Act on the Prevention of Elder Abuse, Support for Caregivers of Elderly Persons and Other Related Matters

Transcription

1 Act on the Prevention of Elder Abuse, Support for Caregivers of Elderly Persons and Other Related Matters (Act No. 124 of November 9, 2005) Chapter I General Provisions (Articles 1 to 5) Chapter II Prevention of Elder Abuse by Caregivers; Support for Caregivers; and Other Matters (Articles 6 to 19) Chapter III Prevention of Elder Abuse by Care Facility Staff Members, etc.; and Other Matters (Articles 20 to 25) Chapter IV Miscellaneous Provisions (Articles 26 to 28) Chapter V Penal Provisions (Articles 29 and 30) Supplementary Provisions Chapter I General Provisions (Purposes) Article 1 In recognition of the fact that the elder abuse issue has become serious and that it is extremely important to prevent elder abuse so as to ensure the dignity of elderly persons, this Act aims to contribute to the protection of the rights and interests of elderly persons by advancing policy measures including elder abuse prevention and support for elderly persons' caregivers, by setting forth the responsibilities of the State and other parties to prevent, etc. elder abuse, providing for measures for the protection of elderly persons suffering elder abuse, and providing for support measures, etc. for elderly persons' caregivers, such as measures for alleviating the burden borne thereby (hereinafter referred to as "support for caregivers"), that are aimed at contributing to the prevention of elder abuse by caregivers. (Definitions) Article 2 (1) The term "elderly person" as used in this Act means a person who is 65 years of age or older. (2) The term "caregiver" as used in this Act means a person who actually takes care of an elderly person, and who does not fall under the category of a care facility staff member, etc. (meaning a person engaged in the services rendered by the facilities set forth in paragraph (5), item (i), or a person engaged in the services set forth in item (ii) of said paragraph; the same shall apply hereinafter). (3) The term "elder abuse" as used in this Act means elder abuse by a caregiver 1

2 and elder abuse by a care facility staff member, etc. (4) The term "elder abuse by a caregiver" as used in this Act means an act that falls under any of the following items: (i) the following acts inflicted by a caregiver upon an elderly person of whom he/she takes care; (a) inflicting an assault upon an elderly person that will cause or is likely to cause external harm to his/her body; (b) substantially failing to take care of an elderly person, including severely depriving the elderly person of food or leaving him/her unattended for a long period of time in a manner that would likely cause his/her health condition to deteriorate, and also including disregarding of acts similar to those listed in any of items (a), (c) or (d) inflicted by any person who lives together with the elderly person but who does not fall under the category of a caregiver; (c) directing to an elderly person any words or deeds which would likely be significantly traumatic to him/her, including significantly abusive language or a significantly negative attitude toward him/her; and (d) committing an indecent act against an elderly person, or making an elderly person engage in such an act. (ii) the unjust disposal of an elderly person's property by a caregiver or relative, or any other unjust acquisition of a property benefit from an elderly person. (5) The phrase "elder abuse by a care facility staff member, etc." as used in this Act means an act which falls under any of the following items: (i) an act listed in any of the following sub-items, which is inflicted by a person engaged in services rendered by an elderly welfare facility as defined in Article 5-3 of the Act on Social Welfare for the Elderly (Act No. 133 of 1963) or a fee-based home for the elderly as defined in Article 29, paragraph (1) of said Act, or in services rendered by a community-based facility for the for the daily long-term care of the elderly covered by public aid as defined in Article 8, paragraph (20) of the Long-Term Care Insurance Act (Act No. 123 of 1997), a facility covered by public aid providing long-term care to the elderly as defined in paragraph (24) of said Article, a long-term care health facility as defined in paragraph (25) of said Article, a sanatorium medical facility for elderly persons requiring long-term care as defined in paragraph (26) of said Article or a community's general support center as defined in Article , paragraph (1) of said Act (hereinafter collectively referred to as a "care facility"), upon an elderly person who has been admitted to or otherwise utilizes such care facility: (a) inflicting an assault upon an elderly person which will cause or is likely to cause external harm to his/her body; (b) substantially failing to fulfill one's professional obligations to take care of 2

