Abusive Aged Care Workers May be Criminally Prosecuted

Elderly residents in Australia have been robbed, assaulted, drugged and force-fed by aged care workers, the Royal Commission into Aged Care Quality and Safety has heard.

Revelations made by Queensland Health Ombudsman, Andrew Brown, have come just a week after the arrests of three aged care workers in North Carolina, USA, who reportedly ran a “fight club” for dementia patients under their care at Danby House.

For a country still disturbed by scandals such as Oakden Nursing Home in Adelaide – in which some residents suspiciously lost their lives amid allegations of neglect and malpractice – the disclosures have been difficult to stomach.

A global epidemic

Though domestic data for elder abuse is lacking, overseas statistics indicate a major problem.

Studies from the UK and Canada show that around 2-8 percent of people aged 65 and over suffer at least one form of abuse per year.

This extends from active forms of abuse including financial exploitation and physical harm, to more passive forms, such as neglect.

Australia has also had more than its fair share of high-profile examples of elder abuse. In addition to the Oakden scandal, news headlines have been plagued in recent years, by reports exposing heinous crimes such as sexual violence against elderly women.

With a forthcoming interim report, it is hoped we will get a clearer picture of the issue.

Increased rigour

Governments recognise the problem and are taking positive action – including the implementation of new Aged Care Quality and Safety Commission (ACQSC) standards in July this year.

In March, the Attorney-General launched the National Plan to Respond to the Abuse of Older Australians (Elder Abuse) 2019-2023. And as part of the Australian Government’s 2016 election commitment, $15 million was provided to implement Our Plan to Protect the Rights of Older Australians.

This funding will support the implementation of the National Plan on Elder Abuse; the development of an Elder Abuse Knowledge Hub; an­d targeted research activities, to better understand the nature and prevalence of the issue.

In addition, as part of the 2018-19 More Choices for a Longer Life package, government provided $22 million in funding to tackle elder abuse over the next four years. This spend will increase specialist front-line services including elder abuse units, counselling and mediation services, as well as health justice partnerships.

And a further priority is to work with states and territories to reform enduring powers of attorney arrangements, government has said.

Criminal culpability

Elder abuse is a broad term, encompassing both criminal and non-criminal conduct. As yet, it is not a distinct offence – though there have been calls for a separate elder abuse law.

Certain forms are, however, encapsulated and therefore punishable by existing criminal laws.

For example, crimes such as common assault, assault occasioning actual bodily harm, sexual assault, larceny, fraud and conduct engendering life are all punishable by terms of imprisonment.

When sentencing an offender for any of these, courts may take into account the vulnerability of the victim. This can include people with advanced age, disability or dependence on others for assistance with daily activities.

However, when instances of elder abuse are investigated by police, they may decide not to run cases of elder abuse because of the difficulty in obtaining enough credible evidence to prove the charges beyond a reasonable doubt.

Legal minefield

Compliance with new aged care standards is somewhat of a legal minefield.

The “dignity of risk” principle states that if a person wants to undertake an activity with some element of risk – such as dancing, drinking alcohol or walking to the shops – an aged care worker should facilitate that.

Though well-intentioned, the dignity of risk principle has the potential to clash with workplace health and safety legislation and the implicit “duty of care” mandate.

As the standards are new, it is not yet known what will happen if a catastrophic event should happen when a resident is exercising their right to dignity of risk – nor how it may be used as a scapegoat for negligent or abusive behavior.

What next?

The deadline for submissions to the RC is April 2020 – and with nurses making their submissions this month, the nation is anxiously expecting further instances of malpractice to emerge from the proverbial woodwork.

As seen with the recent Hayne Commission, there is nothing quite like a Royal Commission to shed light on the inner workings of an industry.

Those who may have been too afraid to blow the whistle on instances of misconduct are suddenly given a safe platform for their voices to be heard and taken seriously.

And with the Honourable Bruce Lander QC campaigning for existing protections for whistleblowers to be extended to aged care homes, these disclosures will be further encouraged.

Soon, it is hoped, we will understand the full extent and nature of this abuse and that justice will be achieved.