The Portfolio Committee on Social Development held public hearings on the Older Persons Bill [B 68B-2003] on 30 to 31 August 2005. This report encapsulates those written and oral submissions made on the said Bill.

The following organisations, and individuals, made submission:

• Cape Jewish Seniors Association (CJSA)
• Ikamva Labantu
• Highlands House (The Cape Jewish Aged Home)
• Grandmothers Against Poverty and Aids
• Kerklike Maatskaplike Dienste Raad (KMDR)
• Church Council For Social Services
• Action on Elder Abuse South Africa (AEASA)
• SA Human Rights Commission
• NG Ministry of Caring
• NAWONGO
• A branch of NG Welfare, North West
• Pretoria Council for the Care of the Aged
• Alzheimer’s South Africa
• Women’s Legal Centre
• Department of Health - CT
• The Black Sash
• Joint Forum for Policy on Ageing
• RAPCAN
• Southern African Catholic Bishops Conference
• Alliance for Children’s Entitlement to Social Security
• Law Society of South Africa
• South African Council of Churches
• Media Monitoring Project
• Commission on Gender Equality
• Action on Elder Abuse SA
• South African Association of Homes for the Aged
• The Body Corporate of La Belle Vie

• Elizabeth M Xaba
• M.D.S Motshumi
• Thandiwe Joyce Mbongo
• Lucas Mangala
• Raliphi Master Push Xolelizwe
• HJJ Laubscher
• Peter Laubscher
• Mr FE Warner

• One of AEASA’s main concerns in regard to the Bill is that, like the 1967 Aged Persons Act that was aimed at protecting white older persons in residential care. It focuses on older persons in residential facilities, when the reality. It says, is that the majority of South African older persons live in communities, with their families or alone.
• The Bill does not take cognizance of older persons in rural areas, where the needs are great and services are minimal.
• While government has correctly indicated that the care of older persons should be the responsibility of their families and communities, AEASA says, the legislation does not support this.

• Parts of the current Bill are taken directly from the 1967 Act. The legislation must cover the rights of all older persons in South Africa.

Whilst the Commission lauds the objects of the Bill as far reaching, it however says the actual content of the Bill makes very little reference to many of the aforesaid objects. It dismisses the actual content of the Bill as being disproportionately focused on the regulation of institutions of care for older persons as well as mechanisms for dealing with the abuse of older persons. Whilst the CGE fully supports the principle of the Bill dealing with both these critical issues in respect of the rights of older persons, it is of the view that in addition, the Bill should make adequate provision for other equally important issues in respect of aged persons.

The CGE proposes that the Bill refer to the fact that all of the constitutional rights are applicable to all older persons but in view of the specific needs of older persons, the application of certain rights may need to be specifically adapted in order to be responsive to the specific needs of older persons. It is concerned that this Bill only stipulates the rights of older persons in facilities, which ignores the reality that the majority of older persons live in communities.

It reckons that Bill could benefit from including a specific section at the beginning of the Bill that stipulates the rights of all older persons. It further wants the Bill to acknowledge the critical importance of older persons gaining access to sufficient information in order to know their rights and be able to exercise them. It suggests that the Bill should accordingly make specific provision for empowering older persons through ensuring them access to information which is both linguistically and culturally appropriate as well as accessible to older persons.

The CGE accepts that certain rights in respect of older persons are beyond the mandate of the Department of Social Development and it is accordingly not possible to deal with them comprehensively in this Bill. However, it is of the view that in order to do justice to the rights of older persons and for the Department of Social Development to fulfil its objectives in this regard, this Bill should, at a minimum establish mechanisms/structures in order to facilitate inter-Departmental collaboration in respect of older persons.

With the exception of the reference in section 2(1) of the Bill, that the Minister of Social Development may consult with any other relevant Minister to develop programmes, and support any person who runs programmes contemplated in subsection 2. CGE argues that no further reference is made in terms of securing the rights of older persons through collaborative inter-departmental initiatives.

CGE therefore recommends the following for section 2(1) "The Minister must in consultation with any other relevant Minister-", as it expressly compels the Minister to consult. By making express reference to structures and mechanisms in order to facilitate inter-Departmental collaboration in respect of older persons, it says, the Bill will ultimately ensure that the needs and rights of older persons is reflected and infused in the wide range of legislative and policy measures of different departments, such as housing, health, education, justice and so forth.

The CGE is concerned that the Bill does not place a duty on the Minister in respect of the creation of new facilities and the maintenance of existing facilities. Section 6(2) compels the registration of a club; care or accommodation, on application can be made to the Minister in respect of a subsidy thereof. The constitutional rights of older persons impose an obligation on the Minister to create and maintain facilities for older persons. This obligation should be reflected in the Bill.

CGE contends that the Bill, in its current form reflects a disproportionate focus on institutional care. While the CGE is fully supportive of the need to regulate institutional care, it cautions against the assumption that institutional care is the primary means of support for older persons. The reality in South Africa, it says, is that many of the older persons receive family and community based care.

It says that the negative impact of the HIV/AIDS pandemic on the latter continues to increase the responsibilities of older persons. These responsibilities, it points out, include taking care of their grandchildren, and extended family members. Institutional Care, says CGE does not accommodate grandparents with young grandchildren, and other extended family members, and is therefore not an option available to these older persons, even if they wish to reside in institutional care. It only caters strictly for the single older person, CGE contends.

NAWONGO wants an Older Persons Act to be orientated to national policy. Such policy, it claims, does exist in different draft concepts, but it has not yet been finalized. The absence of such a policy, NAWONGO says, creates uncertainty amongst role players in finding a meaningful frame of reference and also interpreting some sections of the proposed statute. This is also expected to be a problem later, when the Regulations to the Act are published. The issue is furthermore complicated by the fact that the interpretation of policy is left to provincial departments and officials at area and local level, it says.

The policy as regards older persons, it suggests, should be orientated to a National Welfare Policy and a National Welfare Act. The finalization of a national policy and a corresponding statute should therefore receive the highest priority.

It requests that more social workers are appointed and special counseling services for the use of older persons. It also requests that older persons have their special clinics to address their needs and that older persons, who care for extended families be given priority in the allocation of affordable accommodation within the communities where they choose to live.

The Body Corporate alleges that the Bill appears to be directed exclusively to the requirements of institutions under the control of the Department of Social Development and thus ignores the many establishments in the country, which, provide for older and retired persons outside the control of the department. Such are established in terms of the Sectional Titles Act, Act 95 of 1986 and the Housing Development Schemes for Retired Persons, Act 65 of 1988. The latter two are said to be self-sustaining and do not call on the state for subsidies or special dispensations. They reportedly provide for their own autonomous management either out of their own internal resources or with the help of professional managing agents. They are directly exposed to financial pressures from outside and generally are constrained by the limited ability of the members and residents to meet such demands. While some such establishments may be fairly affluent, the majority is said to be less well off and are in need of protection from outside influences.

The Council sees the Bill as a welcome move away fro addressing the needs of the older person purely from an institutional point of view. While it says, it acknowledges the need to address issues of care and protection, it says, it fails to deal with the need for a change of attitude toward ageing.

Alzheimer reasons that while the government’s emphasis has been on home-based care this Bill does not focus on this at all but concentrates on institutional care which accommodates a very small percentage of all elderly people in the country. In addition, it says the very frail who require the institutional care the most in terms of the care they require, are completely excluded. It asks that this shortcoming in the Bill should be addressed as a matter of urgency.

The Forum and is worried about the impression, it says, this explanatory paragraph before the Preamble it gives to the effect that the Bill will establish a "framework". It says, 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. It contends that this may conflict with the Parliament’s responsibility set minimum standards.

The Council while it feels that the stated object of the Bill is sound, it however says, this is merely a broad outline of policy and believes that the Bill should give direction to the implementation of these objectives in practice. Instead of this, the Council argues that the Bill concentrates almost entirely on institutionalized care with only limited reference to elder abuse. As such, it contends, the Bill fails to address the need to create an enabling environment for older persons and promote their status and well being as envisaged in section 3.

Joint Forum for Policy on Ageing and South African Council For The Aged suggest the replacement of the preamble with the following:

Past injustices which older persons experienced. The sacrifices which older persons made towards the establishment of a democratic society. That the majority of older persons live in poverty, especially in rural areas and are without access to the essential support and services

Whilst the Council acknowledges that an attempt has been made to incorporate all types of services in the scope of the Bill, and therefore in the definitions section in section 1, it however believes that many of the definitions overlap to such an extent that their interpretation in other sections of the Bill becomes problematic

It is felt that not all the definitions in the Bill are adequate and represent the needs of all elderly, especially the frail elderly.

The Bill defines abuse as follows:

Abuse means a single or repeated act or lack of action that causes harm or distress to an older person, including physical, psychological, financial or material harm or neglect, or sexual harm and includes the violation of an older person’s rights enshrined in Chapter 2 of the Constitution.

While covering a wide variety of actions (or inactions), it is unclear as to what exactly is meant by terms like ‘harm’ and ‘distress’.

In order to assist in the interpretation and application of the law, Southern African Catholic Bishops’ Conference urges the committee to expand the definition of abuse.

The Women’s Legal Centre submits that whilst the definition of abuse is laudable in its aims and objectives it has not fully considered what would constitute abuse in terms of the different types of abuse and the type of harm suffered by older persons in particular. It also fails to distinguish between different perpetrators of abuse, such as domestic elder abuse, institutional elder abuse and self-neglect. Furthermore, it is preferable to define emotional abuse, physical abuse, sexual abuse and economic abuse separately, as has been done in the Domestic Violence Act (hereinafter the "DVA"), as this will also lead to a uniform legal approach to the issue. One also needs to distinguish between "harm" and "abuse" as an abuse will cause or result in harm to the older person. Neglect also has a different connotation and all these concepts have not been sufficiently separated and dealt with in terms of what constitutes abuse and what does not. An extensive definition is set out in the DVA and we suggest that this be followed and amended in order to take into account the specific context of older persons. Guidance should also be obtained from international trends in legislative reform.

In the first instance the definition of abuse should be amended so as to bring it in line with the approach followed in both South African law and other jurisdictions, so as to ensure maximum protection. It is also recommended that an expansion of the various types of abuse would be warranted in the South African Bill to as to ensure clarity and certainty. Whilst it may result in fairly lengthy definitions it would ultimately assist in implementation of the Bill.

The Women’s Legal Centre recommends that a broad definition of abuse be particularized followed by sub-definitions of the specifics as has been done in the Domestic Violence Act. The following is suggested in this regard:

Physical abuse is any act or threatened act of physical violence. The use of physical force may result in bodily injury, physical pain, emotional trauma or impairment of dignity. Physical abuse may include but is not limited to such acts of violence as striking (with or without an object), hitting, beating, pushing, shoving, shaking, slapping, kicking, pinching, and burning. In addition, the inappropriate use of drugs and physical restraints, force-feeding, and physical punishment of any kind also are examples of physical abuse.

Sexual abuse is any conduct, which humiliates, degrades or otherwise violates the sexual integrity of the older person. Sexual contact with any person incapable of giving consent is also considered sexual abuse. It includes but is not limited to unwanted touching, all types of sexual assault, such as rape, coerced nudity, and sexually explicit photographing.

Emotional, verbal or psychological abuse is a pattern of degrading or humiliating conduct towards an older person. It may include the infliction of anguish, pain, or distress through verbal or non-verbal acts. Emotional/psychological abuse includes but is not limited to verbal assaults, insults, threats, intimidation, humiliation, and harassment. In addition, treating an older person like an infant; isolating an older person from his/her family, friends, or regular activities and enforced social isolation are examples of emotional/psychological abuse of older persons.

Economic abuse includes the financial or material exploitation of an older person, the unreasonable deprivation of economic or financial resources to which an older person is entitled, or the illegal or improper use of an older person’s funds, property, or assets. Examples include but are not limited to cashing an elderly person's cheques without authorization/permission; forging an older person's signature; misusing or stealing an older person's money or possessions; coercing or deceiving an older person into signing any document (e.g. contracts or will); and the improper use of guardianship, or power of attorney.

Neglect means the refusal or failure to provide an older person with such life necessities as food, water, clothing, shelter, personal hygiene, medicine, comfort, personal safety, and other essentials included in an implied or agreed-upon responsibility to the older person.

Abandonment is defined as the desertion of an elderly person by an individual who has assumed responsibility for providing care for an elder, or by a person with physical custody of an elder.

Self-neglect is characterized as the behaviour of an older person that threatens his/her own health or safety. Self-neglect generally manifests in an older person as a refusal or failure to provide himself/herself with adequate food, water, clothing, shelter, personal hygiene, medication (when indicated) and safety precautions. The definition of self-neglect excludes a situation in which a mentally competent older person, who understands the consequences of his/her decisions, makes a conscious and voluntary decision to engage in acts that threaten his/her health or safety as a matter of personal choice.

By expanding upon the definition in the aforegoing manner, one would also be bringing the Act in line with the definition of "care" as contained in the Bill since this definition clearly envisages a broader, more holistic approach in that " care’’ is defined to mean "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." It further brings the Bill in line with the Domestic Violence legislation currently in place in the country and the proposed Sexual Offences and Children’s Bill in terms of abuse and violence as against vulnerable groups.

The Action on Elder Abuse SA contends that although this definition has been improved on by the NCOP, it still needs further improvement. It therefore suggests the term "elder abuse" be defined as follows:" Elder abuse means a single or repeated act or lack of action that causes harm or distress to an older person occurring within a relationship where there is an expectation of trust, including physical, psychological, financial or material harm or neglect, sexual harm and includes the violation of a person’s rights as enshrined in Chapter 2 of the Constitution".

This will distinguish elder abuse from other crimes, AEASA reckons.

The Joint Forum for Policy on Ageing notes the improvement in the definition of abuse by the NCOP but feels that it is now too wide.

It wants the current definition limited by adding the following words between "person" and "including" on line 27: "occurring within any relationship where there is an expectation of trust". It considers this necessary in order to distinguish abuse from other crimes.

The Council thinks the definition of abuse has been improved by the NCOP but it is now too wide. To limit it, the Council proposes an addition of the following words between "person" and "including" on line 27: "occurring within any relationship where there is an expectation of trust". It considers this necessary in order to distinguish abuse from other crimes.

The Commission is of the view that the current definition is too broad and refers to all the rights contained in the Bill of Rights.

The Commission suggests that the words: "… and includes the violation of an older person’s rights enshrined in Chapter 2 of the Constitution…" that appear in the current definition be removed. And the following words " …occurring within any relationship where there is an expectation of trust."

Commission’s proposed amended 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 or neglect,."

Alzheimer suggests the following definition of abuse " a single or repeated act or lack of action that causes harm or distress to an older person occurring with any relationship where there is an expectation of trust, including physical, psychological, financial or material harm or neglect, or sexual harm and includes the violation of an older person’s rights enshrined in Chapter 2 of the Constitution".

Submitted by South African Human Rights Commission

The Commission raises a concern about the training that home based carers receive and the standard thereof. It expresses doubt on whether the carers were trained in all he necessary skills.

The Commission suggests an amendment of the definition of "care giver" by including the word "trained". It would also like to see the Minister making regulations regarding caregivers. It wants caregivers to be registered with the Department in order to ensure that there is a minimum level of service and also to check if their names appear on the register.

The Action on Elder Abuse SA holds the view that currently trend is moving towards including services for older persons in multi-purpose facilities or centres and the definition therefore needs to include this.

"Within the Bill "facility" refers mainly to old age homes; service recipients are not necessarily residents of old age homes".

Although it acknowledges the expansion of the definition of "facility" effected by the NCOP to cover private residential homes, the Forum still contends that some confusion remains over this definition and how it relates to that of "community based care and support services."

Nawongo reasons that the definition of "facility", read with section 5(1)(a), is still confusing and vague.

Alzheimer says that "facilities" only includes residential facilities and residential homes where elderly people pay to stay, but does not include residential family homes, informal shelters or other facilities where elderly people may reside. It therefore suggests that there should be a separate definition for the primary or family home.

3.4 Defining "Financial Abuse"

Eskom Pension Association feels that this should be specifically defined, particularly due to fraud, misrepresentation, taking advantage of older persons living with cognitive and neurological disabilities, unlawful commission deductions for willingness to convert a pension cheques to cash, and misappropriation of pension payments and social grants.

Recommends the re-inclusion of a definition for "frail care".

The Action on Elder Abuse South Africa says this definition was removed by the NCOP and wants it reinstated as, it says, frail care is the final stage in a continuum of care for older persons.

This definition was deleted by the NCOP, as were all references to "frail" older persons in the Bill. However, in line with the community care approach, the Council would like to see the definition and references to "frail" with respect to residential care restored to the Bill.

This is another example of a definition that the Action on Elder SA says was removed from the Bill and advances for its reinstatement on the basis that a frail older person, whether mentally or physically frail, has specific needs, which in turn require special skills and staff ratios.

The Action on Elder Abuse suggests the following definition:

"A frail older person means a person, 60 years and older, whose physical or mental condition renders him or her in need of 24 hour continuous care."

The Directorate contends that although "frail" does not only refer to older persons, in this bill, it should however refer to an older person. It says it is important to mention "frail person" specifically in the Older Person’s Bill as it has implications for the type of care, and resources needed e.g. equipment, adequately trained human resources, medication, rehabilitation etc.

The Directorate suggests that since the object of the Bill is the protection and the promotion of their safety, well-being and security etc, the term "frail person" as vulnerable and in need of care should be added in the definitions.

If the definition is not replaced, the Directorate threatens that, the need for frail persons to receive 24-hour continuous care might not be met and inadequate support could be supplied.

The Forum recommends that in line with the community care approach and the vulnerability of the frail. The reinclusion and restoration in the Bill of the definition and references to "frail" with respect to residential care. It suggests that the definition should read: "frail person means an older person whose physical or mental condition renders him or her in need of 24-hour continuous care."

The Forum urges the Portfolio Committee to consider at the situation of younger frail persons, numbers of whom are currently being cared for in residential homes. What are the implications for them of excluding them from this definition?

The Commission strongly argues for the reinclusion of the word "frail person" into the Bill based on the following grounds:

• Frail persons are your most vulnerable older persons. They need specific recognition.
• Frail persons have very specific needs, which are different from older persons who are not frail.
• Highly skilled and trained staff are needed for frail care. The ratio of residents to staff is far higher.
• Frail care represents the end of the spectrum of the continuum of care, Just as all other forms of care ought to be mentioned in the Bill, so too must frail care.
• If frail care is not mentioned in the Bill then what will the Department connect its Frail Care policy to?
• Old age homes are increasingly becoming frail care homes

Alzheimer strongly feels that the definition of the frail person, which was previously removed by the NCOP, should be reinstated.

It is suggested that the definition of frail person could be defined as:

The Forum proposes the following definition replace the one in the Bill: "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" (Draft Frail Care Policy - World Health Organization).

The Commission is concerned that the definition excludes caregivers who are the spouse or family member of an older persons.

It suggests that a serious consideration and debate on whether home-based care should exclude family members. It says it may well be in the interests of the state in instances where people are not economically advantaged to provide some assistance in order that the older person remains with the family. By failing to assist the family, the Commission says the state may well be placed in a situation where older persons are presented for care at old age homes

The Commission would like to see the word "luncheon" from the term ‘luncheon club’ removed and a new definition for ‘club’ created with the following key elements:

• It is a service which promotes the quality of life and general well being of an older person i.e. it is a form of care
• It promotes and maintains the independent functioning of older persons in a community – from definition of community-based care and support services

3.9. Defining "maintenance"

The Association reckons that this should be specifically defined to make a legislative linkage with the relevant maintenance legislation and to express the legal obligation of spouses, brothers and sisters, children and grandchildren of paying maintenance to an older person who legally proves a need for financial support.

The Action on Elder Abuse would like the definition of an older person to be "any person, male or female, who is sixty years of age or older". The age variation, AEASA claims, is not only discriminatory but contends also would have a negative impact on accessibility to services for older men, the mandatory reporting of elder abuse and the admission to a care facility. It objects to the notion that this place an extra financial burden on the Department of Social Development saying that many men in the 60 to 65 year old age group who are frail, are already in receipt of or would qualify for a Disability Grant.

The Black Sash is of the opinion that the definition of Older Persons in terms of this Bill differentiates between males and females between the ages 60 and 64years. This, it says, amounts to discrimination as the females enjoy legislative protection in terms of access to care facilities, protection against abuse and benefits from programmes, which males of the same age do not enjoy. This form of discrimination is presumed to be unfair in terms of section.9 (3) unless it can be established to be fair, it reckons.

Furthermore, Black Sash believes because of age differential that this Bill will make the Act impractical to implement and open the potential for litigation against the Department, the cost of which, it says, can be prevented and used to provide social security to older people.

It recommends that an Older Person in the Bill is defined as persons of the age 60 years and older.

The Forum considers 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, contends the Forum.

The Women’s Legal Centre is of the opinion that, whilst in some cases it may be justifiable to differentiate between male and females and not treat different sexes the same, in the current context and in view of the purpose of this Act, as a protective measure, there is no reasonable and justifiable rationale for the differentiation, which in effect amounts to discrimination. Accordingly, it submits that an older person should not be defined so as to differentiate between men and women over the age of 60.

The rationale and basis for this Bill, it says, is one of protection and accordingly it would not be acceptable to increase the age to 65 for both men and women as this will be to the detriment of women and men and will not be in line with international trends and the South African Constitutional standard in terms of allowing the maximum protection available. .

The Council does not consider appropriate to apply different ages for men and women, particularly with respect to treatment and access to facilities. Consideration needs also to be given to the effect of the present definition on facilities and services that are provided to a range of people, for example people with disabilities, who are frail but are not old. Many institutions who provide for such people depend on subsidies, and the effect of this definition could be prejudicial to them.

The Commission holds the strong view that older persons should be defined as persons older than 60 years and that there should be no age differential between women and men. It feels that the present age differential between men and women is not only discriminatory but will also make the Act quite impractical to implement. It also warns that by keeping the age differential in the Bill, the Department of Social Development is potentially opening itself up to a plethora of litigation in that older persons across the country could challenge the actions of the Department in all its dealings with older persons where the age differential has an impact.

The Commission suggests the removal of the age differential from the Older Persons Bill. It supports the notion that an older person is a person who is over the age of 60 years.

Alzheimer feels that it is discriminatory to define the ages of men and women differently and suggests that the Bill define all older persons as those over the age of 60. Basic care

The Association feels that this should be specifically defined to be able to highlight oppression, discrimination and abuse based on cognitive and neurological as well as physical disability, since older person living with these disabilities are the most vulnerable; that these should be dealt with under the Criminal Procedures Act, the Equality Act and to make a legislative linkage with the Mental Health Care Act, No 17 of 2002.

The Commission thinks the usages of these two definitions in the Bill appear confused. Furthermore it does not think it is legally tenable to give these duties to an employee (the manager) of an owner of a business (the operator). It argues that the responsibility needs to rest with the person who is ultimately in charge of the facility. It is open to the possibility that the operator may delegate the responsibilities, however it says, it must ultimately remain the responsibility of the operator to ensure that the statutory obligations created in the Bill are carried out.

It strongly argues that the Bill is creating a potential conflict of interest for managers. For example, what must the manger do if the operator fails to provide the manager with the necessary resources or equipment in order to carry out the statutory obligations? More concerning is Clause 8 - how will a resident’s committee ensure that a manager will carry out the duties contained therein. Surely, it is for the resident’s committee to consult with the operator on these matters. Finally, the operator must provide the reasons for a failure to admit an older person to a facility. If, for example, the reasons amount to a violation of Clause 9(1), then this could attract criminal responsibility, says the Commission. The Commission thinks the legal duty to provide these reasons ought to rest with the operator of the facility, as it is the operator who should take ultimate responsibility for managers and the decisions that they may take regarding admissions to the facility.

The Commission suggests that the word "manager" should be removed from the Bill and be replaced with the word "operator". It wants all references to manager, except the reference in clause 22, be replaced with the word operator. It suggests that the definition of manager be removed and Clause 22 (4) be reworded by stating that any manager, as defined in the Aged Persons Act 1967,

Alternatively, it wants the definition of manager to be replaced with a definition that makes reference to the definition of manager contained in the 1967 Aged Persons Act.

The Council thinks the term "operator" is not legally tenable as it does not necessarily cover owners.

The Ministry does not see the difference between "operator" and "manager" and therefore suggests that the word "operator" be left out.

Submitted by Alzheimer’s South Africa

Alzheimer feels that the previous term of "manager" is more acceptable than the term "operator"..

The Forum reckons that this definition should be more holistic as it needs to cover other parties including Section 21 companies.

The definition of "person" is incomplete and insignificant. The use of the concept "operator" causes more confusion.

The Council wants to see this definition more holistic and covering other parties including Section 21 companies

It suggests that it should mean a person providing health services in terms of any law and who is registered with their professional association or legislative body.

Submitted by Action on Elder Abuse South Africa

The Action on Elder Abuse SA says this definition must include "safe beds. These, AEASA says, could be in residential facilities or within the community e.g. in rural areas.

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

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

Alzheimer says shelters are defined in the Bill but are not included in the Bill.

The Forum and Council propose the insertion of the following definitions in the Bill:

To be defined as "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"

To be defined as "Basic care covers personal hygiene, adequate clothing and footwear, nutrition, toilet needs, mobility aids, rest and sleep and social and recreational needs."

To be defined as "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)

AEASA requests the following definitions to be included in the Bill:

"assisted living": "Assisted living is the provision of affordable, appropriate and secure accommodation that would enable older persons to remain independent and live in their communities within an environment that would provide access to support services".

"day care": "Day care for older persons is a service provided within a residential facility or service center which provides social, recreational and health related activities in a protective setting to older persons unable to be left alone during the day due to their social or health needs".

"home based care": "Home based care is the provision of health and personal care services rendered by formal and informal caregivers in the home in order to promote, restore and maintain an older person’s maximum level of comfort, function and health including care towards a dignified death.

Alzheimer suggests the inclusion of the following new definitions:

This covers personal hygiene, adequate clothing and footwear, nutrition, toilet needs, mobility aids, rest and sleep and social and recreational needs. Access to primary medical and psychiatric care should be included.

This is the provision of health and personal care services rendered by formal and informal caregivers in the home in order to promote, restore and maintain a person’s optimum level of comfort, functionality and health, and enhance their quality of life and care.

Is a service within a residential home or service centre, which provides social, nutritional, recreational and health related activities in a protective setting to individuals who cannot be left alone during the day because of their health care or social needs.

The Forum and Council would like to see this chapter titled Older Persons and Development; since it considers the purpose of the Bill as not to develop older persons as a separate group but to involve and integrate them in development generally.

In line with the Madrid Plan, which speaks of Older Persons and Development as opposed to the development of older persons, the Commission suggests that the title of the chapter should be amended to Programmes for older persons and development. It argues that the title as currently worded implies that older persons themselves need development and views as paternalistic.

Submitted by South African Council of Churches

The Council, like the SA Catholic Bishops Conference, is of the view that the heading and contents of Chapter 1 are vague in their intention and arbitrary in their commitment. It further feels that older persons be not viewed as just subject to programmes and process but that the older person ought to be able to shape these programmes and processes. In order to give substance to the aims and objects of the memorandum, the Council suggests that the title be renamed "Programmes for development and the older person".

It is strongly suggested that the title of this chapter should be changed to read: "Programme Development for Older Persons"

AEASA suggests this chapter should read "Older Persons and Development" and should seek to integrate older persons into the community and development rather than to segregate them from the other age groups.

It further suggests that the word "may" should be replaced by "must" and "consultation" by "form partnerships". Without intersectoral co-operation this chapter and indeed the entire piece of legislation, will be impossible to implement.

In section 2. (b) AEASA suggests that the meaning of "support" should be defined – as it stands it is too vague and would have a direct bearing on implementation.

In section 2. (2) AEASA reckons that the programmes as they stand in the Bill are little more than a wish list and merely pay lip service to the implementation of the Madrid Plan of Action.

AEASA suggests that an omission in the list of programmes is one that will address and prevent elder abuse, support and encourage older persons to stand up for their rights. This programme, it says, should target not only older persons but their families and caregivers as well.

The national forum for older persons, which has been initiated by the Human Rights Commission and the Department of Social Development, AEASA suggests that it be included in the Bill as a programme. The inclusion of this forum as a programme, AEASA reasons, would also insure that the Minister consults not only with stakeholders but, most importantly, with older persons themselves.

AEASA finally proposes that the needs of older persons in rural areas be researched and programmes developed accordingly.

Black Sash urges the Department to include a programme/s under section .2 related to the impact of HIV/AIDS on Older Persons infected and affected by HIV/AIDS. The focus being the provision of information, social support and formal care for Older Persons who are infected with HIV/AIDS or care givers.

Referring to sub-section .2(2)(f)) of the Bill, Black Sash registers its strong opposition to deductions of any nature at any point in the payment of grants by the State or the intended South African Social Security Agency. In the event of non-consideration of its objection to the above position on deductions Black Sash would like to recommend that such allowable deductions by the Minister should not exceed 10% of the grant amount for burial schemes and this should be stated in the Regulation concerned.

The Council says the list of programmes in section 2 cannot be regarded as sufficient.. As such, it says, the list is not sufficiently comprehensive, nor is it clear as to by whom or how they will be implemented and/or funded. The contents of the Bill, it holds, only address a limited number of the programmes

The Association suggests the following additions:

• "part of UN directive to create a data base" in section 2 (k) .
• "Seniors should no longer have forced retirement at 60 or 65 years of age" in section 2 (l) and also to include –" seniors should be allowed employment to subsidize their pension without being penalized."

The Forum proposes "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 Forum wants the Bill to 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:

• Promotion and Protection of the Rights of Older Persons
• Integrated Community based and outreach programmes
• Residential Care
• Departmental Administration (including research and monitoring)

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

The Forum therefore suggests that the programs in this section be listed in order of importance and that priority be given to (a) (e) (h) and (j) .

It also suggests the following proposals on programmes in this Chapter (with amendments underlined):

• "public education on ageing, the rights of older persons and their social, cultural, economic and political contribution" The Forum proposes 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"
• "access of older persons to information, education and training, especially in rural areas". This program, the Forum thinks, needs to be spelt out – as it may be covered by other programs

• "The protection of older persons and the education of carers and communities on their rights and needs." The Forum is of the view that the issue of control of companies selling funeral policies and loans is a burning issue for older persons, hence this programme.