3 an elderly person, including severely depriving the elderly person of food or leaving him/her unattended for a long period of time in a manner that would likely cause his/her health condition to deteriorate; (c) directing to an elderly person any words or deeds which would likely be significantly traumatic to him/her, including significantly abusive language or a significantly negative attitude toward him/her; (d) committing an indecent act against an elderly person, or making an elderly person engage in such an act. (e) unjustly disposing of an elderly person's property or otherwise acquiring a property benefit from such elderly person in an unjust manner. (ii) an act listed in any of the sub-items (a) to (e) of the preceding item, which is inflicted by a person who provides in-home elderly support services as defined in Article 5-2, paragraph (1) of the Act on Social Welfare for the Elderly, or in in-home services as defined in Article 8, paragraph (1) of the Long-Term Care Insurance Act, community-based services as defined in paragraph (14) of said Article, in-home long-term care support as defined in paragraph (21) of said Article, preventive long-term care services as defined in Article 8-2, paragraph (1) of said Act, community-based preventive longterm care services as defined in paragraph (14) of said Article or preventive long-term care support services as defined in paragraph (18) of said Article (hereinafter collectively referred to as "care services"), upon an elderly person to whom service is provided in relation to such care services. (Responsibility, etc. of the State and Local Governments) Article 3 (1) The State and the local governments shall, in order to prevent elder abuse, to swiftly and appropriately protect elderly persons suffering elder abuse and to provide appropriate support for caregivers, endeavor to put in place the necessary systems for such purposes, such as strengthening collaboration among the relevant government agencies, other relevant organizations and private organizations, and providing support to private organizations. (2) For the purpose of appropriately preventing elder abuse, of protecting elderly persons suffering elder abuse and of supporting caregivers based upon expert knowledge, the State and the local governments shall endeavor to train officials of relevant organizations or take any other measures that are necessary to maintain specialized human resources who will take charge of such duties, and to improve their competency. (3) The State and the local government shall, for the purpose of facilitating the prevention of elder abuse and the protection of an elderly person suffering elder abuse, implement public relations activities and any other enlightenment activities as may be necessary in relation to the obligation to provide 3

4 notification regarding elder abuse, a system of remedies for human rights violations, etc. (Responsibility of the Citizens) Article 4 Efforts shall be made to gain the citizens' understanding of the significance of the prevention of elder abuse, support for caregivers, etc. and to gain the citizens' cooperation with policy measures of the State or local governments to be implemented for the purpose of prevention of elder abuse, support for caregivers, etc. (Identification of Elder Abuse at the Early Stages) Article 5 (1) Organizations with a business relationships involving welfare services for elderly persons, such as care facilities, hospitals and health centers, as well as persons who have business relationships involving welfare services for elderly persons, such as care facility staff members, etc., medical doctors, public health nurses and attorneys-at-law, shall be aware that their positions allow them to easily discover elder abuse, and shall endeavor to do so at the early stages. (2) A person prescribed in the preceding paragraph shall endeavor to cooperate in enlightenment activities for the prevention of elder abuse and in policy measures for the protection of elderly persons suffering elder abuse that are implemented by the State and local governments. Chapter II Prevention of Elder Abuse by Caregivers; Support for Caregivers; and Other Matters (Consultations, Guidance and Advice) Article 6 A municipality shall, in order to prevent elder abuse by caregivers and to protect elderly persons suffering elder abuse by their caregivers, provide consultations, guidance and advice for such elderly persons and caregivers. (Reporting Elder Abuse by a Caregiver) Article 7 (1) In cases where any person has discovered an elderly person who is likely to have been subjected to elder abuse by a caregiver, and if such elderly person's life or health has been materially threatened, such person shall promptly report this to the relevant municipality. (2) In addition to the case set forth in the preceding paragraph, in cases where any person has discovered an elderly person who is likely to have been subjected any elder abuse by a caregiver, such person shall endeavor to promptly report this to the relevant municipality. (3) The provisions concerning the crime of unlawful disclosure of confidential 4

