Older people by MikeJenny

VIEWS: 16 PAGES: 37

									Older people
Contents
6.      Older people ......................................................................................................... 6.0.5

6.1     Some statistics ..................................................................................................... 6.1.1

6.1.1   population ............................................................................................................... 6.1.1

6.1.2   education ................................................................................................................ 6.1.1

6.1.3   employment ............................................................................................................ 6.1.2

        6.1.3.1        Volunteering and unpaid work ................................................................. 6.1.3

6.1.4   income .................................................................................................................... 6.1.3

6.1.5   Care and assistance ................................................................................................ 6.1.3

6.1.6   Accommodation and living arrangements ................................................................ 6.1.4

6.1.7   Crime ...................................................................................................................... 6.1.4

6.1.8   Health...................................................................................................................... 6.1.5

6.2     Some information ................................................................................................. 6.2.1

6.2.1   Grandparents .......................................................................................................... 6.2.1

        6.2.1.1        Grandparents and Family Law................................................................. 6.2.1

        6.2.1.2        Grandparent families ............................................................................... 6.2.1

        6.2.1.3        Grandparent family children .................................................................... 6.2.2

6.2.2   elder abuse ............................................................................................................. 6.2.2

6.2.3   Ageing and health.................................................................................................... 6.2.3

        6.2.3.1        Descriptions of the main types of disabilities ........................................... 6.2.4

                       6.2.3.1.1 Physical disability ..................................................................... 6.2.4

                       6.2.3.1.2 Alzheimer’s and related diseases ............................................. 6.2.5

                       6.2.3.1.3 Depression .............................................................................. 6.2.7

        6.2.3.2        Examples of the barriers for older people in relation to court
                       proceedings............................................................................................ 6.2.8

                       6.2.3.2.1 For older people with physical disabilities ................................. 6.2.8

                       6.2.3.2.2 For older people with Alzheimer’s or dementia ......................... 6.2.8




6.0.2 older people                                                                       no v e m be r 2009 - First edition
6.3     Practical considerations ...................................................................................... 6.3.1

6.3.1   legal capacity ......................................................................................................... 6.3.1

6.3.2   Adjustments that may need to be considered before the proceedings start,
        or at the time an older person first appears in court ................................................. 6.3.1

6.3.3   oaths, affirmations and declarations ........................................................................ 6.3.4

6.3.4   language and communication ................................................................................ 6.3.4

        6.3.4.1        General communication guidance ........................................................... 6.3.4

        6.3.4.2        Terminology and modes of address ........................................................ 6.3.5

        6.3.4.3        Timings of proceedings, breaks and adjournments ................................. 6.3.6

6.3.5   directions to a jury ................................................................................................... 6.3.7

6.3.6   sentencing, other decisions and judgment or decision writing ................................. 6.3.7

6.4     Further information or help ................................................................................. 6.4.1

6.5     Further reading ..................................................................................................... 6.5.1

6.6     Your comments..................................................................................................... 6.6.1




nov em be r 2009 - First edition                                                                         older people 6.0.3
6.0.4 older people   no v e m be r 2009 - First edition
6 older people

There are various determinations as to when a person can be classified as ―older‖, and no
specific age signifies the onset of older age. The main authorities used for this chapter, the
Department for Communities,1 the Council on the Ageing (WA) and the Australian Bureau
of Statistics (ABS), use definitions of ―older‖ that range from 55 years and over to 65 and over;
and Aged and Community Services WA notes that members of the Aboriginal population,
for example, may be considered ―older‖ at 50 because of their reduced life expectancy.2
As such, the definition of ―older‖ will vary depending on which source is being referred to,
and for other reasons.
The Council for the Ageing (WA) points out that there is greater diversity of biological/
cognitive/social skill levels among the ageing population than in any other age group,3
and that in any event not all people within these varying ―older‖ categories regard
themselves as older. This diversity, and in particular the ongoing contribution by ―older
people‖ to the community, is demonstrated by the statistics referred to in section 6.1.
Ageing does not necessarily mean that older people become more dependent on their family
or the community. In fact, many older people continue to be a vital resource to their families
— as the statistics on older people being carers, providing informal childcare, and raising
grandchildren demonstrate. The statistics on paid and voluntary work also demonstrate that
older people continue to be a vital resource to the broader community.
Many older people will be able to participate in court processes in the same way as everyone
else. However, this chapter of the Bench Book focuses on those ―older people‖ who may be
disadvantaged if consideration is not given to their particular circumstances. Many of the
issues that create difficulties for older people in the courts are similar to those affecting people
with disabilities, and are dealt with in greater detail in chapter 4 of this Bench Book, regarding
people with disabilities.4


        It is very important not to make assumptions about older people’s
                                          capacity based on their age.




1
      the office of seniors interests is now part of the department for Communities and for consistency is referred to as
    such throughout this chapter.
2
      submission from Aged and Community services WA (2 July 2007). reduced life expectancy was previously estimated
    to be 17 years on average: Australian bureau of statistics (Abs) and the Australian institute of Health and Welfare
    (AiHW), The Health and Welfare of Australia’s Aboriginal and Torres Strait Islander Peoples, 2008 Cat no 4704.0 (2008),
    available at: www.abs.gov.au/AUsstAts/abs@.nsf/detailspage/4704.02008 (accessed 5 may 2009). However, more
    recent estimates indicate a reduced life expectancy of 11.5 years for indigenous men and 9.7 years for indigenous
    women (the figures for WA are 14.0 years and 12.5 years respectively). note that the Abs cautions that due to significant
    changes in methodology, the more recent estimates of life expectancy at birth are not comparable to previously published
    estimates: Abs, Experimental Life Tables for Aboriginal and Torres Strait Islander Australians, Australia 2005–2007 Cat
    no 33902.0.55.003 (2009), available at: www.abs.gov.au/AUsstAts/abs@.nsf/detailspage/3302.0.55.0032005–2007
    (accessed 29 october 2009).
3
      submission from the Council on the Ageing (WA) inc (12 April 2007).
4
      in 2003, more than 50% of people aged 65 and over in WA had a disability of some kind and a further 31% had a
    long-term health condition that did not restrict their daily activities: Abs, Disability, Ageing and Carers Survey, Australia:
    Summary of Findings, 2003, Cat no 4430.0 (2004), available at:
    www.abs.gov.au/AUsstAts/abs@.nsf/detailspage/4430.02003 (accessed 6 may 2009).

nov em be r 2009 - First edition                                                                     older people 6.0.5
The Steering Committee overseeing the production of this Bench Book particularly
acknowledges the submissions from the Department for Communities which largely form
the basis for this chapter.5 The Steering Committee also acknowledges the submissions and
contributions of the following organisations:
. Council of the Ageing (WA) Incorporated (12 April 2007);
. GRAI (GLBTI6 Retirement Association Incorporated) (18 April 2007); and
. Aged and Community Services WA (2 July 2007).




5
      submissions from department for Communities (30 April 2007, 8 september 2008, 11 november 2008, 14 november
    2008).
6
      Gay, lesbian, bisexual, trans(gender) and intersexed.

