LSB September 2022 LR

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AGEING & THE LAW INTERVENING IN ELDER ABUSE: THE OVERLOOKED ROLE OF INTERVENTION ORDERS IN ADDRESSING ELDER ABUSE JEMMA HOLT, RESEARCHER, AND DR DAVID PLATER, DEPUTY DIRECTOR, SOUTH AUSTRALIAN LAW REFORM INSTITUTE The significant incidence of the abuse of older persons 1 in Australia and the acute problems posed by the apparent inability of the civil and criminal law to effectively respond has been the subject of extensive concern and commentary, 2 including in South Australia. 3 Five elder abuse subtypes are commonly recognised: 4 • financial; 5 • physical; • sexual; • psychological (emotional); and • neglect. Elder abuse is typically carried out by a close family member, often an adult child, 6 and can have a ‘devastating effect’ 7 on older persons. The fact that such abuse may also amount to domestic or family violence has also been highlighted. 8 The suggestion of intervention orders 9 (“IOs”) to address such abuse, though largely overlooked, has been raised. 10 It is argued that the option of an IO under the Intervention Orders (Prevention of Abuse) Act 2009 (SA) (“the IO Act”), though not a universal remedy, may be of utility to address elder abuse and is worthy of closer consideration by lawyers, police and relevant agencies. The Intersection of Psychological and Financial Abuse Financial abuse is often said to be the most common form of elder abuse. 11 Such abuse has been noted as increasing and described as ‘significant, insidious and frightening’; victims can lose their home or the entire resources that they’ve set up for their later life. 12 There is also mounting disquiet over the significant incidence and implications of psychological abuse (including ‘gaslighting’) 13 in relation to older persons. 14 Indeed, this may extend to ‘coercive control’ 15 by family members and others close to the victim in the context of elder abuse. 16 There has been considerable recent discussion of coercive control, 17 typically in an intimate or domestic partner context. 18 However, the application of coercive control beyond domestic partners and its application to both older persons and persons with disability in a family situation been noted. 19 The psychological and financial abuse of older persons is often interrelated. The close intersection between financial and psychological abuse or coercive control in relation to older persons has emerged in recent research. 20 One study observed the link between psychological and financial abuse, noting that the former is a grooming behaviour for the latter. 21 Psychological abuse ‘seems to frequently co-occur with financial abuse, suggesting a pattern of behaviour analogous to grooming in the sexual abuse context.’ 22 Current Issues with Intervention Formal redress where abuse does occur both protects the victim and deters potential wrongdoing. 23 However, despite the availability of existing civil and criminal remedies, there are a multitude of legal, social and practical reasons why these remedies are inadequate to address elder abuse, and, in particular, the psychological and financial abuse of older persons. 24 A NSW Parliamentary Report noted the individual and external barriers to victims of elder abuse reporting such abuse and seeking help are ‘substantial and numerous’. 25 Victims are often reluctant to report abuse as they do not want to risk their relationship with the abuser. 26 The victim may well have a disability or a lack of capacity that prevents them from seeking legal advice 27 and/or may make it impossible to satisfy the onerous evidentiary requirements in any court proceedings. 28 The abuse may involve a close family member such as an adult child and the victim and/or the family may be unwilling to seek redress for this reason. 29 In a civil context, any legal action in the higher courts would undoubtedly prove a costly 30 and time-consuming process and victims may be unwilling or unable to bring such an action. 31 The criminal remedy is similarly problematic. Even if reported to the police, the police may be reluctant to become involved 32 and regard any complaint of wrongdoing as a civil or ‘private’ issue that is outside their role. 33 The victim is likely to either have died before the abuse comes to light or be unable or unwilling to make a complaint and/or testify. 34 There are particular difficulties for the police in responding to claims of financial elder abuse; 35 with a number of particular ‘significant’ practical and evidential challenges arising. 36 Further, there remains the more subtle, yet equally harmful, ‘grooming’ conduct that precipitates overt acts of abuse and which presents a unique challenge that is largely unmet by existing civil and criminal remedies. Namely, in cases involving coercive control and/or gaslighting, when to intervene and how? Intervention Orders Arguably, a widespread misconception about the current IO framework of the IO Act is that ‘domestic abuse’ is confined to domestic partner abuse. 37 Whilst domestic 10 THE BULLETIN September 2022
