PRESENTATION OF AMENDMENTS TO THE OLDER PERSONS BILL TO PORTFOLIO COMMITTEE
FOLLOWING PUBLIC HEARINGS
DEPARTMENT OF SOCIAL DEVELOPMENT
DATE: 4 November 2005
Framework of Presentation
1. Background: Public Hearings
Rearrangement of Sections
Appointment of Drafters
Departmental Process
Final Amendments
2. Feedback on Rearrangement of Sections
3. Input from Public Hearings (Section by section amendments)
4. Costing of the Bill
ARRANGEMENT OF SECTIONS |
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Sections |
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1. Definitions |
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CHAPTER 1 |
CHAPTER 1 |
Definitions |
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1. Aims and Objectives of the Bill |
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The aim of the Bill is to enhance the socio-economic status and improve the quality of life of older persons, including their well-being, safety and security. |
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Objectives |
CHAPTER 2 |
CHAPTER 2 |
ENSURING AN ENABLING AND SUPPORTIVE ENVIRONMENT FOR |
CREATING AN ENABLING AND SUPPORTIVE ENVIRONMENT FOR |
OLDER PERSONS |
OLDER PERSONS |
1. Protection and promotion of rights older persons |
Protection and promotion of rights older persons |
2. Facilities and services to comply with national norms and standards |
Development of and compliance with national norms and standards |
3. Support for services delivery by third parties |
Support for services delivery by third parties |
4. Key programmes for older persons will be provided in an environment that……… |
Key programmes for older persons will be provided in an environment that ………. |
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Not included |
CHAPTER 3 |
CHAPTER 3 |
COMMUNITY BASED CARE FOR OLDER PERSONS |
COMMUNITY BASED CARE FOR OLDER PERSONS |
3.1 Rights of Older Persons in Community Based Services |
3.1 Rights of Older Persons in Community Based Services |
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3.2 Establishment of Community Based Services |
3.3 Registration of facilities for community based services and prohibition of operation of unregistered facilities |
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3.4 Management of professionals and staff in home based care: |
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3.2 Community Based Programmes |
3.5 Community Based Programmes |
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a) Prevention and promotion services – independent living and active ageing of older persons who are mobile and at risk |
This service is directed to frail older persons within the community. Community based care services are applicable but in addition the following services are provided |
(b) Home based care for frail older persons within the community |
Key Programmes |
3.6 Key programmes |
3.4 Management of Community Based Services |
3.7 Monitoring and Evaluation |
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CHAPTER 4 |
CHAPTER 4 |
4. RESIDENTIAL CARE |
RESIDENTIAL CARE |
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CHAPTER 5 |
CHAPTER 5 |
PROTECTION FOR OLDER PERSONS |
PROTECTION FOR OLDER PERSONS |
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(a) Older persons in need of care and protection |
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(b) Protection from abuse and prohibition |
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(c) Procedure of bringing complaint of abuse to an older person in the community |
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(d) Enquiry into abuse |
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(e) Notification of abuse of older persons |
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(f) Keeping of register of abuse of older persons |
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(h) Older person in need of care and protection |
CHAPTER 6 |
CHAPTER 6 |
GENERAL AND SUPPLEMENTARY PROVISIONS |
GENERAL AND SUPPLEMENTARY PROVISIONS |
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(a) Delegations |
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(b) Penalties |
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(c) Repeal of laws, and transitional provisions and saving |
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(d) Regulations |
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(e) Short title and commencement. |
OBSERVATION AND CONCLUSION
The Bill has not been reviewed.
The chapter on creating an enabling environment was streamlined so that it reflects the intention.
The only way community based services could be included was through a new chapter.
