1. INTRODUCTION

We welcome this opportunity to make a submission to the Portfolio Committee on the Older Persons Bill. Older persons, service providers and organizations working in the field of ageing have been waiting for new legislation for a long time. The SA Council for the Aged first called for action on elder abuse in 1981. Comprehensive legislation for older persons was promised in the White Paper in 1997. In 2000 a Ministerial Committee reported that abuse was widespread and that older persons in all provinces were saying that their cries were not being heard by government and that they had been forgotten.

 

2. INTERNATIONAL CONTEXT

The world population is ageing and some experts predict that within 50 years there will be more people over 60 than under 15. Faced with this trend, the world community is urging governments to take a positive view of ageing so that older persons can remain independent and productive for as long as possible. The Madrid Plan of Action and the African Union Plan of Action on Ageing were adopted in 2002. The signatories (including South Africa) committed themselves to promoting a society for all ages, involving older persons in development, advancing health and wellbeing into old age and ensuring a supportive environment so people could age with dignity and security. While these plans are not legally binding, they are intended as a guideline especially for developing countries.

The AU Plan points to the centrality of family in the care and support of older persons. But it also recognizes that family structures are under pressure and can no longer be relied on to perform this task. It points to the need to promote the rights of older persons and to address negative attitudes that encourage abuse and discrimination. In particular it draws attention to (a) land distribution policies that discriminate against older persons, (b) unequal land tenure rights for older women, (c) the need for reliable data on older victims of crime and (d) the need for direct legal assistance to enable older persons to defend their rights and to access legal services.

The AU Plan guides member states in developing national policies on ageing and legislation to ensure that the rights of older persons are protected and that older persons can access their rights through raised awareness, legal services, public education and the training of civil servants. To date, of the 48 African states, only four (Mauritius, Mali, Mozambique and Tanzania) have a national policy on ageing.

 

2. SITUATION ANALYSIS IN SOUTH AFRICA

In South Africa the Constitution and the Bill of Rights provide equal protection but do not cover the rights of older persons specifically. Discrimination on the basis of age is outlawed but older persons are one of the vulnerable groups that tend to be overlooked when it comes to enjoying equality, dignity and freedom: the cornerstones of our Constitution. Society does not yet provide an enabling environment in which these rights can become a reality.

The South African Population is ageing faster than elsewhere in Africa. By 2010 the percentage of older persons will have doubled (from 7% to 13% of the population) With the impact of HIV/Aids some researchers predict that by 2025 older persons will form the largest group in the population. This has implications for services and for the economy.

In 2001 nearly 50% of older persons, and 68% of older Africans, lived in non-urban areas. Most of today’s older persons have experienced life-times of discrimination with little opportunity for development. Many live in poverty, without little or no access to support services. The HIV/Aids epidemic has forced many to prolong their role as carers and deprived them of their hope of being cared for by their children in their old age.

A) Gender disparities: Over 60% of older persons are women. They suffer multiple disadvantages in old age. They have less land, less education and are less likely to have been employed or to have assets. Older women earned less and are less likely to have employment pensions than men. They are more likely to be widowed and dependent on government social security. Many older women are expected to carry the burden of providing family care irrespective of their physical wellbeing or living conditions.

B) Education: The 2001 census found that 43% of older persons had no education compared to 18% in the adult population as a whole. In Limpopo province the proportion of older persons with no education was 70%.

C) Services: The 2001 Census found 70% for older Africans were without electricity for cooking and 30% were without piped water, leaving many dependent on carrying fuel and water, increasing their risk of falling. 54% of older persons were without a phone (73% of Africans), adding to their loneliness and inability to call for help in an emergency.

D) Health:

• The 1996 census found that 28% of African elderly were disabled compared to 10.5% of white elderly.
• Levels of awareness, monitoring, treatment and control of chronic conditions common to older persons are inadequate. Apart from cataract operations, older patients are refused even minor operations at public hospitals irrespective of the possibility of such operations restoring their independence and quality of life.
• In 1994 geriatric home services and clinics were closed and there is now little or no training in geriatrics.
• The nutritional status of older persons is generally poor and characterized by malnutrition and obesity. Only 13% of over 65s have access to medical aid (SA Demographic and Health Survey 1998).
• There is no information on the prevalence of depression, anxiety disorders or dementia among older persons. Staff at most district hospitals and clinics make no referrals of black older persons to the Memory Clinics in Teaching Hospitals in Cape Town (2005).
• Older patients at day hospitals complain repeatedly about the long queues, lack of medication and bad attitude of younger patients and staff.

