Australia: Australian Law Reform Commissions Elder Abuse discussion paper

  1. Introduction

The Australian Law Reform Commission (ALRC) published a discussion paper on Elder Abuse in December 2016. The ALRC has been asked to consider existing Commonwealth laws and frameworks which seek to safeguard and protect older persons from misuse or abuse by formal and informal carers, supporters, representatives and others, and to examine the interaction and relationship of these laws with state and territory laws. Submissions closed on 27 February 2017.

A number of proposals were made which will affect health and aged care providers. Please find below a summary of our submission.

  1. What is Elder Abuse? /LI>

While there is no universally accepted definition of elder abuse, a widely used definition is the one put forward by the World Health Organization, describing 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.

Commonly recognised categories of elder abuse include psychological or emotional abuse, financial abuse, physical abuse, neglect, and sexual abuse. Using drugs to sedate older people when unnecessary is another type of abuse, sometimes called chemical abuse.

  1. Proposal 3–5 Any person who reports elder abuse to the public advocate or public guardian in good faith and based on a reasonable suspicion should not, as a consequence of their report, be:
  1. liable, civilly, criminally or under an administrative process;
  2. found to have departed from standards of professional conduct;
  3. dismissed or threatened in the course of their employment; or
  4. discriminated against with respect to employment or membership in a profession or trade union.

We support the proposition that reporting elder abuse should not be subject to a breach of laws, including privacy laws.

  1. Proposal 5–1 A national online register of enduring documents, and court and tribunal orders for the appointment of guardians and financial administrators, should be established.

Who should be permitted to search the national online register without restriction?

We support an online register, however, access to such a register should be appropriately restricted for privacy issues, particularly if registration becomes compulsory and the relevant individual does not wish to disclose certain matters to certain people, including family members who have 'fallen out' with that individual.

  1. Proposal 5–2 The making or revocation of an enduring document should not be valid until registered. The making and registering of a subsequent enduring document should automatically revoke the previous document of the same type.

We are concerned that mandatory registration of enduring documents may not be practical for many elderly people with mobility and complex health issues and of limited financial means. Therefore, we suggest voluntary registration.

  1. Proposal 5–4 Enduring documents should be witnessed by two independent witnesses, one of whom must be either a:
  1. legal practitioner;
  2. medical practitioner;
  3. justice of the peace;
  4. registrar of the Local/Magistrates Court; or
  5. police officer holding the rank of sergeant or above.

Each witness should certify that:

  1. the principal appeared to freely and voluntarily sign in their presence;
  2. the principal appeared to understand the nature of the document; and
  3. the enduring attorney or enduring guardian appeared to freely and voluntarily sign in their presence.

We are concerned that the proposed witnessing requirements may not be practical for many elderly people with mobility and complex health issues and suggest that the list of authorised witnesses be expanded, for example, to include registered nurses and pharmacists. Further discussion is required regarding potential liability in relation to the certification process as to capacity to understand the nature of the document.

  1. Proposal 5–5 State and territory tribunals should be vested with the power to order that enduring attorneys and enduring guardians or court and tribunal appointed guardians and financial administrators pay compensation where the loss was caused by that person's failure to comply with their obligations under the relevant Act.

It is our experience that most enduring guardians act in good faith without any reward over a number of years by volunteering their time, however, family disputes often arise. Any penalty or payment of compensation should only be made in exceptional circumstances where there is a lack of good faith, gross negligence or criminal activity. It would be adverse to the elderly if there is a significant disincentive for a person to take on the role and responsibilities of their enduring guardian.

  1. Proposal 5–8 Legislation governing enduring documents should explicitly list transactions that cannot be completed by an enduring attorney or enduring guardian including:
  1. making or revoking the principal's will;
  2. making or revoking an enduring document on behalf of the principal;
  3. voting in elections on behalf of the principal;
  4. consenting to adoption of a child by the principal;
  5. consenting to marriage or divorce of the principal; or
  6. consenting to the principal entering into a sexual relationship.

