Aged care and the law of roughness

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For a very long time, it seems, the concept of roughness did not appear as an issue in the legal landscape.

As a topic of conversation, we may have had social discussions in parent groups about  boys engaging in rough play but that was usually held to be just ‘normal’ developmental behaviour.

In recent times, however,  roughness has taken a more prominent place in the interface between the law and acceptable conduct.

It perhaps all started in the 1990’s in South Australia when a husband was on trial charged with raping his wife. In remarks that caused a media storm, the trial judge, Mr Justice Bollen commented to the jury that it was acceptable for men, in certain circumstances, to engage in a measure of more than the usual ‘rougher handling’ of their wives to persuade them to have sexual intercourse.

More recently, in the field of competitive sport, I noticed that, after a particular game, an AFL player had been charged by the AFL Tribunal with ‘rough conduct’. That is defined as an intentional bump on another player where a head clash is a reasonably foreseeable outcome. It seemed like an odd offence in a game where physical contact, if not combat, was a natural corollary to winning.

Now comes the 4 Corners two part expose on residential aged care. The second programme focussed in part on the case of 2 carers in a West Australian aged care facility. It played video footage of the actions of the carers trying to put a resident to bed. Their actions, on any view, could at least be described as physically aggressive.

As a result of their conduct they were both charged with criminal assault. At the conclusion of the hearing, the Magistrate found them not guilty of the offence. However, he did appear to condone the use of ‘rough handling’ in the situation comparing the carers’ actions, regrettably, to that of a parent trying to convince a reluctant child into a car seat.

When I sat back I thought, at best, how ironically curious is that – rough handling appears to be acceptable in personal relationships and the raising of children but not, of all things, in contact sport.

Many of us would have an image of good caring – a softness, mixed with empathy, patience and a modicum of skill. But  what is the role of ‘handling’ and is there a place for roughness or hardness? Indeed, how much roughness is required in caring – does it sometimes need cajoling, coercing, or confining or, in the end, is roughness just a form of care less or care free contempt?

Through my lawyer’s lens, if rough handling by carers does not amount to a criminal offence and yet it is still described as abuse, it raises a legitimate conundrum – when, if ever, can abuse be criminal?

Caring for the aged is not  adult play time, a conjugal relationship or a combative game. It is providing emotional and physical support and help to those those who are in need and who are sometimes difficult, irascible, unresponsive or unappreciative. It is hard but, I am told, for those committed to it, very rewarding.

Trouble is, we need to find more of those caring carers. But, we can’t expect them to just be emotionally rewarded, they also need to be financially rewarded.

Brian Herd

Recognised as one of the leading experts in Australia on elder law, aged care, retirement, estate planning and disability and a regular author, broadcaster and popular presenter on many elder law subjects and issues.