COMMENTS ON OLDER PERSONS BILL (VERSION B68-2003) TOGETHER WITH PROPOSED AMENDMENTS

NO.

SEC.

DESCRIPTION OF PROVISION / COMPONENTS OBLIGATION

DIFFERENT TO AGED PERSONS ACT (APA)

COMMENTS

1.

Sec 1

DEFINITIONS CLAUSE

    

  • "abuse" was originally defined as the violation of an older person's rights enshrined in Chapter 2 of the Constitution;
  • The Department intends to replace the aforesaid definition with:
  • "abuse" means a single or repeated act or lack of action that causes harm or distress to an older person, including physical, psychological, financial, material or sexual harm or neglect, and includes the violation of an older person's rights enshrined in Chapter 2 of the Constitution

Yes, the definition of "abuse" in the Older Persons Bill differs to that in the APA

The word "abuse" in the APA is defined as meaning "the maltreatment of an aged person or any other infliction of physical, mental or financial power on an aged person which adversely affects that person"

The proposed amended definition of "abuse" is much more expansive to the initial definition in the Proposed Bill and to that contained in the APA and it now includes not only an act but also an omission related to a broad category of issues

Accordingly, this brings a person who is aware of acts of abuse, even though not directly involved in such acts into the definition and places a duty on such person to take steps of measures

It is anticipated that the expansive and vague nature of the definition of "abuse", specifically what constitutes "harm" or "distress" shall have a cost implication and result in litigation in the future
         
   

"care" means physical, psychological, social or material assistance to an older person, and includes services aimed at promoting the quality of life and general well-being of an older person

Yes the definition of "care" in the Older Persons Bill differs to that in the APA

In the APA "care" is defined as meaning "when used as a noun, includes the provision of any meals, nursing services or other domestic services, and, when used as a verb, has a corresponding meaning"

The definition of "care" is much more expansive to the definition contained in the APA as it now includes "psychological, social or material assistance" in addition to services aimed at taking care of the physical needs of the older person and it also has a further portion to it which is reasonably vague, being "services aimed at promoting the quality of life and general well-being of an older person.

Once again the expansive and vagueness associated with this definition will in all probability have a cost implication and litigation aspect to it, depending on the manner in which such word is utilised in the Proposed Bill
   
  • ‘‘caregiver’’ means any person who provides care.
  • No, there is no similar definition contained in the APA.
  • Drafting issue. The definition is unqualified as to who the recipient of the care is and accordingly, the Department should amend same to make reference to an "older person".
  • The definition is reasonable wide when one reads same in conjunction with the definition of "care" and therefore the same concerns may arise in respect of costing and litigation as for the definition of care.
   
  • ‘‘community-based care and support services’’ means care and support services provided at a community-based centre and aimed at promoting and maintaining the independent functioning of older persons in a community;
  • There is no similar definition in the APA.
  • This is a new definition that has been inserted in the Proposed Bill and it will in all probability have a cost implication, depending on the context in which such wording is used in the Proposed Bill.
   
  • ‘‘Department’’ means the Department of Social Development in the national sphere of government;
  • There is no similar definition in the APA
  • This is a new definition that has been inserted in the Proposed Bill. It is important as a cost directive, as depending on the nature and extent of the provision in which such word is used, it will give direction as to whether the cost implications are National or Provincial.
    		•
       
    • ‘‘Director-General’’ means the Director-General of the Department;
    • Yes, the definition of "Director General" in the Older Persons Bill differs to that in the APA
      • In the APA, "Director-General" is defined as being "in so far as a provision of this Act is applied in or with reference to a particular province, means the officer who is the head of the component which is charged with welfare matters in the provincial administration of that province"
  • The new definition as recorded in the Proposed Bill clearly links the "Director General" to the National Department of Social Development and not the Provincial Department as was the case with the APA.
      • This will have an implication on costing and litigation issues which will be National based instead of Provincial, depending on the use of the term in the Proposed Bill
       
        • "facility" (this is the new proposed amendment which is to replace the present definition of "facility" as recorded in the Bill at present"):
    1. means a building or other structure used for the purposes of providing accommodation, housing and community-based care and support services to older persons; and
    2. includes a private residential home in which older persons are accommodated for reward and a shelter but does not include a luncheon club or a building or other structure in or on which home-based care is provided;
    • There is no definition for "facility" in the APA
      • The phrase "home for the aged" was used in the APA (which is most probably the comparative term to "facility" as stated in the Bill), and is defined as "any institution or other place of residence maintained mainly for the accommodation and care of aged or debilitated persons"
  • The Department intends to amend and replace the previous definition of "facility" as currently recorded in the Bill, whereby the new proposed definition is more expansive and now includes private residential homes in an unqualified manner, without the previous limitation related to a specific minimum number of older persons receiving care at such private residential home (not being less than 7);
      • The proposed definition is also quite extensive and now includes housing and community based care and support services in addition to the provision of accommodation, which terms are presently undefined
      • This will have a definite cost implication and may also lead to issues of litigation
       