If the care recipient clearly indicates a desire to enter into a relationship, including a sexual relationship, why should the enduring guardian not be able to consent? Requiring a court order to consent to a sexual relationship is against the rights of residential care recipients under the User Rights Principles 2014 (Cth) to select and maintain social and personal relationships with anyone else without fear, criticism or restriction.

  1. Proposal 5–10 State and territory governments should introduce nationally consistent laws governing enduring powers of attorney (including financial, medical and personal), enduring guardianship and other substitute decision makers

We agree with this approach. Inconsistency with the laws in relation to enduring powers of attorney, enduring guardianship and other substitute decision makers has created great confusion within the health and aged care industry.

  1. Question 6–1 Should information for newly-appointed guardians and financial administrators be provided in the form of:
  1. compulsory training;
  2. training ordered at the discretion of the tribunal;
  3. information given by the tribunal to satisfy itself that the person has the competency required for the appointment; or
  4. other ways?

Once again, many enduring guardians act in good faith and without any reward and many have limited means. Compulsory training should only be implemented if government were to provide the training at no cost to the enduring guardian and ?exible training options are available, such as on-line training in multiple languages.

  1. Proposal 11–2 The term 'reportable assault' in the Aged Care Act 1997 (Cth) should be replaced with 'reportable incident'.

With respect to residential care, 'reportable incident' should mean:

  1. a sexual offence, sexual misconduct, assault, fraud/financial abuse, ill-treatment or neglect committed by a staff member on or toward a care recipient;
  2. a sexual offence, an incident causing serious injury, an incident involving the use of a weapon, or an incident that is part of a pattern of abuse when committed by a care recipient toward another care recipient; or
  3. an incident resulting in an unexplained serious injury to a care recipient.

With respect to home care or ?exible care, 'reportable incident' should mean a sexual offence, sexual misconduct, assault, fraud/financial abuse, ill-treatment or neglect committed by a staff member on or toward a care recipient.

Further discussion on the definition of "neglect" is required. Does neglect include being late for an appointment for an hour or neglect over a period of time?

  1. Proposal 11–3 The exemption to reporting provided by s 53 of the Accountability Principles 2014 (Cth), regarding alleged or suspected assaults committed by a care recipient with a pre-diagnosed cognitive impairment on another care recipient, should be removed.

We propose that the aged care industry be consulted further regarding the removal of this exemption.

  1. Proposal 11–4 There should be a national employment screening process for Australian Government funded aged care. The screening process should determine whether a clearance should be granted to work in aged care, based on an assessment of:
  1. a person's national criminal history;
  2. relevant reportable incidents under the proposed reportable incidents scheme; and
  3. relevant disciplinary proceedings or complaints

Whilst we support a national employment screening process at manageable cost to the Approved Providers, however, many reports or "reportable incidents" may be unsubstantiated. Health and aged care staff should only be precluded if those reports are proved rather than just alleged.

  1. Proposal 11–6 Unregistered aged care workers who provide direct care should be subject to the planned National Code of Conduct for Health Care Workers. We welcome this proposal, subject to industry consultation on the National Code of Conduct for Health Care Workers.
  2. Proposal 11–7 The Aged Care Act 1997 (Cth) should regulate the use of restrictive practices in residential aged care.

The Act should provide that restrictive practices only be used:

  1. when necessary to prevent physical harm;
  2. to the extent necessary to prevent the harm;
  3. with the approval of an independent decision maker, such as a senior clinician, with statutory authority to make this decision; and
  4. as prescribed in a person's behaviour management plan.

Who is a 'senior clinician'? Many aged care providers do not have access to independent medical practitioners on site. Restraint may be required in emergency situations.

  1. Proposal 11–8 Aged care legislation should provide that agreements entered into between an approved provider and a care recipient cannot require that the care recipient has appointed a decision maker for lifestyle, personal or financial matters.

Where the care recipient does not have the legal capacity to enter into an agreement, the approved provider can only deal with the care recipient's legal representative.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions