19 October 2018 The Hon Stephen Wade MLC Minister for Health and Wellbeing Level 9, 11 Hindmarsh Square ADELAIDE SA 5000 via email: narelle.hards@sa.gov.au Dear Minister Office for the Ageing (Adult Safeguarding) Amendment Bill 2018 1. I refer to the Office for the Ageing (Adult Safeguarding) Amendment Bill 2018 ( the Bill ). 2. The Bill establishes a new Adult Safeguarding Unit ( the Unit ), which will be located in the Office of Ageing Well within the Department for Health and Wellbeing. The Unit will be responsible for assessing and investigating reports of alleged or suspected abuse, and then either referring them on to appropriate persons or bodies, or working in collaboration with other agencies to co-ordinate a multi-agency and multi-disciplinary approach. 3. The Society notes that the Bill follows significant consultations, reports and recommendations both in South Australia and nationally, in relation to the issue of reforms relating to elder abuse, and also follows the events relating to the Oakden Older Persons Mental Health Service. 4. Key reports produced as part of the consultation noted above, include the Australian Law Reform Commission (ALRC) Report Relating to Elder Abuse 1 ( the ALRC Report ), the Closing the Gaps Report by Wendy Lacey 2 written in conjunction with the Office of the Public Advocate South Australia, and the Final Report of the Joint Select Committee on Matters Relating to Elder Abuse. 5. These reports all emphasise the importance of balancing the human rights of older persons with the responsibility to protect vulnerable persons. 1 Elder Abuse A National Legal Response (ALRC Report 131) Published on 14 June 2017. 2 Closing the Gaps: Enhancing South Australia s Response to the Abuse of Vulnerable Older People, tabled in the House of Assembly, 14 June 2012.
2 6. The Society notes the United Nations Principles for Older Persons 3 encourages governments to incorporate a number of key principles into their national programs whenever possible. Such principles include that older persons should be able to live in dignity and security and be free of exploitation and physical or mental abuse. Relevant human rights standards, such as the United Nations Principles for Older Persons should underpin policy around the care and protection of older persons and vulnerable adults. 7. It is important to recognise the balance between the rights of the vulnerable person to autonomy, and the community s responsibility to protect those persons from harm. The Society notes that the ALRC Report proposes a rights based, harm reduction approach, ensuring that the older person is at the centre of any decisions relating to providing support and assistance in responding to elder abuse. 4 8. The Society has considered the Bill, in particular, the coercive powers bestowed upon the Unit. The Society makes a number of comments below, including how the scope of Bill compares to the recommendations of the ALRC. Vulnerable Adult 9. Section 22 of Bill provides that a person may report to the Adult Safeguarding Unit a suspicion that a vulnerable adult is at risk of abuse. A vulnerable adult is defined in section 3 of the Bill as an adult person who by reason of age, ill health, disability, social isolation, dependence on others or other disadvantage is vulnerable to abuse. 10. Abuse is defined in section 4 of the Bill as including physical, sexual, emotional or psychological abuse of the vulnerable adult; financial abuse or exploitation; neglect; denial of basic rights of the vulnerable adult. 11. The investigation powers conferred by the Bill extend beyond elder abuse to abuse of vulnerable adults generally and relate to a much broader range of matters defined as constituting abuse. The Bill provides a much broader conferral of authority upon the Adult Safeguarding Unit than proposed in the ALRC report and recommendations. Autonomy of the vulnerable person and the need for consent 12. The Society notes that the principles contained in section 12 of the Bill adopt the guiding principles contained in such instruments as the United Nations Principles for Older Persons which affirm the right of older persons to make decisions about their care and quality of their lives. These include: 3 United Nations Principles for Older Persons, GA Res 46/91, UN GAOR, 46th Session, 74th Plen Mtg, Agenda Item 94(a), UN Doc A/RES/46/91 (16 December 1991). 4 Australian Law Reform Commission, Elder Abuse Discussion Paper (DP 83) December 2016 p 61.
