WIXLIB

VictoriaSHOULD VICTORIA HAVEMANDATORY REPORTINGOF ELDER ABUSE?

ABOUT SENIORS RIGHTS VICTORIAEstablished in 2008, Seniors Rights Victoria is the key state-wideservice dedicated to stopping elder abuse. It is a program of Councilon The Ageing Victoria (COTA) and supported by the VictorianGovernment. Operating under the principle of empowering olderpeople, Seniors Rights Victoria provides information, support,advice, casework and education to help prevent and respondto elder abuse and safeguard older peoples’ rights, dignity andindependence. Services include a helpline, specialist legal services,short-term support and advocacy for individuals, and professionaland community education. Seniors Rights Victoria also draws on 10years of practice to support elder abuse policy development and lawreform, and works to raise awareness of elder abuse.2

SHOULD VICTORIA HAVEMANDATORY REPORTINGOF ELDER ABUSE?Callers to our service often ask why there is no requirement thata person report elder abuse, similar to mandatory reportingframeworks that exist in other countries or in other contexts,such as child protection. These callers, often frustrated by theabuse that they see and wanting to assist the older person whomay be the victim of abuse, see mandatory reporting asa solution.As an organisation which seeks to empower older people andpromote their human rights, Seniors Rights Victoria does not supportmandatory reporting of elder abuse. Mandatory reporting diminishesthe right of older people to make decisions about their own lives, andviolates their human right to personal autonomy. Our service alsodoes not consider that mandatory reporting will prevent elder abuseor promote the safety of older people experiencing abuse. SeniorsRights Victoria encourages other forms of intervention, includingvoluntary reporting as recommended by the Australian Law ReformCommission, which safeguards the dignity and independence of thecapable older person.3

WHAT DO PEOPLE MEAN WHEN THEY TALK ABOUTWANTING MANDATORY REPORTING OF ELDER ABUSE?Mandatory reporting itself includes many elements. Other than in thecontexts discussed below, there is no mandatory reporting in Victoria, sothis section will provide definitions and examples of who is required toreport based on other locations which mandate reporting of elder abuse.Mandatory reporting of elder abuse compels certain people ororganisations, known as mandatory reporters, to inform an authority,such as a government-appointed lead agency or the police, aboutsuspected abuse. There may be a lead agency which takes the reportand may go on to conduct an investigation, make referrals or contact thepolice. However, it is not compulsory that the agency take any action.Many mandatory reporting schemes include penalties for failure toreport, which can be criminal or civil in nature. 1 One important aspect isthe definition of elder abuse. In many of the US states, where thereis mandatory reporting, the definition varies; it may not includeemotional abuse.2There may not be a duty on everyone to report in mandatory reportingframeworks. It may only apply to certain categories of people such asclergy, health care providers or employees of financial institutions.3 Forexample, in the US, 44 states and the District of Columbia have lawsproviding that individuals who assume the care or custody of the elderlymust report suspected abuse.4 Similarly in South Korea, mandatoryreporters include health professionals, employees of protection agencies,and caregivers of disabled elderly.54

IS THERE A REGIME FOR MANDATORY REPORTING INAUSTRALIA?At present, regimes that could be considered mandatory reporting forelder abuse exist in Australia (1) in the context of aged care and (2) in allcircumstances of family violence in the Northern Territory.Residential Aged Care providers under the federal Aged Care Act 1997have to report unlawful sexual conduct, assaults, and unreasonableuse of force (reportable assaults) to the police and the Departmentof Health within 24 hours of their occurrence.6 This is known ascompulsory reporting under the Act. However, this reporting does notapply to community-based aged care services. Recently, reforms havebeen proposed in the 2017 Australian Law Reform Commission Report(the ALRC report) entitled “Elder Abuse – A National Legal Response”to create an independent oversight body to monitor the aged careprovider’s response to reportable assaults7 and to include incidents inhome care, such as physical, sexual or financial abuse committed by astaff member against a care recipient.8Section 124A of the Northern Territory Domestic and Family ViolenceAct requires that every adult in the Northern Territory must report tothe police if they believe on “reasonable grounds either or both of thefollowing circumstances exist:(i)Another person has caused, or is likely to cause harm tosomeone else (the victim) with whom the other person is ina domestic relationship;(ii)the life or safety of another person (also the victim) is underserious or imminent threat because domestic violence hasbeen, is being or is about to be, committed.”9Domestic relationships include people in family relationships, defined asspouses, de facto partners or relatives, including parents and children.10In Victoria, in cases where there is a risk of imminent serious physicalharm, social workers’11 and lawyers’12 rules of professional conductpermit the reporting of abuse. These reports can be made irrespective oftheir relationship to the older person and confidentiality requirements.Lawyers and social workers employed by Seniors Rights Victoria arebound by these requirements.5

