ELEVEN YEARS AGO I visited Washington state on a fellowship to better understand its adult protection system. I took with me some real-life scenarios and was interested to find out how services there would respond to similar situations. One of these scenarios involved a man I referred to as Andrew, who was in his fifties and had an intellectual disability. He was living alone following the death of his mother, who had been his carer. Andrew was living in a state of severe domestic mess and had a serious though treatable medical condition, but he was rejecting any offers of assistance at his front door. 

After being ushered into the Adult Protective Services’ secure offices in Washington, I asked their representatives how they would respond to Andrew’s situation. What would they do? Nothing, I was told; it was his human right to reject services. 

I was equally surprised by a similarly skewed, in my view, usage of human rights rhetoric at a mental-health forum in Melbourne some years ago. On that occasion a visiting mental-health advocate voiced the view shared by some that a person in acute psychosis who wished to end their life should essentially be free to do so. 

Both arguments were couched in terms of respecting the human rights of the individual concerned, yet both struck me as profoundly inhumane. In their defence, both arguments recognise that intervening to ‘protect’ adults who ostensibly don’t want protection will never be easy, neither philosophically nor practically, and will often fail. And both arguments stem at least in part from the terrible things that have been done historically to people in the name of their protection. 

In my earlier life as an academic I researched the ways in which Indigenous Australians were denied the most basic rights under the guise of protection (for many years the governing state and territory legislation had the word ‘protection’ in its title). Similarly, people with disability suffered – and still suffer – violence, exploitation and neglect through impulses and structures that are essentially ‘protective’ in nature. Laws and practices here have been and are being reformed in at least partial compliance with the UN’s Convention on the Rights of Persons with Disabilities, though reform continues to be somewhat uneasy amid vociferous debate about what constitutes full compliance. The Disability Royal Commission has now added its voice and made recommendations that, if adopted, would continue us on this reform pathway. 

So what are the future implications of this trajectory?

IN 2022 I was in Mt Isa asking similar questions to those that I posed in Washington state. This time I was surrounded by a range of people with service and experiential expertise in the broadly defined adult-safeguarding system. 

My colleagues, who support me in my role as Queensland public advocate, and I held eight of these in-person roundtables throughout Queensland, in places as diverse as Townsville, Southport, Mt Isa, Rockhampton, Caloundra, Toowoomba and Brisbane. We also held one in-person and three online forums with people with disability and with people with dementia and their supporters.

The roundtable discussions involved police and ambulance officers, Royal Flying Doctor staff, people with disability, disability and aged-care advocates, service providers, health professionals, community legal centre lawyers, local council staff, guardians, trustees, regulators and funding bodies (including the National Disability Insurance Agency). 

To get discussion going I asked people to respond to a number of hypothetical scenarios drawn from real life and put together by my colleagues. They included: 

Janet, an older woman whose adult son accompanies her to a bank where, not for the first time, they withdraw a large amount of money from her account, prompting the branch manager to suspect that Janet is being financially abused;

Troy, a young man with a brain injury from a motorbike accident whose frustration with his support workers has prompted the service to stop working with him;

Leon, an older man reluctantly living with his adult son who has told Leon’s support workers that they are no longer needed;

Samara, a mother with an acquired brain injury who lives in a remote area but whose service needs may not be able to be met there; and

Maureen, an older Indigenous woman whose family members pressure her to give them most of her aged pension.

I posed three simple questions: what currently happens to address scenarios like these? What ideally should happen? And how, if at all, could they be prevented?

This, I think it is fair to say, proved educative for all of us. These situations were easily stated but hard to work through. No one at the roundtables had all the answers, but there was manifest wisdom in the collective. 

I was surprised by a couple of things. First, it seemed like this kind of group discussion of difficult social-care scenarios was relatively rare. And second, people at the roundtables were impressively willing to switch into a group problem-solving mindset. I had expected some degree of defensiveness or buck-passing. 

At one roundtable, two service providers discovered that each was engaged in providing a few hours a week of support to the same person. As both participants observed, it would make sense for them to share with each other any concerns they might have about the wellbeing of that person; however, privacy concerns – both real and imagined – discourage this kind of activity. 

As we learnt, or remembered, at the roundtables the ability to ‘case conference’ particularly difficult scenarios has the potential to be extremely beneficial. One truism I was surprised to discover was that while advocates, service providers, emergency services and regulators come from very different theoretical positions and service experiences, they tend to agree – on hearing a range of possible intervention ideas – on preferred approaches in particular scenarios. The freedom and encouragement to case conference in difficult situations is important. One Gold Coast roundtable attendee wanted to take participants back to her office to help work through some other particularly complex scenarios.

But I didn’t just want to work through ideal approaches to all the ­scenarios. I wanted to draw from those workings-through to identify and promote broader reforms. In spite of all the service and regulatory activity presently underway in Queensland, there are significant adult-safeguarding gaps that my roundtable hypotheticals were designed to highlight.