3 12.1 A vulnerable adult with decision making capacity who is experiencing abuse has the right to decline support, assistance or other measures designed to safeguard them from abuse; 12.2 Vulnerable adults must be involved in, and their wishes must directly inform, decisions made or actions taken to support and safeguard them; 12.3 All vulnerable adults are entitled to be treated with respect for their dignity, autonomy and right to self-determination. 13. Section 23 provides that the Director must cause each report under the Act to be assessed in accordance with any requirements set out in the regulations. An assessment may take place under section 23 without the consent of the vulnerable adult. 14. Section 24 of the Bill provides that the Unit should not take action in respect of a report unless the vulnerable adult to whom the report or notification relates consents to the action being taken. However, consent does not need to be obtained where: 14.1 the vulnerable adult s life or physical safety is at immediate risk; or 14.2 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 person; or 14.3 the vulnerable person has impaired decision-making capacity in respect of a decision to consent to an action of the relevant kind being taken. 15. The Society considers that the autonomy of vulnerable adults must be respected as much as possible, as reflected in section 12 of the Bill. It is suggested that where the Unit has concerns about the person s capacity to consent to an investigation, an appointment of a guardian where appropriate, could also be considered. Coercive Powers 16. The Society notes that recommendation 14-6 of the ALRC Report, recommends that Adult safeguarding laws should provide adult safeguarding agencies with necessary coercive information-gathering powers, such as the power to require a person to answer questions and produce documents. Agencies should only be able to exercise such powers where they have reasonable grounds to suspect that there is serious abuse of an at-risk adult, and only to the extent that it is necessary to safeguard and support the at-risk adult. The Society supports this recommendation.
4 17. Section 26 of the Bill provides that the Director of the Unit may cause an investigation into the circumstances of a vulnerable adult to be carried out if the Director suspects on reasonable grounds that the vulnerable adult may be at risk of abuse. 18. The powers of authorised officers are outlined under section 19 of the Bill. They include powers such as the power to 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 on that subject. They also include powers to require a person to produce documents. These powers are consistent with those recommended for safeguarding agencies in the ALRC Report. Furthermore, section 19(1) provides that the powers may be exercised in circumstances where a vulnerable adult is suspected of being at risk of serious abuse. 19. The Society notes that the powers of authorised officers also include the power to enter and remain on any premises, place, vehicle or vessel; inspect any premises, place, vehicle or vessel; and use reasonable force to break into or open any part of, or anything in or on, any premises, place, vehicle or vessel. 20. Section 19(2) provides that an authorised officer may only use force to enter any premises, place, vehicle or vessel, or break into or open any part of, or anything in or on, any premises, place, vehicle or vessel 20.1 on the authority of a warrant issued by a magistrate; or 20.2 if entry to the premises, place, vehicle or vessel has been refused or cannot be gained; 20.3 and the authorised officer believes on reasonable grounds that the delay that would ensue as result of applying for a warrant would significantly increase the risk of harm, or further harm, being caused to a vulnerable adult; and 20.4 the use of force has been approved by the Director. 21. The Society notes that the ALRC recommended that Australian safeguarding agencies should not have powers of entry. The Bill goes beyond the recommended scope of coercive powers in this respect. 22. While there may be some serious cases where the power of entry is required, for example, where the person refusing entry is the person thought to be abusing an at-risk adult, the Society submits that the power of entry and inspection without consent, should be restricted to police agencies.
