Elder Abuse
In the Toronto Declaration on the Global Prevention of Elder Abuse the World Health Organization (“WHO”) defined elder abuse as “a single or repeated act, or lack of appropriate action, occurring within any relationship where there is an expectation of trust which causes harm or distress to an older person” and the WHO and the OHCHR have noted that it can be of various forms, often hidden, including physical, psychological, emotional, sexual, financial or simply reflect intentional or unintentional neglect.[1]?The WHO declared elder abuse to be “a violation of human rights and a significant cause of injury, illness, lost productivity, isolation and despair”.[2]?Ellison et al. explained elder abuse to be a frightening phenomenon for older people that could include financial abuse (e.g. abuse of power of attorney, theft, pressure to change their will or to become guarantors); psychological abuse (e.g. social isolation, verbal abuse, treating them like children); physical abuse, including violence, physical restraint and neglect; sexual abuse; neglect (e.g. inadequate food, shelter, clothing, medical care/assistance, hygiene, medication); and multiple abuses, which are kinds of the aforementioned abuses that occur at the same time or on a continuum with a single relationship of trust.[3]?
The OHCHR has expressed concern regarding the level of violence, abuse and neglect that older persons are subjected to on a regular basis, noting that approximately one in ten older persons experience abuse every month and that abuse against older persons can take a number of different forms (i.e., physical, psychological, financial and neglect) and cut across different social, economic, political and cultural contexts.[4]?The UN Committee on the Elimination of Discrimination against Women has noted that “[o]lder women are particularly vulnerable to exploitation and abuse, including economic abuse, when their legal capacity is deferred to lawyers or family members, without their consent”.[5]??Sadly, elder abuse often remains hidden within families and the most serious forms of abuse, physical and sexual, has a gender face and frequently goes without reporting by victims or service systems.?The OHCHR has also been critical of the fact that there is still no explicit protection for older persons against violence, abuse and neglect in international human rights law.
Elder abuses can occur within the context of a variety of different relationships including those between an older person and his or her adult children, spouse, other family members, friends, caregivers or institutions.[6]?The OHCHR noted that physical violence against older adults by their caretakers is one of the most serious complaints, often requiring long periods of recuperation, causing severe and lasting emotional distress (i.e., depression, fear, anxiety and post-traumatic stress) and eventually leading to premature mortality.[7]?The extent of the problem is difficult to gauge due to the lack of reliable statistics and information and the reluctance of many victims to report abuse by family members and others on whom they have become dependent for their basic daily needs.?The OHCHR also expressed special concerns regarding various types of financial exploitation of older persons such as “threats to their property, income or goods, including fraud, arbitrary deprivation of their property, theft, expropriation of land, property or goods, and fraudulent loss of the enjoyment and exercise of their legal capacity, with the purpose of taking control of their financial affairs”.?[8]
The WHO noted that elder abuse is a universal problem, one that can be found in both the developed and developing world, and a situation that is particularly vexing and hurtful because more often than not the abuser is well known to the victim from the abuser’s relationship as a family member or caregiver.[9]?Older persons suffer from elder abuse because of an inability or unwilling to report the problems for various reasons including a lack of community and professional awareness and understanding of the problem; a lack of knowledge of services that may be available to provide support and assistance; isolation, which not only contributes to lack of access to assistance but also allows abusers to persist due to lack of scrutiny; fear of retribution or of being institutionalized; shame of being abused by people they should be able to trust and fear of putting important relationships with family or friends into jeopardy; and a lack of procedures for health professional to following in order to address abuse.[10]?
Justice systems need to improve their responses to elder abuse to empower victims and provide them with access to appropriate legal services provided by lawyers who understand the risk factors associated with elder abuse and how to provide support in reporting abuse (e.g., interpreters and supporting in overcoming barriers such as testing for mental capacity) and pursuing legal options for prevent and addressing elder abuse.[11]?While discussing the international human rights obligations of Australia to older people, Lacey argued as follows[12]:
“Australia’s legal and policy frameworks for dealing with elder abuse are so weak is a national disgrace and it is time that lawyers joined the calls for a better system of adult protection in Australia. However, any system must be framed from a rights perspective to ensure that ageist and paternalistic approaches are not adopted, thereby avoiding the erosion of the rights and freedoms of vulnerable adults under the guise of safeguarding or protecting those people. We should adopt a progressive approach to the interpretation and implementation of existing international human rights norms.”