CURRENTLY OUR RESPONSES to situations where adults are e­xperiencing harm, or are at risk of it, can involve generic services – police and ambulance. We also have some specific services for particular cohorts – elder-abuse services, community legal centres, advocacy for people with disability or older people. 

We even have some innovative service-delivery models. One example of this is the health-justice partnership; this sees a lawyer, for instance, placed in a hospital or a health centre or other setting to speak with people who might not ordinarily seek out a lawyer, maybe because they don’t feel safe to do so, or fear the expense, or simply don’t conceptualise their situation as potentially benefitting from legal assistance. 

In addition to specific services, we have regulatory safeguarding agencies – such as the Aged Care Quality and Safety Commission and the NDIS Quality and Safeguards Commission – that are designed to ensure the adequacy of services to particular cohorts of people. And we have more coercive mechanisms by which at-risk adults are sought to be protected. Mental-health laws in every state and territory enable compulsory action (treatment and detention) to be taken to protect people with mental illness from harming either themselves or others. Every year thousands of people are treated compulsorily in Australia as inpatients of mental-health facilities, while thousands are treated compulsorily as outpatients (and required to take medication in the community). 

Adult guardianship laws in each state and territory also enable thousands of people to have their financial decision-making taken over by an administrator or financial manager, and their personal decision-making – such as where they live or what medical treatment or other services they receive – determined by a guardian. In Queensland the criteria for the appointment of a guardian or administrator (financial manager) require that ‘the adult has impaired capacity for the matter’ and there is either simply a ‘need’ for an appointment or the likelihood that the person will do something that jeopardises their health or property. Enduring powers of attorney and similar instruments enable people to choose who plays these decision-making roles. 

The Disability Royal Commission has made recommendations that would see a term such as ‘guardian’ replaced by ‘representative’ and that would promote alternatives to guardianship – including supported decision-making. Reforms would also require decisions to accord, wherever possible, with what the person themselves wants or would have wanted, although the protective architecture would remain.  

The more coercive safeguarding mechanisms, such as compulsory mental-health treatment and adult guardianship, require specific criteria to be met and are very blunt last-resort strategies that should be used a lot less than they are. But other, less intrusive options are currently insufficient. Advocacy services are stretched thin and need innovative models to reach people. Emergency services are only designed to respond to situations involving likely criminality or immediate medical need. 

Meanwhile the service-specific safeguarding agencies – principally the Aged Care Quality and Safety Commission and the NDIS Quality and Safeguards Commission – largely rely on complaints being made to them before addressing individual instances of inadequate service support, and even then they focus more on the quality of the service than the general wellbeing of the service recipient. Many of the most at-risk recipients of services have limited ability to complain – and have few, if any, supporters who could do this on their behalf. Indeed, that is partly what puts their wellbeing at risk.  

THESE SAFEGUARDING GAPS manifest themselves in the hypothetical scenarios discussed at the roundtables I convened throughout Queensland. They depict circumstances in which people are clearly suffering, but it’s not clear how they might best be helped. In some instances a person with an entitlement to service support is not getting it because they are unaware of their entitlement, or they are unable to navigate their way through the administrative tasks needed to have their eligibility assessed and services identified and engaged. Or they are unable to get support because they live in a rural or remote region, or because of the particular nature of their support need. Or they are rejecting services, or service providers are refusing to work with them. Or they have service needs that have been inadequately assessed.

One significant subset of our modern adult-safeguarding environment is elder abuse, which we know is a significant and under-reported problem. In 2021 the Australian Institute of Family Studies released the results from the first-ever broad survey of elder-abuse prevalence in Australia. This showed that 14.8 per cent of adults aged sixty-five and over had suffered abuse in the previous twelve months. Importantly, only a little more than one third of people who experienced abuse sought help.

These predicaments can see adults suffering unnecessarily. What should they do? Who should they contact? A regulator such as the NDIS Quality and Safeguards Commission may be the right place to take a complaint about a particular service provider. But what if you don’t know whether the problem is a particular service provider’s actions, or the person’s eligibility, or the absence of appropriate alternative services?

The changing service setting has led to greater emphasis being placed on ‘consumer choice’ and the development of a market of service providers from whom eligible ‘consumers’ are able to choose. This is the case in the aged-care sector and in the disability arena following the introduction of the NDIS. This works well when consumers are knowledgeable about the possibilities and are authorised to have their needs met. But sometimes this isn’t the case: when the market has few or no services in a particular field or in a particular location (or both); when the consumer is unaware of options that might exist; or, in the case of someone with a significant cognitive disability, when the consumer is inexperienced in making such decisions, and inadequately supported to do so.

The Queensland Productivity Commission released a report in 2021 on the NDIS that made many of these observations and called for the National Disability Insurance Agency to consider buying supports for participants in certain circumstances, effectively bypassing the consumer-choice market model. The recent NDIS review has echoed this view.

