Crimes Essay - Elder Abuse PDF

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ELDER ABUSE CRIMES ESSAY Introduction Elder abuse is a growing area of concern in New Zealand and internationally due to the increasing percentage of the population over 65 and the commonly held ethos that elderly are burdensome and incompetent. Internationally, this issue has been recognised and recent New Zealand reform has acknowledged elder abuse by somewhat narrowing the legislation to encompass vulnerable adults. These changes however do not fully encompass all the prevailing areas of elder abuse and even where so, change has been slow.1 Instead, further legislative reform is not required but a multifaceted approach aiming to improve education and awareness by social means alongside the legislation is necessary.

Elder abuse defined International concepts of elder abuse differ significantly with varying emphasis on human rights and public health perspectives.2 The its definition can therefore differ also and pose a problem for integrating its principles into legislation. Of the many definitions given, the World Health Organisation’s (WHO) which favours public health, has been recognised by Age Concern New Zealand. It describes elder abuse as “a single or repeated act or lack of appropriate action, occurring within any relationship where there is an expectation of trust which causes harm or distress to an older person”.3 The broadness of this definition allows coverage of multiple offences stemming from a position of trust. This can hinder elder abuse from having a clear identifiable purpose and target.4 For example, the use of ‘older person’ does not set a minimum age for elder abuse to apply. Further, it fails to address if there is a capacity element to be considered, or if age alone is the defining aspect. For legislation to encompass elder abuse in a specific way, a more detailed definition would be necessary to set parameters around the offence.

Current legislation 1 Attracta Lafferty Public Perceptions of Elder Abuse: A Literature Review (National Centre for the Protection of Older People, Review 2, November 2009) at 5. 2 Rae Kaspiew, Rachel Carson and Helen Rhoades Elder Abuse: Understanding issues, frameworks and responses (Australian Instsite of Family Studies, Research Report no. 35, February 2016) at 2. 3 World Health Organisation The Toronto Declaration on the Global Prevention of Elder Abuse (17 November 2002). 4 Kaspiew, Carson & Rhoades, above n 2, at 3.

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New Zealand’s legislation does not contain statute specifically governing elder abuse and instead the general sections set out in the Crimes Act 1961 apply. The 2012 amendments have given some acknowledgement to elder abuse by extending ss151, 195, and 195A to cover vulnerable adults. Sections 195 and 195A covers physical harm and s151 criminalises the failure to provide necessaries and protect from injury. All of these sections refer to a position of care or responsibility and coincide with the WHO definition of elder abuse which requires an expectation of trust.5 Looking at the application of these sections they have been primarily used protect young children, however, the 2014 decision of R v Quinn6 shows that the lower courts acknowledge that s151 is able to be used for elder abuse cases beyond simply goods and services as was previously the case.7 This amendment has, however, removed criminal liability which was previously present in 151(2). Therefore, an omission leading to death would only be culpable homicide and non-fatal offences require a departure from a reasonable standard of care to result in liability under s195. The addition of vulnerable adult broadly acknowledges elder abuse, though like Australian jurisdictions, do not provide a specific criminal offences or different sentences to the general crimes. Sections 9(f) and 9(g) of the Sentencing Act 1999 allow the abuse of a position of trust and vulnerability due to age or health to be an aggravating factor in sentencing. Elder abuse is then able to be deterred against without specific offences and avoid definitional issues. It may be countered that these broad sections do not raise awareness to elder abuse nor in extending the scope of criminal responsibility. New Zealand’s law aligns with many of Australian Laws in this area, such as New South Wales Crimes (Sentencing Procedure) Act 1999, s21A(2)(1) which states the vulnerability of a party due to age and a position of trust are aggravating features. However, when we look at the practical application of these sections, s9(1)(g) has generally only been used for abuse against children and when it is an older person its application has been for violent offending.8 These sections therefore are of some benefit but do not adequately aid elder abuse cases or contribute to awareness. The proposed reform to family violence law allows more care and attention to be given to elder abuse when within a family setting.9 Creating a family violence offence framework would have a significant impact on many elder abuse cases as three quarters of alleged

5 The Toronto Declaration on the Global Prevention of Elder Abuse, above n 3. 6 R v Quinn [2014] DCR 225 at [100]. 7 R v Lunt [2004] 1 NZLR 498 (CA) at [20]-[26]. 8 Bruce Robertson (ed) Adams on Criminal Law (online loose-leaf ed, Thomson Reuter) at [SA9.12]. 9 Cabinet Paper “Reform of Family Violence Law, Paper Three: Prosecuting Family Violence” (2016).