E) HIV/Aids: The economic and social impact of the pandemic on older persons has been given little attention. Older persons are mainly excluded from education programmes on prevention and treatment although many are at risk of contracting HIV themselves. The burden of care-giving which the epidemic has brought to grandmothers in particular comes at a time when many need care themselves. Their social relations are disrupted and strained by the stigma and they face heavy emotional, physical and financial demands.

F) Community Support Services: Migration and urbanization have weakened the traditional family and many older persons find themselves isolated, neglected or abused, particularly when they become frail. 97% of older persons live with their families or alone. While official emphasis is on keeping older persons in their communities, few services such as day care, assisted living, meals on wheels or home help are in place to support them. The situation is worst in rural areas.

G) Homes:

• Homes are still largely divided on racial lines, the majority are in urban, previously white areas and residents remain predominantly white.
• A resolution at the 51^st National Conference of the ANC called for the racial integration of homes. But this is problematic given the geographic location of homes and the fact that subsidies only cover part of the cost of care.
• The budget for the care of the aged has declined over the past seven years but 78% of funds currently spent on older persons still go towards subsidizing homes (See Costing Report on Older Persons Bill Table 2). However, less than 3% of older persons are in homes.
• Although in common law children’s "duty to care" for parents has been established, many homes are unable to extract contributions from well-to-do families towards the costs of caring for their parents. This increases homes’ dependence on subsidies.
• Conditions in homes vary and inspections by Health and Social Service staff rarely occur.
• Unregistered homes have mushroomed in many towns and cities with older persons often paying their entire pensions to the owners, in return living in crowded, unhygienic conditions and sometimes abusive conditions.

H) Abuse: In 2001 the Ministerial Committee found that abuse and neglect of the elderly were common in residential homes, hospitals, within families, in communities and in pension queues and government offices. It also found that there was no coherent strategy to address this abuse.

The Aged Persons Act of 1967 was aimed at a different population from this Bill, namely older whites who at that time were living in private boarding houses in unsatisfactory conditions. The prime function of this Act was to provide for the establishment and registration of residential homes. Low interest loans and generous subsidies were made available by government for this purpose.

The Aged Persons Amendment Act which was passed in1998 empowered the Minister to lay down conditions for subsidies. Since then subsidies have been restricted to Group 3 or frail residents who are social pensioners and the level of subsidies has fallen. The Amended Act also required homes to have management committees on which residents were represented. In addition it established a national register for notifications of abuse and provided for warrants for the removal of aged persons to places of safety.

The first draft of the Older Persons Bill appeared in 2000. Since then numerous workshops and consultations have been held with NGOs, members of legislatures and older persons. Many consultations were organized by the Social Development Department. In 2004 the Human Rights Commission conducted workshops on the Bill in all provinces.

Arising out of this consultation process amendments were made to the Bill. In April 2003, following a scoping exercise, the Bill went to Cabinet. They made the following changes on the grounds of cost and the risk of litigation:

1. Older persons were no longer defined as all persons over the age of 60 but as women over 60 and men over 65.
2. Frail persons were no longer defined as all adults needing continuous care but as older persons needing continuous care.
3. The Ombudsperson for Older Persons was removed.
4. The National Consultative Forum on Ageing was removed.

The present Bill was published as B68-2003 on 13 August 2003 and amended by the NCOP in June 2005 to become B68B-2003.

We have concerns about the above omissions and will address these in the course of this submission.

 

 

 

 

5. THE OLDER PERSONS BILL

The explanatory paragraph before the Preamble states that the Bill will establish a "framework". This seems to imply that provinces will need to introduce their own legislation for older persons within this framework and, presumably, within their own financial and institutional constraints. But this may conflict with the Parliament’s responsibility set minimum standards.