The WHO argued that “[l]egal frameworks are missing” and that “[c]ases of elder abuse, when identified are often not addressed for lack of proper legal instruments to respond and deal with them”.[13]?The WHO called for involvement of multiple sectors in responding to elder abuse, particularly primary health care workers who deal with victims of abuse and need to be able to recognize the signs of abuse in order to ensure that the appropriate care and support is provided.?The WHO urged that more resources be channeled toward education and dissemination of information regarding elder abuse, both through professional education and via popular media, in order to combat the stigma associated with elder abuse, address and eliminate negative stereotypes of older persons that often trigger the abusive behavior and strengthen intergenerational bonds.?The WHO also pointed out that any response needed to take into account the cultural context within the community in which the abuse is occurring particularly when there are a number of older persons from population subgroups that are known to be especially vulnerable to abuse such as the very old, people with limited functional capacity, women and older people living in poverty.?Finally, the WHO called for develop of frameworks that include all of the services necessary to combat elder abuse including health, social services, legal protections and access to justice and police referrals.[14]
The UN Committee on the Elimination of Discrimination against Women (“CEDAW”) noted that “[o]lder women are particularly vulnerable to exploitation and abuse, including economic abuse, when their legal capacity is deferred to lawyers or family members, without their consent”.[15]??The CEDAW was also concerned about violence against older women, calling on States to “draft legislation recognizing and prohibiting violence, including domestic, sexual violence and violence in institutional settings, against older women, including those with disabilities” and “investigate, prosecute and punish all acts of violence against older women, including those committed as a result of traditional practices and beliefs”.[16]?The CEDAW noted that special attention should be placed on violence suffered by older women in times of armed conflict, including sexual violence on older women who have been forcibly displaced or forced into refugee status, and the impact of armed conflicts on the lives of older women.[17]
Ageing Equal argued that “[o]lder women face the accumulated effects of ageism and sexism in several areas of their lives” including a higher likelihood of encountering ageist attitudes than their male counterparts; dual discrimination in access to employment and pensions and to key goods and services in the health and insurance sectors; and high poverty rates than older men due to?“life-long differences in pay and working time, different pension ages for men and women, and the fact that older women live longer and most often alone”.[18]?Ageing Equal also called out gender abuse and discrimination over the lifecycle that eventually leads to “greater inequalities, vulnerability and poverty in old age”, citing studies of older women across multiple European countries that found that almost 30% of them had experienced some kind of violence of abuse in the previous 12 months prior to being surveyed and that many of them felt vulnerable and dependent and challenged in their efforts to report the abuses and seek protection from legal authorities and victim support services.[19]
According to the UN Independent Expert on the Enjoyment of All Human Rights by Older Persons, “[e]conomic insecurity, challenges in access to quality and affordable health and care services, limited autonomy and independence and other disadvantages mean that older women are at greater risk of violence, abuse and neglect”.[20]?The Independent Expert noted that the “specific experiences of older women … remain largely invisible and unaddressed” due to the failure of laws, policies and awareness-raising campaigns on elder abuse to integrate a gender perspective; however, she reported that based on information shared with her it was clear that “older women face diverse forms of violence and abuse, with emotional, financial and material, physical and sexual abuse as well as neglect”.[21]?
