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Elder abuse

Elder abuse is any action, or lack of action, deliberate or unintentional, which causes distress, harm, or serious risk of harm to an older person, or loss or damage to property or assets.

Information about elder abuse, and its signs and effects, is available on the South Australian SA Health website.

Any person seeking support and information in relation to elder abuse can contact the SA Elder Abuse Prevention Phone Line: 1800 372 310.

Some instances of elder abuse can constitute a criminal offence, such as assault. Other types of elder abuse may have different legal remedies, such as a civil claim or an intervention order being issued, for example.

What is an act of elder abuse?

Elder abuse can occur as a result of the direct actions or omissions of a person perpetrating the abuse. An act of abuse includes a failure to act, such as failing to provide a person with adequate accommodation, medical care or clothing.

Elder abuse can also occur as a result of indirect actionsof a person, for example when they make threats to harm someone the victim is close to and this causes the victim dist distress.

Similarly, a person commits an act of abuse if they:

  • cause someone else to abuse the victim
  • allow someone else to abuse the victim
  • cause or allow someone to participate in an act of abuse

Types of elder abuse

Elder abuse can take many different forms and a person may experience more than one type of abuse. It is generally accepted that the types of elder abuse (and some examples of what constitutes that abuse) are:

Physical

Such as inflicting pain or injury on a person.

Psychological

Such as using actions or language to intimidate person or cause them fear or distress, depriving them of their liberty, threatening to institutionalise them or cause them physical injury, using racial or derogatory taunts.

Financial

Such as misusing the person's money, assets, property or resources, improper use of planning documents such as Powers of Attorney, unlawful access and use of a person's bank account, incurring debts in the person's name without their knowledge, coercing a person to sign legal or financial documents, preventing a person from seeking or keeping employment.

Social

Such as isolating the person, unreasonable denial of their social, financial or domestic autonomy, unreasonably restricting access to friends or family, stopping social contact with others.

Neglect

Such as failing to provide adequate food, shelter, accommodation, clothing, and medical care to a person, refusing to allow others to provide this care to a person.

Sexual

Such as non-consensual sexual contact, behaviour or language.

Where to seek assistance

Currently in South Australia, there is no single agency to report suspected elder abuse to.

The SA Adult Safeguarding Unit has been established within the Office for Ageing Well, and is expected to commence in late 2019. Once operational, it will be able to receive and respond to reports of elder abuse within South Australia.

There are agencies that may be able to provide assistance depending on the circumstances of the abuse.

SA Police

In an emergency, contact 000

For non urgent police assistance, call 131 444

Police may be able to take reports and lay criminal chargers where the abuse relates to criminal offending, such as physical or sexual assault, theft or property damage. They can also, where appropriate, issue intervention orders.

See the SA Police website for more information.

Elder Abuse Prevention Phone Line

The Elder Abuse Prevention Phone Line can be contacted for confidential advice, information and referral to support agencies.

Phone: 1800 372 310.

Aged Rights Advocacy Service

ARAS provides support to uphold the rights of older people who are at risk of, or experiencing, abuse. ARAS can provide information, advice and advocacy to people residing in Commonwealth-funded residential aged care or receiving aged care services, people residing in retirement villages, or people residing in the community who have concerns relating to elder abuse.

Phone: 1800 700 600 or (08) 8232 5377 or visit the ARAS website for more information.

Office of the Public Advocate

The Office of the Public Advocate promotes and protects the rights of people who may need assistance with decision making. OPA provides information and advice on matters relating to Advance Care Directives and Guardianship and can act as guardians of last resort.

Phone: (08) 8342 8200 or visit the Office of the Public Advocate website for more information.

Legal Services Commission

The Legal Services Commission provides free and confidential legal advice on matters relating to elder abuse and documents such as Powers of Attorney, Advance Care Directives and Wills.

Phone: 1300 366 424 or visit the Legal Services Commission website for more information.

Visit the Stop Elder Abuse website for more information on elder abuse. See also the list of publications including the 'Knowing Your Rights' booklet available to download from the SA Health website.

