Elder Abuse - Laws and Limitations
Published on the 26 July 2016
Published on the 26 July 2016
Elder abuse is a social and political issue – and a crime. Although there is no uniform global definition of elder abuse the most common definition used is that adopted by the World Health Organisation:
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. It can be in various forms: physical, psychological/emotional, sexual, and financial or simply reflect intentional or unintentional neglect (United Nations Population Division 2002).
Elder abuse has been a relatively hidden issue in our society until the 1980s. Since that time there has been sporadic interest across the globe, evidenced by developing research agendas, policy reforms, and in some cases limited mandatory reporting laws. This pattern is reflected in Australia’s response to elder abuse, however in 2007, an extensive media coverage of alleged rapes in a Victorian nursing home by a male attendant – who was charged and later convicted of three counts of rape on older women with dementia – triggered a response from the Commonwealth Government to provide greater protection for all older Australians.
Amendments made to the Aged Care Act 1997 introduced compulsory reporting of elder abuse in Commonwealth-funded residential aged care facilities. However, not all forms of elder abuse as defined by the WHO have been included in these amendments, which refer only to suspected or alleged reportable assaults defined as:
Unlawful sexual contact, unreasonable use of force, or assault specified in the Accountability Principles and constituting an offence against a law of the Commonwealth or a State or territory, that is inflicted on a person [resident in a Commonwealth funded residential aged care facility] (Aged Care Act, 1997).
Furthermore, the legal requirement to respond to reportable assaults only applies to those employed in Commonwealth-funded residential aged care facilities, meaning the law does not apply to those not employed in these facilities, nor those who witness such assaults against vulnerable older adults residing in private, state or territory-funded nursing homes, and those living in the community. Hence the protection for all older Australians from abuse is somewhat limited by these amendments.
Despite the inclusions of provisions to protect staff who make a report, the limited case law available on this topic continues to demonstrate a reluctance by those employed in these facilities to make a report in a timely manner, or at all. This was an issue in the following case where a witness claimed that she was too frightened of the accused to initially report the abuse.
In December 2012, the Health Care Complaints Commissioner (HCCC) in NSW released a statement of decision concerning a complaint against Ms Elma Timbreza, an assistant in nursing (AIN) in an aged care facility in NSW. Timbreza had already pleaded guilty and was convicted of eight charges of indicatable assault and aggravated indecent assault upon an eighty nine year old high care resident between March 2009 and October 2011.
The conduct that led to these charges being laid included instances of physical abuse, sexual abuse and an array of improper and unsafe nursing techniques.
The court sentenced Timbreza to two and a half years imprisonment, whilst the HCCC concluded that Timbreza posed a risk to the public and was in breach of the Code of Conduct for Unregistered Practitioners, and issued an order permanently prohibiting her from “providing any health services in any capacity, either paid or voluntary”.
All vulnerable older adults deserve our protection against abuse in any form, regardless of where they are residing. It is imperative that all healthcare staff working with older adults understand what constitutes elder abuse, the signs and risk factors of abuse and their legal, ethical and professional responsibilities in reporting suspected or witnessed cases of abuse. Furthermore, it is critical that those witnessing such assaults feel confident and safe when making a report, to ensure their patients and themselves are protected from retaliation and ongoing abuse.
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Dr Linda Starr has undergraduate and postgraduate qualifications in general, mental health nursing, law, education and a PhD in legal issues in elder abuse. Linda has extensive experience as an RN in metropolitan and rural locations, in general nursing, mental health, forensic health, aged care, and management. She has held senior positions in academia including the Dean of the School of Nursing and Midwifery. Linda has publications in health law and forensic health issues. Linda is an associate professor in the College of Nursing and Health Sciences at Flinders University and a consultant educator in health law and ethics for nurses, midwives and carers. She is Chair of the SA Board of Nursing and Midwifery, Fellow of the College of Nursing Australia, Foundation President of the Australian Forensic Nurses Association, Member on the School of Health Academic Advisory Board for Open Colleges and the International member on the Editorial Board for the Journal of Forensic Nursing.