Responding to the financial abuse of older people - Loddon ...

‘general duty of confidentiality’ to the customer. Exceptions to this duty of
confidentiality under the Code include:
(i)
(ii)
where disclosure is compelled by law;
where there is a duty to the public to disclose; and
(iii) where disclosure is made with the customer’s express or implied consent.
(c) As the law currently stands, reporting of suspected financial abuse is not statutorily
compelled. There may, however, be scope for the argument that there is a public
duty to disclose this abuse of elderly members of the community to the OPA.
Obtaining express or implied consent is problematic in the context of elderly persons,
particularly those with Attorneys or Administrators, due to their incapacity to
make legal and financial decisions. Banks’ concerns with these obligations of
confidentiality and the restrictions on disclosure of personal information under
the Privacy Act and the National Privacy Principles are a significant obstacle
to encouraging banks and their staff to report suspected financial abuse of
elderly Victorians.
(d) At this point in time there is also no statutory immunity from suit for a person
who approaches the OPA with concerns that a person is being financially abused.
The VCAT Act provides for the confidentiality of proceedings by prohibiting persons
from publishing or broadcasting or causing to be published or broadcast any report
of a proceeding under the Guardianship Act or Part XIA of the Instruments Act
(regarding EPAs) that identifies, or could reasonably lead to the identification of,
a party to the proceeding. 44 These provisions, however, do not alleviate banks’ fears
of potential legal liability stemming from reporting suspected financial abuse,
particularly given that it is often difficult to conceal the identity of the person who
made the initial complaint throughout the course of proceedings.
5.10 Policy initiatives and legislative reform
(a) In the United States almost every State recognises financial abuse or exploitation
as a reportable form of elder abuse and imposes obligations upon banks and financial
institutions to report concerns of this abuse. 45 Forty-nine States encourage voluntary
reporting of suspected financial abuse of elderly persons by including immunity
provisions in their adult protective services laws for good faith reports, and three
States identify banks as mandatory reporters of suspected financial abuse. 46
(b) In Victoria, Gardner recommended cooperative voluntary initiatives with the
banking industry, including training bank personnel to recognise signs of financial
abuse and developing internal protocols in banks to deal with suspected abuse
(such as requiring bank employees to report suspected abuse to the branch manager
for determination according to a consistent standard of assessment). 47 It is also
strongly arguable that banks would be less reticent to report suspected abuse early
in the piece, before funds are substantially reduced, if legislative reform was
undertaken to protect them from any suit that might stem from such reporting.
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