A critical commentary on the 2017 ALRC elder abuse report: looking for an ethical baseline for lawyers

Abstract

In Australia, the ethical rules for lawyers faced with clients exhibiting signs of mental incapacity or otherwise vulnerable and at risk of abuse are neither consistent nor clear. Lawyers cannot freely act to protect vulnerable clients without risking an unethical breach of client confidence, a position that sits in stark contrast to commonly understood moral norms in the community. The 2017 Australian Law Reform Commission Elder Abuse Report seeks a community response to elder abuse. In so doing it opens discussion for a reconceptualisation of some of the underlying assumptions upon which legal ethical rules in Australia are based. Further, it provides the opportunity to form a more solid philosophical basis for lawyers to develop an understanding of the competing interests between human rights and the protection of the vulnerable at the heart of this complex area.