For complaints or concerns relating to Commonwealth- funded aged care services, the Aged Care Quality and Safety Commission can be contacted on 1800 951 822. SeeAged Care Quality and Safety Commissionfor more information.

Adult Safeguarding Unit

The Adult Safeguarding Unit operates within the South Australian Office for Ageing Well. The Unit is empowered with statutory responsibility and accountability for receiving and responding to reports of actual or suspected abuse of vulnerable adults. It is therefore responsible for receiving and responding to reports of elder abuse.

The Ageing and Adult Safeguarding Act 1995 (SA) established the Adult Safeguarding Unit, which commenced operation on 1 October 2019.

Reports can be made by contacting the Adult Safeguarding Unit Monday to Friday 9am - 5pm on: 1800 372 310 or by sending an email to : stopelderabuse@sa.gov.au

What are the functions of the Adult Safeguarding Unit?

The Adult Safeguarding Unit receives, assesses, and investigates reports of abuse or suspected abuse of vulnerable adults within South Australia [Ageing and Adult Safeguarding Act 1995 (SA) s 15(1)(d),(e),(f)].

The Unit coordinates responses to reports of abuse when the response requires the assistance of multiple agencies in supporting the vulnerable adult [s 15(1)(g)]. The Unit can act as a triage service in referring reporters to appropriate agencies and bodies for assistance [s 15(1)(h)].

The Unit also plays a significant role in promoting and advocating for the rights and interests of vulnerable adults in South Australia, including assisting in the development of coordinated abuse prevention strategies [s 15(1)(a),(b),(c)].

Principles underpinning the operation of the Adult Safeguarding Unit

The following principles guide the Adult Safeguarding Unit in its day to day work and operations:

  • vulnerable adults are entitled to be treated with respect for their dignity, autonomy and right to self-determination;
  • vulnerable adults are presumed to have decision-making capacity, unless there is evidence to the contrary;
  • the primary consideration for the Adult Safeguarding Unit is ensuring that the vulnerable adult’s autonomy is respected and maintained, except in cases involving serious and imminent harm;
  • vulnerable adults are allowed to make their own decisions about health care, accommodation, financial matters and personal matters to the extent that they are able to, and should be supported in that decision making for as long as possible;
  • dignity in risk must be observed;
  • a vulnerable adult with decision-making capacity has the right to decline services or supports;
  • vulnerable adults must be involved in decisions or actions taken to support and safeguard them;
  • a multi-agency, coordinated approach is best when safeguarding vulnerable adults from abuse;
  • the will, preferences, cultural and heritage beliefs, religious beliefs, racial origin, ethnicity, background and other beliefs of the vulnerable adult must be respected;
  • any safeguarding measures should be the least interventionist and least intrusive; and
  • community education and awareness raising are priorities for the Unit.

[See Ageing and Adult Safeguarding Act 1995 (SA) s 12].

Who is a vulnerable adult?

Section 3 of the Act defines a vulnerable adult as a person who, by reason of age, health, disability, social isolation dependence on others or disadvantage, is vulnerable to abuse. [s 3].

Transitional provisions in the Act also prescribe that for the first three years of operation of the Unit (1 October 2019 – 1 October 2022), a person will be taken to be a vulnerable adult for the purposes of the Act if they are:

  1. an Aboriginal or Torres Strait Islander person who is 50 years or older; or

  2. any other person who is 65 years or older.

[See Schedule 1 – Transitional Provision, Ageing and Adult Safeguarding Act 1995 (SA)].

This means that for the first three years of operation, the Unit will only respond to reports of abuse or suspected abuse where the vulnerable adult is aged 65 years or older (or 50 if Aboriginal or Torres Strait Islander).

What is abuse?

For the Adult Safeguarding Unit to receive and investigate a report of abuse, a vulnerable adult must be experiencing, or at risk of experiencing, abuse.

