Legal Definitions of Elder Abuse and Neglect
Australia, like Canada, maintains a federal system of government with powers divided between the central government, known as the Commonwealth government, and a number of states.162 The federation of Australia is composed of six states—New South Wales, Queensland, South Australia, Tasmania, Victoria, Western Australia—and two territories—the Australian Capital Territory (often referred to as Canberra) and the Northern Territory.163 This structure has had significant implications for the development of law and policy in relation to elder abuse and neglect and adult protection, for in Australia both state and national legislation address an aspect of the mistreatment of older adults. The Australian response has been fragmented in some areas, such as financial abuse, and centralized and integrated in relation to the abuse of adult residents of care facilities.
Australia has not developed a national legislative or policy response to either elder abuse or adult guardianship. Only very recently the Australian national government enacted legislation addressing abuse in the context of residential care facilities. The 2007 Aged Care Act—a very lengthy statute that deals with institutional care broadly—requires mandatory reporting of incidents of abuse occurring in institutional care settings.164 The document, however, does not define elder abuse. Rather its objects include
"promot[ing] high quality of care and accommodation … [and] protect[ing] the health and well-being of recipients of aged care services."165 The User Rights Principles 1997 passed pursuant to the Act includes a Charter of Residents' Rights and Responsibilities at Schedule 1. The Charter codifies the right
"to be treated with dignity and respect, and to live without exploitation, abuse or neglect".166 However, this statement constitutes the single reference to abuse or neglect in either statute and neither document contains a definition of elder abuse or neglect.
The state and territorial governments have each passed adult guardianship or adult protection legislation.167 None of these statutes contains a definition of elder abuse or neglect. A number of them contain language to the effect that a guardian must exercise her powers in such a manner as to protect the represented person from abuse, neglect or exploitation (Northern Territory, Queensland, Victoria).168 Others mention abuse or neglect under the investigative powers of the Adult Guardian (Queensland).169 The New South Wales addresses abuse and neglect under its guiding principles.170
Southern Australia uniquely criminalizes neglect under the guardianship legislation:
76—Ill treatment or neglect of person with mental incapacity
A person having the oversight, care and control of a person with a mental incapacity who illtreats or willfully neglects that person is guilty of an offence.
Maximum penalty: $10,000 or imprisonment of 2 years.171
Also unique to Australian states is the tribunal system for adjudicating guardianship matters. To date no appellate review of a guardianship tribunal decision regarding the meaning of abuse has been reported and so in Australia the judiciary has provided no guidance with respect to the meaning of abuse or neglect in the adult protection context. Similarly, although each Australian state has a criminal statute and prosecutes crimes against older adults under age neutral crimes such as assault, failure to provide the necessaries of life, and fraud, the concept of elder abuse has not been clarified or refined at the judicial level. In Australia, as in Canada, the richest source of definitions of elder abuse and neglect is policy.
4.2.1 Emphasis on relationships of trust
The first mention of elder abuse appears to have been in the 1975 Social Welfare Commission report Care of the Aged.172 The first federal or state policies on elder abuse emerged in the 1990s.173 According to Kurrle and Naughtin the term "elder abuse" did not become used until the early 2000s; the issue was originally framed in terms of
"the protection of older people," and later the expressions
"aged abuse, abuse of vulnerable adults and abuse of older people" came into usage.174
The definition of elder abuse most commonly referenced in Australia is the working definition of the Australian Network for the Prevention of Elder Abuse (ANPEA). This definition states:
Elder abuse is any act occurring within a relationship where there is an implication of trust, which results in harm to an older person. Abuse may be physical, sexual, financial, psychological, social, and/or neglect.175
As compared with Canada, there is remarkable similarity amongst the definitions of elder abuse used in Australia. Many key legal policies reference the definition of ANPEA.176 Others offer a very slight variation that does not include social abuse. All of the definitions emerging out of Government and key non-profit organizations that inform government policy development situate elder abuse as a form of abuse that occurs in relationships of trust. The definitions tend to be brief, placing less emphasis on descriptions of the types of abuse.
