A TALE OF TWO INQUESTS: A VULNERABILITY ANALYSIS OF CORONIAL INQUESTS IN TWO CASES OF ELDER NEGLECT.

• Date: 01 January 2019
• Author: Barry, Lise

I ELDER ABUSE AND NEGLECT AND CORONIAL POWERS

Elder abuse is currently a hot topic in Australia and has been the subject of many State and national inquiries. (3) A recently completed Australian Law Reform Commission Inquiry has been followed up with a Royal Commission into Aged Care, (4) prompted in part by a media investigation into abuse in the sector that included secretly filmed footage of care workers abusing elderly residents. (5) Whilst abuse in care should absolutely be investigated and exposed, the numbers of older people living in care as a percentage of the overall older population is in decline. (6) Decades of policies aimed to encourage older Australians to 'Age in Place' has led to increasing numbers of people either living alone or being cared for by relatives. When those relatives themselves have special needs and are particularly vulnerable, or if they are motivated more by their own needs than concern for the older person, the conditions for abuse and/or neglect may blossom. These cases are notoriously difficult.

In Australia, tragic examples of self-neglect or neglect by a carer or family member leading to the death of an older person appear to be rare, (7) although previous examples of elder death following neglect at home have led to criminal charges in some situations. (8) When these deaths do occur, they inevitably raise fraught questions of responsibility: Should the State have done more to intervene? How do we ensure safeguarding of vulnerable older people whilst avoiding paternalism? (9) What is the threshold for intervention? The balancing act between an older person's rights to make their own decisions and their right to be safeguarded from abuse is a difficult one. (10) Seldom does the inquiry into the cause of death extend to community and institutional responsibility or the contribution of our ageist systems. Applying vulnerability theory to these situations may help us to rethink their causes and highlight points of intervention.

A Reporting Deaths of the Aged

In Australia, Coroner's courts are state-based and exhibit some variations in the underlying legislation, and there is a knowledge gap in how Coroners investigate and report suspicious or unexpected deaths. (11) Concerningly, age can be a factor that prevents the reporting and investigation of suspicious or preventable deaths in New South Wales, where 72 is the arbitrary age above which a medical practitioner may choose to issue a death certificate rather than make a report to the Coroner. (12) This law may serve to help mask neglect through underreporting of deaths.

Because deaths by neglect occur in private, it can be difficult to determine the factors that contribute to the death and easy to blame the individual, family or carers, without consideration of institutional factors. As the NSW Ombudsman recently noted, while the state may lead the way in mandatory reporting of abuse in care homes, 'there is horrendous abuse occurring in family homes....' (13) requiring an urgent imperative to introduce adult safeguarding measures and regulatory reform. (14)

It is for this reason that Coronial inquests take on significance. Coronial inquests can lay bare the failures of carers, the community or institutions that may cause, or fail to prevent an older person's death. (15) Alternatively Coronial inquests may highlight the need for reforms in laws, policy or procedures. (16) Coroners exercise important powers to interrogate the causes of deaths and to recommend future action to prevent deaths. (17) Where a particular group of people may be at risk, Death Review Teams operating either inside the Coroner's office or as part of multi-agency teams, may be formed to research and report upon the systemic and institutional causes of deaths, (18) though there is currently no systemic investigation of suspicious elder deaths in Australia. It is therefore vitally important that Coroners report on all potential causes of an elder's deaths, so that systemic causes can be identified and addressed.

B Vulnerability Theory

Failures to report the causes of suspicious or preventable deaths in older people may occur because of ageism. Old age is often viewed paradigmatically as a life-stage characterised by declining physical and cognitive health and older people identified as a class or subject group in which their old age is equated with incapacity. The role of carers, the community and the state in contributing to the vulnerability of an older person may be ignored. Incapacity and death in old age may therefore be viewed as no more than inevitable, with little thought to the value of life in older age or to how premature deaths of the elderly may be prevented.

According to vulnerability theorist Martha Fineman, our lives are characterised by 'the inescapable interrelationship and interdependence that mark[s] human existence.' (19) This world view resonates in any discussion about elder neglect, because in old age, many of us will rely on others to meet some or all of our care needs. The sources of vulnerability for older people are varied. For some older people, cognitive or physical impairments can strain a person's usual family and social supports. (20) These disruptions to family can impact further on the older person's wellbeing. (21) A person who experiences impairment without any family support or within a family riven with conflict, is differently vulnerable to a person who is well supported. A person with an impairment who cannot afford high levels of care will be differently vulnerable than someone with good economic resources. (22) Even those with sufficient resources may be rendered more vulnerable if they live in a community that is not well serviced by the necessary health and social resources or institutions. Where an institution does not produce policies, procedures or training to respond to vulnerable older people, then that institution may further exacerbate the vulnerability of older people in their care.

C Sources of Vulnerability

To be a useful lens of analysis, vulnerability theory must therefore be able to account for the different sources of vulnerability. This paper proceeds on the basis that the tripartite theory of vulnerability encompassing inherent, situational and pathogenic vulnerability as outlined by Rogers, Mackenzie and Dodds, is an appropriate framework to apply. (23)

First, vulnerability is considered at the inherent level, encompassing individual experiences associated with ageing, including the possibility of physical and cognitive impairment. However, if the analysis of vulnerability stopped at the individual inherent level, then any interventions to address that vulnerability would run the risk of pathologising the elderly person and focus the gaze of the law only on the impairments of any elderly victim of abuse or neglect. (24) Such an approach could also run the risk of assuming that the responsibility for caring for older people rests with their family. Placing the burden of responsibility for care of the vulnerable on families will render their needs invisible. (25) This is a particularly poignant observation considering the plight of Marcia Clark outlined in this paper. As will be seen, Marcia's daughter Nardia had mental health problems of her own and was not well equipped to deal with the difficulties of caring for an older person with dementia, yet her difficulties failed to trigger the necessary support from the community.

This leads us to consider further situational vulnerabilities. The situational context includes the level of support and resources at the disposal of an older client. (26) Resources include the economic and information resources required to access and pay for services or professional care or assistance. Situational approaches to vulnerability highlight the link between impairment and elder abuse and posit other reasons why some people with disabilities are more vulnerable without characterising them as inevitably so. (27) Marcia Clark was situationally vulnerable because of her daughter's mental health problems and social isolation. In the Tasmanian case examined in this paper, Janet Mackodzie was vulnerable to abuse in part because she was denied professional care and assistance and was unable to access her own financial assets. Her daughter and son-in-law were able to control her finances for their own benefit, stole money from her and persuaded a probate clerk to transfer Janet's house to them.

A tripartite analysis extends beyond the overlapping inherent and situational causes of vulnerability to interrogate the pathogenic causes of vulnerability for older people experiencing neglect, (28) a concept that...