Caxton Legal Centre Director Scott McDougall is currently in New York representing Caxton’s work on elder abuse at the 9th working session of the Open-Ended Working Group on Ageing.
This is a copy of Caxton Legal Centre’s oral statement to the Working Group.
- Thank you Madam Chair.
- For more than 15 years Caxton Legal Centre has provided integrated legal and social work services to thousands of older persons who have been subjected to abuse, mistreatment or financial exploitation. To help empower our vulnerable clients, our lawyers and social workers visit older persons in their homes or at other places where they feel safe to tell their stories .
- Madam Chair, we wish to give voice to our older clients. Their experiences tell of the need for their rights to autonomy and independence to be coherently defined and protected, in law, in policy, and in their daily lives.
- In Australia, a person is presumed by law to have legal capacity to make personal decisions in the exercise of their right to autonomy and independence. In practice however, our clients’ enjoyment of autonomy and independence has been heavily impacted by:
- laws providing for substituted decision making which have resulted in the unnecessary relinquishment of control over their personal matters
- unbalanced power dynamics between an older person and a carer within both formal, and informal, care relationships
- the unregulated use of restrictive practices such as chemical restraint, and
- age-unfriendly banking practices leading to the loss of control of personal finances and increased risk of financial exploitation.
- Moreover Madam Chair, we have observed that the autonomy and independence of our older clients has been undermined or eroded by:
- misdiagnosis of dementia
- social isolation of older persons by family members and carers
- lack of access to appropriate housing, social security, healthcare and legal services
- inadequate regulation of the aged care industry, and
- workplace discrimination, affecting the livelihood and economic autonomy of older persons.
- We have welcomed the Australian Government’s commitment to developing a National Plan to Protect Older Australians. Under Australia’s federal system, law-making responsibility for the majority of issues affecting autonomy and independence rests with provincial governments (States). It is therefore of critical importance that the National Plan establishes minimum benchmarks to be implemented by provincial Governments to protect the autonomy and independence of older persons.
- Madam Chair, a simple, accessible mechanism for older persons to seek redress for the denial of their autonomy and independence does not exist in Australia. Moreover, there are little or no consequences for a substitute decision maker who exercises decision-making power in a way that violates the rights of the older person. This is borne out by the lack on any criminal prosecutions for dishonesty offences, in the 20 years that have followed the introduction of powers of attorney laws.
- Amongst other rights, international standards are necessary on the rights of older persons to freedom of personal autonomy, to a presumption of legal capacity, to exercise dominion over their bodies, and to live independently in accordance with their will and preferences. These rights must not be diminished in circumstances where others, by nomination or appointment, are entrusted to assist the older person to make decisions.
- Finally, Madam Chair, we endorse the joint statement of the Global Alliance for the Rights of Older People. A binding international instrument on the rights of older persons is overdue. The dignity of our older clients rests upon it. Thank you.