The Forum reckons that, currently the distribution of existing facilities is very skewed. It feels that transforming them is not enough. It therefore suggests that new day care and residential frail care facilities be provided. The Forum does not consider the multi-purpose centres referred to in the Bill as an adequate option. It argues strongly that frail older persons are vulnerable and therefore need their own space.

The Forum further suggests assisted living housing for older persons (some frail) caring for orphans.

Submitted by South African Council of Churches

The Council says that notwithstanding the fact that the Department of Social Development met with various governmental and societal stakeholders and that such provided valuable information, the Bill still needs to reflect such participation further and later down the line. Such an approach, it says, would require the Minister to adopt an intentional plan with strategies to be spelt out enhancing the capacity and participation of the older person to address the vision of an inclusive society as envisaged by our constitution. It says it also suggests that action on ageing needs to be come mainstreamed into all the work of other Departments so that the process of developing a society that seeks to care for and protect its citizens is the responsibility of government and every citizen. It goes on to say that such a plan of action would then of necessity be worked out with all stakeholders such as government, civil society, not for profit organizations, faith based organizations and communities as well as with traditional leaders.

The Council therefore recommends that section 2 (1) read: ‘The Minister shall, in consultation with other relevant Ministers and representatives of older persons from various sectors of civil society establish a National Forum for Older Persons for the implementation of action on ageing". The Council says such a Forum may add to and or amend the fifteen programmes identified under section 2 (2) (a-o) in the Bill, while giving consideration to an appropriate inter-sectoral mechanism or National Policy Framework

Referring to section 2 (2) (j), the Directorate suggests that the Bill should particularly address the development of policies and the implementation of those policies to prevent ill health among older persons. In particular, it says, the provision of infra structure to prevent the priority chronic diseases that are costly to manage and lead to increase in the burden of disease.

The Directorate further advances for necessary resources in terms of human resources, funding, equipment, training as well as the monitoring and evaluation structures.

The Directorate further suggests that programmes should:

• make provision for the development of self-help support and provide respite for patients, families and other carers.
• Promote public information about the symptoms treatment, consequences and prognosis of mental conditions.

Provide ongoing training to health care professionals in the detection and assessment of all mental disorders and of depression. The Directorate suggests that the provision of assistive devices including spectacles / and operations for the removal of cataracts for the prevention of blindness and dependency should be addressed according to Prevention of Blindness Strategy of the WHO. It is opposed to any form of discrimination practiced where older persons are concerned.

The Directorate suggests that the Bill should make provision for occupational health programmes for older persons.

It requests that programmes that promote intergenerational understanding and mutual respect be put in place.

It suggests that programmes:

• must be geared towards the development and enhancement of income-generating activities.
• need to include health promotion and prevention programmes, social and emotional support due to the impact of HIV/AIDS, orphans, unemployment, increased poverty and irresponsible behavior of individuals within the household.
• need to focus on the development of and sustainability of day-care centers for seniors.

In section 2 (b) – The Ministry says the participation of older persons in decision-making process should be at appropriate levels and taking account only people who are corpus mentis.

In section 2 © - The Ministry wants the word "training" to be specified as "health related training"

In section 2 (n) – The Ministry does think the reported exemption cannot be done without a means test.

The Commission is concerned that the Bill does not provide for a central coordinating mechanism that would be responsible for overseeing and monitoring the implementation of this chapter. It fears that without such a body, the matters listed in sub-section 2(2) would not receive the necessary and prompt attention.

The fact that, should further programmes be identified in years to come, this would require amendments to the Act, also concerns the Commission. It therefore suggests that wording be added to the Bill that would allow the Minister to identify further programmes that may not at this stage be listed in sub-section 2(2).

It suggests that "may" in sub-section 2(1) should read "must".

Referring to sub-section 2(2)(a) suggests that this programme should also refer to the religious contribution of older persons.

Referring to sub-section 2(2)(c) on the access of older persons to information, education and training, the Commission is calling for the ABET programmes to reflect the realities of older persons lives and for these programmes to be designed in a manner that would equip them with practical knowledge.

It further suggests that an intergenerational aspect be added to this programme as it believes that It is not only older persons who need information. It says their carers and family members also do.

On sub-section 2(2)(d), the Commission thinks that this programme was very broad and is suggesting that it be zoomed down to development and Older persons with a specific reference to the improvement of living conditions and infrastructure in rural areas; the alleviation of the marginalisation of older persons in rural areas; and the integration of older migrants within their new communities.

Regarding sub-section 2(2)(e) the Commission claims that this programme does not specifically reflect any of the Recommendations of the Madrid Plan. It is however pleased with its inclusion of this programme and regards it as important.

Referring to sub-section 2(2)(f) of the Bill, on the programme establishing norms and standards for companies selling funeral policies and extending loans to older persons, the Commission hails the specificity of this programme. It says the programme is justified and clearly needed in South Africa given the widespread reports of older persons being taken advantage of by some people who sell funeral policies and make loans.

The Commission suggests, based on what it terms the enormity of the problem and the concern, which people have on funeral policies and loans that there should be a programme concerning funeral policies and a separate programme concerning loans. Furthermore, it wants the programme to be reworded in order that the clause does not only refer to companies but to individuals.

In respect of the programme mentioned in sub-section 2(2)(g), the Commission welcomes it as specific and addresses the needs of South Africa.

The Commission argues the programme should not only focus on existing facilities but should also include the establishment of new facilities. This argument is based on the fact many existing facilities, particularly the ones that were built during Apartheid are based within white communities and are not located close to black communities. And also the fact that there are not many facilities in the rural areas, particularly the deep rural areas.

In relation to sub-section 2(2)(h), the commission welcomes the programme. It suggests it be expanded and made to address homelessness amongst older persons.

In sub-sections 2 (2) (i) and 2 (2)(j), the Commission is uncertain as to the potential scope of these programmes. Regarding health systems, participants stated that government should continuously seek to expand health services to the elderly. The Commission suggests the programme on health systems should also look into the provision of special discount health services.

In sub-section 2(2)(l), the Commission suggests that employment opportunities for older persons must be appropriate for the older person needs and abilities, in terms of age.

In sub-section 2(2)(o) the Commission welcomes the programme. It however suggests that public transport for the elderly should be free and subsidized. The commission further suggests that this programme should also look at safe transport. It also wants accessible transport to be interpreted broadly to include, among other things the inaccessibility of some busses and trains due to large steps, gaps and bus drivers pulling off before the elderly have sat down.

The Commission also wants bus drivers who transport dementia patients sometimes to be made aware and counseled in order that they are comfortable with their passengers and understand their behavior.

The commission the following additional programmes to section 2(2):

• Older persons forum

• Programme on HIV/AIDS and its impact on the elderly.

• Programme on education and awareness on elder abuse

• Programmes to address homelessness.

• A programme that includes traditional leaders in matters concerning the elderly.

• Adult Basic Education (ABET) programmes

• Programmes that address intergenerational solidarity

• Programmes on eradication of poverty.

• Programmes that address dementia and Alzheimer’s, both in terms of education and awareness but also in terms of services to sufferers and their families and careers.

• More programmes to ensure an enabling and supportive environment for older persons.

The Conference reasons that in order for the value and contribution of older people to be fully realised, it is important to integrate them into the life of the community. This means, it says, that it is necessary to create and maintain a variety of programmes to encourage this integration.

Section 2 (1) of the Bill states that ‘the Minister may … develop programmes’ and deals with the discretion that the Minister has in developing and supporting programmes for older people. As the Bill stands, the Southern African Catholic Bishops’ Conference says, these programmes are left to the discretion of the Minister, without creating mechanisms to ensure and assess compliance. It urges the Committee to consider making the development of such programmes mandatory with the necessary mechanisms created to achieve results.

In order to maximise the success of listed programmes in this section, the Southern African Catholic Bishops’ Conference suggests that the Minister be mandated to consult not only with other ministers, but with the many NGOs and CBOs that are active in this field.

Commenting on section 2. (e), (g) & (h) & (j), Mr van Vuuren says physically disabled adult persons (not necessarily older persons) were previously included in the category older persons, in providing accommodation, care, and so forth. He asks if they will now be excluded and wonders what will happen to the physically disabled adult persons currently residing in Care Facilities for older persons?

Mr van Vuuren proposes that the entire Bill for Older Persons should be revised to state clearly how to deal with adult physically disabled persons in facilities for older persons.

RAPCAN would like to see government of South Africa acknowledging the tremendous sacrifices that, it says, so many older people are making to keep their families together and to raise this country’s future generations in the face of the HIV/AIDS epidemic. To ensure that these older caregivers are successful and that the children in their care have access to essential services as well as the opportunity to develop fully, healthily and happily, RAPCAN says programmes must be implemented with that in mind. As such, it recommends that the following additions be made to Clause 2(2):

• the provision of subsidies and or other financial assistance to older persons caring for orphans; and
• the development and provision of support networks and opportunities to older persons caring for orphans to help them cope with their new and unique parenting roles.

Additionally, while RAPCAN applauds the inclusion of Section 2(2)(j) with respect to access to health care and support, it feels that it is necessary to include programmes to deal specifically with the HIV/AIDS crisis. Therefore, it recommends that the following objectives outlined in the Madrid International Plan of Action on Ageing be taken into consideration:

• improvement in the assessment of the impact of HIV/AIDS on the health of older persons, both for those who are infected and those who are caregivers for infected and surviving family members; and
• enhancement and recognition of the contribution of older persons to development in their role as caregivers for children with chronic diseases, including HIV/AIDS, and as surrogate parents.

It further recommends the establishment of an intersectoral mechanism to coordinate and oversee the implementation of the programmes described above. RAPCAN also wants the Minister be granted greater flexibility in the identification and development of programmes currently not listed in the Bill. Such coordination and flexibility, it believes, will enhance to the best extent possible the ability of older persons to care for orphans and, as a result, will give these vulnerable children the best opportunity to grow and develop into happy, healthy adults.

The Association is of the opinion that the retirement funds industry is set up inter alia to provide for the payment of pensions to persons who retired from retirement funds who had made contributions to the funds they were members of while in employment.