The rest of the Bill remains the same, with amendments informed and adjusted according to public comments
OLDER PERSONS BILL
REPORT ON SUBMISSIONS TO PUBLIC HEARINGS AND DEPARTMENTS RESPONSE
CLAUSE |
CONCERNS |
ORGANISATIONS |
PROPOSED AMENDMENTS |
AMENDMENTS |
Preamble |
Inadequate |
Joint Forum for Policy on Ageing (JFPA) |
For expanded version see end of this document |
Not changed, current preamble adequately covers proposed amendment. |
1. Definitions |
"abuse" must be distinguished from assault |
JFPA SA Human Rights Commission (SAHRC) Pretoriaraad vir Bejaardersorg /Pretoria Council for the Care of the Aged (PRBS/PCCA) Women’s Legal Centre SA Assoc. of Homes for the Aged (SAHA) Action on Elder Abuse (AEASA) Alzheimers SA
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Expand definition: "abuse" means a single or repeated act, or lack of action occurring within any relationship where there is an expectation of trust that causes harm or distress to an older person, including physical, psychological, financial, material or sexual harm of neglect. |
Definition expanded in section 1 and forms of abuse defined in the same section. Definitions aligned with Domestic Violence Act (p5-6) |
"care" Is not specific enough |
Alzheimers SA JFPA |
Add definition of "basic care "( See Clause 12(d)) covers personal hygiene, adequate clothing and footwear, nutrition, toilet needs, mobility aids, rest and sleep and social and recreational needs. Add "day care": 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 or health care or social needs. |
Broad definition enough to cover issues raised in the comments. However the definition of day care has been included in definitions. This has been addressed (Section 1 p5). |
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"facility" is unclear : within the Bill it is used mainly with respect to homes |
JFPA SAHRC PRVJ NAWONGO AEASA
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"facility" should be broken down into: Residential home Shelter Service centre Luncheon club Housing Assisted living |
The definition of facility has not been expanded since it covers a broad range of services including but not limited to those mentioned in the comments. However, additional definitions were included e.g. service centre, shelter, older persons club, which would include a luncheon club. A whole chapter is dedicated to residential facilities and the services provided in such facilities. |
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"home-based care" excludes family members |
JFPA SAHRC SAHA Alzheimers SA AEASA |
"home-based care" is the provision of health and personal care services rendered by formal and informal care givers in the home in order to promote, restore and maintain a person’s maximum level of comfort, function and health including care towards a dignified death" (WHO) |
The definition has been broadened in Section 1 (p6) |
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"caregiver" |
Request for training and registration |
The current definition is broad enough. Training and registration covered in Section 11 (10) |
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"frail person" was removed by NCOP. It should be replaced as the most vulnerable need special care Frail younger persons excluded |
JFPA Alzheimers SA AEASA SAHA |
"frail older person" means a person 60 years or older whose physical or mental condition renders him or her incapable of caring for themselves or in need of 24 hour care Need to give Minister discretion to include others in definition. |
Defined in Section 1 (p5)
Bill is for older persons but it does not say people with disabilities will not be admitted in any of the facilities or will be excluded from the service |
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"luncheon club" is considered narrow and demeaning by some groups |
SAHRC |
"older persons’ club" means a club which provides social support, skills development, meals or activities for older persons |
Included in Section 1(p6) |
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"older person" . This definition discriminates against older men in service provision |
SAHRC JFPA SAHA Alzheimer’s SA Women’s Legal Centre Cape Jewish Seniors Assoc. Black Sash |
"older person" is any person over the age of 60 (NB the Public Service Act 1994 does not distinguish between men and women with respect to retirement age.) |
No change (Issue sub judice). Retirement age is defined in Labour Legislation and this Bill is not meant to change provisions of other laws. There needs to be alignment ito government policy. |
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"manager" "operator" and "person": these definitions are not legally tenable |
SAHRC NAWONGO |
Remove "manager" from the Bill and replace it with "operator" except in Clause 22, which deals with transitional arrangements. Expand "person" |
If the word manger is used in the Bill, it must be defined Definition of person has been expanded, and a juristic person also defined |
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No provision for involvement of other categories of worker or service organisations |
Ikamva Labantu AEASA Highlands House |
New definitions: "Person designated by the DG" (see Clause 10 and revised Clause 16) "Organization designated by the DG" (see revised Clause 18)
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Definition of juristic person will address this concern |
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CHAPTER ONE Programs Clause 2 (1)
(2)
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No obligation on Minister to implement.
No mechanisms for coordination implementation, or monitoring
Programmes are limited.
Programmes too vague. No distinction between programmes for the development of older persons and integrating them in development programmes. |
SAHRC Alzheimers SA KMDR PRVB/PCCA Rapcan NG Ministry of Caring (NGMC) Leprosy Mission SACC Mr. L.Mangala Mr. R. Xolelizwe Ikamva Labantu Media Monitoring Project Mr. A. Tshabalala SAHA JFPA Commission for Gender Equality SA Catholic Bishops Conference (SACBC) |
Replace "may" with "shall" or "must" after Minister.
Add joint coordinating mechanisms and/or partnerships with relevant Departments and with service providers
Insert after "aimed at" "amongst others" |
The Chapter has been amended to focus on community-based services. However, programmes to be developed evolve and expand over time and will be consulted with other Ministries. The allocation of resources for programmes is dependent on allocation to the department by the Minister of Finance.