5 information as set forth in the Penal Code (Act No. 45 of 1907) and the provisions of any other Acts providing for a confidentiality obligation shall not be construed to preclude any reporting under the preceding two paragraphs. Article 8 In cases where a municipality has received a report under paragraph (1) or (2) of the preceding Article or a report under paragraph (1) of the following Article, an official of the municipality who is in receipt of such notification or report shall not divulge any information which may come to his/her knowledge in the course of his/her duties and based on which the person who made either report is identifiable. (Measures in Case of Receipt of a Report, etc. of Abuse) Article 9 (1) Upon receipt of a report under paragraph (1) or (2) of Article 7 or a report from an elderly person informing the municipality that he/she has been subjected to elder abuse by his/her caregiver, a municipality shall promptly implement measures to confirm the safety of such elderly person and any other measures to identify the facts so notified or reported, and shall consult with parties that collaborate with such municipality pursuant to the provisions of Article 16 (hereinafter referred to as "elder abuse response partners") regarding how to respond to such elder abuse. (2) The municipality or mayor that has received a report under paragraph (1) or (2) of Article 7 or a report under the preceding paragraph shall properly implement the measures set forth in Article 10-4, paragraph (1) or Article 11, paragraph (1) of the Act on Social Welfare for the Elderly, including promptly accommodating the elderly person whose life or health is likely to have been materially endangered due to elder abuse by his/her caregiver into a facility such as a short-term admission facility for the elderly as set forth in Article 20-3 of said Act, in order to temporarily shelter him/her, or shall properly file a request for a trial pursuant to the provisions of Article 32 of said Act, so as to ensure that further elder abuse by a caregiver will not be inflicted upon the elderly person reported in said report and to ensure the protection of said elderly person. (Assurance of Accommodation) Article 10 A municipality shall implement measures to secure the accommodations necessary for taking the measures set forth in Article 10-4, paragraph (1), item (iii) or Article 11, paragraph (1), item (i) or (ii) of the Act on Social Welfare for the Elderly, for an elderly person who has been subjected to elder abuse by a caregiver. (On-Site Inspections) 5

6 Article 11 (1) In cases where a mayor of municipality finds that elder abuse by a caregiver may have posed a material threat to the life or health of an elderly person, he/she may instruct officials of the community general support center that is to be established pursuant to the provisions of Article , paragraph (2) of the Long-Term Care Insurance Act or any other officials engaged in business affairs related to welfare services for elderly persons to enter into such elderly person's domicile or residence and carry out a necessary investigation or questioning. (2) When entering into the domicile or residence and carrying out an investigation or questioning pursuant to the provisions of the preceding paragraph, the relevant official shall carry a certificate of identification and present the same to any relevant persons if they so request. (3) The authority to enter into the domicile or residence and to carry out an investigation or questioning as set forth in paragraph (1) shall not be construed as having been conferred for the purpose of any criminal investigation. (Request for Assistance from the Chief of Police and Other Matters) Article 12 (1) When the mayor of a municipality intends to instruct an official to enter into a domicile or residence and to conduct an investigation or questioning pursuant to the provisions of paragraph (1) of the preceding Article, and if he/she deems it necessary for the execution of such duties, he/she may seek assistance from the chief of police with jurisdiction over the location of the domicile or residence of the relevant elderly person. (2) The mayor of a municipality shall, pursuant to the provisions of the preceding paragraph, appropriately seek assistance from the chief of police as necessary, from the viewpoint of ensuring that the life or the health of an elderly person is in no danger. (3) In cases where the chief of police has been requested to provide assistance under paragraph (1), and where he/she deems it necessary for ensuring that the life or the health of the elderly person is in no danger, he/she shall endeavor to instruct police officers under his/her jurisdiction to promptly implement measures in accordance with the Act on the Execution of Official Police Duties (Act No. 136 of 1949) or any other laws and regulations, as may be necessary for supporting the execution of duties as set forth in the said paragraph. (Restrictions on Visitation) Article 13 In cases where measures under Article 11, paragraph (1), item (ii) or (iii) of the Act on Social Welfare for the Elderly have been implemented for any elderly person who has been subjected to elder abuse by a caregiver, the mayor 6

7 of the municipality or the head of the care facility related to such measures may, from the viewpoint of preventing elder abuse by the caregiver and protecting the relevant elderly person, restrict the caregiver who inflicted such elder abuse from visiting the elderly person. (Support for Caregivers) Article 14 (1) In addition to the measures prescribed in Article 6, a municipality shall, for the purpose of alleviating the burden on a caregiver, implement necessary measures, such as providing consultations, guidance and advice for the caregiver. (2) A municipality shall, as a measure set forth in the preceding paragraph, implement measures to ensure the accommodation necessary for an elderly person to receive short-term care in cases where the municipality, in consideration of the caregiver's physical and mental condition, finds that there exists an urgent need therefor so as to alleviate the burden on said caregiver. (Maintenance of Exclusively Assigned Officials) Article 15 A municipality shall, in order to properly implement the prevention of elder abuse by caregivers, the protection of elderly persons subjected to elder abuse by a caregiver and support for caregivers, endeavor to maintain officials assigned exclusively for such duties. (Organizational System for Collaboration and Cooperation) Article 16 A municipality shall, in order to properly implement the prevention of elder abuse by caregivers, the protection of elderly persons subjected to elder abuse by a caregiver and support for caregivers, put in place an organizational system for collaboration and cooperation with the relevant agencies, such as long-term care support centers as set forth in Article , paragraph (1) of the Act on Social Welfare for the Elderly, community general support centers established pursuant to the provisions of Article , paragraph (3) of the Long-Term Care Insurance Act, and private organizations, etc. In a such case, the municipality shall pay special consideration so that the system can promptly respond at any time to elder abuse by a caregiver. (Entrustment of Functions) Article 17 (1) A municipality may entrust, to an elder abuse response partner that it finds appropriate, all or part of its functions related to consultation, guidance and advice under Article 6; acceptance of reports under Article 7, paragraph (1) or (2) or of reports under Article 9, paragraph (1); measures under Article 9, paragraph (1) to be implemented in order to confirm the safety of the elderly person and to confirm any other facts so reported; and measures 7