6.0.6 older people                                                         no v e m be r 2009 - First edition
6.1           Some statistics7

6.1.1         Population
. In June 2007, people aged 60 years and over accounted for 17% of the WA population
  (352,222 residents). Of these, 184,285 were female (52%) and 167,937 were male.
. At June 2006, people over 85 years accounted for 1.3% of the State’s population and
  11.4% of those aged 65 years and over. There were twice as many females as males aged 85
  and older, which reflects the higher life expectancy of females.8
. The number of people aged 60 years and over in WA is projected to increase to 424,369
  in 2011 and to 602,680 in 2051.9
. By 2051 people aged 65 years and over will account for over one quarter of the population,
  compared to 12% in 2004.10
. The number of people aged 85 years and over will also increase substantially. At June 2004
  there were 25,000 people in this age group in WA. By 2051 this number is projected to
  increase to between 172,400 and 304,300, making up 6–8% of the population, compared
  to 1% in 2004.11
. In June 2006, it was estimated that 74% of WA people aged 60 and over lived in the Perth
  metropolitan area and 26% lived in non-metropolitan areas.12
. In 2003, Western Australia, when compared with other Australian states, had the highest
  (41%) proportion of people aged 60 and over born overseas.13
. During the period 1996–2001, 75% of Indigenous males and 65% of Indigenous females
  did not live to the age of 65.14

6.1.2         Education
A person’s level of education can affect their understanding of, and ability to, access the
justice system. The Department for Communities advises that in WA:
. 26% of people aged 60 and over have post-high school qualifications;
. 83% of all people aged 60 and over attended secondary school, with 25% of these
  completing Year 12;
. 25% of people aged 60 and older have a post-secondary school qualification, primarily a
  certificate level qualification;
. 57% of all people aged 60 and over have no post-secondary school qualifications;
7
       Unless otherwise indicated, this section is based on the submission from the department for Communities
     (8 september 2008).
8
       Abs, Population by Age and Sex, Australia, 2006 Cat no 3235.0 (2007), available at:
     www.abs.gov.au/ausstats/abs@.nsf/detailspage/3235.02006 (accessed 6 may 2009).
9
       submission from the department for Communities (8 september 2008).
10
      Abs, Population Projections, Australia, 2004 to 2101 Cat no 3222.0 (2006), available at:
     www.abs.gov.au/AUsstAts/abs@.nsf/detailspage/3222.02004%20to%202101 (accessed 6 may 2009).
11
      Abs, Population Projections, Australia, 2004 to 2101 Cat no 3222.0 (2006), available at:
     www.abs.gov.au/AUsstAts/abs@.nsf/detailspage/3222.02004%20to%202101 (accessed 6 may 2009).
12
      submission from the department for Communities (8 september 2008).
13
      department for Communities, Cultural diversity update — Topic Sheet No 2 (2nd ed) (2003), available at:
     www.community.wa.gov.au/dFC/Communities/seniors/publications/topic_sheets.htm (accessed 6 may 2009).
14
      Abs and AiHW, The Health and Welfare of Australia’s Aboriginal and Torres Strait Islander Peoples, 2008 Cat no
     4707.0 (2008) 156, available at: www.abs.gov.au/AUsstAts/abs@.nsf/detailspage/4704.02008 (accessed 18
     september
     2009). more recent data was not available at the time of publication.

nov em be r 2009 - First edition                                                                 older people 6.1.1
. 50% of all older Aboriginal people attended secondary school; and
. 82% of older people born in a non-English speaking country attended secondary school.

6.1.3         Employment
There is no statutory retirement age in Australia — except for judges and magistrates — and
it is otherwise illegal to discriminate on the basis of age. The two main reasons that people
retire are loss of a job through ill health or injury, and qualifying for the Age pension.
While many of those aged 65 and over have retired from the labour force, it should not be
assumed that all older people are retired. In WA in 2006:
. 57% of people aged 55–64 years and 9% of people aged 65 years and over were in the
  paid labour force;
. 47% of women aged 55–64 were in paid employment, compared to 66% of men; and
. 5% of women aged 65–plus were in paid employment, compared to 13% of men.
In 2006, older people were employed across all industries in Western Australia. This was not
evenly spread, and there were significant differences between men and women.
. The ―top five‖ industries for those aged 55–64 were:
      — For men: manufacturing; construction; transport, postal and warehousing; public
        administration and safety; and retail trade.
       — For women: health care and social assistance; education and training; retail trade;
         public administration and safety; and professional, scientific and technical services.
. The ―top five’’ industries for those aged 65–plus were:
      — For men: agriculture, forestry and fishing; construction; manufacturing; professional,
        scientific and technical services; and transport, postal and warehousing.
      — For women: health care and social assistance; agriculture, forestry and fishing; education
        and training; retail trade; and professional, scientific and technical services.

6.1.3.1 Volunteering and unpaid work
. In 2006, people aged 55 years and over comprised 30% of the Western Australian adult
  population and 25% of Western Australian adult volunteers.15
. In 2003, the value of unpaid work by Western Australian people aged 60 and over was
  estimated to be worth $1.11 billion.16 For example, older people provided 68% of unpaid
  child minding, nearly 25% of unpaid volunteering and 40% of unpaid caring (see sections
  6.1.5 and 6.2.1).




15
      Abs, General Social Survey, Western Australia, 2006 Cat no 4159.5.55.001 (2007), available at:
     www.abs.gov.au/AUsstAts/abs@.nsf/detailspage/4159.5.55.0012006 (accessed 6 may 2009).
16
      Access economics pty ltd, The State of Ageing in Western Australia (2007) ii–iii, available at:
     www.community.wa.gov.au/dFC/Communities/seniors/publications/ (accessed 7 may 2009).

6.1.2 older people                                                                no v e m be r 2009 - First edition
6.1.4         Income
A person’s earning capacity generally increases with age, but declines sharply after 64 years of
age. In 2006:
. 29% of Western Australians aged 55–64 years had a gross weekly income of $249 or less;
  27% had a gross weekly income between $250 and $599; 30% had a gross weekly income
  between $600 and $1,299; and the remaining 14% had a gross weekly income of $1,300
  or more; and
. the gross weekly income of over two fifths (43%) of those aged 65 years and over was
  $249 or less; for 44% it was between $250 and $599; for 10% it was between $600 and
  $1,299; and only 3% of those aged 65 years and over had a gross weekly income of $1,300
  or more.
The income of older men tended to be higher than that of older women. In 2006:
. only 18% of men aged 55–64 had a gross weekly income of less than $250, whereas for
  women it was 40%; and
. only 39% of men aged 65 years and over had a gross weekly income of less than $250,
  whereas for women it was 46%.
In 2005, approximately 72% of people aged 60 and over in WA received all or part of an Age
pension (63%) or were entitled to a Commonwealth Seniors Health Card (9%).

6.1.5         Care and assistance
. In Western Australia in 2003, 20% of people 60 and over provided care to someone,
  usually a spouse or partner, with a disability, long term condition or age-related frailty:
      — Overall, males 60 and over were a little more likely than females to be carers (22%
        versus 17%).
      — About one fifth (21%) of carers aged 60 and over were primary carers; that is, they
        provided more care than any other person or institution to the person needing care.
      — Of those aged 60 and over, females and males were equally likely to be primary
        carers.
      — About two fifths (40%) of primary carers who were aged 60 and over spent at least 40
        hours per week providing care.
      — Males aged 60 and over were more likely than females who were aged 60 and over to
        be secondary carers (19% versus 13%) — that is, another person or institution
        was providing more care than they were.
. It is expected that by 2013 at least one in three primary carers in Australia will be aged 60
  years or more.17




17
      Western Australia Aged Care Advisory Council, Carers’ Action Plan for Western Australia 2004–2007 (2004) 2,
     available at: www.health.wa.gov.au/publications/documents/Carers%20Action%20plan.pdf (accessed 7 may 2009).

nov em be r 2009 - First edition                                                             older people 6.1.3
6.1.6    Accommodation and living arrangements
Unless assuming responsibility for the upbringing of grandchildren (see section 6.2.1), there
is an increased likelihood of living alone as people age, often due to the death of a partner or
through separation due to illness or disability:
. In 2006, almost 22% of people aged 60 and over in WA lived alone and another 1% lived
  in group households where they were unrelated to other residents.
. There is an increasing emphasis on ―ageing in place‖, which is facilitated by providing
  older people with access to a range of community-based assistance programs that help
  them live independently in their own home.
. Although most older people live in private dwellings, 5% of older people live in non-
  private dwellings, predominantly nursing homes and cared accommodation. Of that
  figure, women were more likely to be living in nursing homes than men.
. In 2006, 60% of Western Australian older people lived in a family household:
   — 79% of those living as a family no longer had children living with them; and
   — 20% had dependent children living with them including 6% who were single
     parents.
. For those Aboriginal people in WA aged 60 and over who lived in a family household:
   — 21% were living as a couple without dependent children living at home;
   — 16% were living as a couple with dependent children living at home; and
   — 21% were single parents caring for dependent children.