Another issue with respect to assessing the level of violence against older women is the relative lack of specific data on the experiences of women above the age of 50.?The Independent Expert noted that in global estimates on intimate partner violence and non-partner sexual violence published in 2018 by the World Health Organization, less than 10% of the eligible data included women aged 50 and older and the data that was included came mainly from high-income countries where it could be expected that prevalence rates would be lower compared to lower-income countries.[22]?She did refer to one study conducted in five European countries that specifically addressed domestic abuse and violence against older women and found that 28.1% of women reported experiencing violence or abuse, most commonly emotional abuse, followed by financial abuse.[23]?For older women in institutional settings, where women are often the majority of the residents, the prevalence of violence, abuse and neglect is estimated to be even higher, with older patients of both sexes being exposed to overmedication (especially patients with dementia), administration of antipsychotic drugs with free and informed consent in order “manage” the patient in care homes where the number of staff members and their level of training is inadequate.[24]
The Independent Expert expressed concern that older women were prevented from speaking out about abuse and seeking help due to various factors including dependence on others for care, medicines, mobility, housing, food and financial and other support; their own feelings of embarrassment, self-blame and shame and a failure to recognize that their rights have been violated by the abusive actions of others.?As a result, older women “may remain in abusive relationships because of social expectations and beliefs, as well as pressure to care for an ageing partner or to not leave a long-lasting relationship”.[25]?Unwillingness or inability to report abuse is exacerbated by the lack of accessible and adequate support from protective mechanisms that are responsive to the needs of older women, and the Independent Expert cited the example of shelters that “may not be able to accommodate older women with bathing, dressing, mobility and other care needs, while social workers, caregivers and the police are not sufficiently sensitized and trained to recognize, respond and cooperate in cases involving older women”.[26]?Older women are also rightly reluctant to report abuse because of expectations that their claims will “be with disbelief and skepticism because of ageist and sexist assumptions” and their credibility as witnesses will be undermined by memory problems and other cognitive issues that ultimately make it difficult for cases of violence and abuse to be brought and convictions obtained.[27]
To learn more, download the Project’s chapter on?Elder Abuse.
Notes
[1]?Toronto Declaration on the Global Prevention of Elder Abuse (World Health Organization, 2002)?and?E/2012/51, Paragraph 32.
[2]?Id.
[3]?S. Ellison, L. Schetzer, P. Mullins, J. Perry and K. Wong, The legal needs of older people in NSW (Sydney: Law and Justice Foundation of NSW, 2004), Executive Summary, xxx-xxxi.
[5]?UN Committee on the Elimination of Discrimination against Women: General recommendation No. 27 on older women and protection of their human rights, CEDAW/C/GC/27 (December 16, 2010), Paragraph 27.
[6]?S. Ellison, L. Schetzer, P. Mullins, J. Perry and K. Wong, The legal needs of older people in NSW (Sydney: Law and Justice Foundation of NSW, 2004), Executive Summary, xxx-xxxi.
[8]?Id. at Paragraph 34.
[10]?S. Ellison, L. Schetzer, P. Mullins, J. Perry and K. Wong, The legal needs of older people in NSW (Sydney: Law and Justice Foundation of NSW, 2004), Executive Summary, xxx-xxxi.
[11]?Id. at xxx-xxxi.
[12]?W. Lacey, “Neglectful to the Point of Cruelty: Elder Abuse and the Rights of Older Persons in Australia”, Sydney Law Review, 36 (2014) 99, 130.
[14]?Id.
[15]?UN Committee on the Elimination of Discrimination against Women: General recommendation No. 27 on older women and protection of their human rights, CEDAW/C/GC/27 (December 16, 2010), Paragraph 27.
[16]?Id. at Paragraph 37.
[17]?Id. at Paragraph 38 (also calling on States to be mindful of “the contribution that older women can make to the peaceful settlement of conflicts and to reconstruction processes”).
[19]?Id.
[20]?Report of the Independent Expert on the Enjoyment of All Human Rights by Older Persons, A/76/157 (July 16, 2021), Paragraph 49.?
[21]?Id. at Paragraphs 50 and 54 (noting also that in a significant number of cases, adult children were reported to be the perpetrators).
[22]?Id. at Paragraph 51 (citing Violence against Women Prevalence Estimates, 2018: Global, Regional and National Prevalence Estimates for Intimate Partner Violence against Women and Global and Regional Prevalence Estimates for Non-partner Sexual Violence against Women (Geneva: World Health Organization, 2021), 22).
[23]?Id. at Paragraph 54.
[24]?Id. at Paragraph 55 (citing information submitted by Human Rights Watch).?According to?estimates from the World Health Organization?published in 2021, one in six people over the age of 60 experience abuse in community settings, two-thirds of staff in care institutions reported having committed abuse and the incidence of abuse increased during the COVID-19 pandemic.?Id. at Paragraph 50.
[25]?Id. at Paragraph 58.
[26]?Id. at Paragraph 59.
[27]?Id. at Paragraph 60 (noting that perceived weaknesses in the credibility of older women as witnesses in their own cases means that additional evidence and witnesses may be required for legal cases to succeed and these can be difficult to obtain).