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A Rise in Elder Abuse: Myth or Reality? – Part II

by Dr Renè Darmanin – Junior Associate

As mentioned in the Part I of this series of articles about Elder Abuse – prior to 2014 in Malta there was no law dealing specifically with elder abuse. It follows that in 2004 parliament introduced new provisions in the Maltese Criminal Code regulating new crimes. This legislative development targets all forms of abuse, irrespective of the place where such abuse occurs, and by whom it is perpetrated as long as the victim is an elder or a dependent person. This article will focus mainly on the crime of elder neglect.

Elder neglect may be defined as the ongoing failure to meet an elder’s basic needs and is one of the most common form of elder abuse. Elder neglect may include both physical and psychological or emotional neglect. The crime of abuse by neglect may be classified both under article 257A of the Maltese Criminal Code, regulating actions which are likely to produce bodily harm or death as well as under article 257C of Chapter 9 of the Laws of Malta dealing with actions causing or permitting an elder to suffer under circumstances not likely to produce bodily harm or death.

Whereas physical neglect refers to the failure to supply sufficient and adequate food, accommodation, clothing and support, psychological neglect develops when an elder is left alone for long periods of time and no significant social contact is provided for the entire duration. Similar to all other forms of elder abuse, perpetrators of such crime may be family members, unrelated offenders and employees in a nursing home who have full constant contact with the elder.

When speaking of elder neglect, reference must be made to the so-called concept of ‘granny dumping’. This term refers to scenarios where elderly are surprisingly abandoned in hospital emergency rooms. Such term was first introduced in the United States back in the 1980s when caregivers started to abandon their relatives in emergency rooms so that the state would consequently assume their responsibility.

Back in the 1850s, the Maltese legislator had already established that children had the duty to maintain their parents and in fact article 338(aa) introduced in 1859, still applicable in this day and age, stipulates that ‘Every person is guilty of a contravention against public order, who – leaves his parents in want in consequence of his disorderly living or his indolence.’

In various instances, our local courts, through various judgments, have commented on the suffering of those elders undergoing neglect:

‘F’certu kazijiet l-anzjanità tfisser tbatija u wgiegh, specjalment meta l-anzjani jibdew jiffaccjaw izolament u jekk ma jħossuhomx ukoll imwarrba. Hemm ukoll min jabbanduna lil qraba tieghu f’xi wahda mid-djar tal-anzjani f’pajjizna u rari jersaq lejhom ghal diversi ragunijiet’

With regards to neglectful care, insufficiencies are reported mainly in the sphere of personal sanitation, sore prevention and mobilisation. More extreme incidents of neglect include elders lying in their excrement for hours. These shortcomings do not only present health risks but affect the elders’ own feelings and sensibilities.

More recently, our Courts have decided on an awful case of domestic neglect which led to the death of a woman. Criminal proceedings were instituted against the husband and son of said woman. The police were first informed of the alarming state of the women after the deceased was admitted to hospital and the hospital staff notified the Police of the terrible hygiene and extensive bed sores of the elder. Medical experts appointed by the Court concluded that:

‘…il-mewt taghha kienet wahda dovuta ghan-nuqqas t’igene, u dan minhabba li l-bedsores – li baqghu ma gewx ikkurati anzi thallew jaggravaw bin-nuqqas t’igene li thalliet tghix fih – ikkawzaw stasis (nuqqas ta’ cirkolazzjoni) li inter alia wassal sabiex il-vittma tinhakem minn pneumonia.’

The court reiterated that in this case the actions of neglect which led to the elder’s death were inexcusable and unjustifiable whilst noting that the elder’s husband and her son who used to reside with the victim, had abdicated from their duty of care that they placed themselves under when they decided to keep the elder at home without medical or professional care.

Overall, it may be said that domestically there has been very limited number of cases dealing with elder neglect. However it is still doubtful, whether this is due to the fact that the Maltese society is a society in which caring is valued or else due to the fact that elder abuse in Malta is still hugely under-reported.

Disclaimer: This article is not to be considered as legal advice, and is not to be acted on as such. Should you require further information or legal assistance, please do not hesitate to contact Dr Rene Darmanin on rene@abalegal.eu.