Legal Definitions of Elder Abuse and Neglect

5.0 NEW ZEALAND

5.1 Legislation

As New Zealand has a single national legislative structure, the same laws apply nationwide. Consequently, New Zealand does not have to deal with the barrier to uniform elder abuse prevention that Canada faces as a result of having different pieces of legislation from province to province.

There is no legislation in New Zealand directed specifically towards the prevention of elder abuse and neglect. However, these issues are addressed through an Elder Abuse and Neglect Prevention system, family violence prevention strategies and initiatives, and similar to Canada, the U.K. and Australia, through the criminal law and civil systems.

Protection of Personal and Property Rights Act 1988

The only legislation in New Zealand directed in some way towards the prevention of elder abuse and neglect, is Part IX of the Protection of Personal and Property Rights Act 1988186 ("PPPRA"). The Act was amended in 2007 by the Protection of Personal and Property Rights Amendment Act 2007187, to provide better protection for older people in the way enduring powers of attorney ("EPA") are set up and how an attorney can act under them.188 The target of this part of the PPPRA is the financial abuse of older adults. However, the PPPRA, does not include any definitions of abuse or neglect.

Mental Health (Compulsory Assessment and Treatment) Act 1992

The Mental Health (Compulsory Assessment and Treatment) Act 1992189 creates an offence of intentional neglect or ill-treatment of proposed patient and patients; however, this Act does not define neglect or ill-treatment:

114 Neglect or ill­treatment of proposed patients and patients

  1. This section applies to—
    1. The person in charge of a hospital or service at which a proposed patient attends for an assessment examination; and
    2. The person in charge of a hospital in which a patient is an inpatient; and
    3. A person employed in any such hospital or service and engaged—
      1. In the conduct of an assessment examination of a proposed patient; or
      2. In the assessment or treatment of a patient; and
    4. The person in charge of a home, house, or other place where a proposed patient or patient resides.
  2. Every such person who intentionally ill­treats or intentionally neglects any such proposed patient or patient commits an offence and is liable on conviction on indictment to imprisonment for a term not exceeding 2 years.

Although not specifically targeted at older adults, the Domestic Violence Act 1995190 does provide protection for older adults who may be victims of domestic abuse. This Act does not define elder abuse or neglect.

5.2 Policy

5.2.1 Relationships of trust

The emphasis on breach of trust in New Zealand mirrors the Australian approach to elder abuse and neglect.

In 1990 the New Zealand government established the Office for Senior Citizens191 ("OSC"), which is administered by the Ministry of Social Development.192 "The Office for Senior Citizens provides policy advice on issues affecting older people; promotes and monitors the New Zealand Positive Ageing Strategy and provides services to the Minister for Senior Citizens."193

Following every general election, the OSC produces a briefing document to the incoming Minister. Chapter 7 of their 2002 briefing entitled, Overview: Briefing To The Incoming Minister For Senior Citizens 2002194 ("Briefing Document 2002") includes the following definitions of elder abuse and neglect:

Elder abuse and neglect is any act occurring within a relationship where there is an existing degree of trust on the part of an older person which results in harm to that older person.

Categories of elder abuse may be identified as:[1- from Age Concern New Zealand]

  • physical abuse infliction of physical pain, injury or force;
  • psychological abuse behaviour that causes mental or emotional anguish or fear;
  • sexual abuse sexually abusive and exploitative behaviours involving threats, force, or the inability of a person to give consent;
  • material/financial abuse the illegal or improper exploitation and/or use of funds or other resources;
  • active neglect conscious and intentional deprivation by a carer of basic necessities resulting in harmful effects; and
  • passive neglect refusal or failure by a carer, because of inadequate knowledge, infirmity or disputing the value of the prescribed service, to provide basic necessities resulting in harmful effects.195

Their 2008 briefing entitled, Briefing to the Incoming Minister for 2008—New Zealanders: getting older, doing more196, provides some discussion about the challenges of the issue of elder abuse and neglect but does not provide any definitions.

Family and Community Services197 is responsible for a number of family violence prevention programmes, including Elder Abuse and Neglect Prevention Services ("EANPS").198 FCS funds 24 community-based EANPSs in New Zealand, which are coordinated by Age Concern New Zealand.199 Age Concern New Zealand ("ACNZ") 200 also provides "support and advice to service providers, develop resources and increase community awareness through regional forums and a national conference. They also work with providers to encourage nationally consistent outcomes for older people who experience elder abuse and neglect." 201

The Elder Abuse and Neglect Prevention section on the FCS website includes the following description of elder abuse and neglect:

Elder Abuse and Neglect occurs within a relationship of trust. The victim and the abuser are people who know each other well. Often the abuser is a member of the older person's family. Other abusers can include people employed in positions of trust—residential facility staff or paid carers. Elder abuse and neglect is a significant social issue.202

For more information on elder abuse and neglect, the Elder Abuse and Neglect Prevention section of the FCS website provides direction to the Agewell New Zealand website. Agewell203 is administered by Age Concern North Shore and funded by the New Zealand Ministry of Health. Agewell provides information on elder abuse and neglect, including adding for the first time a distinction between active and passive neglect in the following definitions:

What is Elder Abuse and Neglect?
Elder Abuse and Neglect occurs within a relationship of trust. The victim and the abuser are people who know each other well. Statistics from services in New Zealand show that the majority of abusers are members of the kaumatua/older person's family/whanau (partners, sons, daughters, in laws, siblings, grandchildren). Other abusers include people employed in positions of trust—residential facility staff or paid carers.