It believes that funds within the retirement funds industry could (subject to the Pension Funds Act and the fiduciary obligations of trustees in relation to investment decisions) be a possible source of development and investment funds for the types of programmes that section 2(b) contemplates.

The stakeholders to this Bill include retirement fund trustees, since they and pensioner associations (such as ours) are committed to promoting the interests of pensioners, who are also older persons.

In section 2(b) the Association believes that the programmes referred to should refer specifically to programmes that can be invested in by the:

• trustees of retirement funds registered under the Pension Funds Act, who by law must promote the interests of pensioners who obviously fall under the definition of "older person" in the Bill;
• employers who are participants in these retirement funds.

The programmes that they could invest in, the Association wants them to be mentioned in the Act and suggests the following:

• housing schemes for older persons;
• skills development and training initiatives for "community-based care and support services" and "care" and management and financial administration of a "facility";
• skills development and training for self-help groups made up of older persons, to develop income-generating initiatives

Mr Laubscher says the elderly disabled find it very expensive to travel and sometimes the cost of visiting a local health facility can be intolerable and proposes the following solutions:

• Reduced fares outside of peak hours on Metrorail and buses
• Designated compartments for the elderly/ vulnerable on Metrorail [this is practised in Asia]
• Taxis be required to offer discounted rates to the elderly disabled outside of peak hours

The Council proposes that "consultation" be replaced by joint mechanisms or partnerships, with Social Development as the lead Department. It also suggests that the nature of "support" be defined – as it stands it could not be costed.

The Council wants the Bill to give more direction and substance to the programmes. The more precisely a service is described the more likely it is to be implemented, it says. The Council suggests that the programs in this section be listed in order of importance and that priority be given to (a) (e) (h) and (j).

It also suggests the following proposals on programmes in this Chapter (with amendments underlined):

• "public education on ageing, the rights of older persons and their social, cultural, economic and political contribution" The Forum proposes 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"
• "access of older persons to information, education and training, especially in rural areas". This program, the Forum thinks, needs to be spelt out – as it may be covered by other programs

• "The protection of older persons and the education of carers and communities on their rights and needs." The Forum is of the view that the issue of control of companies selling funeral policies and loans is a burning issue for older persons, hence this programme.

Alzheimer suggests that the following programmes should be included in this section:

(p) The training of health care professionals to deal with the specific problems or complexities associated with dealing with the elderly.

(q) The establishment of a National Forum on Older People

® The needs of carers need to be addressed to support them in their work.

The Council believes that one way in which the Bill may be strengthened in order to promote an enabling and supportive environment might be to recognise the need for a continuum of care services for the older person including primary care, family and community based care, professional and rehabilitation, long term and palliative care. The Council therefore reckons that the Bill could be considerably strengthened if it included the following:

• A community plan to conduct a needs assessment for planning locally based care and health services that involves the participation of the older person; and
• Regulatory mechanisms for such community and family based services as a continuum of care. Consultation with the Department of Health on this plan is essential, as with other programmes, that care for the older person needs to be mainstreamed into every relevant facet of government.

In this chapter, AEASA reckons that the Bill needs to focus primarily on community living where the majority of older persons live, rather than solely on residential facilities. Older persons, it says, need a continuum of care that can be outlined in three stages: independent living, assistance with daily living and finally frail care. This continuum of care can be provided in the community, including frail care, where possible.

AEASA suggests that the Bill focus on community based care as well as residential care. Many older persons, it says, are exploited due to a shortage of appropriate, affordable accommodation. It wants accommodation options explored where older persons can be accommodated in safety with their grandchildren where applicable.

National norms and standards for all residential facilities are imperative and all facilities should be subsidized on the cost of providing basic care. The registration and regular monitoring and evaluation of residential facilities by the Department of Social Development in conjunction with the Department of Health is vital to prevent and address elder abuse. It is of the utmost importance that this be included in the legislation. Facilities run by the State should be compliant with all legislation and not be exempted.

Service level agreements should be between the older persons as consumers of a service and the service providers, not between the consumers and the residents’ committees in facilities.

Referring to Section 3. (1) - (2), Mr Van Vuuren explains that according to the Older Persons Bill under discussion, facilities and services are subsidised by a provincial legislature for the benefit and caring of older persons. He then raises his institution’s concern in relation to the adult physically disabled persons already in residence in subsidized care facilities for older persons and wants to know whether this will constitute a contravention of the Bill?

The Forum urges 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. It wants the level of subsidy to be based on the cost of basic care, taking account of various cost drivers.

In this section of the Bill norms and standards (Section 3(2)) are mentioned. Problems that are currently being experienced are:

• Conflicting standards set by the Department of Social Development and Department of Health.
• Medico-legal risks
• Astute standards and maintenance thereof in facilities, while private home care does not have meet the same standard.

NAWONGO wants to highlight the following as problems that it says are currently being experienced:

• In the Bill the capacity of older persons to act (or the loss thereof) is not dealt with.
• Also lacking are more comprehensive guidelines for the management of facilities.

The protection of the interests of both older persons and management in facilities, it argues, will be promoted by the availability of Codes and Procedures.

As in the case of the Labour Relations Act, NAWONGO suggests that perceived gaps in the Bill be filled with codes of good practice (as addenda to the Act). The codes could possibly deal with the following areas:

• Grievances and discipline in facilities
• Admissions and contracts with residents
• Management of facilities
• Transformation

As a way of alternative, NAWONGO says, the above could be set as prerequisites for registration.

The Council says that one of the main concerns in welfare is the current narrow and restrictive funding criteria, which are appropriated to fields of service. The modern approach, it goes on to say, is to encourage service providers to follow a multi-purpose approach and example, provide frail care to older persons, children with terminal diseases or every conceivable person in a terminal state of sickness or requiring frail care. Contrary to the modern approach, the Council then contends that the proposed bill entrenches the narrow view of compartmentalizing the funding of service provisions.

It urges that the, Bill should not perpetuate the narrow formulation of the provision of social services for the older persons only. The Bill, the Council reasons, should prescribe the principles for the protection of the older person including criteria such a good governance, standards of care and generally the protection of older persons as underscored by the constitution, whether such services are funded by government or not, incorporating the principles annunciated in papers such as the Madrid Declaration, which was adopted by the Minister at the International Conference on Ageing in 2002.

The Council therefore, suggests that the reference to funding and the intended controls stipulated in the bill and reference to same in the proposed regulations should be omitted and instead, incorporated in a separate legislation dealing with the entire spectrum of funding for social services across the board. One alternative, it says, is to expand the current Social Assistance Act to incorporate funding for services for the full spectrum of social services.

If all issues regarding funding are removed from the Bill, the Council contends that the intended benefits articulated for the protection of the older persons will become more apparent.

The Council is of the view that services to older persons are also governed by other legislations. It maintains that this Bill, in its current form does not acknowledge these links and in many instances is in conflict with other such legislations. For example, it says, the Housing Development Schemes for Retired Persons Act 65 of 1988 regulates and controls retirement housing for persons over 55 years of age and as such prescribes requirements in this regard which are different to those contained in this Bill

The Commission welcomes this section. It is however uncertain about the content of the norms and standards, which, it says, are relegated to Regulations (Clause 21), which the Minister will draft after the passing of the Bill.

It also registers a concern that the Bill does not provide any time lines for the drafting of these norms and standards. It proposes that such a timeline should be included in the Bill. he clause demonstrates the drafters, possibly unintentional,

It says the title of this section and its wording refer throughout to ‘facilities and services’ and suggests that a more developmental approach would refer first to services and then to facilities. This, it says, would reflect the continuum of care, which older persons should have at their disposal.

It asks for norms and standards to be developed for home-based carers. It also wants home based care to be more formalized and home-based carers be paid some form of stipend by the State and that it should not be expected that these services be delivered for free.

The Commission suggests that a further section must be inserted providing that the Regulations for Norms and Standards must be drafted within one year of the coming into operation of the Act. It also wants the phrase ‘facilities and services’ be changed to ‘services and facilities’ throughout the Bill.

The Council urges the Portfolio Committee to give consideration to the following:

• How can national norms and standards be applied over all provinces, given the disparities in resources? This was a major concern in the NCOP.
• Will norms and standards be established in consultation with stakeholders?
• Can facilities be compelled to meet national norms and standards where the State subsidies only cover a part of their costs?

Alzheimer recommends that the norms and standards should also be made after consultation with other stakeholders, especially including those of older people. It wonders how prescriptive the Minister can be with the decreasing subsidies paid to homes that only cover a small percentage of the facilities costs.

The Association suggests the following addition:

• "thorough investigation first, only then followed by withdrawal of the subsidy in question after one month’s notice of intention to do so" in section 4 (3)

This Section, the Forum says, is almost the same as Section 2A(1) of the Aged Persons Amendment Act. Under the Regulations of that Act, the Forum explains, 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.

The Forum would therefore 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.

The Forum considers the provision for the withdrawal of a subsidy after one months notice if any condition is not complied with too punitive a response. It argues that 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. The Forum recommends that more graduated sanctions be provided for in the Bill.

The Forum 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.

In section 4 (3) – The Ministry thinks that "one month’s notice" is not a reasonable practice

It is the submission of the Council that where the state provides funding or a subsidy, the terms of the funding or subsidy should be formulated in a funding agreement, consistent with the principles espoused in the bill, as and when the funding is offered.

The Bill proposes that when a subsidy is paid, the Minister must prescribe the conditions of use of that subsidy, including conditions regarding the accounting for the subsidy so paid. A more flexible approach, depending on the organization, its circumstances, the level of funding, the services offered and the ability of management, the Council says, should be adopted and reflected in a funding agreement between the state and the facility or organization.

The Council recommends that private organizations without any state subsidy or state involvement should be excluded from certain of the provisions contained in the proposed Bill. For example, it says, it is unconscionable that the Bill prescribes for the establishment of resident committees for facilities if more than ten older persons reside in a facility irrespective of whether the organization is for profit or not subsidized by the state. It therefore wants private organizations without any state subsidy or state involvement to be excluded from such prescriptive provisions contained in the Bill.

The Council 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.