The Act broadly defines abuse for these purposes to incorporate a range of behaviours including:

  • physical, sexual, emotional or psychological abuse;
  • financial abuse or exploitation;
  • neglect;
  • a failure to act that results in abuse, exploitation, or neglect;
  • the abuse or exploitation of a position of trust or authority existing between the vulnerable adult and another person;
  • a denial of the basic rights of the vulnerable adult, without reasonable excuse; or
  • the physical or chemical restraint of a vulnerable adult including the over-mediation or under-medication of the person.

[See Ageing and Adult Safeguarding Act 1995 (SA) s 4].

How is decision-making capacity defined?

There is a presumption that a vulnerable adult will have decision-making capacity, unless there is evidence to the contrary [see ss 5(1); 12(b)].

A person will be taken to have impaired decision-making capacity in respect of a particular decision if the person is not capable of:

  • understanding any information that may be relevant to the decision; or

  • retaining such information; or

  • using such information in the course of making the decision; or

  • communicating the decision in any manner.

[See Ageing and Adult Safeguarding Act 1995 (SA) s 5(2)].

However, just because a person has fluctuating (changing) capacity, is unable to understand matters of a technical or trivial nature, or is unable to retain the information for an extended period of time does not automatically mean they do not have decision-making capacity [see s 5(3)]. Similarly, a decision made by a vulnerable adult that results in an adverse (negative) outcome for them is not automatically a sign of a lack of decision-making capacity [s 5(3)(d)].

Who can make a report?

Any person who is concerned about a vulnerable adult experiencing abuse or at risk of abuse can report their concerns to the Adult Safeguarding Unit [see s 22(1)]. A concerned family member or friend can make a report, as can an employed professional supporting a vulnerable adult, such as a paid carer. A person who is experiencing abuse themselves can similarly seek assistance from the Unit.

The consent of the vulnerable adult is not required for a report to be made, but consent will in most instances be required if an investigation is then undertaken and certain action is proposed. The Adult Safeguarding Unit aims to work with the vulnerable adult in responding to the abuse or alleged abuse.

Reports to the Adult Safeguarding Unit can be made anonymously.

How is a report made?

Reports can be made by contacting the Adult Safeguarding Unit on: 1800 372 310 or by sending an email to : stopelderabuse@sa.gov.au

The telephone line operates Monday – Friday 9.00 a.m. 5.00 p.m.

Is it mandatory to make a report?

Workers (and members of the community) are under no mandatory reporting obligations in making reports to the Adult Safeguarding Unit [see s 22(2)]. All reporting is voluntary, and reports may be made anonymously.

Powers of the Adult Safeguarding Unit

The Adult Safeguarding Unit is empowered to receive, assess and investigate reports of abuse or suspected abuse of vulnerable adults.

Once a report of abuse or suspected abuse is received by the Unit, the Unit assesses the report and either:

commences an investigation into the matter; and/or

  • refers the person to an appropriate agency or body; or
  • declines to take any further action, where the matter has already been dealt with, is trivial, vexatious or frivolous, or there is good reason why no action should be taken.

[See Ageing and Adult Safeguarding Act 1995 (SA) s 23(3)].

If, when assessing a report, the Unit becomes aware of a matter that raises the possibility of professional misconduct or unprofessional conduct, the Unit may report the matter to the relevant regulatory body [s 27(1)].

Where the Unit commences an investigation following the assessment of a report, authorised officers have various powers available to them, including the power to:

  • inspect and/or enter and remain on any premises, place, vehicle or vessel;
  • use reasonable force to enter any premises, place, vehicle or vessel;
  • require a person who has possession of books of account or other relevant records to produce those records for inspection, removal, copy, or examination;
  • take photographs, films, audio, video or other recordings; and
  • require any person who is in a position to provide information relating to a vulnerable adult to answer any question put by the authorised officer, including their name, address and date of birth.

[See Ageing and Adult Safeguarding Act 1995 (SA) s 19.]