AGEING & THE LAW partner abuse represents the majority of IOs in practice, the definition of ‘domestic abuse’ under the IO Act is far broader. It requires there to be a relationship or former relationship. However, whilst ‘relationship’ includes marriage or a domestic partnership, 38 it also includes: 39 • two people related to each other by or through blood, marriage, a domestic partnership or adoption; and • where one is the carer 40 of the other. The definition of ‘domestic abuse’ under the IO Act encompasses the relationships within which many older persons suffer, or are at risk of suffering, abuse. Older persons may be particularly vulnerable to abuse by relatives and/or those who provide them with care. Even in circumstances where the abuse of older persons does not fall within the definition of ‘domestic abuse’, the IO Act extends to protect against ‘non-domestic abuse’. 41 Psychological Abuse: Coercive control and ‘gaslighting’ Coercive control and ‘gaslighting’ are recognised forms of abuse under the IO Act. Section 8 of the IO Act provides that ‘abuse’ may take many forms including emotional and psychological abuse. An act is an ‘act of abuse’ if it results or is intended to result in emotional or psychological harm, or an unreasonable and non-consensual denial of financial, social or personal autonomy. Further, emotional or psychological harm includes: mental illness, nervous shock, and distress, anxiety, or fear, that is more than trivial. The IO Act provides a range of ‘examples’ of acts of abuse against a person, many of which are directly applicable to older persons: • threatening to withhold a person’s medication or preventing the person accessing necessary medical equipment of treatment; 42 • threatening to institutionalise the person; 43 • threatening to withdraw care on which the person is dependent. 44 • denying the person the financial autonomy that the person would have had but for the act of abuse; 45 • withholding the financial support necessary for meeting the reasonable living expenses of the person…in circumstances in which the person is dependent on the financial support to meet those living expenses; 46 • causing the person through coercion or deception to: ° relinquish control over assets or income; ° claim social security payments; ° sign a power of attorney enabling the person’s finances to be managed by another person; ° sign a contract for the purchase of goods or services; ° sign a contract of guarantee; ° sign any legal document for the establishment or operation of a business. 47 The Case for Intervention Orders It is imperative to respect an older person’s autonomy, but ‘autonomy and safeguarding are not mutually inconsistent; safeguarding responses also act to support and promote the autonomy of older people’. 48 The various legal mechanisms and frameworks which seek to protect vulnerable adults through a range of powers, duties and/or obligations such as Powers of Attorney, or Guardianship and/or Administration orders are largely ineffective when it comes to restraining the conduct of another person who is actively undermining these efforts. Traditionally, IOs are overlooked in this context. However, in some cases of the psychological abuse of older persons, IOs present as an appropriate means of early and effective intervention to either cease and/or prevent such abuse. In cases involving psychological abuse, there are likely to be evidentiary issues, that is, an absence of evidence of any overt act of abuse. The grounds required for the issuing of an IO are flexible in this respect. The grounds are anticipatory; there is no requirement to prove an act of abuse before an IO is issued. Grounds exist if it is reasonable to suspect that the defendant will, without intervention, commit an act of abuse against a person, and the issuing of the order is appropriate in the circumstances. 49 Moreover, in dealing with applications under the IO Act, the court need only be satisfied of factual matters to the lesser civil standard of proof, on the balance of probabilities. 50 There is also a broad discretion as to the terms that may be included in an IO. Whilst the IO Act provides for some mandatory terms (i.e. regarding firearms 51 ) and a range of other suggested terms, 52 it otherwise states that an IO may impose any requirement for a person to take, or to refrain from taking, specified action. 53 It further provides that an IO may specify conditions under which a prohibition imposed by the order does not apply, and conditions that must be complied with in relation to a requirement imposed by the order. 54 The court has much latitude when it comes to the terms of an IO, including September 2022 THE BULLETIN 11
Page 1 and 2: THE BULLETIN THE LAW SOCIETY OF SA
Page 3 and 4: This issue of The Law Society of So
Page 5 and 6: PRESIDENT’S MESSAGE The law is se
Page 7 and 8: NEW SUIT ARRIVALS FROM SAVILLE ROW
Page 9: AGEING & THE LAW family or assets o
Page 13 and 14: AGEING & THE LAW Endnotes 1 There a
Page 15 and 16: DISABILITY Report that police may b
Page 17 and 18: AGEING & THE LAW The most substanti
Page 19 and 20: EVENTS Nyland lunch celebrates powe
Page 21 and 22: RISK WATCH 3. If it involves trust
Page 23 and 24: INTERVIEW RH: Over the years you sp
Page 25 and 26: TAX FILES money was irrelevant - ne
Page 27 and 28: FEATURE STAYS OF CIVIL PROCEEDINGS
Page 29 and 30: CIVIL LITIGATION 2. The burden is u
Page 31 and 32: WELLBEING & RESILIENCE Ageing Well
Page 33 and 34: FAMILY LAW CASE NOTES PROPERTY - IN
Page 35 and 36: CLASSIFIEDS Advertise in The Bullet

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