Elder Abuse Law in the ACT

There are no specific laws dealing with elder abuse in the ACT.

There are some Federal laws which address elder abuse. For example, under the Aged Care Act 1997 (Cth) approved residential aged care providers are obliged to report alleged or suspected assaults in aged care facilities funded by the Commonwealth to the police and to the Commonwealth Department of Health and Ageing. The complaint must relate to an approved provider’s responsibilities under the Act or the Aged Care Principles.

Legislation and common law provide some protection against certain forms of elder abuse.

Equity, through the mechanism of the constructive trust, can provide relief in some circumstances to vulnerable older persons. Relevant equitable remedies include constructive trust, account of profits, tracing, rescission and specific performance (see, for example, Johnson v Buttress (1936)56 CLR 113 and Commercial Bank of Australia v Amadio [1983] HCA 14; (1983) 151 CLR 447).

Actions for damages are available in tort law for injury suffered as a result of abusive conduct.

Elder abuse may amount to offences against the person (such as assault, sexual assault, stalking and negligent manslaughter) and offences against property (such as stealing and fraud).

While these offences are applicable to the general population regardless of the age of the victim, they are often aggravated due to age. That is, the circumstance of an older person or a person with impaired capacity as the victim tends to be an aggravating factor which the courts take into account when sentencing.

There is no discrete offence in the ACT. In some jurisdictions neglect is addressed in criminal law. See, for example, the Criminal Code 1899 (Qld) offences of ‘duty to provide necessaries’ and ‘failure to supply necessaries’ (see sections 285, 290 and 324). These offences impose a duty on someone who has charge of another person who is unable to provide themselves with the ‘necessaries of life’ to provide care.

Domestic violence legislation in some jurisdictions also makes orders available for abused persons within family relationships and informal care relationships.

Approach to Elder Abuse in the ACT

While there are currently no laws in the ACT specifically relating to elder abuse, there are some protections available in the Human Rights Act 2004, Human Rights Commission Act 2005, Discrimination Act 1991, Domestic Violence and Protection Orders Act 2008, Guardianship and Management of Property Act 1991, Powers of Attorney Act 2006, Public Trustee Act 1985, Public Advocate Act 2005, Legal Aid Act 1997, Health Records (Privacy and Access) Act 1997, Crimes Act 1900, Victims of Crime Act 1994, ACT Mental Health (Treatment and Care) Act 1994, Health Act 1993, Health Professionals Act 2004 and the Emergencies Act 2004.

Key ACT agencies with statutory responsibilities include the Public Advocate of the ACT, Public Trustee for the ACT, ACT Civil and Administrative Tribunal (Guardianship Division), Health Services Commissioner, Aged Care Complaints Scheme, ACT Policing and the Victims of Crime Coordinator.

The ACT Legislative Assembly’s response to elder abuse has been at its own initiative.

- In 2001 the ACT Standing Committee for Health and Community Care conducted an inquiry into elder abuse. In response the Assembly allocated funding to develop a program to respond to elder abuse.

- The Elder Abuse Prevention Project was funded to provide a multifaceted approach to addressing elder abuse in the ACT and provided a telephone information and referral service, a community awareness media campaign and a Training Manual and Information Kit for professionals.

- In 2008 the ACT Elder Abuse Prevention Program was reviewed.

- The ACT Strategic Plan for Positive Ageing 2010-2014 committed to reducing elder abuse.

- In February 2012 the ACT Elder Abuse Prevention Program Policy was released.

• The ACT Office for Ageing within the Community Services Directorate is responsible for the governance, coordination and strategic direction of the ACT Elder Abuse Prevention Program. The Office for Ageing is advised in this role by the Elder Abuse Prevention Network and the ACT Ministerial Advisory Council on Ageing (MACA).
• MACA consists of up to 12 representatives appointed by the Minister for Ageing to assist the ACT Government to develop and implement positive ageing policies which advance the status and interests of older people in the ACT. MACA is responsible for monitoring the effectiveness of the ACT Elder Abuse Prevention Program and providing high level advice to the Minister for Ageing. MACA is represented on the Elder Abuse Prevention Network.

The Elder Abuse Prevention Network provides strategic advice on systemic issues relating to elder abuse and the co-ordination of services that support older people. It does not respond to individual cases of abuse. The Network consists of representatives of Government and non-government agencies who have a role in preventing abuse and neglect of older people in the ACT. The Network is guided by a Terms of Reference and managed by the Office for Ageing