Section 22 provides for a team to monitor the services. This team will be interdepartmental and involve other service providers. Details in this regard will be provided in the regulations This is addressed in section 12 (2) and section 20
Section 12 deals with programmes for community based services and section 20 for residential facilities. |
(2)(a) Recognition of the contribution of older persons |
Add "religious" to contributions |
Section 6 adequately covers this. |
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(b) Participation in decision-making |
There is no strategy for enhancing participation. The National Forum could be added here or as a separate programme |
Add: "and support for the establishment of a national forum of older persons to advise the Minister, establish a national research plan and a communication network on ageing". Or this could be a separate programme. |
Minister supports engagement with all sectors of society, including NGO’s, and this is covered in Section 5 of the Bill, without any being mentioned individually. |
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(c) Access to information, education and training |
This should also cover carers and family members and include training in life skills |
Access of older persons and their families and carers, "especially in rural areas," to information, education and training "including training in life skills and parenting in the 21st century". Access to ABET to be specified. |
Older persons in rural areas section 6 (d) This is addressed in section 12 (2) of the amendment Provision of education (ABET) includes ABET |
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(d) Development of older persons in rural and urban areas |
Not specific enough. Should read "and" not "of" older persons |
Add " in order to improve living conditions and infrastructure, address the marginalization of older persons and to integrate older migrants" |
See Section 6 (d) |
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(e) Protection and promotion of rights |
Should refer to abuse |
To read: "The promotion of the rights of older persons and their protection from abuse". |
Protection adequately covered in Chapter 5 and promotion dealt with in Chapter 3. |
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(f) Establishment of norms and standards for funeral and loan companies |
Separate programmes needed to protect older persons from bogus funeral policy dealers and from loan sharks
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This will be addressed in the Social Assistance Act and policies.
However, this should form part of the information and education programmes to older persons.. |
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(g) Utilization of facilities as multi-purpose centres and an integrated care and support system |
This programme should not be limited to existing facilities most of which are inaccessible and multi-purpose centres which are sometimes unsuitable |
Add after "older persons" on line 38 "and the establishment of new facilities where no suitable facilities exist". |
Addressed in the definition of facility, and in section 9(2) |
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(h) Provision of basic affordable accommodation |
It does not cover homelessness or orphans |
Add: "especially to the homeless and those caring for orphaned grandchildren" |
The Bill must be broad enough to cover all situations and conditions. Specifics can be defined in the regulations |
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(i) & (j) Provision of care and services in rural and urban areas. Access to health, welfare and support services |
Too broad |
Combined to read: "The strengthening of primary health care and mental health services to older persons including improved nutrition, preventive health and the training of professionals and carers in older persons health needs in order to ensure universal and equal access." |
Section 6 outlines the environment in which services should be provided and is inclusive and broad enough to cover the proposed amendments. However, Chapter 3 provides for a broad range of community-based services. The proposed amendment is too specific and could be limiting. The issue of management of professionals is covered in Section 11. |
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(l) Creation of employment opportunites |
No consensus on this clause |
There was no agreement on whether persons over 60 should remain in employment. Some proposed that work should be "appropriate to their needs and abilities". |
Labour legislation. The Bill however provides for their participation in income generating activities. |
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(o) Availability and accessibility of public transport |
In some areas older persons cannot use disabled transport |
Remove "facilities" and add "including reduced fares outside peak hours." |
This will be addressed in terms of the broader programmes that the Minister will establish or cause to be established in consultation with relevant departments. Not all these can be catered for in the Bill. |
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NEW PRO-GRAMS |
Following programmes need to be added: |
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See section 6, 12, |
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CHAPTER TWO Ensuring an Enabling and supportive Environment
Clause 3 Norms and standards (1)
(2)
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Title inappropriate: focus on Homes .
Norms and standards only apply to subsidized facilities and services.
Incompetence of older persons assumed Consultation on norms and standards limited . Timeframes for drafting? Conflicting standards of SocDev and Health. Subsidy formula vary.
Need to add children’s "duty to support" parents in facilities |
Church Council for Social Services (CSS) SAHRC JCPA NAWONGO SACBC SACC KMDR NG Welfare NWest Alzheimers SA Cape Peninsula Organisation of the Aged PCCA/PRBV Highlands House |
Change to: "All facilities and services for older persons must comply with national norms and standards, including facilities maintained by the state and facilities subsidized by provinces."
Add "Minister of Health" after Minister of Finance," At end of sub-clause (2) add: "and with care-givers and stakeholders" Add: sub-clause 3(3) "Norms and standards must be drafted within one year of the coming into operation of the Act" Add Clause 3(4): "Subsidy formulae must established, linked to the cost of the service." N.B. Procedures for applying for subsidies must be clear and simple. Additional sub-clause on children’s duty to support should be added. |
Frail care within the community is addressed under Sections 9(1)(b) and 12 (3); and in residential facilities in Section 20
Norms and standards apply to all service providers including government.
