Adult safeguarding and elder abuse in South Australia 

This article states the law of South Australia. The Ageing and Adult Safeguarding Act 1995 (SA) establishes the Office for Ageing Well and a separate Adult Safeguarding Unit, and creates a scheme for responding to the abuse of adults who may be vulnerable¹. Two features shape almost every problem under it, and both cut against the intuition a student brings from child protection: reporting is voluntary, and a response normally requires the adult's own consent.

Who the Act protects

Section 3(1) defines a relevant adult as "a person who is 18 years or older who may be vulnerable to abuse". Section 3(2) requires that vulnerability be determined by reference to the adult's circumstances as they exist at the material time.

The definition is therefore not confined to older people despite the Act's name and history, and it is not tied to disability, diagnosis or incapacity. It is a situational test applied at a point in time.

What counts as abuse

Section 4(1) defines abuse of a relevant adult as an act or series of acts, including a failure to take appropriate action, "occurring within a relationship of trust, dependency or imbalance of power", that causes harm to the relevant adult.

The relational element is doing the work. Conduct causing identical harm outside such a relationship is not abuse for this Act, which is why a stranger's assault is a police matter rather than a safeguarding one. Section 4(2) states, without limiting the definition, that abuse may include financial, physical, psychological or emotional, and sexual abuse.

Reporting is permissive, not mandatory

Section 22(1) provides that a person may report to the Adult Safeguarding Unit a suspicion that a relevant adult is at risk of abuse. Section 22(4)(a) removes any doubt: "nothing in this section requires a person to report a suspicion that a relevant adult has been abused, or may be at risk of abuse". Section 22(4)(b) preserves the freedom to report elsewhere in any other manner the person thinks fit.

This is a deliberate contrast with mandatory reporting in child protection, and describing the scheme as imposing a reporting duty is a straightforward error.

Section 22(3) also excludes two categories from being a report under the Act: a report relating only to abuse that occurred before the section commenced, and a report relating only to a relevant adult who has died.

Safeguarding responses, and the primacy of consent

After an assessment has commenced, the Unit may undertake one or more safeguarding responses (s 27(1)). Section 27(2) gives a non-exhaustive list: engaging or increasing formal or informal supports; assisting other organisations to support the adult; assisting in SACAT proceedings, for example under the Guardianship and Administration Act 1993 (SA); seeking a SACAT order; referring the matter to a more appropriate person or body; and any other response the Director considers appropriate.

Section 28(1) then states the governing constraint. The Unit should not undertake a safeguarding response unless the relevant adult consents, or the response is authorised by a SACAT order. The scheme is built on the adult's continuing autonomy: a competent adult may decline to be safeguarded.

Section 28(2) permits a response without consent only where the Director approves it and one of six circumstances exists: the adult's life or physical safety is at risk; the risk consists of an allegation that a serious criminal offence has been or is likely to be committed against the adult; the risk amounts or is likely to amount to serious financial abuse; the adult has impaired decision-making capacity in respect of a decision to consent to that action; the Unit has been unable to contact the adult after reasonable inquiries; or a circumstance prescribed by the regulations applies.

Both elements are required. Establishing one of the six circumstances is not enough without the Director's approval.

SACAT orders

Where consent is absent and no exception applies, the route is an order. Section 33(1) empowers SACAT, if satisfied it is appropriate, to make orders including an order authorising or requiring an examination or assessment of the adult; an order requiring a specified person to do or refrain from doing a specified thing in respect of the adult; and, most significantly, an order "authorising the Adult Safeguarding Unit, the Director or an authorised officer to take specified action where the relevant adult has refused to consent to the taking of that action".

That paragraph is where the scheme's respect for autonomy is overridden, and it is overridden by a tribunal rather than by the agency. SACAT may also make consequential and ancillary orders, interim orders, and may vary or revoke an order on the application of a party.

Applying this in a problem question

1. Establish that the person is a relevant adult under s 3(1), applying vulnerability at the material time rather than as a fixed status.
2. Test the conduct against s 4(1), and identify the relationship of trust, dependency or imbalance of power — without it there is no abuse under this Act.
3. Do not assert a duty to report. Section 22 is permissive and s 22(4)(a) says so expressly.
4. Ask whether the adult consents. If they do, s 28(1) is satisfied and the response may proceed.
5. If they do not, work through s 28(2) as two cumulative elements: one of the six circumstances, and the Director's approval.
6. Where neither consent nor an exception is available, identify the SACAT order sought under s 33(1), and name s 33(1)(c) where the action has been refused.

Self-check

• Have I applied the relational element in the definition of abuse?
• Have I avoided describing reporting as mandatory?
• Have I treated consent as the starting position rather than an obstacle?
• Have I required both an exception and the Director's approval under s 28(2)?