We recommend the replacement of the preamble with the following:

12. Past injustices which older persons experienced

38. The sacrifices which older persons made towards the establishment of a

1. The State must, in compliance with Section 7(2) of the Constitution, respect, protect, promote and fulfill the rights enshrined in the Bill of Rights
2. In terms the Bill of Rights the State may not unfairly discriminate against anyone on grounds of race, gender, sex , age or disability and everyone has inherent dignity and the right to have their dignity respected and protected, the right to be free from all forms of violence and the right not to be treated in a cruel, inhuman or degrading manner
3. In terms of Section 26 and 27 of the Constitution everyone has the right to have access to adequate housing, food and water, health care services and social security,

l. To ensure that the rights, dignity and independence of older persons are

upheld;

ll. To provide for the self-fulfillment, participation and care of older persons.

We wish to comment on the following definitions:

The definition of abuse has been improved by the NCOP but it is now too wide. We would like to limit it by adding the following words between "person" and "including" on line 27: "occurring within any relationship where there is an expectation of trust". This is necessary in order to distinguish abuse from other crimes.

We consider that it is not appropriate to apply different ages for men and women with respect to access to facilities and treatment. The Aged Persons Act which this Bill replaces referred to "debilitated persons" which it defined as any person over the age of 60. We seem to be moving backwards with respect to older men.

This definition was introduced by the NCOP in place of "owner" and "manager". However, we are advised that it is not legally tenable as it does not necessarily cover owners.

This definition should be more holistic as it needs to cover other parties including Section 21 companies

The words "including safe beds" should be inserted between the words "premises" and "maintained".

We would like to propose that the following definitions be inserted in the Bill . They are an attempt to bring the Bill into line with the Draft Frail Care Policy of the Department as well as addressing concerns raised in the resolution on the elderly at the 51^st national conference of the African National Congress which highlighted the need for day care centres and social housing villages, priority for older persons in housing and essential services, and access to health care and humane services amongst other things.

We propose the following definition: "Assisted living is the provision of affordable, adaptable and secure accommodation which provides older persons with an environment that enables access to support services, food supplies, primary health care, a pension pay-point or bank, transport, recreational, educational and leisure activities"

We propose the following definition: "Basic care covers personal hygiene, adequate clothing and footwear, nutrition, toilet needs, mobility aids, rest and sleep and social and recreational needs."

We propose the following definition: "Day care for adults is a service within a residential home or service centre which provides social, recreational and health-related activities in a protective setting to individuals who cannot be left alone during the day because of health care or social needs". (Draft Frail Care Policy)

We would like to see this Chapter titled Older Persons and Development; since the purpose of the Bill is not to develop older persons as a separate group but to involve and integrate them in development generally.

• This section provides for "consultation" which is discretionary. The lack of coordination and the fragmentation of welfare services is referred to in Chapter 5 of the White Paper which calls for mechanisms for involving other Ministers and Departments. We would like to propose "consultation" be replaced by joint mechanisms or partnerships, with Social Development as the lead Department.
• The nature of "support" needs to be defined – as it stands it could not be costed. This will doubtless influence implementation.

The Bill should give more direction and substance to the programmes. The more precisely a service is described the more likely it is to be implemented.

The Costing Report was unable to comment on legal and fiscal implications of the programmes because their extent is unclear. "Despite the aspirations of a Developmental Service Delivery Model, the absence of norms and standards makes it difficult to cost the Bill within the developmental paradigm".

In the event, the costing was based on current services and programmes rather than costing the specific provisions of the Bill. The outcome was four categories of programme:

1. Promotion and Protection of the Rights of Older Persons
2. Integrated Community based and outreach programmes
3. Residential Care
4. Departmental Administration (including research and monitoring)

The shortcoming of the above categories of program is that they overlook some of the programs listed in the Bill, in particular some of those which require collaboration with other Departments.

We would like to suggest that the programs in this section be listed in order of importance and that priority be given to (a) (e) (h) and (j) .