6.1.7    Crime
. Older people in WA are much less likely to be victims of a violent offence or burglary than
  younger people. In 2006:
   — 25% of people aged 18—24 and 18% of those aged 25—34 reported experiencing a
     violent crime in the past 12 months. In comparison, less than 1% of people aged 65
     and over reported experiencing a violent crime; and
   — 19% of people aged 18—24 and 18% of those aged 25—34 reported experiencing a
     burglary in the past 12 months. People aged 65 and over were least at risk, with 8%
     reporting experiencing a burglary.
. While research shows that older people are at less risk of crime than younger people, the
  Department for Communities advises that surveys it has conducted of people aged 60 and
  over have found:
   — they were no more likely than younger people to feel generally unsafe from crime day
     to day; to think they were likely to become a victim in the next year; or to rate their
     neighbourhood crime risk as high; and
   — some older people believed that they were at greater risk of crime than younger
     people.




6.1.4 older people                                            no v e m be r 2009 - First edition
. When asked how safe people felt ―at home alone after dark‖ a large majority (over 70%)
  of people aged 55 and over said they felt safe or very safe at home alone after dark. Older
  men were more likely to feel safe than older women, with over 80% of men aged 55 and
  over feeling safe, compared with less than 70% of women.
. However, see the section ―Elder abuse‖ at 6.2.2.

6.1.8         Health
Improvements in medical science and technology have resulted in people having longer and
healthier lives:
. In 2007, 80% of people aged 60 years and over in WA considered themselves to be in
  ―excellent‖, ―very good‖ or ―good‖ health.
. Older people have a substantially higher rate of disability than younger people. In 2003,
  51% of older people in WA had a disability of some kind.
. Between 60—64 years, disability is evenly distributed between men and women (38%).
  With age, males are increasingly more likely than females to have a disability (that is, at
  65—74 years 49% of males and 46% of females had a disability and, at 75 years and over,
  73% of males and 62% of females).
. In 2006/07 the conditions most prevalent among older people in WA were arthritis
  (48%), heart disease (19%), injury (16%), osteoporosis (14%), diabetes (14%) and cancer
  (12%).
. Depression is not a normal part of ageing and the same proportion of older Western
  Australians as younger people acknowledged that they felt depressed (16%). Note that
  depression is sometimes accompanied by memory impairment which may be confused, in
  older people, with dementia.
. In 2003, dementia affected approximately 16,700 Western Australians aged 65 years and
  over. The prevalence of dementia doubles every five years after the age of 65 and
  affects about 25% of people aged 85 and over.
. The risk of falling increases with age, with a steep rise in the incidence of falls and fall-
  related injuries occurring from about 75 years of age. Internationally and in Australia, falls
  account for the largest proportion of all injury-related deaths and hospitalisations in older
  people.18
. The Australian Institute of Health and Welfare cautions that, although the number of
  older Indigenous people is increasing, because the Indigenous population is not ageing
  in the same way as the non-Indigenous population, it still has a relatively young age
  structure. Because the absolute numbers of older Indigenous people are still relatively
  small, discussions about ageing may marginalise or exclude the experience and needs of
  older Indigenous Australians.19
. More information on ageing and health can be found at section 6.2.3.



18
      department of Health, The Falls Policy for Older Western Australians (2004) 1, 2, available at:
     www.health.wa.gov.au/publications/documents/Falls_policy_document.pdF (accessed 7 may 2009).
19
      AiHW, Older Australians at a glance (2007) 142, available at:
     www.aihw.gov.au/publications/index.cfm/title/10402 (accessed 7 may 2009).

nov em be r 2009 - First edition                                                               older people 6.1.5
6.1.6 older people   no v e m be r 2009 - First edition
6.2           Some information

6.2.1        Grandparents
Many grandparents provide significant financial and practical assistance, such as caring for
family members, assisting their families with major purchases, and minding grandchildren.
A growing number of grandparents are providing full-time care of grandchildren. In 2005,
grandparents were responsible for 60% of informal childcare in WA.

6.2.1.1        Grandparents and Family Law
. The provisions of the Family Law Act 1975 (Cth) and Family Court Act 1997 (WA) confirm
  the importance of children having a relationship with grandparents. Arrangements for
  children to spend time with their grandparents can be included in parenting agreements.
  Grandparents can also apply to the Family Court for a parenting order when agreement
  cannot be reached with either or both of the parents about the arrangements for a
  child.20
. Children have a right to spend time, and to communicate on a regular basis, with both
  their parents and other people significant to their care, welfare and development, such
  as grandparents and other relatives.21

6.2.1.2        Grandparent families
. Sometimes known as ―Grandfamilies‖, grandparent families refer to families in which
  grandparents are the guardians or main carers of their grandchildren.22 Although not
  all grandparents are older people, the majority of those caring for their grandchildren are
  over
  55.23
. In 2006/07, there were 14,000 grandparent families in which the grandparents were
  guardians or main carers of co-resident children aged 0—17 years. The number of
  grandparent families had decreased since 2003 when there were 23,000 grandparent
  families with children aged 0—17 years.24
. Many grandparents provide full-time care of grandchildren due to the complex
  circumstances related to problems facing their own children, such as drug and
  alcohol abuse, mental illness, imprisonment, and family violence.
. There are many stresses that Grandfamilies face while adapting to their changed
  circumstances. These include lifestyle changes, financial hardship, emotional upheaval,
  legal difficulties, and conflict between generations.




20
      Family Law Act 1975 (Cth) s 65C; Family Court Act 1997 (WA) s 88.
21
      Family Law Act 1975 (Cth) s 60b(2); Family Court Act 1997 (WA) s 66(2).
22
      Abs, Family Characteristics and Transitions, Australia, 2006–07 Cat no 4442.0 (2008), available at:
     www.abs.gov.au/AUsstAts/abs@.nsf/detailspage/4442.02006-07 (accessed 7 may 2009).
23
      Abs, Australian Social Trends, 2005 Cat no 4102.0 (2005) ―Family functioning: Grandparents raising their
     grandchildren‖, available at: www.abs.gov.au/AUsstAts/abs@.nsf/previousproducts/4102.0Contents12005 (accessed 7
     may 2009).
24
      Abs, Family Characteristics and Transitions, Australia, 2006–07 Cat no 4442.0 (2008), available at:
     www.abs.gov.au/AUsstAts/abs@.nsf/detailspage/4442.02006-07 (accessed 7 may 2009).

nov em be r 2009 - First edition                                                           older people 6.2.1
6.2.1.3       Grandparent family children
. These children can exhibit post-traumatic stress disorder and other behavioural problems
  as well as psychological, emotional and social difficulties.
. They are often in need of emotional attachment, stability and therapeutic services. Left
  unrecognised and untreated, abuse-related trauma is cumulative in its impact. Repeated
  experiences of abuse, violence or neglect significantly increase the likelihood of children and
  young people experiencing a range of complex emotional, psychological and behavioural
  problems that affect their development, relationships and capacity to learn.
. The behaviour of such children can be difficult to manage, especially for older grandparents,
  as the children can be violent towards them. Many grandparents start to lose control as
  their grandchildren become adolescents.

6.2.2       Elder abuse
The International Plan of Action on Ageing, adopted at the first World Assembly on Ageing in
Vienna in 1982, outlined the rights of older people. These rights were elaborated in terms of
independence, participation, care, self-fulfilment and dignity in the United Nations Principles
for Older Persons (Resolution 46/91, 16 December 1991), to which Australia is a signatory.
Abuse of those rights is considered to be ―elder abuse.‖ More specifically, elder abuse is ―any
act which causes harm to an older person and occurs within an informal relationship of trust,
such as family or friends‖:25
. Elder abuse can include:
     — financial or material abuse;
     — emotional or psychological abuse;
     — physical abuse;
     — sexual abuse;
     — social abuse; and
     — neglect.
. Research in Australia and overseas estimates the prevalence of elder abuse to be between
  3% and 10%.
. Financial abuse was the most common type of elder abuse reported, followed by
  psychological abuse and physical abuse. Sexual abuse was the least frequently reported.
. Women were 2.5 times more likely than men to experience elder abuse, and those aged 75
  years or older were also more at risk.
. The main perpetrators of elder abuse were adult children, a spouse or partner, or other
  relatives of the older person.
. In approximately 75% of reported incidents of elder abuse, older men and women were
  estimated to have a decision-making disability, and nearly half of them had a significant
  physical disability.


