Elder Neglect – What is it?
Elder abuse is fundamentally a violation of an older individual’s human rights by another person or persons. Elder abuse can take various forms, including physical, financial, psychological, sexual, and emotional.
Elder Neglect is a common form of abuse experienced by vulnerable older persons and involves the failure by a carer, relative or relatives, partner, aged care or medical worker or workers, or friend to provide essential needs including food, water, shelter, medical care, hygienic needs, and other areas in which a vulnerable elder may require assistance, resulting in or risking harm.
How common is elder neglect?
According to the Australian Institute of Family Studies report from August 2022, approximately 3% of people aged 65 years and older, living in community dwellings in Australia experienced neglect in 2021.[1]
The main perpetrators of abuse include a spouse or partner (25%), a child or children (24%) or a service provider (14%).[2]
Neglect also remains the most under-reported type of elder abuse reported, with approximately 63% of elders reporting incidents of neglect, compared to 93% of physical abuse incidents.[3]
It is somewhat difficult to gauge the context in which elder neglect is most prevalent, including whether it occurs more often in institutional care environments, community, or home settings.
Nonetheless, neglect does remain a risk for vulnerable older persons, particularly if they have some form of cognitive impairment, medical condition, or physical limitations.
What are the risk factors?
A range of individual, community and societal factors may play a role in the neglect, including but not limited to:
- Cognitive impairment;
- functional dependency;
- poor physical or mental health or frailty;
- substance abuse by the victim or perpetrator;
- the relationship between the perpetrator and the vulnerable older person;
- isolation or loneliness experienced by the victim or perpetrator;
- levels of dependency;
- traumatic life events, including past abuse experienced by the victim or perpetrator;
- the caregiver perceiving the care as “burdensome” or “stressful”; and
- domineering personality traits;[4]
What can lawyers do about it?
The 2007 House of Representatives Committee which looked at older people and the law, noted that there are no Commonwealth State or Territory legislation or government policy frameworks that are specifically targeted at “addressing abuse, or neglect of Older People”.[5] That legal gap remained, with the exception of recent amendments to the Crimes Act 1900 (ACT). Although Australian legislation fails to adequately protect vulnerable elder Australians, legal recourse to remedy the neglect perpetrated against elders is available.
Elder neglect may be protected pursuant to the Crimes Act 1900 (NSW), or under common law.
Case Law – R v Taktak (1988) 14 NSWLR 226
In the criminal matter of R v Taktak,[6] the accused was convicted of manslaughter, as he did not provide the victim, a 15-year-old female prostitute, sufficient care.
The accused procured the victim to attend a party at the home of his acquaintance and later received a telephone call from the acquaintance advising him to collect the girl. He found her lying in the foyer of a building, and the victim was unconscious as a result of consuming drugs.
He took her to his home and attempted to revive her, but she subsequently died.
Although his conduct was so “morally reprehensible”, the conviction was quashed by Yeldham and Loveday JJ in the NSW court of Criminal Appeal, on the ground that the evidence fell short of establishing negligence of the degree to justify a conviction. Any failure to obtain medical assistance did not amount to the high degree of negligence or recklessness required for manslaughter.
Case Law – R v George [2004] NSWCCA 247
On 28 November 2002, a son was found guilty of manslaughter from his gross and wilful failure to provide his elderly mother, 86-year-old Joyce May George, from whom he was a primary carer, with proper nutrition, hydration, medication, and medical care.[7]
His Honour found that “she was denied the opportunity of medical treatment, and had not been provided, from January 1996, with any of the medication which she had been prescribed. She has not been given sufficient food or fluids, and she had been left in a state of appalling neglect”.
His Honour further noted “she had not been provided with a hygienic environment or with even the most basic of care. Clearly, she has been allowed to suffer over a considerable period, although to a considerable extent that was due to her own refusal to receive external help, either at home or in hospital”.
The omissions of the Applicant, in the care of his mother, were found by his Honour to have been “grossly and wickedly negligent”, to the standard identified in in Regina v Nicholls [1874] 13 Cox CC 75, and in Regina v Stone and Dobinson [1977] QB 354.
Mr George was sentenced to seven years imprisonment, which was later reduced to three years, from a failure to properly consider the circumstances.
So, what do you need to establish to be found guilty of neglect?
Although rather extreme in nature, there is a magnitude of case law that outlines there is indeed an avenue of law to ensure elder neglect is condoned.
The common law clearly establishes the elements required to satisfy civil negligence:
- The person is considered a caregiver or has a duty of care for the general or specific care of another;
- The duty of care has been wilfully, deliberately, recklessly or negligently breached or not performed; and
- The person in care has suffered pain and/or injury or other consequence as a result of the lack of care or failure to provide sufficient care.
- The person in care has suffered a loss and/or damages.
To establish criminal negligence, the Crimes Act 1900 (NSW)section 54 requires the prosecution to prove, beyond a reasonable doubt, that the defendant:[8]
- Committed an unlawful or negligent act, or made an admission; and
- The conduct caused grievous bodily harm.
What can you do?
As the population grows older, Australians become more susceptible to elder neglect. Therefore, it is vital it remains an important social and legal issue.
Elder neglect can be deeply distressing to its victims and their loved ones, so it is critical that you are in control during the help-seeking process.
Elderlaw Legal Services focuses on assisting clients with various elder-related matters. If you or your loved ones suspect you have seen or experienced neglect, we strongly recommend seeking legal advice.
By Teigan Hutchison
28 November 2022
[1] Elder abuse in Australia: Prevalence (aifs.gov.au) August 2022, page 1.
[2] Elder abuse in Australia: Prevalence (aifs.gov.au) August 2022, page 2.
[3] Elder abuse in Australia: Prevalence (aifs.gov.au) August 2022, page 3.
[4] World Health Organization (2018, June 8). Elder abuse.
[5] Standing Committee on Legal & Constitutional Affairs, House of Representatives, Legal Actions, in Older People and the Law (2009) [2.58]-[59].
[6] R v Tak Tak (1988) 14 NSWLR 226
[7] R v George [2004] NSWCCA 247
[8] Crimes Act 1900 (NSW)
