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Research Report: The legal needs of older people
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The legal needs of older people  ( 2004 )  Cite this report



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Chapter 5. Health


With Australia’s population of older people increasing and expected to further rise over the next 50 years, there is a pressing need to look at health and the related legal implications that will arise from an older population. The 2001 Census found that people aged 65 and over in NSW comprised 13 per cent of the population.1 This is expected to increase to 17 per cent of the population in NSW by 2016.2 As well as increasing in absolute numbers, the expected life span for older people will also increase, with the 85 years and older population increasing more rapidly than other groups.3 As people age they become more vulnerable to ill health and disability. In 1995, 90 per cent of older people had experienced a recent illness, and virtually all (99 per cent) reported at least one long-term health condition.4 There is evidence that older people are the largest group of users of the health system:
  • older people have a higher rate of hospital admissions, accounting for 33 per cent of all hospital separations, while only comprising 12 per cent of the population
  • older people use general practitioner (GP) services at a rate double that for people under the age of 65
  • older people are more likely to use prescribed medication, with approximately 86 per cent using medication compared with 59 per cent for the general population.5

In research conducted by the Commonwealth Department of Health and Ageing,6 46 per cent of older people believed that health was a major area of concern as they age. Given the distinct health concerns confronting older people, access to hospitals and health care services remain an important issue for older people, particularly in regards to patient rights.

This chapter will focus on various legal issues facing older people relating to health and the legal avenues available to older people to address these issues. The legal status of written instruments giving instruction as to desired medical treatment, known as Advance Health Care Directives, are discussed, together with barriers confronted by older people in using such advance and substitute decision-making mechanisms. The chapter also details some of the health related consumer issues which are likely to confront older people, including access to health services, quality of health services, hospital discharge practices and medication misuse.

It should be noted that many health related legal issues for older people take place in the context of health care provided by nursing homes. These have been partially dealt with already in Chapter 4, Accommodation.



Australian Bureau of Statistics, 2001 Census Basic Community Profile and Snapshot New South Wales, 2001 Census of Population and Housing, Australian Bureau of Statistics, Canberra, 2001. Available at <http://www.abs.gov.au/ausstats/abs%40census.nsf/4079a1bbd2a04b80ca256b9d00208f92/c2ce6c310b89361fca256bbe008371f3!OpenDocument#Table3> (Last accessed 15 December 2003).
Australian Bureau of Statistics, Older People, New South Wales, Catalogue n.4108.1, Australian Bureau of Statistics, Sydney, 2000, p. 2.
Australian Institute of Health and Welfare, Older Australia at a Glance, 3rd edition, AIHW Catalogue n.AGE 25, Australian Institute of Health and Welfare, Canberra, 2002, p. 4.
Australian Bureau of Statistics, Older People, Australia: A Social Report, Catalogue n.4109.0, Australian Bureau of Statistics, Canberra, 1999. Available at <http://www.abs.gov.au/Ausstats/abs@.nsf/0/3be24b1cb70dcae1ca2568a90013941e?OpenDocument> (Last accessed 15 December 2003).
Australian Institute of Health and Welfare, Older Australia at a Glance, pp. 6470.
Department of Health and Ageing, Community Attitudes: Ageing and Older Australians, 2000. Available at <http://www.olderaustralians.gov.au/research/commatt.htm> (Last accessed 29 September 2003).

 Australian Bureau of Statistics, 2001 Census Basic Community Profile and Snapshot New South Wales, 2001 Census of Population and Housing, Australian Bureau of Statistics, Canberra, 2001. Available at <http://www.abs.gov.au/ausstats/abs%40census.nsf/4079a1bbd2a04b80ca256b9d00208f92/c2ce6c310b89361fca256bbe008371f3!OpenDocument#Table3> (Last accessed 15 December 2003).
 Australian Bureau of Statistics, Older People, New South Wales, Catalogue n.4108.1, Australian Bureau of Statistics, Sydney, 2000, p. 2.
 Australian Institute of Health and Welfare, Older Australia at a Glance, 3rd edition, AIHW Catalogue n.AGE 25, Australian Institute of Health and Welfare, Canberra, 2002, p. 4.
 Australian Bureau of Statistics, Older People, Australia: A Social Report, Catalogue n.4109.0, Australian Bureau of Statistics, Canberra, 1999. Available at <http://www.abs.gov.au/Ausstats/abs@.nsf/0/3be24b1cb70dcae1ca2568a90013941e?OpenDocument> (Last accessed 15 December 2003).
 Australian Institute of Health and Welfare, Older Australia at a Glance, pp. 6470.
 Department of Health and Ageing, Community Attitudes: Ageing and Older Australians, 2000. Available at <http://www.olderaustralians.gov.au/research/commatt.htm> (Last accessed 29 September 2003).


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Ellison, S, Schetzer, L, Mullins, Perry, J & Wong, K 2004, The legal needs of older people in NSW, Law and Justice Foundation of NSW, Sydney