25
     submission from the department for Communities (8 september 2008).

6.2.2 older people                                                        no v e m be r 2009 - First edition
. The Department for Communities comments that:
      it is known that elder abuse is under-reported. Older people are often reluctant to disclose abuse
      by relatives and friends because of the emotional and social ties that exist in these intimate
      relationships. Family abuse involves issues of shame and lack of self worth. Those who have been
      victims of family abuse or violence in all its forms may be unlikely or unwilling to prosecute the
      perpetrators with whom they have an emotional bond.26

. Risk factors affecting the older person may include:
      — a lack of knowledge about their rights;
      — a lack of knowledge about powers of attorney and enduring powers of attorney;
      — pre-existing family conflict;
      — physical illness, dependency and frailty;
      — inadequate social networks; or
      — cultural factors.
. Risk factors influencing perpetrators may include:
      — greed;
      — financial problems and stress;
      — misunderstandings about the use of powers of attorney or enduring powers of
        attorney;
      — alcohol and substance abuse;
      — pre-existing patterns of abuse, including domestic violence; or
      — stress that can arise from the pressure to care or through the absence of support services,
        such as respite care.

6.2.3        Ageing and health
In 2007, a substantial majority (80%) of people aged 60 and over in WA considered themselves
to be in ―excellent‖, ―very good‖ or ―good‖ health. While some older people may have special
dietary or medical requirements and mobility issues, many remain healthy, fit and active into
advanced age; older age is not necessarily a time of frailty and physical decline.27 Most older
people remain independent and autonomous for all but a short time prior to their death.
However, increasing age can bring decreases in auditory and visual acuity; a slower rate
of processing information; reduced volume of oral communication; and some physical
disabilities including continence problems. The Council on the Ageing (WA) cautions that
none of these conditions necessarily indicates reduced cognitive ability, but they can
impact on an older person’s ability to access, properly or at all, the justice system.28




26
      submission from the department for Communities (8 september 2008).
27
      Council on the Ageing Western Australia, Seniors Count — Pre Budget Submission to the Government of Western
     Australia 2008–2009 (2008) 15, available at: www.cotawa.asn.au/resources/pbscomplete.pdf(accessed 7 may 2009).
28
      submission from the Council on the Ageing (WA) (12 April 2007).

nov em be r 2009 - First edition                                                             older people 6.2.3
Other conditions may impact on cognitive ability as people age. The very old in particular
are increasingly likely to be affected by a physical disability or conditions such as
Alzheimer’s or dementia. Older people with these conditions may have decision-making
disabilities and a need for substitute decision-making (see section 4.2.8 for more
information).
However remember that every person with a disability is different and unique:
. No two older people with the same type of disability are alike in relation to their disabilities
  or their abilities. Every type of disability affects people in different ways. A disability
  may range from having a minor impact on how a person conducts their life, to having a
  profound impact.
. Some disabilities are permanent, some are temporary and others are episodic.
. Some disabilities are obvious and some are hidden.
. Many older people with disabilities require some form of equipment, procedural
  considerations and/or communication adjustment(s) to be made if they are to be able
  to interact effectively in relation to court proceedings.


        It is important to note that, in many cases, the precise name or type
            of a particular older person’s disability or disabilities will not be
         relevant in court. It will be more important to determine accurately
               and appropriately whether that person requires any form of
        adjustment to be made, and if so, what type and level of adjustment.



                Ensure no comments relating to any conditions are made
                           unless relevant to matters before the court.


The main disabilities associated with older people are listed below. For further information
on disabilities, refer to section 4.2.3 of this Bench Book.

6.2.3.1        Descriptions of the main types of disabilities

6.2.3.1.1 Physical disability
The likelihood of physical disability increases with age, including deafness or hearing
impairments; blindness or visual impairments; and mobility restrictions.
Several major conditions may affect the physical ability of older people:
. Arthritis29 — A generic term for 150 different diseases that affect the joints of the body.
  The main types of arthritis are osteoarthritis, rheumatoid arthritis and gout. Common
  symptoms include pain and swelling, and stiffness in one or more joints. Although two
  out of three people with arthritis are under the age of 65, it is important to note that
  arthritis is widely prevalent among older people.

29
      Judicial Commission of nsW, Equality before the Law Bench Book (2006) section 5, available at:
     www.judcom.nsw.gov.au/publications/benchbks/equality/section05.pdf (accessed 19 may 2009).

6.2.4 older people                                                               no v e m be r 2009 - First edition
. Hearing loss — With 50% of people aged 55 and over experiencing some form of hearing
  loss,30 every court needs to ensure that such individuals are assisted to enable them
  to participate in proceedings. For more information on deafness and hearing
  impairment disabilities, refer to section 4.2.3.2 of this Bench Book.
. Other disabilities — There are many other physical disabilities that widely affect older
  people, including amputations, kidney disease, liver disease, cardio-pulmonary disease
  (heart problems), diabetes and cancer.

6.2.3.1.2 Alzheimer’s and related diseases
―Dementia‖ is a term used to describe symptoms of a large group of illnesses that cause a
progressive decline in cognitive functioning. It includes loss of memory; intellect and social
skills; and inappropriate emotional reactions.
The incidence of dementia increases with age and is most prevalent among the very old, with
the rate among 60—64-year-olds estimated as 0.7%, compared to 11.1% at 80—84 years and
23.6% in the over-85 years age group.31 It is important to remember, however, that most
older people do not have dementia.32
Alzheimer’s disease is the most common form of dementia, accounting for between 50% and
70% of all cases.33 With Alzheimer’s, brain cells shrink or disappear and abnormal material
builds up as ―tangles‖ in the centre of the brain cells and ―plaques‖ outside the brain cells.
These disrupt messages within the brain, damaging connections between brain cells. The
brain cells eventually die, and this means that information cannot be recalled. As Alzheimer’s
disease affects each area of the brain, certain functions or abilities are lost. Memory of recent
events is the first to be affected, but as the disease progresses, long-term memory is also
lost. The disease also affects many of the brain’s other functions, and consequently many
other aspects of behaviour are affected. Once an ability is lost it can rarely be regained or
relearned.34
Other forms of dementia include vascular dementia (multi-infarct dementia and Binswanger’s
disease), Parkinson’s disease, Lewy body dementia, fronto-temporal lobar degeneration,
Huntington’s disease, alcohol-related dementia (Korsakoff’s syndrome), and Creutzfeldt-
Jakob disease.


        People who live with dementia have special needs and are likely to
                require special consideration at any appearance in a court
                                                or tribunal setting.



30
      smith Jl, mitchell p, Wanf JJ and leeder sr, ―A health policy for hearing impairment in older
     Australians: what should it include?‖ (2005) 2 Australian and New Zealand Health Policy 31, available at:
     www.pubmedcentral.nih.gov/articlerender.fcgi?artid=1326208#b1 (accessed 19 may 2009).
31
      Western Australia Aged Care Advisory Council, Dementia Action Plan for Western Australia 2003–2006 (2003) 2,
     available at: www.health.wa.gov.au/publications/documents/dementia_web.pdf (accessed 7 may 2009).
32
      Alzheimer’s Australia, What is Dementia? — Help Sheet 1.1 (2005) 1, available at:
     www.alzheimers.org.au/content.cfm?infopageid=326 (accessed 7 may 2009).
33
      Alzheimer’s Australia, What is Dementia? — Help Sheet 1.1 (2005) 1, available at:
     www.alzheimers.org.au/content.cfm?infopageid=326 (accessed 7 may 2009).
34
      Alzheimer’s Australia, Alzheimer’s disease — Help Sheet 1.12 (2005) 1, available at:
     www.alzheimers.org.au/content.cfm?infopageid=326 (accessed 11 may 2009).