For example, the Alliance for the Prevention of Elder Abuse: Western Australia is facilitated through the Department of Health and funded through the Office for Seniors Interests and Volunteering.177 It defines elder abuse as:
Any act occurring which causes harm to an older person and occurs within an informal relationship of trust such as family member or friends.178
A brochure released by the Department for Communities of the Government of Western Australia adds the concept of failure to act within a similar definition of elder abuse:
Any abusive or exploitative act (or failure to act) that causes harm to an older person and occurs within a relationship of trust, such as family or friends.179
New South Wales adds a characterization of elder abuse as a human rights violation. It defines elder abuse as follows:
The abuse can occur in any relationship where there is an expectation of trust between the older person who has experienced abuse or the abuser. Abuse may involve a single act, repeated behaviour or a lack of appropriate action. It may occur when a vulnerable person is persuaded to enter into a financial or sexual transaction to which he or she has not consented, or cannot consent. Many forms of abuse of older people are crimes.180
Neglect is"the failure of a carer or responsible person to provide the necessities of life to an older person."181
Most of the definitions coming out of Australia constrain the concept of elder abuse to mistreatment and neglect emerging out of relationships. The following discussion from the Elder Abuse in the ACT illustrates and expands on this approach:
2.3 The ACT Government, too, takes a fairly broad view of the term elder abuse. In its submission, the ACT Government noted:
The term elder abuse is often used to describe behaviours or actions which result in harm to an older person where the older person and the person carrying out the action or behaviours are in some relationship which involves trust, dependency or proximity. Elder abuse therefore includes abuse by family, friends, neighbours, paid or volunteer support workers and service-providers, where the abuse happens in the context of this relationship.
2.4 However, all wrongdoings against an older people are not necessarily considered to be elder abuse. The ACT Government submission points out that:
Elder abuse does not generally include action carried out by strangers such as bag-snatching, home invasions, confidence tricks targeting older people or street assault on older people.182
Also as compared with Canadian definitions, the ANPEA definition is notable for the inclusion of social abuse, rarely mentioned in Canadian policy. Social abuse is defined as:
Restricting social freedom and isolation from family and friends.183
4.2.2 "Elder" abuse and indigenous cultures—Problems with the term
For many indigenous cultures the term "elder" has a specific meaning, often referring to people who are honoured as having particular wisdom or knowledge to pass on and/or who are political or spiritual leaders in their community. Consequently, in jurisdictions with large Aboriginal populations, such as Canada, New Zealand and Australia, the term "elder abuse" in vulnerable to misinterpretation.
An interesting feature of the ANPEA definition is a footnote stating:
ANPEA recognises that the term 'elder' has specific meaning for indigenous people. While the abuse of older people can occur in all communities, the term 'elder abuse' does not refer particularly to Aboriginal older people or leaders, individuals and organisations.184
Relying on the work of Canadian lawyer Charmaine Spencer, the Victorian Elder Abuse Prevention Project points out some of the problems with the term elder:
More recently some jurisdictions have adopted terms such as"the abuse of older people"or"the abuse and neglect of older adults". This change has occurred because of concerns that the term "elder abuse" may attach a stigma to an older person who has already suffered abuse and that its use may force concentration on only the "oldest of the old". Another consideration is that the term "elder" has specific meaning in some ethnic and religious communities (Spencer, 1995).185
In response to problems with the term "elder abuse", a number of definitions are moving away from the language of elder abuse and neglect and towards the use of "abuse and neglect of older adults."
The primary source of legal definitions of elder abuse in Australia is policies and protocols, the working definition of ANPEA serving as a focal point for the development of further policy amongst non-profit organizations and government alike. This definition mentions social abuse, which does not figure prominently in other jurisdictions. Most of the Australian definitions emphasize the centrality of a breach of a trusting relationship to the concept of elder abuse and neglect. The ANPEA definition notes the potential confusion of using the term "elder", which has a different meaning in Indigenous cultures, problematizing the appropriateness of the term. Although laws have been passed that address aspects of elder abuse, for example, guardianship legislation, these laws either don't mention abuse or fail to define "abuse", let alone "elder abuse". Like the Canadian experience, a federal structure has resulted in diversity in state responses to the problem.
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