8 for alleviating the burden on caregivers pursuant to the provisions of Article 14, paragraph (1). (2) An elder abuse response partner that has been entrusted pursuant to the provisions of the preceding paragraph, its officers or employees, or any person who formerly held any of the aforementioned positions shall not divulge any secret that may come to their knowledge in relation to the functions entrusted thereto, without justifiable grounds. (3) In cases where the elder abuse response partner that, pursuant to the provisions of paragraph (1), has been entrusted with the functions related to the acceptance of reports under Article 7, paragraph (1) or (2) or of reports under Article 9, paragraph (1) has received a report under Article 7, paragraph (1) or (2) or a report under Article 9, paragraph (1), no such elder abuse response partner who is in receipt of either such report, and none of the officers or employees thereof, shall divulge any information which may come to their knowledge in the course of their duties based on which the person who made the report is identifiable. (Publication) Article 18 A municipality shall publicize the identities of the bureaus and the elder abuse response partner in charge of functions related to the prevention of elder abuse by caregivers, the acceptance of reports under Article 7, paragraph (1) or (2) under Article 9, paragraph (1), the protection of elderly persons who have been subjected to elder abuse by a caregiver, support for caregivers, and other functions, by such means as making a clear indication of their names. (Assistance, etc. from the Prefectures) Article 19 (1) A prefecture shall provide the assistance necessary for a municipality's implementation of measures provided for in this Chapter, such as liaison and coordination among municipalities and provision of information to municipalities. (2) A prefecture may, if it finds it necessary for ensuring the proper implementation of measures to be taken by the municipalities pursuant to the provisions of this Chapter, give the municipalities any necessary advice. Chapter III Prevention of Elder Abuse by Care Facility Staff Members, etc.; and Other Matters (Measures to Prevent Elder Abuse by Care Facility Staff Members, etc.) Article 20 The establishing body of a care facility or a person who provides care services shall implement measures to prevent, etc. elder abuse by care facility staff members, etc., including training care facility staff members, etc., and 8

9 shall arrange a system for handling complaints raised by elderly persons who have been admitted to or otherwise utilize the care facilities or to whom service is provided in relation to the care services, as well as complaints raised by their families. (Reporting, etc. Elder Abuse by Care Facility Staff Members, etc.) Article 21 (1) In the case where any care facility staff member, etc. has discovered an elderly person who appears to have been subjected to elder abuse by any other care facility staff member, etc. who works at the care facility or care services in which the first-mentioned care facility staff member also works (including care facilities established by the establishing body of such care facility or by the person who provides such care services, and also including care services provided by any of the aforementioned parties), such firstmentioned care facility staff member, etc. shall promptly report this to the municipality. (2) In addition to the case set forth in the preceding paragraph, if any person has discovered an elderly person who appears to have been subjected to elder abuse by a care facility staff member, etc. and if such elderly person's life or health has been materially threatened, such person shall promptly report this to the municipality. (3) In addition to the cases set forth in the preceding two paragraphs, any person who has discovered an elderly person who appears to have been subjected to elder abuse by a care facility staff member, etc. shall endeavor to promptly report this to the municipality. (4) An elderly person who has been the victim of elder abuse by a care facility staff member, etc. may report such abuse to the municipality. (5) The provisions of Article 18 shall apply mutatis mutandis to the publication of the identities of bureaus in charge of functions related to the acceptance of reports under paragraphs (1) to (3) inclusive and also to the acceptance of reports under the preceding paragraph. (6) The provisions concerning the crime of unlawful disclosure of confidential information set forth in the Penal Code and provisions in any other Act that provide for confidentiality obligations shall not be construed to preclude a report under paragraph (1) to (3) inclusive above (excluding false reports and reports filed through negligence; the same shall apply in the following paragraph). (7) A care facility staff member, etc. shall not be subject to any unfavorable treatment such as dismissal from his/her office on the ground of having made a report under paragraph (1) to (3) inclusive above. Article 22 (1) In cases where a municipality has received a report under 9