WHY NOT MANDATORY REPORTING?Seniors Rights Victoria does not consider that mandatory reporting ofelder abuse would offer solutions that prevent or respond to the abuseof older persons for the following reasons:Capable older persons canmake their own decisions:Mandatory reporting by its naturedisempowers older adults. It doesnot give capable people a choiceabout whether a report is madeabout them, and fails to respectthe older person’s autonomy toremain in situations that othersmay see as unwise. Clients havetold our service that it is theirright to choose, and in the caseof personal relationships thatthey would rather continue theirrelationship with their childrenor grandchildren even if thoserelationships are problematic.Moreover, it would bediscriminatory to excludemandatory reporting for otherforms of family violence in whichadults are involved and requiremandatory reporting where theaffected party is an older person.Such a regime would reinforceageist stereotypes about theweakness and the decisionmaking ability of older people.13While some protection may benecessary, it must always be withthe consent of the capable olderperson.6Older persons lacking capacityhave a separate regime whichcan assist:Capacity is a complex issue.We recognise that in someinstances an older adult may nothave the capacity to make thedecision to report. All adults arepresumed to have the capacity tomake decisions for themselves,unless there is evidence to thecontrary.14 In those instanceswhere an older person has lostcapacity, the person’s attorney,guardian or administrator canmake the decision to take actionon the abuse. Where it is theperson’s attorney, guardian oradministrator committing theabuse, other parties can challengetheir actions at the Victorian CivilAdministrative Tribunal (VCAT).In this scenario, a separatemandatory reporting schemewould be unnecessary as thereare mechanisms which exist toaddress people who becomeincapable.

There is no proof thatmandatory reporting leads tobetter outcomes for the olderperson:15Even in countries wheremandatory reporting exists, onlya small percentage of abusiveincidents are reported to theauthorities, and of those, onlya few cases have ever resultedin criminal prosecution or civillitigation.16 There is no evidence asto whether mandatory reportingactually limits the prevalence ofelder abuse. There is no evidencethat where mandatory reportersare punished for a failure toreport, there are more reports,more investigations or moreproven cases of elder abuse thanwhere there is no mandatoryreporting.17There has been some indicationthat mandatory reportingschemes lead to the overinstitutionalisation of olderadults,18 or to costly and drainingguardianship proceedings. In caseswhere there is someone abusingthe older person, the reportingagency may be left with no choicebut to recommend aged care orguardianship for older persons.This can be the case where theabuser has been the primarycaregiver and there is a dearth ofservices in the home and the olderperson may have trouble caringfor themselves. Nevertheless, thisrecommendation may go againstthe wishes of the older person.Mandatory reporting seeks toforce people to respond to elderabuse rather than do nothing.In our experience, this is not theproblem; most people would wantto help in some way. Rather, theissue is that these people may beunsure of how to broach the topic7

with older people, or are not surewhether reporting may assist toachieve the best outcomes for theolder person.Reporting may affect therelationship with the olderperson:Front line workers may be hesitantto violate the trust of their clientand affect their relationship.19 Suchrequired reporting may lead olderpeople to not seek services. Theymay not discuss the abuse withothers, for fear that they will haveno say in how the situation willbe handled once they disclose theabuse.Established coordinatedcommunity services are moreimportant than requiringpeople to report, and wouldrender mandatory reportingunnecessary:Even where abuse is recognised,the reporter often does not knowwhether it will lead to increasedwellbeing of older people.20Therefore, when reports are made,it is essential that established,coordinated community servicesexist to address the abuse. 21 It isnecessary to have organisationsto provide coordinated servicesto assist the older personexperiencing abuse, including8accommodation, health care,emotional support and financialassistance, just to name a few. Ifthose organisations do not exist,making a report would be futileas the older person would nothave any services to assist them toaddress the abusive situation.Furthermore, reporting is oftenaffected by the older person’sperception of the circumstances.22They may often feel shame as aresult of the abuse, they may notidentify the conduct as abusive,they may not want to harm therelationship with the abuser orother members of their family,or they may fear that they willhave no other assistance wherethe abuser is also their caregiver.Having coordinated supportscan encourage the older personto seek assistance themselves,as they know there is a group ofpeople there to help them.