Reporting suspected elder abuse has some risks, as does doing nothing.
Our media, political landscape and social networks are replete with the surging interest in, and almost daily outrage at, stories of older, vulnerable people being abused.
Most of the focus is on the heinous actions of family members or caring organisations and the tragic consequences to an older person. Much of the fodder for these stories comes from concerned citizens and, closer to home, even neighbours.
What is the situation out in suburbia if you, as a neighbour, believe that the elderly person living next door to you is being abused, whether physically, emotionally or financially? How far does being a ‘good’ neighbour go? Should you report your concerns and, if so, to whom and what are the potential consequences?
As the law would have it, there is no ‘duty to rescue’ imposed on us as citizens. If you see me one night in the sea with my hand frantically waving in the air and screaming ‘Help, rescue me!’, the law does not require you to do so or to attempt to do so. The same principle would apply to your neighbour who may be in trouble.
But, as human beings, we are often moved not by our immediate legal obligations but more our underlying and instinctive moral beliefs to do the right thing by someone in need.
Where we are moved to do something, what should we do? It is very much a personal decision to do anything understanding that, simply reporting it will probably not be the end of your involvement in the matter.
In cases of criminal conduct, you could report to it to the police. If the neighbour has lost their capacity to make decisions through dementia, for example, you may also be able to report your concerns to a government protective agency*.
What if your neighbour asks you not to do anything – are you obliged to respect their wish? The ubiquitous law of privacy now regulates much of our relationships with organisations and bureaucracies. But it does not apply to relationships between us as citizens generally. You would be able to go against your neighbour’s request and report it without any breach of their privacy.
Are there any other potential implications of reporting suspected abuse? Provided you had a reasonable basis for concern, the answer is generally no. Bear in mind, however, if your reasonable suspicions turn out to be baseless, you could find yourself in some legal hot water.
An allegation that someone is abusing their mother or father is a serious matter. If that turns out to be untrue, the law would say that you have defamed that person and quite badly to boot.
Fortunately, in some states such as Queensland, to address this danger and to encourage people to report their legitimate concerns, the law does provide what is known as ‘whistleblowing’ protection. This protection applies, in particular, to reporting on illicit conduct of an Enduring Power of Attorney. Its protection is limited and not as expansive as it should be.
Reporting your concerns also may give rise to some tension between you and your neighbour, if not their family.
In the end, there would be little legal downside for you to remain like the three monkeys – hear no abuse, see no abuse, speak no abuse. It is also known as apathy.
But if your morality or standards are more active and humane, and ensuring you appreciated the implications beforehand, you may still want to do the right thing and the law would generally support you. It’s up to you.
ELDER LAW SERVICES
This article by Brian Herd originally appeared in the June-July-August 2018 edition of 50 Something magazine.