nov em be r 2009 - First edition                                                               older people 6.2.5
In the early stages of dementia, it is not uncommon for the disease to be undiagnosed or
misdiagnosed. A person may demonstrate symptoms of confusion or memory loss that are
frequently, but incorrectly, attributed to a natural ageing process. Any awareness they have
of their failing abilities may be camouflaged by confabulation or avoidance. The person
may give seemingly plausible explanations and accounts of activity that are based on their
earlier understanding of their world, but totally unrelated to actual events.
Common symptoms of dementia include:35
. Memory loss that affects day-to-day function
      It is normal to occasionally forget appointments or a friend’s phone number and remember them
      later. A person with dementia may forget things more often, or not remember them at all.
. Difficulty performing familiar tasks
      People can get distracted from time to time and they may forget to serve part of the meal. A
      person with dementia may have trouble with all the steps involved in preparing a meal.
. Confusion about time and place
      It is normal to forget the day of the week — for a moment. A person with dementia may have
      difficulty finding their way to a familiar place, or feel confused about where they are.
. Problems with language
      Everyone has trouble finding the right word sometimes, but a person with dementia may forget
      simple words or substitute inappropriate words, making sentences difficult to understand.
. Problems with abstract thinking
      Balancing a cheque book can be difficult for anyone, but a person with dementia may have
      trouble knowing what the numbers mean.
. Poor or decreased judgement
      A person with dementia may have difficulty judging distance or direction when driving a car.
. Problems misplacing things
      Anyone can temporarily misplace a wallet or keys. A person with dementia may put things in
      inappropriate places.
. Changes in personality or behaviour
      Everyone becomes sad or moody from time to time. Someone with dementia can exhibit rapid
      mood swings for no apparent reason. They can become confused, suspicious or withdrawn.
. A loss of initiative
      It’s normal to tire of some activities. However, dementia may cause a person to lose interest in
      previously enjoyed activities.




35
     Alzheimer’s Australia, Diagnosing Dementia — Help Sheet 1.2 (2005) 1, available at:
     www.alzheimers.org.au/content.cfm?infopageid=326 (accessed 11 may 2009).

6.2.6 older people                                                                no v e m be r 2009 - First edition
In the moderate to severe stage, a person living with dementia is likely to have no insight at
all that their cognitive ability is deficient. The person remembers how their life used to be
and responds as if this were still the case. They may be frightened and/or disoriented in new
situations and deal with it by being abusive and aggressive. Alternatively they may be
too confused and overwhelmed to make any meaningful response.
Symptoms vary and the disease progresses at a different pace according to the individual and
the areas of the brain affected. A person’s abilities may fluctuate from day to day, or even
within the one day, and can become worse in times of stress, fatigue or ill-health. However,
there is always deterioration over time.36
A person in the late stages of dementia is unable to function adequately or appropriately in
any circumstances that confront them; however, those around them will by that stage be well
aware of the presence of the disease.

6.2.3.1.3 Depression37
Depression is not just a low mood or feeling sad, but an illness that requires treatment. People
with depression generally feel sad, down or miserable most of the time. They find it hard to
do normal activities and function from day to day. Depression has serious effects on physical
as well as mental health. Depression is common and affects up to one million Australians
each year. In its most severe form, depression can interfere with memory and concentration.
However, these symptoms are reversible.
In adults over 65, the symptoms of depression are often similar to problems of ageing, so
any depression can be difficult to recognise. Symptoms can include memory loss,
various behavioural changes and physical symptoms. Sometimes memory impairment may
seem to be the main problem, and the older person and/or their family become concerned
that this is an indication of dementia. Treatment of the depression usually improves the
memory, although sometimes it doesn’t fully recover. Older age does not reduce the
effectiveness of treatment.38
It is important to be aware that the two conditions, depression and dementia, can be present
at the same time. Although depression is known to be three to four times more common in
people with dementia than in older people without dementia, it can go unrecognised for a
number of reasons including:
. the ―normalising‖ of depression in older people, particularly those with dementia;
. the complexities of distinguishing symptoms of depression from those of dementia;
. the difficulties inherent in patient/clinician communication for people with dementia;
  and
. the reduced ability of people with dementia to describe their symptoms due to impaired
  insight.



36
      Unless otherwise indicated, this section is drawn from Alzheimer’s Australia, Depression and Dementia — Update Sheet
     1.5 (2007) 1, available at: www.alzheimers.org.au/content.cfm?infopageid=680 (accessed 12 may 2009).
37
      Alzheimer’s Australia, Progression of Dementia — Help Sheet 1.8 (2005) 1, available at:
     www.alzheimers.org.au/content.cfm?infopageid=326 (accessed 7 may 2009).
38
      department for Communities, Staying Mentally Healthy — Topic Sheet No: 7 (2nd ed) (2005), available at:
     www.community.wa.gov.au/dFC/Communities/seniors/publications/topic_sheets.htm (accessed 12 may 2009).

nov em be r 2009 - First edition                                                                older people 6.2.7
Although depression is a mood disorder, it can adversely affect cognitive functioning and
result in poor memory, difficulty in decision-making and difficulties in organising and
initiating activities. For the person with dementia, depression may exacerbate the symptoms
of dementia.

6.2.3.2    Examples of the barriers for older people in relation to court proceedings
If an older person has disabilities, there may be specific barriers they face in relation to court
proceedings, whether as juror, support person, witness or accused. These barriers depend on
the type and severity of the particular person’s disabilities and there may be numerous barriers
to the full participation of the very old unless some appropriate adjustment or adjustments
are made. See chapter 4 of this Bench Book for more specific information.
A few examples of the barriers for older people in relation to court proceedings follow.

6.2.3.2.1 For older people with physical disabilities
. Venues or courtroom facilities may be inaccessible (for example, stairs not lifts, narrow
  doors, high buttons/handles/counters, an inaccessible witness box, slippery floors, no
  nearby parking, steep inclines, heavy doors, round or hard-to-grip door knobs).
. Some older people may be unable to sit or stand in one position either at all or beyond a
  particular time; they may become easily fatigued.
. Deafness or hearing impairment, blindness or visual impairment, or a speech impairment
  may create communication barriers.

6.2.3.2.2 For older people with Alzheimer’s or dementia
. Additional barriers may impact on older people with Alzheimer’s or dementia, such as:
   — communication barriers: the language used may be too complex, fast or abstract,
     and/or the proceeding too lengthy. They may become easily distracted, very jumbled,
     severely distressed, anxious, frightened, aggressive or angry;
   — fatigue;
   — difficulty understanding or recalling dates, such as when events occurred; or
     appointments, such as court dates; and
   — as well as facing one or more of the above barriers, their communication barriers may
     be exacerbated by, for example, being unable to concentrate and/or process information
     easily, memory difficulties and/or by having uninhibited behaviour.
These barriers may be taken into consideration when the court is deciding whether or not to
disallow a question in cross-examination: see s 26(3) of the Evidence Act 1906 (WA).
These can also be taken into account in relation to other measures such as whether an older
witness should be declared a ―special witness‖ under s 106R of the Evidence Act 1906
(WA).
The impact of these barriers is discussed in further detail in section 4.2.6 of this Bench Book.
Section 6.3, below, provides additional information and practical guidance about ways of
treating older people during the court process to reduce the likelihood of these problems
occurring.



6.2.8 older people                                             no v e m be r 2009 - First edition
6.3       Practical considerations
While many older people will be able to participate in court processes in the same way as most
other people, some will not. The barriers listed in 6.2 above can be substantially mitigated
(and in some cases completely mitigated) if appropriate adjustments are made by the court.
If such adjustments are not made for those older people who require them they are likely to:
. be unable to participate fully, adequately, or at all in court proceedings;
. feel uncomfortable, fearful or overwhelmed;
. feel resentful or offended by what occurs in court;
. not understand what is happening and/or be unable to get their point of view across and
  be adequately understood;
. feel that an injustice has occurred; and
. believe they have been treated with less respect, unfairly or unjustly when compared with
  other people.
If adjustments are not made for those older people who require them they are also liable, in
some cases, to be treated unfairly or unjustly.


   These problems are likely to be compounded if the person happens to
      be female, Aboriginal or otherwise from a culturally or linguistically
        diverse background, lesbian, gay, bisexual or transgender(ed), if
      they practise a minority religion or are representing themselves —
                  see the relevant chapter(s) in this Bench Book.


6.3.1    Legal capacity
Refer to section 4.3 of this Bench Book on people with disabilities for a discussion regarding
legal capacity.

