Elder abuse – the ‘long-term grinding down of the soul’

Discussion on the impact of Elder Abuse is an important element in the debate on euthanasia & assisted suicide. The Australian Elder Abuse Prevention Unit uses the following definition:

"Elder Abuse is 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"

Elder abuse can include financial, physical, emotional and even sexual abuse of an elderly person. Ian Yates, from Council On The Aging(COTA) recently stated on radio that five or six per cent of elderly people in Australia are victims of some form of Elder Abuse. He added that the rate could be as high as 10 per cent given the reality that abuse is grossly under-reported.

Concerns for vulnerable people have and remain a significant factor in the rejection of euthanasia & assisted suicide legislation. In January this year, the most recent iteration of these concerns was voiced in the legal judgement in the Irish Supreme Court in the Fleming case. The Irish Independent reports:

The court said that it was impossible to liberalise the law on assisted suicide and at the same time protect vulnerable persons such as the aged, the disabled, the poor, the unwanted and others including those who were financially compromised who may be vulnerable to assisted suicide.

Abused and at-risk elders are clearly vulnerable persons. Euthanasia & Assisted Suicide present a very real risk for such people and laws that give effect to such actions are a recipe for abuse. Is this overstating the case? A recent report from Queensland observed that '66% of abuse cases were financial'. Of course this can mean anything from petty theft to the stripping of a person's total assets. It does not and cannot qualify further what percentage of such cases could result in the untimely and unwanted death of the elder if euthanasia or assisted suicide were to be legally available. Yet the same report, Elder Abuse Prevention Co-ordinator, Les Jackson, makes this sobering assessment of what is really taking place:

"There is also psychological or emotional abuse, a lot of verbal abuse, and we're not talking about fights in families but talking about long-term grinding down of the soul," Mr Jackson said. "It's where they're always saying 'you're stupid', 'you're going senile', 'you're useless' ... that is domestic violence and people don't realise it."

Is it too much of a stretch to believe that a victim of the 'long-term grinding down of the soul' might simply agree that it's time to go because accepting the assertions of the abuser is the only way to keep the peace or the only way out? www.news.com.au also recently highlighted a problem with some Queensland solicitors completing Enduring Powers of Attorney (EPA) documents without a proper assessment of whether the person giving their rights to others over their estates (and even their person) has the mental capacity to do so.

Legal Services Commissioner, John Briton explained that actions have been taken against solicitors in respect to the execution of some EPAs. "We have initiated disciplinary action against several solicitors for making (an EPA) in circumstances where the client was unable to give instructions (because they lacked capacity) and the solicitor was clearly in breach of their obligations to check,'' he said. Shopping around. In the same article, Estate Lawyer, Caite Brewer explains that relatives with malicious intent are 'solicitor shopping'.

If a solicitor suspects that the client lacks capacity, then the relative "just goes to the next solicitor down the road who does the document without asking any questions." The Queensland Justice Department has issued guidelines for assessing capacity. Witnesses (lawyers, JPs and Notaries Public) have a statutory obligation to assess client capacity – but clearly that is not happening in every case. The article quotes Brewer as saying that EPAs were being abused by the very people appointed to protect the vulnerable.

Doctor Shopping is another well-understood phenomenon that, likewise, will have an impact on vulnerable people if euthanasia and/or assisted suicide were ever to become law. Some bills that we have seen have even attempted to enshrine such behaviour in law by the insistence that a doctor who will not do the killing refer the patient to someone who will. As has been pointed out repeatedly in debates, not all doctors will want to act upon euthanasia or assisted suicide requests – perhaps only a few will ever see this as part of their practice. It's not hard to imagine that a 'nudge-nudge, wink-wink' knowledge of which doctors would 'do the deed' will circulate overtime. Reports on the assisted suicide regime in Oregon USA provides confirmation.

Oregon-based Physicians for CompassionateCare, in reviewing the data for 2009 observed that none of the 59 patients who died by assisted suicide that year were referred for a psychiatric evaluation and that, in the preceding three years, only 1% (2 of 168) were referred for assessment. This flies in the face of a 2008 study that confirmed that up to 25% of patients making a request were likely to be clinically depressed (calling into question their capacity for rational judgment). Moreover, doctors associated with the pro-euthanasia lobby and authors of the Oregon legislation, Compassion and Choices, were involved in 53 of 60 deaths in 2008, and in 57 of 59 deaths in 2009. The Compassion and ChoicesOregon website has a FAQ that crystallizes their involvement:

What if my doctor says no to my request to have him/her assist me in using the Act?

Call Compassion & Choices of Oregon – [phone number provided] – to discuss all of the options and choices about end-of-life care. We will provide a Client Information Pamphlet that explains in detail all of the options and choices, including a script on how to talk to a doctor about one's wishes. We may be able to recommend another doctor if the patient's doctor continues to refuse to assist the patient in using the Act as one of their end-of-life options.(Emphasis added)

It is said that, if a law can be abused, it will be abused. Some may say that this is no reason not to create laws because otherwise we would have no laws at all. But few laws can ever be abused to the extent that the risk of abuse entails the wrongful loss of one's life.