The changing trend in care-service delivery is also seeing fewer services provided in institutional settings and more provided in-home, although the aged-care sector lags decades behind the disability sector in this regard. Of course the provision of more in-home care is, on the whole, positive. But it can lead to people being isolated if they live on their own and are only ever visited by service providers. The shocking death of Ann Marie Smith in Adelaide in 2020 is an example of the risks this can entail; Ann Marie received disability services from a single provider and died essentially of malnutrition and neglect. 

Other broad societal trends are also effectively dismantling some of our traditional safeguards, resulting in more people being at risk in the general community. For a start, we have an ageing population, with a trend for smaller family sizes, meaning less engaged family contact. There is also a hard-to-measure but noticeable ‘don’t get involved’ trend that sees bystanders reluctant to help people in need. The providence of this trend is complex: a mixture, arguably, of a ‘busy-ness’ default mindset, society’s promotion of the autonomous unencumbered individual, and the professionalisation of caring (‘it’s their job, not mine’). 

This was crystallised in one anecdote from an emergency services worker at one of my roundtables. The worker had been contacted by a member of the public in relation to someone who had been acting in an unusual manner. The worker responded, ‘Have you asked the person how they are?’

‘No,’ was the response.

The uncertainty about where to take adult-safeguarding concerns only serves to exacerbate this trend. People are naturally reluctant to ask questions if they don’t know what to do with the answers.  

SO HOW SHOULD we change?

Back in 2017, the Australian Law Reform Commission in its report Elder Abuse – A National Legal Response sought reforms to adult-safeguarding legislation and practices in every state and territory, and called on each jurisdiction to identify an adult-safeguarding agency that had broad powers to investigate the situation of any ‘at-risk adult’. The subsequent ‘National Plan to Respond to the Abuse of Older Australians [Elder Abuse]’ required all jurisdictions to review their adult-safeguarding laws. 

The Disability Royal Commission has also entered this debate, recommending that ‘independent statutory bodies’ in each state and territory perform ‘adult safeguarding functions’.

So far only New South Wales and South Australia have acted. In July 2019 an independent office of the Ageing and Disability Commissioner was established in NSW with broad investigative powers. Soon after, an Adult Safeguarding Unit was established in South Australia, within a government department, again with broad investigative powers. The other jurisdictions are yet to meaningfully respond. This needs to change.

I learnt a lot from holding the roundtables throughout Queensland, just as I have from discussions over the past ten years about how best to promote the human rights of people whose freedom will inevitably be jeopardised by protective actions taken on their behalf. 

I have put these lessons into a two-volume report, Adult Safeguarding in Queensland, that attempts to do two things. The first, obviously, is to improve our responses to situations in which people are experiencing harm, in a way that is as least intrusive for the person concerned as possible and geared towards addressing the actual harm the person is facing. The second aim is to energise people to be concerned about the wellbeing of their fellow citizens by giving them somewhere to take concerns.

In my report I have called for the appointment in Queensland of an adult-safeguarding commissioner who would have power to receive information from anyone about adults who are at risk, for whatever reason, in our community, and who would be able to investigate and organise ‘supportive interventions’ in response, such as the provision of aged-care or disability services. But the commissioner would generally require the person’s consent to take action on their behalf. Only extreme circumstances would provide an exception: for instance, if the person couldn’t be contacted, or if they were currently suffering ‘a serious case of abuse, exploitation, or neglect’. Even then, the commissioner’s coercive powers would extend only to investigating what was occurring and making appropriate referrals (to police, for example).  

I have also sought the establishment of adult-safeguarding networks throughout Queensland, which would largely be geographically based but could also be developed for specific cohorts, such as First Nations people and members of culturally and linguistically diverse communities. These networks would have two primary functions. First, they would provide a place where local service providers, emergency services, advocates and others would be able to consider the circumstances of particular individuals in that local community who may require greater support. And second, they would build knowledge among network members about what they can do in complex social-care situations. In a sense, the networks would be similar to a permanent local adult-safeguarding roundtable, a recommendation that I made after witnessing the considerable collective wisdom on display at the roundtables I convened throughout Queensland. 

ADULT SAFEGUARDING IS a complex area; like all complex areas, it is not given to simple solutions (as HL Mencken famously observed). 

With enough goodwill – and I have seen plenty in my travels throughout Queensland – we are capable of addressing the many and complex challenges faced by people at the margins of our society. And those people, of course, could one day be us, or our family members or friends. So the question of ‘What should we do here?’ might instead simply be rendered: ‘What would I want to happen if this were me?’

John Chesterman is the Queensland public advocate. The two-volume report Adult Safeguarding in Queensland is available at justice.qld.gov.au/public-advocate. 

Image by Andreas courtesy of Pixabay