6.3.2    Adjustments that may need to be considered before the proceedings
         start, or at the time an older person first appears in court
When older people become involved with the justice system, or attend court, their needs are
likely to be similar to those of other age groups unless they have a disability. For these older
people and the very old, some adjustments should be considered before proceedings start or
at the time the person first appears in court.
In its submission, the Department for Communities highlighted recent research in New
South Wales:




nov em be r 2009 - First edition                                          older people 6.3.1
According to the report Legal Needs of Older People in NSW undertaken by the Law and Justice
Foundation of New South Wales, many older people are reluctant to complain and fail to get
assistance they need to resolve legal problems. According to the research, which involved consulting
with older people, they may be less aware of the available legal information and advice
services than younger people. The research found that many older people have little awareness of
their legal rights and lack confidence in enforcing those rights. They can be reluctant to take legal
actions and find the law is disempowering and cannot solve their problems.39

The following guidelines detail some useful procedures that will support an older person
though court proceedings.


     Points to consider
     . In addition to the large number of older people who are in paid employment or
       who undertake voluntary work, older people often have significant responsibilities
       as carers, often for their disabled partners or spouses or for their grandchildren.
       This may affect their availability to attend court.
     . Under s 121 of the Evidence Act 1906 (WA) you, on your own initiative or on the
       application of any party to the proceedings, can allow evidence in any proceedings to
       be taken by video-link from outside the place where the court is sitting — although
       you should not do so if satisfied that this is not in the interests of justice.
     .    In addition to the restrictions on unrepresented persons directly cross-
         examining complainants in serious sexual assault proceedings or certain
         witnesses in restraining order matters,40 you have discretion to allow the
         cross-examination by an unrepresented accused of any witness to be by video-
         link, while screened, or without questions being put directly — having regard
         to the nature of the charge, the wishes of the witness, and the availability of any
         necessary facilities or equipment.41
     . You may need to consider additional measures to support older people given that
       there are likely to be a larger number with disabilities or health problems than of
       younger people.
     . While not all older people will require assistance, appropriate communication
       techniques, devices or support persons should be used depending on what, if any,
       communication difficulties the individual has and how severe they are.
     . Some older people may have decision-making disabilities, and consideration may
       need to be given to whether arrangements should be put in place for substitute
       decision-making (see sections 4.2.8 and 4.3.3).
     . If you declare an older person to be a ―special witness‖ you can allow them to
       be accompanied by a support person and/or communicator in any court
       proceedings.42
       You can declare a person to be a special witness if, among other things:
         —   by reason of physical disability or mental impairment the person is unlikely to be
             able to give evidence, or to give evidence satisfactorily; or
39
     submission from the department for Communities (8 september 2008).
40
     Evidence Act 1906 (WA) s 106G; Restraining Orders Act 1997 (WA) ss 44C, 53d.
41
     Evidence Act 1906 (WA) s 25A.
42
     Evidence Act 1906 (WA) s 106r(4).

6.3.2 older people                                                          no v e m be r 2009 - First edition
          —   the person is likely to suffer severe emotional trauma or to be so intimidated
              or distressed as to be unable to give evidence satisfactorily by reason of age,
              relationship to any party to the proceedings or the subject-matter of the
              evidence.43
      . In the prosecution of serious sexual assaults, a complainant must be declared to be a
        special witness, unless you are satisfied the witness would otherwise be able to
        give evidence satisfactorily and that person does not wish to be a special
        witness.44 For more information on evidentiary issues associated with sexual
        assault see section
        13.3.5.
      . If you have declared an older person to be a special witness in criminal proceedings
        you can also allow them to give evidence by video-link or while screened.45
      . On application by a party or on your own motion, you can allow an older person,
        whom you have declared to be a special witness, to have the whole of their evidence
        in any criminal matter taken at a special hearing and visually recorded.46
      . Note also that provided certain requirements are met, there is provision for persons
        with a mental impairment whom you have declared a special witness to have their
        investigative interview admitted as whole or part of their evidence-in-chief in
        criminal proceedings — provided the person conducting the interview had reason
        to believe that the person being interviewed had, or may have, suffered physical or
        sexual abuse.47 ―Mental impairment‖ is defined to include intellectual disability,
        mental illness, brain damage or senility.48 For more information on special measures
        for obtaining evidence from witnesses with disabilities, see section 4.4.4.
      . You should consider discussing with the parties and/or their legal representatives
        in any proceedings the use of any special measures — irrespective of whether the
        person has been declared a special witness — if to do so would be in the interests
        of justice.
      . Instruct the jury that declaring a witness to be a special witness is a routine practice
        of the court and this should not affect how they consider the evidence.
      . Refer to this Bench Book at section 4.4, on people with disabilities, for more practical
        considerations regarding adjustments that need to be considered.
      . Attention must be paid to the amount of time an older person is questioned,
        examined or required to be present, and due consideration given to physical
        requirements. This is particularly important in relation to the risk of falls among
        older people. Contributing factors may be fatigue, impaired vision (acuity and depth
        perception), dizziness and vertigo, impaired cognition and confusion, medication
        use affecting balance, vision and alertness, and inadequate nutrition and diet.



43
       Evidence Act 1906 (WA) s 106r(3).
44
       Evidence Act 1906 (WA) s 106r(3a).
45
       Evidence Act 1906 (WA) s 106r(3).
46
       Evidence Act 1906 (WA) s 106rA.
47
       Evidence Act 1906 (WA) ss 106HA, 106Hb(1a). if you admit the investigative interview as evidence, you must instruct a
     jury that this procedure is a routine practice of the court and that they should not draw any inference as to the accused’s
     guilt from the use of the procedure: Evidence Act 1906 (WA) s 106Hb(7)(a).
48
       Evidence Act 1906 (WA) s 106A; Criminal Law (Mentally Impaired Accused) Act 1996 s 8.

nov em be r 2009 - First edition                                                                     older people 6.3.3
6.3.3    Oaths, affirmations and declarations


   Points to consider
   . Whether an older person takes an oath or an affirmation, and the type of oath or
     affirmation they take, will largely depend on their religious affiliation or lack of
     religious affiliation — see section 3.4.2 of this Bench Book.
   . Generally, factors for consideration for older people in relation to oaths and
     affirmations are the same as for other age groups.
   . Refer to section 4.4.2 of this Bench Book for more practical considerations regarding
     oaths and affirmations for those older people who may be disabled.


6.3.4    Language and communication
As with anyone else who appears in court, an older person needs to understand what is going
on and the meaning of any questions asked of them, and to be sure that their evidence and
replies to questions are adequately understood by the court.
It is critical that older people are treated with the same respect as anyone else.
With 50% of people 55 and over experiencing some form of hearing loss, courts need to
ensure that these older people are assisted to enable them to participate in proceedings. See
section 4.4.3.3.1 for more information on communication techniques for people with hearing
disabilities, including the use of an interpreter. As indicated at section 6.3.2, if declared a
―special witness‖ an older person is entitled to be assisted by a communicator while
giving evidence.
Some older people who do not need a communicator, communication aid or interpreter may
need adjustments to be made in the level or style of language used or the manner in which
they are given information about what is going on.

6.3.4.1 General communication guidance


   Points to consider
   . Use the appropriate terminology — see section 6.3.4.2.
   . Do not use any language that is discriminatory or sounds discriminatory.
   . Legal information needs to be clear and readily accessible for older people.
     Explanations about legal procedures need to be made in simple terms and provided
     in a friendly and courteous manner.
   . Written communication may need to be provided in large print or with a full page
     magnifying aid.
   . Ensure full descriptions rather than acronyms are used. This is particularly important
     in relation to government agencies or technological issues.
   . Speak clearly and at a moderate pace, allowing an adequate response time.

6.3.4 older people                                             no v e m be r 2009 - First edition
      . Consider allowing someone whom you have declared to be a special witness to
        have a ―communicator‖ with them while giving evidence — to assist communicate
        and explain the questions put to the witness and to communicate and explain the
        evidence given by the witness.49
      . Refer to sections 4.4.3 and 4.4.4 of this Bench Book for more practical
        considerations about language and communication with, and special measures
        which may be implemented to obtain evidence from, older people who may be
        disabled.