An authorised officer can only use force to enter any premises, place, vehicle or vessel where either:

  • a warrant has been issued by a Magistrate [s 19(2)(a)]; or
  • entry cannot be gained and the authorised officer believes on reasonable grounds that the delay that would ensue as a result of applying for the warrant would significantly increase the risk or harm, or further harm, being caused to the vulnerable adult and the Director of the Unit has approved the force [s 19(2)(b)].

It is an offence to fail to comply, without reasonable excuse, with any direction of an authorised officer in exercising their powers under section 19 as outlined above [see s 19(7)].

Maximum penalty: imprisonment for one year.

Consent of the vulnerable adult

The consent of the vulnerable adult will be obtained when investigating a report and where any further action is proposed in respect of a report [s 24(1)]. Action may only be taken without the consent of the vulnerable adult where:

  • the vulnerable adult’s life or physical safety is at imminent risk;
  • the risk of abuse to which the report relates consists of an allegation that a serious criminal offence has been, or is likely to be, committed against the vulnerable adult;
  • the vulnerable adult has impaired decision-making capacity in respect of a decision to consent to action of the relevant kind being taken;
  • the Unit has not, after reasonable inquiries, been able to contact the vulnerable adult;
  • it is, in the opinion of the Unit, necessary or appropriate that action of the relevant kind be taken without first obtaining consent of the vulnerable adult.

[See Ageing and Adult Safeguarding Act 1995 (SA) s 24(4); Ageing and Adult Safeguarding Regulations 2019 (SA) reg 8(1)].

Safeguarding Plans

When an investigation is undertaken by the Unit, the Unit will explore ways in which the vulnerable adult can be supported so as to stop the abuse occurring or minimise the risk of further abuse. This will be done with the consent and involvement of the vulnerable adult (except in specific circumstances, see Consent of the Vulnerable Adult above).

The Unit may suggest that a multi-agency response is required, where various agencies work together to provide support to the vulnerable adult in addressing the abuse. The Unit may provide a lead role in coordinating agencies in responding to the abuse of the vulnerable adult, including by holding an inter-agency adult safeguarding meeting for the purposes of developing a safeguarding plan.

Any person may be interviewed in relation to an investigation, to help assist the Unit in understanding further details about the alleged abuse

In conjunction with the vulnerable adult, and with their wishes and preferences kept in mind, a safeguarding plan may be developed which will outline the suggested actions and supports taken to respond to the abuse of the vulnerable adult.

A safeguarding plan can include:

  • the goals or outcomes sought by the vulnerable adult;
  • the identification of any immediate risks or further risks to the vulnerable adult;
  • any actions that the Unit will undertaken or another agency will undertake;
  • suggestions on how the vulnerable adult may protect themselves now and in the future;
  • support or action plans concerning the needs of other relevant people; and
  • an agreed timeframe and process for review of the plan.

[See South Australian Adult Safeguarding Unit Code of Practice (2019)].

Complaints

A person wishing to make a complaint about a decision or action of the Adult Safeguarding Unit should first raise it directly with the Unit.

Certain decisions of the Unit may be subject to an internal review process. Those decisions include:

  • a decision regarding the action(s) to be taken following the assessment of a report;
  • a decision to act without first obtaining the consent of the vulnerable adult;
  • a decision to refer a matter (or part of a matter) to another agency or body;
  • a decision to cause an investigation into the circumstances of the vulnerable adult to be carried out.

[See South Australian Adult Safeguarding Unit Code of Practice (2019)].

An application for internal review should be made within 30 days of receiving notice of the original decision, by completing the application form available on the Adult Safeguarding Unit website.

A decision can be confirmed, varied or set aside through internal review, and the complainant will be notified of the outcome of the review.

In 2020, an external review process to the SA Ombudsman will be made available.

For more information, see the Adult Safeguarding Unit website.

Elder abuse  :  Last Revised: Wed Jul 17th 2019
The content of the Law Handbook is made available as a public service for information purposes only and should not be relied upon as a substitute for legal advice. See Disclaimer for details. For free and confidential legal advice in South Australia call 1300 366 424.