        • ‘‘frail person’’ means an older person whose physical or mental condition renders him or her in need of 24-hours continuous care
          • No similar definition in the APA
  • New definition
          • May be a cost driver depending on the context in which such wording is used in the Bill
       
            • ‘‘home-based care’’ means care provided at the home of an older person by a caregiver other than the spouse or a family member of the older person concerned
    • No similar definition in the APA
  • New definition
              • May be a cost driver depending on the context in which such wording is used in the Bill
             
       
            • ‘‘luncheon club’’ means a club which provides a meal to an older person on one or more days of the week at a charge
    • No similar provision in the APA
  • New definition
              • May be a cost driver depending on the context in which such wording is used in the Bill
       
                • ‘‘magistrate’’ includes an additional and an assistant magistrate
                  • The APA has the exact same definition
  • May have certain additional cost elements applicable depending on the use of the word in the Bill, possible increased administrative functions for such magistrates
                  • Cost driver for another department
       
                    • ‘‘manager’’ means the person responsible for the day-to-day management of a facility
    • Yes, the APA has a definition of "manager", however it differs to that contained in the Bill
    • The definition of "manager" in the APA states "in relation to a home for the aged, means the person exercising control over such home"
    • Different definition
    • Drafting issue and the confusion between the use of the words "owner", "operator" and "manager" may result in cost issues arising in administration and litigation
             

      • ‘‘Minister’’ means the Minister of Social Development
        • Yes, the APA has a definition of "Minister", however it differs to that contained in the Bill
        • The definition of "Minister" in the APA states "in so far as a provision of this Act is applied in or with reference to a particular province, means the competent authority to whom the administration of this Act has under section 235 (8) of the Constitution of the Republic of South Africa, 1993 (Act 200 of 1993), been assigned in that province"
        • The APA also defines a "national Minister" as "the Minister for Welfare and Population Development in the national sphere of government", which additional definition is not contained in the Bill

     
        • Different definition
        • Seems to be more National based than Provincial as was the case with the APA
        • Depending on the manner and extent in which such word is used in the Bill it may have cost implications between National and Provincial departments
             
       
          • ‘‘older person’’ means a person who, in the case of a male, is 65 years of age or older and, in the case of a female, is 60 years of age or older
    • No similar provision in the APA
            • The equivalent definition in the APA is "aged person" which means "a person who, in the case of a male, is sixty-five years of age or older, and, in the case of a female, is sixty years of age or older"
  • The terminology is different but the APA has the same definition meaning attached to the definition of "aged person"
            • With the advancement of the public’s knowledge and understanding of Constitutional rights, the discrimination between male and females related to their ages may result in litigation issues
            • If the definition is altered to eliminate the difference in age between male and females in due course, it will have a serious cost driver implication
       
              • ‘‘older person in need of care and protection’’ means an older person contemplated in section 18(5)
    • No similar provision in the APA
                • It may be considered that the equivalent provision in the APA is a "debilitated person" which is defined as "a person who is sixty years of age or older and, by reason of old age or a physical or mental defect or illness, unable to care properly for his person or his interests, but does not require constant care by a medical practitioner or a qualified nurse"
                • New provision in Bill
                • There is an entire new section 18 which regulates an older person in need of care and protection, which will result in new cost drivers and implications as well as litigation issues on the implementation, administration and control of such provisions
             
       
              • ‘‘operator’’ means a person that operates a facility
    • The definition of "owner" has been deleted and it is now proposed by the Department that the above definition of "operator" replaces that of "owner"
    • No, the APA does not have a similar definition
    • New definition
    • Drafting issue – the Bill and the Proposed Amendments seem to be narrowing the control and administrative process to focus on the "operator" and the "manager" with the exclusion of the "owner", however the are still references in the Bill to a person who owns a facility
    • There may be additional cost drivers involved, as the APA focussed on a manager while the Bill focuses on operator and manager and therefore depending on the use of such words in the Bill, it may be found that there are additional administrative and control functions and processes to be followed by the Department
       