Our proposals on programmes in this Chapter are as follows (with amendments underlined):

1. "public education on ageing, the rights of older persons and their social, cultural, economic and political contribution"
2. We propose that this program be combined with (k) and read as follows "The formation of an national forum of older persons to advise the Minister, ensure the participation of older persons in decision-making and establish a national research plan and a communication network on ageing"
3. "access of older persons to information, education and training, especially in rural areas"
4. This program needs to be spelt out – it may be covered by other programs
5. Protection is the substance of Chapter 3 but no provision is made there for education of carers or communities. We therefore suggest this program read: "The protection of older persons and the education of carers and communities on their rights and needs."
6. Control of companies selling funeral policies and loans is a burning issue for older persons. How can they be sure that the National Credit Bill currently tabled in parliament will protect them too?
7. The distribution of existing facilities is very skewed. Transforming them is not enough. Bussing is not an acceptable solution for frail persons. New day care and residential frail care facilities need to be provided. The multi-purpose centres referred to here are not an adequate option. Frail older persons are vulnerable and need their own space.
8. This is a critical issue due to present overcrowding and homelessness. The call from the 51^st ANC National Conference is relevant here. There should be special provision for "older persons in need of care and protection" (Section 18). There should also be assisted living housing for older persons (some frail) caring for orphans. For example, existing facilities could be adapted for this purpose.
9. And (j) should be combined. The rolling out of these services is critical and older persons are currently discriminated against.

14. This is a burning issue for older persons and a formula needs to be found

Most older persons would like their communities to be an enabling and supportive environment . However, this Chapter focuses almost exclusively on residential homes.

The importance of guiding and influencing communities to better care for older persons was stressed by a speaker in the NCOP debate who said: "There is no way this Bill will succeed without public education on the rights of older persons and the active participation of communities." The Costing Report also proposes a category of programme called Promotion and Protection of Rights of Older Persons.

We suggest that the Rights of Older Persons in facilities (at the beginning to Chapter 3 (Section 12)) be moved to this Chapter and that the rights of all older persons irrespective of where they reside be set out here. Respect for rights is essential to ensure an enabling and supportive environment for older persons. Attention should also be given to the circumstances and needs of older persons in rural areas with regard to the role and input of traditional leaders.

(1) We urge the Portfolio Committee to give consideration to the challenge of applying national norms and standards where there are wide disparities in resources and provision between and within provinces. How, for example, can facilities be expected to meet these standards when subsidies cover only a part of the cost of maintaining residents ? The level of subsidy needs to be based on the cost of basic care, taking account of various cost drivers. This operation has been carried out by some provinces with respect to frail care.

(1) This Section is almost the same as Section 2A(1) of the Aged Persons Amendment Act. Under the Regulations of that Act subsidies were restricted to "residents who met the requirements determined by the Minister" and managers in receipt of subsidies had to allow inspections, report abuse and follow agreed accounting procedures. The last condition of the present Bill has now been amended by the NCOP by adding the requirement of a "register of assets bought with government funds". It is doubtful if this is realistic. Substantial government capital funding of residential homes occurred under the previous regime when such registers were not required. Earlier attempts to uncover the whereabouts and extent of such "loans" have been unsuccessful.

We would like to recommend that "conditions for the use of a subsidy" be made part of a funding agreement between the state and the service provider.

(3) We consider that this provision for the withdrawal of a subsidy after one months notice if any condition is not complied with is too punitive a response . This sub-section must be made consistent with the Promotion of Administrative Justice Act with respect to time frames allowed for various steps taken in response to administrative actions. If a subsidy is withdrawn so that the service can no longer be provided alternative provision would have to be made for the older persons receiving such a service. We recommend that more graduated sanctions be provided for in the Bill.

We would like to see this Section addressing the issue of "duty to support" by the children of persons in receipt of subsidies in order to reduce the burden of residential care on the budget .

This Section is taken virtually unchanged from the 1967 Aged Persons Act.

(7) While it is appropriate that the owner of a facility facing closure should have to take reasonable measures to ensure older persons are accommodated in another registered facility, the Bill should expressly recognize that the State has the final responsibility to ensure these older persons are taken care of.

We commend the NCOP on the removal of private residential homes from this Section so that they will now be obliged to register under Section 5 like other facilities, regardless of the number of older persons accommodated.

(3)(c) has been amended by the NCOP so that operators are only required (on closure) to hand over assets bought with government funds. Here our comments on 4 (1) apply. In addition the requirement to hand over funds will conflict with the constitution of many institutions which comply with the Non-Profit Organisations Act. This Act requires that provision be made for assets of an institution closing down to go to another institution with similar aims.

