent.

Where the older person has impaired capacity, discuss the options with the appropriate substitute decision maker. If you are concerned that the substitute decision maker is perpetrating the abuse, you may need to work with other trusted support people.

Where appropriate, refer the matter to the NSW Civil and Administrative Tribunal: http://www.ncat.nsw.gov.au/

For additional support and information, contact the NSW Elder Abuse Helpline & Resource Unit: 1800 628 221. Anyone can make the call.

General principles regarding responding to abuse

Older people have the right to:

  • Be treated with dignity and respect
  • Make their own decisions and choices – this can mean that older people who understand they are living in an abusive situation can sometimes make an informed choice to stay there. This can be very challenging, particularly for those with a continuing role to support the older person
  • Live in a safe environment
  • Access the protections available to other adults in the community – this includes the law and support provided by the police, sexual assault teams, domestic violence specialists, mental health teams, community care support providers, etc.

Principles for intervention I

Older people at risk of experiencing abuse are:

  • Provided with information about options
  • Listened to with their views taken into account
  • Supported to make their own decisions
  • Respected in their choice to accept or reject support if competent to make that decision (see below for information on capacity and consent)

Principles of intervention II

  • Intervention is focused on: the interests of the older person; ensuring their safety; and ongoing protection from violence and abuse
  • Responses are sensitive to the older person's special needs – these may be in relation to Aboriginality, culture, disability, religion, gender and sexuality
  • The needs of the victims and abusers are kept separate – this does not necessarily mean that the abuser's needs should be ignored. Sometimes the key to stopping the abuse lays through working with the abuser, for example enhancing the stressed carer's skills

The overall aim of any intervention is to stop the abuse. If this isn't achievable for some reason, then the objectives become to: prevent escalation of abuse; put protections and supports in place that maximise the older person's safety; and ensure the older person knows what information and resources are available to address the abusive situation.

Abuse, capacity and consent

Mental capacity is the ability to understand an act, the decision and its consequences. The law assumes a person has capacity unless proven otherwise. A person has capacity to make a decision or give consent when they can: understand the nature and effect of an act or decision; weigh up its consequences; and communicate their decision.

Many vulnerable older people have a cognitive disability; this can include acute depression, an acquired brain injury, dementia, an intellectual disability, bipolar affective disorder or schizophrenia. A cognitive disability may impair their ability to make informed decisions. Responses to abuse situations need to consider whether the older person has capacity. This may apply, for example, when an older person with dementia does not understand they are living in an abusive situation or is vulnerable to abuse and/or makes a decision not to do anything about the situation.

Although a specialist assessment is necessary to formally determine capacity, the Capacity Toolkit, a publication of the NSW Justice Department, is a valuable guide. See: http://www.justice.nsw.gov.au/diversityservices/Pages/divserv/ds_capacity_tool/ds_capacity_tool.aspx

Depending on the type of decision, capacity can be determined by a legal test or medical assessment.

If the older person has no Power of Attorney or Enduring Guardianship arrangement in place, and they have lost capacity to make these arrangements, a guardianship application may be required to appoint a guardian or financial manager. In some circumstances, the NSW Trustee and Guardian may be appointed as as financial manager or Public Guardian as the older person's guardian. See: https://www.tag.nsw.gov.au/

Crime and duty of care – why the abuse of older people requires your professional response

Duty of care is a legal obligation to avoid causing harm and arises where harm is reasonably foreseeable if care is not taken. If you have a relationship with an older person that is close enough to infer that an obligation exists, you have a duty of care to report your suspicions or an incidence of elder abuse that has been disclosed to you or that you have witnessed.

The requirement of confidentiality can be lawfully overridden. Please note, complete confidentiality cannot always be guaranteed to any person who raises a concern about the abuse of an older person.This includes situations where you believe, on reasonable grounds, that disclosure is necessary to prevent or lessen a serious or imminent threat to the life or health of the older person , a relative of the older person, your colleague or a member of the public. Check your workplace duty of care statement, policies and procedures for further details.

Many forms of elder abuse are criminal offences. Please see the link below to s. 316 of The Crimes Act (1900) Concealing serious indictable offence  for further information:

http://www.legislation.nsw.gov.au/fragview/inforce/act+40+1900+pt.7-div.2-sec.316+0+N?tocnav=y

And s. 98A and s.98B of the Crimes (Domestic and Personal Violence) Act 2007  (links below) for information regarding when information can be shared:

http://www.austlii.edu.au/au/legis/nsw/consol_act/capva2007347/s98a.html

http://www.austlii.edu.au/au/legis/nsw/consol_act/capva2007347/s98a.html

Negligence regarding duty of care can occur if: you had a reasonable belief that abuse was happening; that you didn't speak up or act; and/or that an older person suffered harm as a result.

In cases of abuse, harm can be psychological, physical, sexual financial, and cases of neglect.

The acts mentioned above list the following as crimes:

  • Assault occasioning actual bodily harm
  • Sexual assault
  • Aggravated sexual assault
  • Physical assault
  • Other assault, for example, domestic and personal violence, which includes stalking and intimidation
  • Theft
  • Fraud
  • Some forms for neglect if there is a legal obligation to provide necessities of life to the older person

If in doubt, contact the NSW Elder Abuse Helpline & Resource Unit on 1800 628 221 for information and advice.