Provision has been made for the development of norms and standard, which will, by notice in the gazette. (1) This implies that there will be consultation (2) Norms and standards must be set up for a variety of service in different settings Time frames cannot be stipulated
Subsidy formulae are not a matter for this legislation. However provision has been made for financial awards to service providers (Section 5)
This is already provided for in the Maintenance Act
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Clause 4 Conditions for use of subsidies (1)
(2)
(3) |
No agreement on register of assets or these being handed over to the Department in 7(3)© Conditions for use of subsidy should be part of the funding agreement Withdrawal of subsidy after one month is very punitive to residents |
A compromise may be the adding the following: "such assets should be made available to other subsidized services/facilities if a facility closes." Add; " Such conditions must be laid down in a funding agreement between the recipient of the subsidy and the Minister."
More graduated sanctions should be put in this clause. |
Section 5 addresses this issue and allows the Minister to set conditions. These conditions will then be outlined in the regulations. However, Sections 18 (3) is meant specifically for the non-compliance with conditions for registration or decision by operator to close a facility.
See Section 5 which rectifies this concern |
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Clause 6 Notification of certain services (1)
(2) |
Clause too narrow and provides subsidies to only two services Difference between notification and registration in respect of subsidies |
Add: "© and any other community based care or support service"
Add sub-clauses to deal with registration and subsidy applications by community services. These should be different from procedures in Clauses 5 and 7, which seem to apply to residential facilities only and are much too onerous for clubs, etc. "Accommodation" on line 11 should be removed |
See Section 5. Subsidies no longer applicable. Financing of service providers only addressed in this Section and no where else in the Bill . Approach interventionist to ensure transformation and redirection of services. Registration of community based services addressed in Section 10. |
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Clause 7 Compliance with registration conditions (3)© |
Forfeiture could be illegal. Conflicts with NPO Act. No appeal process |
Add an appeal process. See recommendation under clause 4(1) |
(lulu) |
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Clause 8 Residents’ Committees (1)
(3) |
No agreement on this clause. Those running private homes reject it. Others want clause to apply to all programmes of 10 or more people. Such committees cannot "ensure" but only be consulted and informed on the matters referred to |
Replace all references in Clause to "residents" with "consumers"
Rewrite sub-clause taking account of change from "ensure" to "consult and inform".
Add Clause 8(4) to explain how recipients of community based care and support services will be consulted. |
The management structure is in the amendment, rather than a resident’s committee.
One of the functions of the management is to establish a residents committee
Covered in 13(a) |
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Clause 9 Admission
(4)
(5) |
No consensus. Some argued state could prescribe manner in which facilities are managed, structured or financed if they do not fund. A religious organization wished to restrict admission. Can this clause apply to community-based services? Concern about the cost and delay of getting a court order for compulsory admission No appeal process
Concern at "dumping" of older persons into facilities and their children disregarding their "duty to care" |
Following changes proposed: New sub-clause: (6) The Minister may exempt a facility from the requirements of (1) and (2)
The Human Rights Commission is investigating the issue of fair and unfair discrimination with respect to admission policies Add new clause on how these provisions apply to community-based services.
Revise to read: "No person capable of consenting to his or her admission may be admitted without his or her consent, or without a court order if he or she is at risk if not admitted." Add sub-clause in which the Mental Health Review Board or another body (comprised of DSD staff and designated service provider) will review a compulsory admission after 72 hours. Add sub-clause 6: The Department has the right to sue the family of older persons admitted to facilities if they are able to but fail to contribute to the cost of care of such a person |
This is a matter for norms and standards. The position taken by the department is Clause 19.1, which refers to Section 9.3 of the Constitution. The rest of the clauses relate to consent, and are meant to protect the rights of older persons. Section 9.2 has been removed.
Community based services should be open to all and 10(2) will apply.
Consent provision has been extended (Sec. 19) to broaden the options.
N/A
There is a moral obligation on children to support parents. Whilst the Maintenance Act provides for the maintenance of parents by children, this duty cannot be assigned to the department. |
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Clause 10 Monitoring |
Not enough social workers. Emphasis on compliance with Act not enforcement of norms and standards of care. |
More attention should to be given to "person designated by DG" 10(1)(a) should read: "visit and monitor registered community based care and support services and facilities where an older person is cared for or accommodated in order to ensure that norms and standards are observed and this Act is complied with." |
Section 22 provides for this |
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Clause 11 Report to Minister |
11(2)(b) again sees subsidy as basis for control and enforcement. There is no penalty for unsubsidized facilities that fail to report. Reporting requirements impose severe strain on small organisations |
To avoid confusion, this clause should be combined with Clause 4 as both refer to reporting Sub-clauses needed on the different reporting requirement for residential and community based services A sub-clause on service level agreements, which should cover managers and consumers and should include grievance procedures. 11(2)(b) A range of sanctions should apply to different levels of contravention. |
Revised, no subsidy is referred to in this section.