6.3.4.2 Terminology and modes of address


      Points to consider (and note that many of these points apply to senior
      lawyers and jurors, not just to litigators and witnesses who are older)
      . Generally, the preferred term used in Western Australia is ―older person‖, ―older
        people‖, ―older adult‖ or ―senior/s‖ when referring to people 60 years of age or over;
        however, it should be noted that not all people 60 years or more regard themselves
        as within these terms.
      . Avoid using terms such as ―the aged‖, unless referring to aged care facilities.
      . Some older people may prefer and expect to be addressed formally by their title,
        particularly when addressed by someone younger than themselves. Check how an
        older person would prefer to be addressed and then use that choice.
      . In defining an ―older person‖ you should note that the average life expectancy
        for Aboriginal people is significantly lower than non-Aboriginal life
        expectancy.50
        Within Aboriginal communities a person in their late 30s may be considered to be
        an ―older person‖.
      . The term ―elder‖ has particular connotations for the Aboriginal community:
        ―Elders are ritual leaders who are selected on the basis of their personal
        qualities and knowledge of the Law.‖ Elders are considered custodians of
        customary law as well as of sacred and spiritual objects.51
      . Ensure that no terms of ageism are used such as grandmother/father or senior/
        older, unless relevant to the matter before the court.
      . If an older person has disabilities there will be additional considerations, particularly
        for those with hearing loss (approximately 50%) — see 4.4.3.3.




49
      A special witness may have a ―communicator‖ in any proceedings — Evidence Act 1906 (WA) ss 106F, 106r(4)(b),
     106r(4b).
50
      see section 2.1.9 of this Bench Book.
51
      For more information, see Fryer-smith s, Aboriginal Benchbook for Western Australian Courts (2nd ed) (2008), available at:
     www.aija.org.au/index.php?option=com_content&task=view&id=436&itemid=165 (accessed 21 April 2009).

nov em be r 2009 - First edition                                                                    older people 6.3.5
6.3.4.3 Timings of proceedings, breaks and adjournments


   Points to consider
   . Be mindful of the physical limitations for some older people who may be experiencing
     ill health or disability. This may require scheduling court appearances to:
      —   accommodate medical treatment regimes; and
      —   provide appropriate breaks to enable older people to rest, take medication or use
          toilets.
   . Attention must be paid to the amount of time an older person is being questioned,
     examined or required to be present, and due consideration given to physical
     requirements.
   . Many older people will be reliant on public transport to travel to and from court.
     Consider allowing sufficient time to allow them to exit the court, access transport
     and reach home at a reasonable hour.
   . In addition, older people often have significant responsibilities as carers, often
     for their disabled partners or spouses, or for their grandchildren. Given the lack
     of childcare facilities in courts and respite care more generally, you may need to
     take these factors into account when considering the start and finish times on
     any particular day, the dates of hearings, adjournment dates, and the need for
     adjournments or breaks — for example, allow a witness or juror to check that any
     necessary care arrangements are in place.
   . Refer to section 4.4.5 of this Bench Book for more points of consideration regarding
     breaks and adjournments.




6.3.6 older people                                            no v e m be r 2009 - First edition
6.3.5         Directions to a jury


      Points to consider
      . Negative stereotyping of older people is considered by some to be pervasive.52 It is
        important to ensure that the jury does not allow stereotyped or false assumptions
        or ignorance about older people, or the manner by which an older person’s evidence
        is presented, to unfairly influence their judgement.
      . You may need to provide specific guidance as follows:
          —   Explain that they must try to avoid making any stereotyped or false assumptions.
              It may be sensible to give them specific examples of stereotyping and explain that
              they must treat the particular older person as an individual, based on what they
              have heard or seen in court in relation to the specific person, rather than what
              they know or think about all or most older people. Instead they must carefully
              consider the evidence presented.
          —   If appropriate, explain what needs to be taken into account in relation to long-
              term abuse of an older person by a family member and the defences of duress,
              provocation and/or self defence.
      . In your final directions to the jury, you may need to remind them of any points in
        relation to these aspects that you alerted them to during the proceedings, or cover
        them for the first time now; in particular, how they must treat evidence presented as
        a result of restricting direct cross-examination by a self-represented accused,
        using a communication aid or as a pre-recorded interview etc.
      . If you have declared any witness in the proceedings to be a special witness, remind
        jurors that making a declaration is a routine practice of the court and that they
        should not draw any inference as to the accused’s guilt from it
      . Keep in mind that as the Juries Act 1957 (WA)53 provides that people up to the age
        of 70 may serve as jurors, it is likely that there will be older people on the jury.




52
      Council on the Ageing of Western Australia, Seniors Count— Pre Budget Submission to the Government of Western
     Australia 2008–2009 (2008) 15, available at: www.cotawa.asn.au/resources/pbscomplete.pdf(accessed 12 may 2009).
53
      Juries Act 1957 (WA) s 5.

nov em be r 2009 - First edition                                                             older people 6.3.7
6.3.6         Sentencing, other decisions and judgment or decision writing
Your sentencing, decision and/or judgment must be fair and non-discriminatory and preferably
be seen to be so by all those it involves — for example, any older person, those they care
for or those who care for them.


      Points to consider
      . In order to ensure that any older person referred to or specifically affected by your
        sentencing, decision and/or judgment considers it to be fair and non-discriminatory,
        you may need to pay due consideration to (and indeed specifically allude to) any of
        the points raised above.
      . If a victim is not personally capable of giving a victim impact statement, because of
        age or for any other reason, consider whether it is appropriate for someone else to
        do so on the victim’s behalf.54
      . Consider whether to allow a victim impact statement to be read out in court.55
      . Decisions should be clearly articulated so that these can be seen to relate to the
        issues and individuals involved, and are not seen as being based on discriminatory
        assumptions and stereotypes.
      . Note that some older people may struggle financially because of their reliance on
        fixed incomes such as superannuation, savings or pensions, their limited ability
        to obtain further income through paid employment, their caring responsibilities
        and their own need for care services (see section 2.6.3 in relation to sentencing
        options).
      . Ensure that any older person who has particular communication needs and is
        affected by your sentencing, decision or judgment is told of the outcome in a
        manner appropriate to their communication need — see 6.3.4 above. For example,
        it may be appropriate for it to be written down at the time of sentencing (in as
        simple and direct English as possible), and then given to the person and/or their
        legal representative, to help ensure understanding and compliance
      . Note that in particular, when you are sentencing an offender you must, if the offender
        is personally present in court or appearing before the court by video-link,
        explain to the offender, in language likely to be understood, the effect of the
        sentence, the obligations of the offender and the consequences of not complying.56
      . Other factors that may need to be considered when sentencing or making a decision
        affecting an older person are their special dietary or medication requirements;
        mobility issues; incontinence; and the presence and consequences of ―elder abuse‖.
      . Refer to section 4.4.8 of this Bench Book for more points of consideration.




54
      Sentencing Act 1995 (WA) s 24(2).
55
      see part 3, division 4 of the Sentencing Act 1995 (WA). note that a court may make a written victim impact
     statement available to the prosecutor and to the offender, on such conditions as it thinks fit.
56
      Sentencing Act 1995 (WA) s 34.