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abusers in New Zealand are within the extended family.10 Adding to this, if the definition of violence was aligned with that in the Domestic Violence Act 1995 then it would stretch to financial abuse by a family member.11 If as proposed, these crimes were flagged in the justice system and more protective power available for victims, they would be better protected by the legal system. However, these legislative reforms only offer aid to some victims and may divide elder abuse into definitive categories within and outside of the family. This may not be a favourable outcome as all elder abuse comes from a position of trust and vulnerability and the concept does not have such a distinction. Furthermore, the definition of financial abuse would likely only stretch to withholding funds from a person and not the exploitation of funds as consistent with the WHO definition.12 These proposed reforms would allow the courts to treat many elder abuse cases with more care but is not all encompassing and offers little extra care to financial abuse.

Narrow or board legislation These recent and proposed changes look to strike a better balance between the previous broad legislation and a specific offence for elder abuse. A broad approach to elder abuse allows it to be picked up by the general statutes, but does not acknowledge the issue. Alternatively, specific legislation deters and recognise the increase in elder abuse, but brings a risk of overlapping the current legislation.13 By aiming to find an “illustrative not exhaustive” definition without criminal liability, Parliament looks to avoid risks of overlapping legislation but still somewhat recognise elder abuse as a legal issue. The addition of ‘vulnerable adult’ avoids issues of specific age or types of abuse by referring simply apply to any person impaired “by reason of detention, age, sickness, mental impairment, or any other cause”.14 The partial narrowing brings more attention to areas of elder abuse through a broader heading of a vulnerable adult and gives some recognition of the increasing need to prevent elder abuse. This approach, however, does not fully satisfy the awareness issue current in the New Zealand demographic nor has it managed to fully encompass all aspects of its definition.

10 Age Concern New Zealand “Challenges for the Future” (1 October 2007) at [6.5.1], available at www.ageconcern.org.nz. 11 Section 3(1)(c)(iva). 12 The Toronto Declaration on the Global Prevention of Elder Abuse, above n 3 at 3. 13 Australian Law Reform Commission Elder Abuse, (CDP 83, 2016) at 76. 14 Crimes Act 1961, s2(1).

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Gaps in the legislation These sections narrow the legislation for neglect as well as physical and sexual areas of elder abuse, but do not provide a clear remedy to financial abuse from a position of trust. This creates a possible gap in the legislation as financial abuse, along with psychological abuse which is only indirectly covered, are the most prominent in New Zealand.15 The 2008 amendments to the Protection of Personal and Property Rights Act 1988 (PPPR) address financial concern in regard to the abuse of power of attorney. This has limited application as many financial abuse cases do not stem from a power of attorney and elder abuses definition stretches further. Tasmania’s Family Violence Act 2004 illustrates a more protective approach with specific sections on economic abuse and emotional abuse or intimidation.16 These sections identify that violence does not have to be overtly physical but instead, as noted in the parliamentary debates, looks at taking away someone’s “capacity to take independent action”.17 This is somewhat achieved by New Zealand’s definition of domestic violence, though not to the same extent.18 Financial abuse also can prove difficult to meet the burden of proof as a clear intent to inflict financial abuse is required for a criminal offence. Though the Australian legislation is more specific than the New Zealand law, it still has almost no reported cases of use.19 It is likely that even if a similar section was placed in New Zealand legislation with reference to a position of trust it would be meet with similar stagnation. An alternative method to narrowing the legislation is to introduce mandatory reporting. It is a method used in the USA and most of Canada, thought its effectiveness is scrutinised.20 The proposed benefits are that mandatory reporting will increase the information available on possible abuse incidents as well as better case management. It is also a method of increasing public awareness to elder abuse beyond that of specific offences. However, the conflict stems from the highly complex ethical, legal, and practical dilemmas which can extend beyond the residential care sector.21 As well as this, mandatory reporting is viewed as paternalistic and 15 Data obtained from Age Concern’s National Database for EANP Services. 16 Family Violence Act 2004 (Tas), ss8-9. 17 Tasmania, Parliamentary Debates, Legislative Council, 25 November 2004, at 58. 18 Domestic Violence Act 1995, s3(1)(c)(iva). 19 Douglas, Heather. "Do we need a specific domestic violence offence." Melb. UL Rev. 39 (2015): 434 at 457. 20 Davey, J. A., & McKendry, J. (2011). Financial Abuse of Older People in New Zealand–A Working Paper (No. 11/10). Working Paper. 21 Mann, R., Horsley, P., Barrett, C., & Tinney, J. (2014). Norma’s Project: A research study into the sexual assault of older women in Australia (ARCSHS Monograph Series No. 98). Melbourne: Australian Research Centre in Sex, Health and Society, La Trobe University.