Minister will determine procedures for reporting in the case of community based services Service level agreements will be entered into only in the case of financial awards, which are provided for in Section 5.
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CHAPTER THREE Protection
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Chapter written for older persons in facilities. Ordering of clauses should reflect a developmental approach and give priority to community based care and support services. |
SAHRC AEASA GAPA KMDR PCCA/PRVB SACC SACBC CPOA |
Re-ordering of clauses is proposed as follows:
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The order of this chapter is Older persons in need of care – provides for early intervention when older persons are at risk; Protection of older persons from abuse. Procedure for bringing complaints of abuse, etc (Chapter 5) |
Clause 12 Rights of older persons |
The rights of all older persons do not get enough attention in the Bill |
Add Section to Bill on Rights of Older Persons generally Add to this Clause: Right to dignity (b) this should be 2 sub-clauses: Right to receive visitors and Right to reasonable access to assistance (g) extend this to include "accommodation, medical treatment, phone calls, visits and meetings with family and resident groups" |
Rights of older person articulated in Sections 3, 8 and 15. |
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Clause 13 Prohibition of abuse |
Penalties need to be tailored to the type of abuse. Most cases don’t get to court. Older persons need to be able to testify in camera |
This clause needs to be expanded to provide a range of strategies for dealing with abuse: an Ombuds-office should handle cases of verbal and emotional abuse within the family; cases of physical abuse should be taken to court. The Dept of Justice should be involved. |
This is not the function of the ombudsperson
Section 27 (5) addresses the holding of court proceeding behind closed doors where applicable The courts can decide on the most appropriate sentences |
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Clause 14,15 Procedures for enquiries before a magistrate |
Both clauses taken almost unchanged from 1967 Act and unused: too adversarial and too reliant on social workers |
Parliament should find out from Depts of Soc Dev and Justice who not used and how shortcomings should be addressed. Clauses should provide for education and awareness raising as well as mediation and preventive measures |
Abuse is clearly defined and in any form is unacceptable. These are standard court procedures. Awareness already addressed in chapter 3. |
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Clause 16 Notification of abuse (1)
(2) |
No agreement. Some argued that police will only respond to reports of abuse if it is mandatory. Others said most older persons are competent and reporting would infringe their rights. Should be cross-referenced with Clause 18. Greater flexibility is needed. A hospital admission may not be necessary. |
Proposed amendment to read "Every registered health practitioner or any other person who attends to or comes into contact with an older persons and suspects that the older person (a) has been abused or (b) suffers from an injury related to abuse shall immediately notify the Director General or an organisation designated by the D.G. for reporting of abuse."
Add: "where appropriate" after "the DG must". 2(a) Replace "hospital" with "place of safety" |
Proposed is limiting, particularly given the broad definition of a person
Notification of abuse is over and above other procedures (Section 26) for the reporting of abuse. This clause only relate to where older persons have sustained injuries.
Provision made in the Bill "or to such other place as the DG may determine (Section 28 (2)) |
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Clause 17 Keeping a register of abuse (1)
(2) |
What is purpose of Register? What information should be recorded? Who will compile it? How long will names remain on it? Very few people are convicted of abuse.
Too narrow |
Clause must provide answers to these questions.
Register should include names of those convicted of offences against older persons even if prosecuted under other laws. Replace "facility" with "any residential facility or any community based service". Add at end "or any community based service especially home-based care service". |
The minister will prescribe the manner in which these registers must be kept, within the broad framework indicated in the Bill, as amended.
Provided under section 1 (Definitions) and section 10 (community based facilities) and chapter 4 (residential facilities) |
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Clause 18 Older person in need of care and protection(2)
(3) |
Older Persons have no voice. Too much responsibility to social workers. Inter-sectoral approach missing.
As above
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18(2) Add after: Any person, "including an older person," other than a person in Sub-section (1) who is of the opinion that an older person, "or himself or herself", is in need of care and protection may report such opinion to a social worker "or a person recognized by the Department and working under the supervision of a social worker". To read: The DG or social worker "or person recognized by the Department and working under the supervision of a social worker" to whom a report has been made must investigate the matter. |
Section 26 provides for an older person to lodge a complaint |
3. COSTING OF OLDER PERSONS BILL
Thank You.