6.3.8 older people                                                                no v e m be r 2009 - First edition
6.4      Further information or help
The following organisations can provide information or expertise about older people, or
related issues and also about other appropriate community agencies:
Advocare — Elder Abuse Prevention Program (EAPP)
1/190 Abernethy Road
Belmont WA 6104
Phone: (08) 9479 7566
Freecall: 1800 655 566
Fax:      (08) 9479 7599
Email: rights@advocare.org.au
Web: www.advocare.org.au

Lotteries House
180 Marine Terrace
Geraldton WA 6530
Phone: (08) 9964 4887


Aged & Community Services Western Australia
Suite 16, 25 Walters Drive
Osborne Park WA 6017
Phone: (08) 9244 8233
Freecall: 1800 672 500
Fax:      (08) 9244 8122
Email: admin@acswa.org.au
Web: www.acswa.org.au


Alzheimer’s Australia (WA) Ltd
Level 1, 272 Selby St
Wembley WA 6014

9 Bedbrook Place
Shenton Park WA 6008
Phone: (08) 9388 2800
Fax:      (08) 9388 2739
Freecall: 1800 100 500 (Dementia helpline)
Web: www.alzheimers.asn.au/




nov em be r 2009 - First edition                                    older people 6.4.1
Centre for Research on Ageing
WA Dementia Training Study Centre
Curtin University of Technology
Suite 2, Enterprise Building 4
De Laeter Way
Technology Park
Bentley WA 6102
Phone: (08) 9266 1831
Fax:     (08) 9266 2508
Web: www.cra.curtin.edu.au


Council on the Ageing (WA)
Level 2, The Regency Centre
949 Wellington Street
West Perth WA 6005
Phone: (08) 9321 2133
Fax       (08) 9321 2707
Email: admin@cotawa.asn.au
Web: www.cotawa.asn.au


Department for Communities
Level 7, Dumas House, 2 Havelock St
West Perth WA 6005
Phone: (08) 6217 8700
Email: info@communities.wa.gov.au
Web: www.communities.wa.gov.au/serviceareas/seniors/Pages/default.aspx


Seniors Telephone Information Service
Phone: (08) 6217 8855
Freecall: 1800 671 233 (country)


Disability Services Commission
146—160 Colin Street
West Perth WA 6005
Phone: (08) 9426 9200
Freecall: 1800 998 214 (country)
Fax:      (08) 9226 2306
TTY: (08) 9426 9315
Email: dsc@dsc.wa.gov.au
Web: www.disability.wa.gov.au




6.4.2 older people                                   no v e m be r 2009 - First edition
National Seniors Association (WA)
City West Lotteries House
2 Delhi Street
West Perth WA 6005
Phone: (08) 9420 7274
Fax:     (08) 9420 7276


Office of the Chief Psychiatrist
Department of Health
2C, 189 Royal Street
East Perth WA 6004
Phone: (08) 9222 4462
Fax:     (08) 9222 4244
Web: www.chiefpsychiatrist.health.wa.gov.au


Office of Mental Health
C Block, Level 2
189 Royal Street
East Perth WA 6004
Phone: (08) 9222 4099
Fax:     (08) 9222 2351
Email: mentalhealthreception.royalst@health.wa.gov.au
Web: www.health.wa.gov.au/mentalhealth/home/


Office of the Public Advocate
Level 1
30 Terrace Road
East Perth WA 6004
Phone: (08) 9278 7300
Telephone Advisory
Service: 1300 858 455
Fax:     (08) 9278 7333
TTY: 1300 859 955
Web: www.publicadvocate.wa.gov.au




nov em be r 2009 - First edition                        older people 6.4.3
Older People’s Right Service (OPRS)
Free legal centre to address issues of abuse, particularly by family, friends or persons of trust.
OPRS is a partnership between Advocare and Northern Suburbs Community Legal Centre.
Staff includes a solicitor and a social worker.

10 Cobbler Place
Mirrabooka WA 1669
Phone: (08) 9440 1663
Fax:    (08) 9440 1669
Email:
        admin@nsclegal.org.a
u


People with Disabilities (WA) Inc.
Oasis Lotteries House
2/37 Hampden Road
Nedlands WA 6009
Phone: (08) 9386 6477
Freecall: 1800 193 331 (country)
Fax:      (08) 9386 6705
Email:
          info@pwdwa.or
g
Web: http://pwdwa.org
6.4.4 older people   no v e m be r 2009 - First edition
6.5      Further reading
Access Economics Pty Ltd, The State of Ageing in Western Australia (2007), available at:
www.community.wa.gov.au/DFC/Communities/Seniors/Publications (accessed 12 May
2009)
Alliance for the Prevention of Older Abuse (Western Australia), Older Abuse Protocol:
Guidelines for Action (2006)
Alzheimer’s Australia, Help Sheets and Update Sheets, available at:
www.alzheimers.org.au/content.cfm?topicid=26 (accessed 12 May 2009)
Australian Bureau of Statistics (ABS), Family Characteristics and Transitions, Australia,
2006–07 Cat No 4442.0 (2008), available at:
www.abs.gov.au/AUSSTATS/abs@.nsf/DetailsPage/4442.02006-07 (accessed 7 May 2009)
Australian Bureau of Statistics (ABS), General Social Survey, Western Australia, 2006 Cat No
4159.5.55.001 (2007), available at:
www.abs.gov.au/AUSSTATS/abs@.nsf/DetailsPage/4159.5.55.0012006 (accessed 7 May
2009).
Australian Bureau of Statistics (ABS), Population by Age and Sex, Australia, 2006 Cat No
3235.0 (2007), available at: www.abs.gov.au/ausstats/abs@.nsf/DetailsPage/3235.02006
(accessed 6 May 2009)
Australian Bureau of Statistics (ABS), Australian Social Trends, 2005 Cat No 4102.0 (2005)
―Family functioning: grandparents raising their grandchildren‖, available at:
www.abs.gov.au/AUSSTATS/abs@.nsf/Previousproducts/4102.0Contents12005
(accessed 7 May 2009)
Australian Bureau of Statistics (ABS), Disability, Ageing and Carers Survey, Australia:
Summary of findings, 2003 Cat No 4430.0 (2004), available at:
www.abs.gov.au/AUSSTATS/abs@.nsf/DetailsPage/4430.02003 (accessed 6 May 2009)
Australian Bureau of Statistics (ABS) and Australian Institute of Health and Welfare
(AIHW), The Health and Welfare of Australia’s Aboriginal and Torres Strait Islander Peoples,
2008 Cat No 4704.0 (2008), available at:
www.abs.gov.au/AUSSTATS/abs@.nsf/DetailsPage/4704.02008 (accessed 5 May 2009)
Council on the Ageing of Western Australia, Seniors Count— Pre Budget Submission to the
Government of Western Australia 2008–2009 (2008), available at:
www.cotawa.asn.au/resources/pbscomplete.pdf (accessed 12 May 2009)
Department for Communities, Western Australian Seniors and the Law (2007), available at:
www.community.wa.gov.au/DFC/Communities/Seniors/Publications/ (accessed 12 May
2009)
Department for Communities, Active Ageing Strategy, Generations Together: 2004–2008
Report (2007), available at:
www.community.wa.gov.au/DFC/Communities/Seniors/Publications/ (accessed 12 May
2009)



nov em be r 2009 - First edition                                           older people 6.5.1
Department for Communities, Staying Mentally Healthy — Topic Sheet No 7 (2nd ed) (2005)
available at:
www.community.wa.gov.au/DFC/Communities/Seniors/Publications/Topic_Sheets.htm
(accessed 12 May 2009)
Department for Communities, Grandfamilies: A Resource Guide for WA Grandparents
Raising Grandchildren (2005), available at:
www.community.wa.gov.au/DFC/Communities/Seniors/Publications/ (accessed 12 May
2009)
Department for Communities, A Profile of Western Australia’s Seniors (2004), available at:
www.community.wa.gov.au/DFC/Communities/Seniors/Publications/Topic_Sheets.htm
(accessed 12 May 2009)
Department for Communities, Seniors, Safety and Crime A New Outlook — Topic Sheet No
5 (2nd ed) (2004), available at:
www.community.wa.gov.au/DFC/Communities/Seniors/Publications/Topic_Sheets.htm
(accessed 12 May 2009)
Institute of Health and Welfare (AIHW), Older Australians at a Glance (2007), available at:
www.aihw.gov.au/publications/index.cfm/title/10402 (accessed 7 May 2009)
Office of Mental Health, Policy and Strategic Directions for Mental Health Services for Older
People (1998)
Sorensen, H and Black, B, Advocacy and Ageing (2000), available at:
www.advocare.org.au/documents/papers.html (accessed September 2008)




6.5.2 older people                                           no v e m be r 2009 - First edition
6.6      Your comments
Feedback on how this Equality before the Law Bench Book can be improved is welcomed.
We would be especially interested in receiving relevant practice examples, including any
relevant model directions that you would like to share with other judicial officers.
Additionally, you may discover an error, or wish to advise further references to legislation,
case law, specific sections of other bench books, discussion or research material.
Please refer to chapter 14, which contains information about how to send us your comments
and feedback.




nov em be r 2009 - First edition                                        older people 6.6.1
6.6.2 older people   no v e m be r 2009 - First edition

								
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