Definitions

Elder Abuse
Elder Abuse occurs when a person aged 65 or more experiences harmful physical, psychological, sexual, material/financial or social effects caused by the behaviour of another person with whom they have a relationship implying trust.
Elder Neglect
Elder Neglect occurs when a person aged 65 or more experiences harmful physical, psychological, sexual, material/financial or social effects caused by the behaviour of another person with whom they have a relationship implying trust.
Neglect
Neglect occurs as a result of another person failing to meet the physical and emotional needs of an older person/kaumatua.
  1. ACTIVE NEGLECT is conscious and intentional deprivation.
  2. PASSIVE NEGLECT is the result of the carer's inadequate knowledge, infirmity or lack of trust in prescribed services.

The Families Commission204 is a Crown agency that was established in 2004 pursuant to section 6 of the Families Commission Act ("FCA")205. In January 2008, the Families Commission published their report entitled, Elder Abuse and Neglect—Exploration of risk and protective factors206. This report includes the following discussion and definitions of elder abuse and neglect:

For the purposes of this research project the definition used by New Zealand Age Concern Elder Abuse and Prevention Services was adopted. Age Concern New Zealand (Age Concern New Zealand Inc, 2005) says that elder abuse and neglect is usually committed by a person known to the victim and with whom they have a relationship implying trust. A person who abuses an older person usually has some sort of control or influence over him/her. Family members, friends, staff in residential facilities or anyone the older person relies on for basic needs, may be abusers….

This definition is widely accepted and used in New Zealand. It was ratified at the National Strategic Research Planning day in 2006 as the agreed definition of elder abuse and neglect (Age Concern New Zealand Inc, 2006).

The interpretation of neglect is as problematic as that of abuse. Neglect has been shown to be the most common form of mistreatment of older people. In New Zealand, neglect is generally defined as a result of another person failing to meet the physical and emotional needs of an older person. Neglect is often further classified as passive or active. Passive neglect is the result of the carers' inadequate knowledge, illness or lack of trust in prescribed services. Active neglect is the conscious and intentional deprivation of an older person of care (Age Concern New Zealand Inc, 2005).207

5.2.2 Elder abuse as a form of family violence

In New Zealand, definitions and discussions of elder abuse and neglect appear primarily within the context of analyses of family violence, a sub category of the larger category of breaches of relationships of trust.

In December 2004, the Minister of Social Development and Employment released a social development strategy entitled, Opportunity for All New Zealanders208 ("Opportunity for All"). Part 2 of Opportunity for All sets out five critical social issues that have been identified by the New Zealand government as priorities for interagency action, including the priority of "minimising family violence, and abuse and neglect of children and older persons". In their discussion of this priority, Opportunity for All defines "family violence" and "elder abuse and neglect". The definition of family violence mentions elder abuse specifically:

Family violence is violence or abuse of any type, perpetrated by one family member against another family member. It includes physical, sexual and psychological abuse. Common forms of violence include:

  • partner or spouse abuse
  • child abuse and neglect (including serious sibling abuse)
  • elder abuse and neglect (including abuse of parents by adult children) (from Te Rito209)

Elder abuse and neglect is when a person aged 65 years or more experiences harmful physical, psychological, sexual, material or social effects caused by the behaviour of another person with whom they have a relationship implying trust. This may occur in many different settings including private homes, rest homes and hospitals. (at 76)

The above definition of family violence is taken from the publication Te Rito, the New Zealand Family Violence Strategy ("Te Rito"), released by the Ministry of Social Development in 2002, which deals with the prevention of all forms of family violence, including "intra-family elder abuse and neglect." Te Rito is a collaborative approach between government and non-government organizations, which sets out key principles, goals and a framework for actions for family violence prevention.210

Te Rito includes a description of family violence, as well as the common forms of family violence (with specific reference to "elder abuse and neglect"):

What is family violence?