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detracts from the autonomy of the individual. This undermines several of the aspects of the United Nations Principles for Older Persons which allow persons to have freedom of choice and decision making in their lives.22 Instead issue of reporting would be better met through educational advancements for professionals to avoid issues of autonomy.

Conclusion The current legislation attempts to find a middle ground between narrow and broad legislation to allow for elder abuse’s expansive definition. Some legislative reform is needed to fill gaps where this narrowing has not taken place such as for financial abuse. However, generally legislative reform is not the solution to an absence of reported cases and awareness of elder abuse. Instead the legislation must be narrow enough to adequately protect vulnerable adults and issue of awareness and education must be addressed from a social perspective. A multisystem response is required, with better training and programs available for police, lawyers, banker tellers and carers at a national level as well as more public awareness of elder abuse. When these social changes are combined with the legislation proposed, elderly would be empowered and supported to maintain control over their affairs where possible, which in turn would deter elder abuse.23 Therefore some legislative reform is required to provide financial and possibly psychological relief, though in general the legislation is adequate and social changes are required to meet the changing demographic of elder abuse.

Word Count: 1996

Bibliography A Cases

22 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) at [14]. 23 Elder Abuse, above n 3, at 10.

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I New Zealand R v Lunt [2004] 1 NZLR 498 (CA). R v Quinn [2014] DCR 225.

B Statutes I New Zealand Crimes Act 1961. Domestic Violence Act 1995. Protection of Personal and Property Rights Act 1988. Sentencing Act 2002. II Australia Family Violence Act 2004 (Tas).

C Books Theo Baker, “Legal Protections and Remedies for Elder abuse, Neglect and Exploitation” in Kate Diesfeld & Ian McIntosh (ed) Elder Law in New Zealand (Thomson Reuters, Wellington, 2014) 477. A P Simester, Brookbanks, J Warren Principles of criminal law (4th ed, Thomson Reuters, Wellington, 2012).

D Journal Articles Heather Douglas, "Do we need a specific domestic violence offence." Melb. UL Rev. 39 (2015): 434 Attracta Lafferty Public Perceptions of Elder Abuse: A Literature Review (National Centre for the Protection of Older People, Review 2, November 2009).

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E Reports Cabinet Paper “Reform of Family Violence Law, Paper Three: Prosecuting Family Violence” (2016). Australian Law Reform Commission Elder Abuse, (CDP 83, 2016). Rae Kaspiew, Rachel Carson and Helen Rhoades Elder Abuse: Understanding issues, frameworks and responses (Australian Instsite of Family Studies, Research Report no. 35, February 2016). 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). World Health Organisation The Toronto Declaration on the Global Prevention of Elder Abuse (17 November 2002).

F Looseleaf Bruce Robertson (ed) Adams on Criminal Law (online loose-leaf ed, Thomson Reuter).

G Parliamentary material Tasmania, Parliamentary Debates, Legislative Council, 25 November 2004.

H Other sources Age Concern New Zealand “Challenges for the Future” (1 October 2007) at [6.5.1], available at www.ageconcern.org.nz. Davey, J. A., & McKendry, J. (2011). Financial Abuse of Older People in New Zealand–A Working Paper (No. 11/10). Mann, R., Horsley, P., Barrett, C., & Tinney, J. (2014). Norma’s Project: A research study into the sexual assault of older women in Australia (ARCSHS Monograph Series No. 98). Melbourne: Australian Research Centre in Sex, Health and Society, La Trobe University.

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