10 paragraphs (1) to (3) inclusive of the preceding Article or a report under paragraph (4) of said Article, it shall, pursuant to the provisions of Ordinances of the Ministry of Health, Labour and Welfare, report information related to the elder abuse by a care facility staff member, etc. so reported to the prefecture where the care facility involved in the elder abuse by a care facility staff member, etc. is located or where the office of the care services involved in the elder abuse by a care facility staff member, etc. is located. (2) Unless otherwise provided for in the Ordinances of the Ministry of Health, Labour and Welfare, the provisions of the preceding paragraph shall not apply to a designated city as defined in Article , paragraph (1) of the Local Autonomy Act (Act No. 67 of 1947) or a core city as defined in Article , paragraph (1) of said Act. Article 23 In cases where a municipality has received a report under Article 21, paragraphs (1) to (3) inclusive or under paragraph (4) of said Article, the official of the municipality that is in receipt of such report shall not divulge any information which may come to his/her knowledge in the course of his/her duties and based on which the person who made the report is identifiable. The same shall apply to an official of a prefecture which has received a report, in cases where the prefecture has received such report pursuant to the provisions of paragraph (1) of the preceding Article. (Measures Upon the Receipt of Reports, etc.) Article 24 In cases where a municipality has received a report under Article 21, paragraphs (1) to (3) inclusive or under paragraph (4) of said Article, or in cases where a prefecture has received a report under Article 22, paragraph (1), the mayor of the municipality or the prefectural governor shall, in order to prevent the elderly person reported therein from being subjected to elder abuse by the care facility staff member, etc., as well as to protect said elderly person by assuring proper management of the care facility or care services, exercise the authority under the Act on Social Welfare for the Elderly or the Long-Term Care Insurance Act in an appropriate manner. (Announcements) Article 25 A prefectural governor shall, for each fiscal year, make an announcement on the status of elder abuse by care facility staff members, etc., measures implemented in cases where elder abuse by a care facility staff member, etc. had taken place, and any other information prescribed by the Ordinances of the Ministry of Health, Labour and Welfare. Chapter IV Miscellaneous Provisions 10

11 (Research and Studies) Article 26 The State shall perform an analysis of precedents of elder abuse, and conduct research and studies on methods for properly handling cases of elder abuse, methods for properly taking care of elderly persons, and any other matters likely to contribute to the prevention of elder abuse, the protection of elderly persons who have been subjected to elder abuse, and support for caregivers. (Prevention, etc. of Damages Caused by Unjust Property Transactions) Article 27 (1) A municipality shall provide consultation on damages suffered by an elderly person in connection with a transaction aimed at unjustly gaining any property benefit from him/her that was concluded with a person excluding the caregiver, the elderly person's relatives, and care facility staff, etc. (hereinafter referred to as an "unjust property transaction") or shall direct the elderly person to the relevant agency, such as the bureau in charge of consumer affairs; or shall entrust an elder abuse response partners to provide consultation on damages suffered by elderly persons that arise out of unjust property transactions or to direct such persons to the relevant agency. (2) The mayor of a municipality shall, with regard to an elderly person who has or is likely to suffer any damages arising out of an unjust property transaction, file the appropriate request for a trial pursuant to the provisions of Article 32 of the Act on Social Welfare of the Elderly. (Promotion of the Adult Guardianship System) Article 28 The State and the local governments shall, in order to prevent elder abuse and to protect elderly persons who have been subjected to elder abuse as well as to prevent and remedy harm done to elderly persons arising out of unjust property transactions, promote the diffusion of the adult guardianship system, such as by implementing measures for the publication of such systems, and measures to alleviate the financial burdens related to the use of such system. Chapter V Penal Provisions Article 29 A person who has committed a violation of Article 17, paragraph (2) shall be punished by imprisonment with work of not more than one year or a fine of not more than one million yen. Article 30 A person who, without any justifiable grounds, has refused, obstructed or avoided an on-site inspection under Article 11, paragraph (1); 11

12 refused to give answers to the questioning set forth in said paragraph or who has given a false answer; or a person who has instructed an elderly person to refrain from answering or to give a false answer to such questioning shall be punished by a fine not more than 300,000 yen. 12