Family violence covers a broad range of controlling behaviours, commonly of a physical, sexual, and/or psychological nature which typically involve fear, intimidation and emotional deprivation. It occurs within a variety of close interpersonal relationships, such as between partners, parents and children, siblings, and in other relationships where significant others are not part of the physical household but are part of the family and/or are fulfilling the function of family. Common forms of violence in families/wha-nau include:

  • spouse/partner abuse (violence among adult partners);
  • child abuse/neglect (abuse/neglect of children by an adult);
  • elder abuse/neglect (abuse/neglect of older people aged approximately 65 years and over, by a person with whom they have a relationship of trust);
  • parental abuse (violence perpetrated by a child against their parent); and
  • sibling abuse (violence among siblings).211

5.2.3 Cultural aspects to elder abuse

The Agewell discussion of abuse and neglect addresses briefly the challenge of defining elder abuse across cultures:

Abuse and Neglect for Maori

Maori recognise the types of elder abuse and neglect defined here but responds to this in a way which considers the context of the four cornerstones of health—Taha Wairua (Spiritual), Taha Whanau (Family), Taha Hinengaro (Mental), Taha Tinana (Physical). In this context, definitions of abuse and neglect may also include the lack of culturally appropriate services, preventing contact with Whanau and non-practice of traditional ways.

In responding to elder abuse and neglect Maori promote a holistic approach involving whanau, traditional cultural values including decision making processes, and the four cornerstones of health to restore manaakitanga.212

5.3 Court Decisions

As is the case in Canada, crime against older adults is addressed through general crimes; elder specific criminal offences do not exist in New Zealand. As such, appellate level jurisprudence involving elderly victims of crime often are sentencing appeals with consideration of aggravating factors. Below the key facts of three noteworthy cases are summarized:

The Queen v. Simpson213:

The offender Simpson committed four offences of deceiving elderly victims for monetary gain. Three of the offences were committed while he was out on bail for similar offences; he was on parole when all of the offences occurred. Simpson posed as a roofer and knocked on the doors of elderly men and women, offering to do roof repairs. Three of the victims lived alone; all were between 70 and 88 years of age. Simpson gained the victims' confidence and convinced them to give him deposits for the work. The repairs were not carried out, except for some minor work in two instances. The victims often invited Simpson into their homes and some even allowed him to go with them to the bank to withdraw the funds. Simpson's scams resulted in embarrassment and loss of trust and confidence on the part of the victims. All were on fixed incomes and could not afford the loss. Simpson was sentenced to four years imprisonment.

The Queen v. Nixon214:

Nixon chose his victim, a 67 year-old man, in advance. He went to the home of the victim and identified himself as a representative from a company investigating sexual complaints. Nixon informed the victim that a complaint was received from a young girl, alleging that the victim had raped and indecently assaulted the complainant, which the victim denied. Nixon later telephoned the victim and informed him that the complainant would agree not to go to the police if the victim paid her money. Nixon collected $40 from the victim, and later requested $650 on the basis of the complainant not being satisfied with the original sum.

The Queen v. Goodman215:

Goodman was a career burglar who regularly preyed on elderly victims living alone, who were easy to steal from whether they were home or not, and easy to escape from. Goodman entered the home of Mrs. Morriss, an 83 year old widow living alone. While Goodman was in the bedroom sorting through belongings, Mrs. Morriss entered the room and likely blocked the doorway, barring Goodman's exit. Goodman knocked Mrs. Morriss to the ground and stabbed her five or six times near the heart. There was also evidence of blows to the head, possibly by kicks, punches, or a blunt object. The victim bled to death as a result of the stab wounds. Goodman was sentenced to life imprisonment.

5.3.1 Vulnerable elderly victims of crime

The language of the above decisions, emphasizing the vulnerability of "elderly victims" and denouncing crimes in which vulnerable victims are specifically targeted, resembles the Canadian jurisprudence.

In Goodman the judge emphasizes that the victim was "a frail, elderly lady" stating:

Brutal crimes such as this, committed against defenceless elderly people in their homes cannot be tolerated. It is conduct that must be denounced in the strongest terms.216

In Nixon the judge held that the vulnerability of the victim and the trauma he or she sustains will be considered aggravating factors in sentencing. In this case the victim's age and the fact that he lived alone in public housing made the vulnerability of the victim readily apparent to Nixon, who sought the victim out deliberately. The judge uses the language of "preying" on the elderly, reminiscent of the Canadian jurisprudence, in concluding, the "community is entitled to know that people who prey on elderly victims, like you did, are likely to go to jail in consequence of that offending."217

Both the planning and the vulnerability of the victims were identified as the aggravating factors in sentencing at first instance in the Simpson case. The appellate level decision affirms this approach. The judge declares "the protection of the community assumes added importance in cases of recidivist offending against vulnerable members of the community."218

5.4 Conclusion

As a result of its unitary government structure, the New Zealand response to elder abuse is less complex than that of Australia, Canada or the United States. New Zealand law contains power of attorney legislation, domestic violence and mental health legislation that impact on elder abuse, capturing, respectively, financial abuse, family violence and abuse of care facility residents; however, none of these laws define "elder abuse" per se.

In policy, the New Zealand approach parallels the Australian emphasis on breach of trust, with an expanding focus on elder abuse as a form of family violence—an approach taken in a number of Canadian jurisdictions. Recognition of cultural aspects to the problem of defining elder abuse also appears in New Zealand material, with a particular concern for the Maori people.

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