It considers the provision for the withdrawal of a subsidy after one months notice if any condition is not complied with as appears in sub-section 4 (3 too punitive a response. It would like to see this sub-section 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, it suggests that an alternative provision be made for the older persons receiving such a service. And recommends more graduated sanctions be provided for in the Bill.

The Forum reckons that this Section is taken virtually unchanged from the 1967 Aged Persons Act.

On Section 5 (7) the Forum is the opinion that, 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.

Section 7 (8) of the Bill requires the manager of the which immediately, prior to the date of the commencement of the section is being subsidized by the state, must register such facility within 12 months of the commencement of the section. By implication, the Council contends that a facility which immediately prior to the date of commencement of the section, which is not being subsidized by the state, is not obliged to register. This anormally, it reasons, defeats the objects of the bill and it submits, no reason exists for the distinction between facilities, which are subsidized, or not. It is its contention that all currently registered facilities should be regarded as registered in terms of this bill.

The Council further says that the Bill is unclear as to whether all types of facilities as defined in section 1 (10) should formally register. There is a contradiction between section 7 (1) and section 8 (1), as in the former section, all facilities should register whereas the latter only requires notification, not registration in respect of unsubsidized services.

The Council further contends that The forfeiture of all assets bought with government funds or donated with the specific intention to assist older persons to the state if the registration of the facility has been cancelled or the owner of the facility wishes to close down or transfer that facility, is unconstitutional. It says the Bill does not distinguish between assets, which may have been acquired partially by state subsidization and by the facility itself. On account of the potential for dispute, which may arise pursuant to the provisions of paragraph 9 of the Bill, the Council submits that a dispute resolution process or an appeal process to any decision made by the Minister should be provided for in the Bill. It wants it noted that in terms of the NPO Act, all NPOs are required to include a specific dissolution clause, which states that the assets must be transferred to another similar organization.

The Commission raises concern about the practical implementation of the section and how facilities that are based in poor communities would access the process and communicate with the department.

Referring to sub-section 5(7), the Council argues that while it considers 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, it suggests that the Bill should expressly recognize that the State has the final responsibility to ensure these older persons are taken care of.

Alzheimer asks about the criterion that is going to be used to register facilities under this section, and whether norms and standards will be the same as under section 3(2). It further asks if this is fair when they do not receive a subsidy from the state.

The Association suggests the following addition:

• " Community based service center" in section 6 (1)

The Forum welcomes 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.

The Commission says this section is too narrow. Whilst the title of the section refers to services, it says that services are then narrowed down to in the content of the clause to luncheon clubs and home based care.

The Commission proposes the following changes:

• Section 6 (1) should refer to the revised definition, as proposed earlier in the submission, and refer to clubs.
• Section 6(1) should refer to services and community based care and support services.
• Section 6(1) should state that a persons must notify, the Minister in the prescribed manner…"
• Additional sub-sections, similar to the sub-sections contained in clause 5 and 7 should be inserted with deal with the registration and granting of subsidies to services.
• The reference to accommodation in clause 6(2) is illogical as clause 6(1) only refers to luncheon clubs and home-based care. The word accommodation should be removed.

The Forum argues that the addition of the requirement to hand over funds will conflict with the constitution of many institutions, which comply with the Non-Profit Organisations Act. This Act, the Forum says, requires that provision be made for assets of an institution closing down to go to another institution with similar aims.

Commenting on sub-section 4 (1) the Council believes that the requirement to hand over funds will conflict with the constitution of many institutions, which comply with the Non-Profit Organizations Act. It therefore suggests that the Bill provides for assets of an institution closing down to go to another institution with similar aims.

The Forum says 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, the Forum contends, conflict with the powers of residents committees provided for in this section;

The Forum wants a distinction 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. The Forum argues that 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.

The Forum wants consumers of any service to have some input into the conditions of provision of that service, and should have the right to obtain information regarding the service concerned. It says 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, the Forum reckons.

The Ministry is of the opinion that the screening procedures listed in section 8 (2) (a-c) are unrealistic and will make it impossible to admit older persons who are still physically and mentally able to serve on committees and make well-considered and meaningful resolutions.

Mr van Vuuren is the opinion that when the Minister prescribes the composition of a "residents’ committee" for a Care Facility for Older Persons, it must be taken into account that, due to their physical condition, most of the residents will not be able to serve on a residents’ committee, and that their family members should represent them.

The Council reckons that the establishment of a resident’s committee for facilities in the Bill does not prescribe the role that such a resident’s committee should play and what powers it will have in the management or administration of a facility or organization. Without this essential information, It contends, it is not possible to consider the impact of such a clause on organizations.

It further reasons that the imposition of a resident’s committee for a facility or organization, which is established for profit or receives little or no state subsidy, is unwarranted.

The Commission submits it will be extremely problematic and difficult to comply with this section. It criticizes this section for what it calls subtle preoccupation with old age homes. Whilst the definition of facility refers to community based care and support services, it maintains that it is clear that the use of the word resident in this clause refers only to old age homes or residential care.

It sees it as impossible and illogical task for a community-based care and support service to establish a residents committee. These services may well have a transitory group of recipients.

The Commission proposes a revision of this section. It suggests a determination whether the clause is intended to apply to residential care facilities only. If so, it wants this to be stated. It also suggests a legal determination of whether the residents can in fact ensure that a manager carries out the functions set out in clause 8(3). It also suggests that an obligation to be created that older persons are entitled to be consulted on and participate in the decision-making processes concerning the matters contained in sub-section 8(3). Furthermore it proposes that a separate section should be inserted that refers to how older persons will be consulted and included in the decision-making processes in community based care and support services.

The Council says that 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). It contends that these conflict with the powers of residents committees provided for in this section.

It suggests that a distinction be made between the obligations and liabilities of owners, management committees and residents committees. It considers it problematic for government to legislate on how management or residents committees are constituted and undesirable for the Bill to contain prescriptive measures regarding the composition of governing bodies. It sees this is as the responsibility of the relevant service provider.

It also says that 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

6.7. Admission to facilities

Referring to section 9 (1), the Highlands House, whose admission policy discriminates against all applicants who are not Jewish, is concerned that the specific punitive measures in the Bill will have other unintended, and unconstitutional consequences for facilities which, it says, legitimately operate for the benefit of members of a particular religion.

As an example, the only requirement that Highlands House says it takes into account in its admission policy is that the applicant for residence must be Jewish. It denies that a person’s race does enter into the consideration. Forcing Highlands House to replace this primary consideration with a requirement to consider demographic representivity [in terms of section 9(2) of the Bill], Highlands House says, will violate the rights of it and its residents to religious freedom [in section 15(1) of the Constitution]; freedom of association [section 18 of the Constitution]; cultural life [section 30 of the Constitution]; religious practice [section 31(1)(a) of the Constitution]; and to form, join and maintain a religious association [section 31(1)(b) of the Constitution].. It further claims that section 9(2) of the Bill will also violate the rights of the current residents to dignity [section 10 of the Constitution]; property [section 25 of the Constitution]; access to existing housing [section 26 of the Constitution]; and access to existing health care services, food and water, and social security [section 27(1) of the Constitution].

Highlands House contends quite strongly that the Bill in its current form is unconstitutional on the basis that it constitutes a violation of rights contained in the Bill of Rights and such a violation, it says, is not "saved" by the limitations clause in section 36 of the Constitution.

The House suggests the following as ways in which, it says, such unconstitutionality can be cured whilst the purpose of the legislation is maintained.

• The concept of "unfair discrimination" in section 9(1) of the Bill should be defined to mean the same as its meaning in Pepuda;
• The requirement set out in section 9(2) of the Bill should be qualified. The requirement concerning the consideration for determining eligibility for admission to facilities contained in section 9(2) of the Bill should only be operative when unfair discrimination based on race is involved; and
• In the alternative, the Minister should be granted the power under section 5 of the Bill to exempt any facility from the obligation to satisfy the requirements of section 9(1), read with sections 9(2) and 9(5) of the Bill.

Commenting on section 9 (4) the Highlands House says the Bill does not make it clear whether the punishment for contravention of this section in respect to a facility will be levied against the facility or the admitting officer.

The Highlands House also argues that there are a great many cases in which, it says, consent to their admission to a facility due to medical conditions such as Alzheimer’s disease or senile dementia. It says it is neither practicable nor desirable that these individuals remain in their own homes. It says they require medical treatment and if left to their own devices, pose a significant danger to themselves and others due to the increased risk of (otherwise avoidable) accidents.

In these circumstances, Highlands House submits that legislation should facilitate, rather than hamper, the admission of these individuals to registered facilities.

The requirement for a Court order as a pre-requisite for admission, the Highlands House contends will strike a disproportionately heavy blow to the most vulnerable members of any community. The House says the difficulty in finding a facility which is prepared to admit a poor, senile individual will be compounded if that facility must first go through the potentially expensive process of attaining a court order.

Highlands House submits that the financial realities faced by facilities, whether private or public, will by themselves militate against ‘forced’ admissions. The House suggests that a distinction must be made between those older persons who are capable, and who are not capable of giving their consent to admission. The determination whether a person is capable of giving consent, it argues, can be made by a medical professional.

In this regard Highlands House suggests that section 9(4) could be amended to read as follows: "No older person capable of consenting to his or her admission to a facility may be so admitted without his or her consent excepting in terms of an order of a court"; or section 5(5) could be amended to include a provision that a facility’s registration will be withdrawn by the Minister if that facility is found to have admitted persons capable of giving their consent against their will.

The Forum welcomes 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. It however contends that 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, it wants some avenue of recourse following the receipt of reasons to be provided for.

Mr van Vuuren says that a facility that provides for the care and needs of older persons must have admission rules by which they can exclude the admission of mentally/psychologically disabled older persons. He further states that older persons suffering from dementia are not included in the aforementioned category. He also maintains that most of the facilities that provide in the care of older persons do not have the facilities (accommodation) and trained staff to care for mentally/psychologically disabled older persons.

He asks if it is the appropriate Provincial Legislature that is going to pay the full required fee should an older person be ordered by court to be admitted to a facility

The Council submits that section 11 (3) and (4) are too widely stated. Many facilities as defined exists where the state makes no or only a small subsidy or contribution to the well-being of such facility and, under such circumstances, it argues that the state should not be able to prescribe criteria for admissions and tools to determine admission criteria. It is opposed to any situation where a state enjoys influence in facilities where it makes no contribution in order to promote private initiatives, provided that the facility complies with the requirements of the Bill.