5 23. The Society further notes that the Director has the power apply for an order of the Court, if the Director reasonably suspects that a vulnerable adult is at risk of abuse under section 31 of the Bill. 24. The Society notes the explicit inclusion of protections in section 51(3) of the Bill, including legal professional privilege. Section 51(4) provides that a person is excused from answering a question or producing a document or other material if the person could not be compelled to answer the question or produce the document or material in proceedings in the Supreme Court. As such, the right against self-incrimination is preserved. 25. The Society understands that coercive powers are important in allowing bodies, such as the Unit, to gather information and perform its statutory functions. However, these powers must also be balanced by appropriate safeguards to protect the rights of individuals. Therefore, it is appropriate that established criminal law protections are maintained under the Bill. Protection for Notifiers 26. Recommendation 14-7 of the ALRC Report specifically recommends that adult safeguarding laws should provide that any person who, in good faith, reports abuse to an adult safeguarding agency should not, as a consequence of their report, be: 26.1 liable civilly, criminally or under an administrative process; 26.2 found to have departed from standards of professional conduct; 26.3 dismissed or threatened in the course of their employment; or 26.4 discriminated against with respect to employment or membership in a profession or trade union. 27. The Society notes that section 50 of the Bill provides that a person who causes detriment to another on the ground, or substantially on the ground, that the other person or a third person has provided, or intends to provide, information under the Act commits an act of victimisation. Detriment is defined to include discrimination, disadvantage or adverse treatment in relation to a person s employment. 28. Section 51 of the Bill provides for various protections, privileges and immunities. Section 51(1) states that no liability attaches to the Director or any other person for any act or omission in good faith in the exercise of powers or functions under this or any Act. The Society assumes that section 51(1) would apply to those who report to the Unit, a suspicion that a vulnerable adult is at risk of abuse under section 22(1).
6 29. The Society considers that any person who, in good faith, reports abuse to the Unit, should not as a consequence of their report, be liable under civil or criminal law, or under an administrative process. 30. The Society further notes section 51(6) provides that a person who does anything in accordance with this Act, or as required or authorised under this Act, cannot by so doing be held to have breached any code of professional etiquette or ethics, or to have departed from any acceptable form of professional conduct. 31. The protections under Bill are consistent with the ALRC recommendations as noted above and supported by the Society. 5 Review process 32. The Society notes that a person who is aggrieved by the decision of the Unit is entitled to an internal review of the decision by the Chief Executive under section 38 of the Bill. If a person is dissatisfied with the determination of the Chief Executive under section 38, where that determination relates to circumstances in which a vulnerable adult is, or is suspected of being, at risk of serious abuse, they may apply to the Ombudsman for a review of the determination under section 40 of the Bill. 33. Furthermore, the Society notes that an independent review of the Act is to be conducted within its first three years of operation. The safeguarding provisions will only apply to vulnerable adults aged 65 years or older, or 50 years or older for Aboriginal and Torres Strait Islanders in the first three years of operation. An independent review will enable the operation of the legislation to be properly considered and any necessary changes/improvements made before the scope of the Bill widens to all vulnerable adults. General Comments 34. The Society notes recommendation five of the Report of the Joint Committee on matters relating to Elder Abuse that a South Australian Elder Abuse Prevention Unit be established. The Report of the Joint Committee recommends (as previously recommended in the Closing the Gaps report) that the Adult Protection Unit could be developed through an expansion of the Office of the Public Advocate, or established inside a State Government Department, such as the Department of Communities and Social Inclusion, with an across-government focus for whole-of-government policy. 35. One of the benefits seen in expanding the powers of public advocates/guardians to investigate elder abuse and assist older persons who are or may be experiencing abuse to access services is related to the fact that these agencies already have extensive experience and expertise in working with older persons and persons with disabilities and are therefore well placed to understand the needs specific to those groups of persons. 5 Ibid.
7 36. It is seen to be an advantage to have the function bestowed upon the public advocate/guardian to promote and support older people to participate equally in their community and access services and advice. 6 As such, it is important that the Unit is staffed by persons with equivalent expertise. I trust these comments are of assistance. We would be pleased to provide further comment or assistance. Yours sincerely Tim Mellor PRESIDENT Phone: (08) 8229 0222 Email: President@lawsocietysa.asn.au 6 Law Council of Australia, Submission to the Australian Law Reform Commission's Elder Abuse Discussion Paper March 2017