Policy Discussion Paper

COMBINED PENSIONERS AND SUPERANNUANTS ASSOCIATION OF NEW SOUTH WALES INC. Founded 1931. Serving pensioners of all ages, superannuants and low-income retirees. Consumer Protection Awards 2002, 2003, 2004 Policy Discussion Paper To provoke thought and promote debate No. 8, May 2002 Elder Abuse: A Paper On The Problem In Nursing Homes David Skidmore Preamble The idea of writing this document came out of a special meeting of the NSW Aged Care Alliance (of which CPSA is a member). This meeting was devoted to the discussion on the abuse of older people in nursing and formulating a response to the problem. While it is acknowledged that most nursing home operators maintain professional standards that would meet the requirements of any accreditation process, others fall short of these standards. Unfortunately, many residents and their relatives do not find this out until it is too late. The Alliance is taking on this project in the light of continuing reports on the poor state of some facilities. Introduction The issue of elder abuse in nursing homes is of great concern to the NSW Aged Care Alliance and its members. The problem was highlighted in the media during the period when Bronwyn Bishop was Minister for Aged Care (under the previous Howard Government). The nursing home industry is subject to regulation under the Aged Care Act (1997) at the Commonwealth level and the Nursing Homes Act (1988) in NSW. However, there is grave concern that existing legislation is inadequate at protecting nursing home residents from various kinds of ill treatment. The legislation states that nursing homes must be up to a particular standard to qualify for accreditation. But it doesn t go far enough. To make matters more difficult, ill treatment of nursing home residents is not simply a case of people doing the wrong thing. It stems from scarce resources; the second class status of older people and subsequent lack of attention from governments at all levels. Page 1 of 1

What is abuse? The definition or definitions of abuse can be problematic. While some terminology can be used interchangeably, there is a need to clarify the differences especially if addressing the issue is going to be done through a legislative framework where clear definitions are essential. For instance, abuse is not necessarily the same as neglect, which, in turn, is different from restraint. Here is the definition taken from the California Elder Abuse and Dependent Adult Civil Protection Act defines abuse as: Abuse includes: Assault Battery Sexual Assault Sexual Battery Rape Unreasonable physical constraint, or prolonged or continual deprivation of food or water Use of a physical or chemical restraint or psychotropic medication for any purpose not consistent with that authorised by the physician. The Californian Act defines neglect as means the negligent failure of any person having the care or custody of an elder or a dependent adult to exercise that degree of care, which a reasonable person in a like position would exercise. Neglect includes, but is not limited to: Failure to assist in personal hygiene, or in the provision of food, clothing, or shelter Failure to provide medical care for physical and mental health needs Failure to protect from health and safety hazards Failure to prevent malnutrition. The Californian legislation makes it quite clear that abuse and neglect are defined in law and can be consequently prosecuted. The above definitions of abuse and neglect are seemingly straightforward. They involve someone with a duty of care acting inhumanely and illegally against someone whose care is supposed to be their responsibility. There are other instances of uncaring behaviour where an element of choice enters into the picture. It is important to realise this, not because older people choose to be abused in any real sense, but because choice can be manipulated and Page 2 of 2

what is actual abuse or neglect can be made unclear. This especially relates to areas of abuse where some sort of consent must be obtained (for example, financial exploitation). What is choice? Australia s economy and social relations are said to operate on the basis of economic rationalism or free market capitalism. Within this framework the concepts of choice and free will are regarded as paramount. Individuals are said to exercise choice on a level playing field where everyone competes more or less equally. Naturally, this framework does not allow for those who, for whatever reason, do not seem to be succeeding in the competition. Usually, these people are blamed for their own supposed shortcomings. There is no denying that individuals do have choice and can make decisions based on what information is on hand. It is important to consider is that not all individuals have to make the same choices. In the context of nursing home care this is a real consideration. When it comes to considering nursing home care for relatives, the family is usually in a position where they cannot take care of their relative themselves. The choice is usually a case of nursing home admittance or being burdened with an elderly family member. This is not a meaningful choice. The lack of reasonable choice is compounded by other factors such as the ability to pay and proximity. It is not exactly a great choice when for example, the nearest nursing home (of whatever standard) is 20 kilometres away. Social researcher and feminist Sheila Jeffreys discusses the problematic use of the concept of choice and its co-option by conservatives: The idea that democracy should be founded upon and dedicated to the protection of choice was adopted by Margaret Thatcher s conservative government in Britain. David Evans, in his Sexual Citizenship, explains that in the 1970s and 1980s the balance of citizenship rights shifted away from social rights of welfare towards civil rights of an economic kind (i.e. market access related) such as the right to buy council houses and to purchase shares in privatised industries (1993, p. 3). The Tory citizen turned into a consumer with choices. 1 The current Federal Government has a similar philosophy when it comes to how it perceives democracy. That is, a system whereby everyone participates with free and equal choices. The Federal Government in this ideological 1 Jeffreys, S. (1997) p.134. Page 3 of 3