The Commission proposes that this section should refer specifically to residential care facilities. It says that is justifiable, in light of a particular history concerning old age homes, that affirmative action measures are created in legislation to address the imbalances of the past. It further suggests if the intention for this section is to refer to community based care and support services then this should be stated clearly. It proposes that a separate section could be created to address discrimination in this context.

It suggests that a further section referring to recipients of community based care and support services should be added to the Bill.

The reference to manager in section 9(3), it says should be changed to operator.

Referring to sub-section 9(3) 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.)

Referring to section 9 (4), Alzheimer thinks this has direct implications for elderly people suffering from dementia that have no contractual capacity and argues that due to their cognitive decline and the fact that their insight and judgment is impaired, they are not able to complete and or sign the application forms giving their consent. It says that those that are still able to communicate may express that there is nothing wrong with them and that they are capable of caring for themselves, when the reality is very different. It goes to say that getting a court order is an expensive and time consuming event that is not practical or financially possible in most situations. Often, Alzheimer says, it is in their best interests to be admitted to a facility as they are in need of nursing care and could be posing a danger to themselves or to other people. Under these circumstances, Alzheimer feels that the fact they cannot give consent should not mean that the person signing on their behalf is guilty of an offence as stated in section 5. Alzheimer reasons that if the person does not admit them to a facility when they are needing care, they are likely to be guilty of a crime under section 13 – as they will be guilty of the abuse or neglect of an older person.

Alzheimer therefore recommends that this section read as follows:

9(4) "No older person may be admitted to a facility without his or her consent, a court order or where they would at risk if not admitted".

The Directorate suggests that the Bill must include the Department of Health in monitoring or registration of homes for older persons as mandatory. It considers this essential. The Directorate claims that the Health act legislates that the department of health is responsible for health care. It therefore suggests that the Bill must make provision that the Department of Health ensures it has the capacity to monitor the care of Older persons in the various settings as well as Old Age Homes.

The Forum wants monitoring provisions to apply to services provided in all facilities, whether registered or not, as well as services provided outside facilities..

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 Forum wants the Bill 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.

The Forum would also like this Section to give more emphasis to the monitoring role of "persons designated by the Director General" as it says many older persons’ perception of social workers is extremely negative, especially in disadvantaged communities

Referring to specifically to section 10 ©, the Ministry is of the opinion that social workers have limited knowledge of health care and might not be the appropriate discipline for this function.

The Council submits that the majority of abuse of older persons exists in the communities and not in facilities or organizations and a glaring omission from the provisions of the Bill is the ability of social workers to monitor older persons housed in private homes.

The Council contends that the Bill does not make provision for the inspector or social worker to make a report available to the facility or organization, which has been visited by the inspector, or social worker pursuant to the provisions of this paragraph. It further argues that the relevance of a social worker visiting or monitoring a facility or organization, interviewing any older or frail person or directing the person to submit documentation in the context of the Bill is not understood. It adds that the Bill does not prescribe what the director general should do with such reports or what the relevance of such reports would be to the director-general.

The Commission raises a concern that there are not enough social workers to carry out the duties that are created in this section.

The Commission proposes that term "places" in the title should also be reconsidered. It wants it be changed registered community based care and support services.

The Council suggests that monitoring provisions should apply to services provided in all facilities, whether registered or not, as well as services provided outside facilities. It thinks 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. It also recommends that 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.

6.9. Report to Minister by managers of facilities.

The Council reckons that the Bill assumes that all services for older persons are subsidized and Bill envisages using the subsidy for the basis to control institutions and enforce the government’s policy and directives.

It argues that the requirement for the manager of a facility to furnish a report within 60 days after the end of the financial year on compliance with the prescribed service standards and the prescribed measures with the prescribed service-standards and the prescribed measures to prevent and combat abuse of older person during the financial year is debatable. The inappropriateness of such a requirement, it says, is demonstrated by the proposed penalty contained in the bill, which prescribes that when the manager of a facility fails to submit a report, the Minister may withdraw any subsidy paid in respect of that facility.

It says that it should be noted that reports are already required in terms of the NPO Act and also by provincial departments in respect of financial service plans. In its opinon, should a further report be deemed to be essential, It says, it should contain meaningful information, and not merely be a repetition of information already supplied.

The Commission is concerned that the reporting requirements may overlap with the provisions contained in the Non-Profit Organizations Act, 1998.

The Commission proposes that section 11 should be placed immediately after section 4. It suggests that all reporting requirements should be contained in one section believing that the failure to do this may create confusion. It wants to see a determination of different reporting requirements for residential facilities versus community-based care and support services. This, it says, should be reflected in two different clauses.

The Commission registers what it says is a general concern that the chapter makes little provision for abuse that occurs in private homes and in the community. It says the chapter deals predominantly with abuse that occurs in institutions and provides mechanisms to address instances where such care is injurious to the older person or where the older person is taken advantage of (section 14 and 15).

It wants the Bill to reflect a community orientated approach to the care of the elderly and de-emphasize a facility-based approach.

The ordering of the clauses in the Bill, it says, should reflect the progressive developmental approach of protecting older persons in the community and provide protection mechanisms in the different forms of care which they may encounter during their ageing process. In other words the Bill should provide protection for persons in the community, thereafter for persons living in private residences and participating in community based care programs and finally, protections should be provided for older persons who live in institutions

The Commission suggests that this could be achieved if the sections were placed in the following chronological order:

Section 16 - Notification of abuse of older person

Section 18 - Older Persons in need of care and protection

Section 14 - Procedure for bringing person who accommodates or cares for older of frail person before magistrate

Section 15 - Enquiry into accommodation or care of older or frail person

Section 13 - Prohibition of abuse of older persons.

Section 17 - Keeping of register of abuse of older persons

Section 12 - Rights of older persons in facilities

AEASA is of the opinion that Section 12 (Rights of older persons in facilities) should appear at the beginning of Chapter 2 and that Section 18 (Older person in need of care and protection) should be brought forward to the beginning of Chapter 3.

Although section 12 does refer to the rights of older persons in facilities, NAWONG believes that an exposition of all the rights of older persons elsewhere would be of great value. This can be added, if deemed to be more practical, as a schedule to the Act.

Council contends that rights should apply to all older persons, not only those in facilities.

Council reckons that the right of older persons to be informed about the financial status of the facility and changes to management is vague and embarrassing. It wants to see provision made for residents of facilities or organizations to receive annual financial statements of such facilities or organizations and a notification of any change to management.

It further says that chapter 3 also introduces the rights of older persons in facilities to have access to basic care but argues that basic care is not defined in the Bill. It wants the reference to the word "basic" omitted.

The Commission remarks that it is clear that the rights identified in clause 12 refer to older persons who live in residential facilities. The section refers to transfer, discharge, keeping and suing personal possessions, reasonable access to visitation, etc. … . Clearly, the Commission considers it illogical that these rights could refer to older persons who are recipients of community-based services as are included in the definition of facility.

The Commission suggests that the section needs to state clearly in its heading that these rights are conferred upon persons residing in facilities.

• The right to dignity should be included.
• The right to privacy should be expanded.
• Clause 12(b) is worded clumsily. The word visitation is not the correct word to be used in this context. The clause should read: "… the right to receive visitors
• The have reasonable access to assistance should be a separate right. right to………

Submitted by South African Council For The Aged

The Council proposes that this section be moved to the beginning of Chapter 2

Alzheimer feels that this section in its entirety should be moved to the start of Chapter 2. In addition, it feels that section 18(5)(a)(i) should be moved to the beginning of Chapter 3 as it thinks this would provide a definition of an older person in need of care and protection and should introduce the chapter.

The Commission suggests a revision of definition of abuse order that it is clear what forms of conduct amount to abuse in terms of this clause.

The Council applauds the steps that recognize the criminalisation of older person abuse but questions whether the "naming and shaming" of abusers will produce significant prevention and or awareness of older person abuse. It says other practical problems that arise are whether the removal of the victim from the place where he or she is abused will bring satisfactory justice for the victim or whether trauma may not be further exacerbated. Frequently, it reckons that the older person as victim may be further traumatized if she or he becomes the centre of attention within that family or community from whom she or he is removed. The Council enquires whether in such an instance of older person abuse, it may not be more appropriate for the alleged abuser or offender to be removed from the place of care and dealt with in terms of criminal law. A further point of concern is the message sent out by trying to deal with abuse primarily through the criminal justice system.

AEASA claims that this procedure has largely been taken verbatim from the 1967 Act and considers it impractical.

AEASA suggests that the procedure needs to be made as user friendly as possible, yet at the same time ensure protection of the older person from even further exploitation. The training and sensitizing of staff in the Justice Department would be a key element in making this legislation easier to implement as well as provision being made for older persons to give evidence in camera, as this would reduce the fear factor that many older persons experience when being asked to testify in court, AEASA reckons. It also wants the Department of Justice to be sensitive too, to the reasons making older persons to frequently withdraw charges that they have laid due to dependency on or pressure from family members etc. and ensure that cases are not dropped before they have been fully investigated. In most situations older persons are dependent on their abusers whether it be financially or from a care aspect. Perpetrators who have become addicted to substances such as drugs and alcohol frequently abuse older persons to obtain money to fund their habits or become physically aggressive as a result of their addiction. Another problem area are adult children suffering from mental disability such as Schizophrenia refusing to take their medication and subsequently displaying aggressive and sometimes life threatening behaviour towards their older parents. Presently the Mental Health Act allows for the removal of these persons to a mental health facility for a few days, but they return home and the cycle of abuse begins again. AEASA suggests therefore that the legislation allow for the removal and rehabilitation of the abuser where necessary rather than removing the victim who is the innocent party.

The Council charges that the provision of section 14of the Bill focuses only on the perpetrator and does not address the resultant needs of the victim. It is our contention that a direct reference to section 20 should be incorporated to ensure that the older person receives the required care.

Whilst the Commission agrees that these provisions remain in the Bill, it urges the Committee to make serious inquiries with the Departments of Social Development and Justice on the current use of these provisions, determine why they are not being used and thereby ascertain if further clauses are necessary to address these deficiencies.