    • ‘‘police official’’ means a member as defined in section 1 of the South African Police Service Act, 1995 (Act No. 68 of 1995), or a member of a municipal police service established under section 64A of that Act
    • No, the APA does not have a similar definition
    • New definition
    • It will have cost implications for the SAPS and for the Department on an administrative basis insofar as co-ordination with the SAPS and administrative functions related thereto. This may not be a new cost driver as on a practical level this interaction with the SAPS may already be taking place
             
       
    • ‘‘prescribed’’ means prescribed by regulation
    • Yes the APA has a similar definition
    • The APA defines "prescribed" as "prescribe by regulation made under this Act"
    • This definition must be read in conjunction with the definition of "regulation" in the Bill
       
    • ‘‘professional health care provider’’ means a person providing health services in terms of any law
    • No the APA does not have a similar definition
    • New definition
    • Will most probably result in an additional cost driver
       
    • ‘‘regulation’’ means any regulation made under section 21
    • No the APA does not have a similar definition
    • The reason for this is due to the APA having a slightly different definition of "prescribed" which referred to regulations made under the APA and therefore there was no need for a definition to be inserted for "regulation"
    • New definition
    • The general costs associated with the publishing of regulations can be ascertained
    • This will naturally be a cost driver and depending on the content of the regulations the likelihood of litigation is a real factor
         

     

    		  
       
    • ‘‘service’’ means any activity or programme designed to meet the needs of an older person
    • No the APA does not have a similar definition
    • New definition
    • Drafting issue – the definition is very vague and it is not qualified. It presently deals with "any activity or programme designed to meet the needs of an older person". Presumably this is in respect of activities and programmes designed in accordance with the provisions of the Bill and wording to such an effect should be included in the definition
    • There will be costs drivers associated with this definition which will become more clearer once the provisions dealing with the use of such term is dealt with at a later stage
       
    • ‘‘shelter’’ means any building or premises maintained or used for the reception, protection and temporary care of an older person in need of care and protection
    • No the APA does not have a similar definition
    • New definition
    • Should be read with the definition of facility as it forms part of such definition
    • There will be additional cost drivers associated with "shelter" in the various provisions specifying same, based on additional administrative and control functions
             
       
    • ‘‘social worker’’ means any person registered as a social worker under section 17 of the Social Service Professions Act, 1978 (Act No. 110 of 1978);
    • Yes, there is a similar definition in the APA
    • The difference is that the definition of "social worker" in the APA is qualified in that the person must also be in the "service of the State", which qualification does not exist in the Bill’s definition of a "social worker"
    • Slightly different definition to that in the APA
    • It may have a cost implication on additional persons falling within such definition, which may increase certain administrative and control functions
       
    • ‘‘this Act’’ includes any regulation
    • Yes, the APA has a similar definition
    • Essentially the same definition is contained in the APA
             

    2.

    Sec 2

    PROGRAMMES FOR DEVELOPMENT OF OLDER PERSONS
    • There is no provision in the APA, which deals with the development or implementation of any programmes for the aged.
    • This entire section is new and it shall definitely have a cost implication for the Department depending on the nature and extent of the programmes developed and the manner in which they are developed and implemented
    • Issues of litigation will definitely arise

    2(1)
    • The Minister may, in consultation with any other relevant Minister—

     

     

    • Develop programmes contemplated in subsection (2) or cause such programmes to be developed; and
    • Support any person who runs programmes contemplated in subsection (2).

    • Discretionary obligation – in consultation with not in agreement with
    • Internal or external development
    • Nature of support undefined – Financial? Educational?

    Infrastructure?

     

     

    2(2)
    • Nature and extent of programmes

    • Involves different departments, hence need for consultation

    the recognition of the social, cultural, economic and political contribution of older persons

    the participation of older persons in decision-making processes at all levels

    the access of older persons to information, education and training;

    the development of older persons in rural and urban areas;

    the protection and promotion of the rights of older persons;

    the establishment of norms and standards for companies selling funeral policies and extending loans to older persons;

    the utilisation and management of existing facilities for older persons as multi-purpose community centres and the development of an integrated community care and support system;

    the provision of basic affordable accommodation for older persons;

    • Nature of programmes are extensive
    • Unable to comment on legal & fiscal implications until extent of the programmes have been developed

    the provision of care and services to older persons in rural and urban areas and in disadvantaged communities;

    the access of older persons to health, welfare and other care and support systems in order to enable older persons to maintain or regain their optimal level of physical, mental and emotional well-being and live with dignity in the community

    • the establishment of a national research plan and communication network on ageing;
    • the creation of employment opportunities for older persons;
    • the establishment of recreational opportunities for older persons;
    • the exemption of older persons from the payment of property rates and taxes; and
    • the availability and accessibility of free or subsidised public transport facilities for older persons