framework will view clients of the nursing home industry as equals on a level playing field. Economic factors in abuse Like the Australian economy more generally, the nursing home industry operates under a free market system. This means that operators, assuming they have their clients best interests at heart, are required to put this consideration behind the requirement to compete with the others. This can mean cutting corners such as fire safety provisions (areas to accommodate both the evacuees and fire engines are inadequate in some nursing homes), not employing enough qualified nursing staff and taking on cheaper but less qualified personal care assistants. For the residents, this often results in second class treatment under a system where they are supposed to be cared for. It could be argued that residents fire safety is not as highly regarded as that of many office workers (government and corporate offices seem to have better fire provisions). Low bed numbers mean frail-aged people are not getting into nursing homes and, therefore, not getting the care they need. This is made worse by the chronic shortage of staff in aged care, especially qualified nurses. Effects from staff shortages Abuse in nursing homes can stem from a lack of resources allocated to frail older people. Nurses themselves are worried about the resources given to the aged care sector. According to a survey conducted by the NSW Nurses Association: The perception of 92% of participating nurses is that funding is inadequate to meet the needs of the aged community [they] also think that aged care funding is NOT fairly distributed across Australia. 2 Nurses themselves are a human resource and in aged care they are in short supply. The number of registered nurses in the sector is likely to drop. The same survey indicated: 76% of the nurses surveyed thought that current staffing levels and skill mix were NOT able to deliver appropriate standards of nursing services. 73% of nurses in the aged care sector felt they could NOT provide adequate standards of nursing while 82% of the public sector nurses also thought adequate standards were unattainable in the aged care sector. 3 2 What do Nurses Think About Aged Care? (2001) p. 7. 3 Ibid., p. 8. Page 4 of 4

The consequences of inadequate levels of nursing-qualified staffing, or at least perceived inadequate levels of staffing, include the various examples of abuse and/or neglect mentioned above. Frustration and overwork of health professionals in aged care ultimately has dire repercussions for those residents in aged care. And more training or nursing education cannot rectify the problem. Many nurses, qualified in aged care, are opting out of the industry for easier and better paid work elsewhere. A combination of recognition, funding, reasonable working conditions and necessary levels of staffing will do much to alleviate the situation of nurses in aged care and, therefore, be better for the residents. Ageism in aged care The issue of ageism, as a factor in perpetuating elder abuse, must be taken seriously. Ageism is a form of discrimination recognised by the NSW Anti- Discrimination Board (Anti-Discrimination Act 1997 Section 49ZYA). Unfortunately, this recognition is not integrated into legislation regulating residential aged care. This is because legislation such as the Aged Care Act (1997) was simply intended to maintain a form of service (ie: nursing home care) up to a particular standard. The Act was not designed to deal with abuse and neglect. It was intended to underpin the provisions of aged care in meeting specific standards. Ageism should be understood as a form of oppression. That is, social inequality that may or may not be addressed by legislation. Racism and sexism are often cited as good examples of oppression. One manifestation of ageism is the lack of resources allocated to older people. The lack of resources put into aged care is but one example of this. The sad fact is that in today s society, one of the manifestations of ageism is that older people are not taken seriously. In cases of abuse and neglect in nursing homes, patients have been accused of not telling the truth or their concerns dismissed as being fanciful. Trivialisation of human wants and needs leads to a situation where even people s very lives can be placed in danger through neglect of their needs or outright abuse. This is the heart of the issue and, while this paper cannot address all the consequences, it is worth keeping in mind that abuse and neglect in nursing homes is a result of a much wider social problem. Legislation As stated above, there are various forms of legislation with which nursing home proprietors, staff and others involved in the industry must comply with. Page 5 of 5