Many services to older persons need to comply with other legislation, where requirements for corporate governance are specific and mandatory (for example Section 21 companies must comply with the Companies Act). These conflict with the powers of residents committees provided for in this section;

A distinction needs to be made between the obligations and liabilities of owners, management committees and residents committees. It is problematic for government to legislate on how management or residents committees are constituted. Nor is it desirable for the Bill to contain prescriptive measures regarding the composition of governing bodies. This is the responsibility of the relevant service provider.

Differing financial and other resources of institutions affect what they can reasonably do. The interests of the State in ensuring that unfair discrimination is prohibited would be adequately protected by requiring that governing bodies be representative of the relevant community as far as is reasonable and feasible. We understand that such provisions contained in funding agreements of the Gauteng Department.

Consumers of any service should have some input into the conditions of provision of that service, and should have the right to obtain information regarding the service concerned. There should be a mechanism to enable older persons to obtain information, reasons for actions taken or not taken, and obtain recourse when they feel aggrieved. Again, a special protector or ombuds system would be appropriate here.

(3) We welcome the changes made by the NCOP to this Section, namely that written reasons be provided for refusal of admission and 9(4) which is new. The obligation to give reasons should extend to all actions taken by providers of services, and the section should make it clear that the reasons must be substantive. Furthermore, some avenue of recourse following the receipt of reasons should be provided for, which again highlights the importance of having a special protector or ombuds system (See motivation at the end of Chapter 3.)

The monitoring provisions should apply to services provided in all facilities, whether registered or not, as well as services provided outside facilities. One of the great difficulties experienced by older persons and institutions providing services to them is that the responsibilities of different government departments, especially those responsible for social development and for health, overlap. Where difficulties are experienced, it is common for each department to resist responsibility and try to pass it to the other.

For example, Section 43(1) of National Health Act requires the Minister to prescribe minimum standards for the provision of health services in locations other than health establishments, including schools and other public places. This must cover residential homes for frail older persons. However, the Health Department does not yet fulfil this oversight role here. The Bill needs to provide a mechanism which is linked to the monitoring requirements in order to overcome this gap.

It would be helpful if the Bill specified the purpose of the monitoring system, linked monitoring to the quality of care provided to other persons, and provided for remedies where the results of the monitoring process show that norms and standards are not being complied with. There should also be an obligation on the monitoring body to inform affected institutions of the results and findings of any monitoring or investigation, with a corresponding right for any institution to respond or take remedial steps before other actions are taken as a result of the monitoring findings.

We must add that many older persons perceptions of social workers is extremely negative, especially in disadvantaged communities. Criticisms of their small numbers, their unhelpful attitudes and lack of response to reports of abuse abound. We would like this Section to give more emphasis to the monitoring role of "persons designated by the Director General" in (1).

Older persons in the community suffer from lack of information and lack of facilities (in the broad sense) to assist them where their rights have been violated. We propose that the Bill provide them with a mechanism to which they have recourse if their rights are violated, as well as a one-stop information service to assist them to find out about their rights and the services available to them. This function could be provided by a special protector or ombud office (See page 15 of this submission)

We have proposed this section be moved to the beginning of Chapter 2

It is important that norms and standards established under the Bill are national. The delegation provisions must recognise this. It should not be possible for the establishment of norms and standards to be delegated to provinces. The delegation provisions should also be compatible with the constitutional powers of and relations between national and provincial spheres. Provincial Directors General are not institutionally linked to the Director General of the national Department, and delegations by that official to them may not be possible.

We suggest that all issues relating to financing, accounting, reporting and penalties should be contained in separate legislation relating to the new finance policy of the Department. In addition services seem to be moving in the direction of multi-purpose services, not age segregated services. There is therefore a case for drafting a new Welfare Act as framework legislation which the Children’s Act, the Older Persons Act and other legislation could plug into.

Older persons are covered by most of the laws of the land but this is not always recognized. The Bill should include a list of legislation which covers older persons even if they are not specifically mentioned in such laws. Examples are the Domestic Violence Act 116 of 1998, The National Health Act, the Mental Health Act and the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000, The Rental Housing Act 50 of 1999 and the Employment Equity Act 55 of 1998.

Account also needs to be taken of the Housing Development Schemes for Retired Persons Act 65 of 1988 which regulates retirement housing for persons over 55 years – in contrast to the ages set in this Bill. Frail care units in this housing have to register under the 1967 Aged Persons Act.