There are penalties applied when the legislation is breached. For instance, there are specific sanctions against overcrowding in Part 3, Section 36 of the Nursing Homes Act 1988. However, elder abuse, neglect and other forms of maltreatment are not covered by legislation as comprehensively as child protection legislation addresses the needs of children. This gap in legislative coverage is especially problematic in the case of nursing homes. High-level aged care facilities have enormous amounts of control over the various aspects of residents lives. Residents, especially those with disabilities are particularly vulnerable in those facilities with substandard care. The needs of older people are obviously different to those of children. However, one important aspect of child protection legislation is how it extends into many facets of public life. It is an indication of how seriously the well being of children is taken into account. For example, if one applies for a job in a public library or any job remotely to do with children, the applicant must be screened to see if they have a criminal record indicating they are a risk to children. Indeed it can be a criminal offence in itself to apply for such positions if one has a previous conviction in this regard. No such comprehensive checks exist for the elderly. There are checks in some circumstances. For example, students applying for the TAFE Certificate IV in Welfare Studies (Aged Care Services) must not be found to pose a risk to older people. Although it is not the intention of this paper to look at course entry or employment conditions, it is important to say that all vulnerable groups in society, be they children or frail-aged deserve comprehensive protections. The issue of mandatory reporting is seen as problematic when it comes to protection of the elderly in nursing homes. Unlike children, the elderly have the capacity to consent and may choose not to legally pursue a perpetrator even though an act against them was clearly criminal. While it is a legitimate concern that older people s autonomy and decision-making capacity must be respected, there are still other issues to consider here. First of all, to not report a crime against an older person because they do not want to take action takes the focus away from the criminal act and focuses on whether the person who was abused felt victimised or not. In legal codes criminal acts do not become something qualitatively different simply because an individual or a group of individuals do not feel a crime was committed against them. In fact, the NSW Crimes Act specifies: If a person has committed a serious indictable offence and another person who knows or believes that the offence has been committed and that he or she has information which might be of material assistance in securing the Page 6 of 6

apprehension of the offender or the prosecution or conviction of the offender for it fails without reasonable excuse to bring that information to the attention of a member of the Police Force or other appropriate authority, that other person is liable to imprisonment for 2 years. 4 The point here is that anyone who has knowledge of a crime, regardless of what the victim of the crime wants, must report the crime to the relevant authorities. The focus is on the criminal act rather than how the victim feels. Secondly, some elderly people, such as those with dementia, do not have the capacity to make informed choices. This is where, if not mandatory reporting as strictly defined by law in relation to child protection, some sort of obligatory reporting may be appropriate. Any legislative arrangements pertaining to the abuse of elderly in similar countries should be considered. Logically, the NSW Aged Care Alliance should be looking at as much relevant overseas legislation as possible and considering the best parts. For instance, the USA has fairly comprehensive legislation specifying what can and cannot be done in nursing homes if they are to receive Federal funding. Queensland now has a State Government funded unit that is unique in Australia; that is, a centralised reporting mechanism (and information service) specifically devoted to abuse of the elderly. Taking the best of these initiatives should be the way to go. 4 NSW Crimes Act 1900 Sect 316 (1). Page 7 of 7

Conclusion It should be kept in mind that whatever legislative framework is recommended by the NSW Aged Care Alliance; it is only a means to an end. Elder abuse will occur no matter how many laws there are stating that it is a crime. An ongoing campaign against ageism and the ideas in society that make older people s needs seem trivial will do more in the longer term in eliminating elder abuse. That will be a formidable but worthwhile challenge for the Alliance and its members in the future. Points for discussion What legislative changes do we want, if any? If we don t want legislative changes, what other initiatives do we want to take? If the existing complaints mechanisms are inadequate, what type of mechanism would be more useful? What about the role of community visitors? What can we do to further publicise this issue? This is a revised version of a previous policy discussion paper. Page 8 of 8