It also proposes that:

• The Bill should provide for alternatives to such a formal procedure.
• The Bill should provide for education and awareness raising about abuse.
• The Bill should include provisions that provide for mediation with offenders, particularly family offenders where the abuse is not of a severe nature.
• Preventive measures against abuse need to be provided for in the Bill.

Referring to section 15(5), the Association suggests that the enquiry is always held behind closed doors as it reportedly feels that this lessens the feeling of intimidation for the older person. In section 15 (8), the Association suggests the addition of "social worker can also be asked to furnish a report ".

AEASA says there are no timeframes given, for example, it is not specified that when the Director-General receives notification of the abuse of an older person, action must be taken within a certain period of time. AEASA fears that if timeframes are not specified, secondary abuse or traumatization can occur.

AEASA suggests that mandatory reporting should be confined to categories of abuse. While, it believes that older persons of sound mind are adults and as such their decision as to whether to report the abuse or not should be respected, it also argues that older persons who are mentally incapacitated, for example, those suffering from dementia, need the extra protection that mandatory reporting would provide.

AEASA also feels that mandatory reporting would, to a certain extent, be a deterrent, and could curb the amount of harm done to an older person.

AEASA strongly advocates for consideration of older people living in rural areas. It cites what the Act stipulates in Section 16 that the Director-General must be notified –and asks - who represents the Director-General in the rural areas? It suggests that the role of the Traditional Leaders must be recognized in the legislation and protocols observed, for example, before an older person in an abusive situation is removed to a place of safety. In such situations, AEASA wants the Chief’s permission be sought.

AEASA suggests that the term "place of safety" in place of "hospital" in Section 16 (2) (a). The reason for this, it says, being that not all abuse is of a physical nature, and this would be broad enough to cover rural areas where there are no hospitals. If there were physical injury to an older person, it says, a hospital would also be considered a place of safety.

AEASA is in complete agreement with the change made by the NCOP that the procedure should include any person who abuses an older person, not just those who care or accommodate them.

While, it acknowledges, it is common law that children have a legal and moral responsibility to provide for their parents if they are financially able to do so, AEASA suggests that this be included in the Bill as failure to do so is tantamount to elder abuse.

The Bill proposes mandatory reporting of abuse by ‘any person who suspects’ that an older person is the victim of abuse. The Conference wants this proposal carefully considered before it is implemented. Unlike children in abusive situations, the Conference holds strongly that older people are adults who are competent. By introducing mandatory reporting, it feels, this is being undermined and their right to autonomy may be violated.

Section 16 (2) (a) proposes that the Director-General must arrange ‘for the removal of the older person concerned to a hospital in case of injury or to such other place as the Director-General may determine If enacted, the Conference thinks, this clause would have a number of ramifications. Firstly, it says there would have to be enough facilities to accommodate the elderly abused who are being relocated from their homes.

Secondly, it says that the removal of the older person is likely to be traumatic and, in a sense, is punitive. While the alleged abuser stays in the residence, the abused is removed from the situation. Taking into account the possible psychological trauma that may result, as well as the practicalities in relocating the older person, the Conference suggests that it is the alleged abuser that may need to be removed from the residence.

It further says that it is also necessary to look at the desirability of mandatory reporting on all people. While it is undeniable that there are certain categories of people who should have a legal duty to note and report suspected abuse (such as social workers or health care professionals), it feels that it is contentious to suggest that all people have this legal responsibility. It therefore asks that the Committee carefully consider this while deliberating on the Bill.

Mr Laubscher says elderly people, especially those drawing pensions, are subject to high levels of crime and their safety is often in jeopardy. A related problem, he says, is that many of these patients are unable to sign for the pension payments as they do not have fingers and are unable to write or to give a thumbprint. They are dependent on ‘procurators’ to go with them to receive the payments and these assistants often steal some of the money.

Although she gives money to her family to buy groceries for her, Mr Laubscher says, she seldom has any supplies in the house, as the family steals the money.

In section 16(2), the Commission proposes that the words "where appropriate" should be added. It argues that not all cases of abuse warrant the removal of the older person to a hospital. It considers expensive, very onerous on the State and

highly disruptive and further upsetting to older persons in some cases. Referring section 16(2), it says hospitals should not be the only permissible destination for older persons who are removed from the abusive situation. It wants the Bill should state the other options such as the following:

• Safe houses,
• Shelters,
• Old age homes,
• Step down facilities etc. …

The Commission suggests that section 16 should compel the Director-General to initiate criminal avenues of redress when reports of abuse are received.

Alzheimer is concerned about this section as it says it places as much responsibility on the public as it does on Health Care Practitioners. It feels that the latter should be mentioned as in the Aged Persons Amendment Act No 100 of 1998 in order for them not to be an abdication of responsibility to the family and to secure that notification does not take place. Furthermore, it feels that the Director-General is inaccessible and not always a practical channel for reporting abuse and awaiting instruction.

It recommends that section 16(1) should rather read as follows:

"Every registered health care practitioner (medical practitioners, psychologists, dentists, social workers, occupational therapists, physiotherapists) or any other person who examines, attends to or who comes into contact with an aged person and suspects that an aged person has (a) been abused; or (b) suffers from any injury related to the abuse shall to immediately notify the Director-General or an organization designated by the Director-General for reporting abuse".

It further suggests, in respect to section 16(2) that there should be a time frame for the arrangement of necessary treatment and a response from the Director-General as we are dealing with vulnerable older people who have been abused, and that the notification needs to be responded to urgently and not have to go through bureaucratic channels in order to be able to assist the elderly person.

The provisions of section 16 (2) (b) of the Bill provide that the director general must arrange that the older person receives the necessary treatment. The Council charges that the Bill does not prescribe who the director-general may order to pay for such treatment or determine under any circumstances who is liable for the costs of such treatment the older person is obliged to receive.

The Council says it is often difficult for older persons suffering such abuse to escape an abusive situation because of financial and other dependence and suggests that practical alternatives such as the removal of the abuser, rather than the older person, should be provided. Whilst it welcomes the extension of the obligation to notify abuse to all persons who witness abuse of older persons the Council thinks this section of the Bill should include an obligation on the Director General to investigate allegations of abuse. It suggests that the section should also provide for the identification and use of safe beds, to which older persons could be removed.

The Council reckons that the Minister should not be obliged to keep a register of all notifications in terms of section 17(1) in circumstances where no finding of guilt was made pursuant to a notification referred to in Section 17(1) of the Bill. In other words, the Minister must distinguish between notifications where a finding of guilt is made, as opposed to notifications where no finding of guilt is made.

Section 17 proposes that the Minister must keep a register of people convicted of abusing an older person and that this must be accessible to the public.

When looking at the question of registers, the Conference thinks, it is necessary to have clarity on what the purpose of the register is and how the information contained therein will be used. It further says that it is also important to know what information will be in the register and who will compile and maintain it. Establishing a register, it says, also poses the question of how long an offenders’ name will be on the register. In addition to this a register is not always easily accessible to the public and those who need to have access to it.

The Conference holds a view that a register, as conceived in this section, may be limited in effectiveness and may create a false sense of security. It contends that only a small number of people are convicted of abuse, which means that the information contained in the register will only represent a very small number of those guilty of abuse and is by no means an extensive list. It also wonders whether this section will also apply to people who are convicted of abuse under other pieces of legislation, such as the Domestic Violence Act.

The Commission thinks section 17(2) is too narrow, and suggest that the word facility should be replaced with residential facilities and any community based care and support service. Furthermore it suggests that persons convicted of abuse should not be allowed to work in community based and especially home-based care services.

.

It further proposes that the register must include the names of offenders who are convicted of offences in which the victim is an older person. In this manner, it says, it will ensure that more offenders’ names will be placed on the register. It is possible that offenders will not be prosecuted in terms of the Older Persons Bill but rather in terms of other common law or statutory criminal offences. It says more clarity is needed in the Bill on the Register. It wants this to be spelt out more clearly in the Bill. Some of these issues include:

• We need to consider what is the purpose of the Register?
• How will it be used?
• What information should be recorded on it?
• Who will compile it?
• Who will have access to it?
• How long will a perpetrators name be on the register, it cannot be on forever surely?
• How will perpetrators be rehabilitated?
• What about persons who abuse the elderly and are convicted of more serious crimes (e.g. rape), in terms of the present legislation their names would not appear on the register as the charge would not be abuse in terms of the Bill but rather common law rape.

While in principle, Alzheimer feels that this is important and needs to be implemented; it argues that the practicalities are not that clear. It suggests that the record of notification, which was previously removed by the NCOP, should be reinstated into the Bill.

In respect of section 17(2), Alzheimer says that while there is agreement that peoples whose name appear in the register should not work with the elderly, it is concerned that this only applies to them working in facilities, which means that they could still be employed to work with the elderly in the community (e.g. providing home-care services).

Submitted by Action on Elder Abuse South Africa

AEASA is not happy with the fact that the time frames are not specified, and once the report has been made to a social worker, there is no "spur" for action to be taken. It alleges that the fact that there is a reported shortage of social workers in the Department of Social Development and in many other organizations, this will place a significant pressure on these staff members to attend to cases involving children first and foremost, which means that the abused older person might not be assisted.

In section 18 (5) (d), AEASA is also greatly concerned over homelessness amongst older persons. It does not understand why a shelter" is defined but not utilized in the Bill.

The Commission says the section places too much responsibility on social workers that, it says, are currently stretched in terms of the amount of work that it is expected of them. The ability of social workers to cope with this additional workload, the Commission, will determine whether the section will be used and adequately implemented in order to achieve its objectives. The Commission alleges that this section fails to give older persons a voice as it does not provide for them to report incidences of abuse of which they are the victims. The Commission stresses the importance of recognizing, encouraging and empowering older persons to have their own voice and where possible to report abuse that they suffer themselves. It also claims that the section fails to provide for an intersectoral inter departmental and inter organizational coordinating structure that will ensure the holistic and adequate implementation and realization of the Bills stated objectives and duties that it is imposes.

The Commission proposes that section 18(3) should be amended as follows: "The Director-General, social workers, or investigator recognized by the Department and working under the supervision of a social worker, to whom a report has been made must investigate the matter."

It further proposes that section 18(2) could be amended as follows: Any person, including an older person, other than a person in subsection (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.

The Council thinks it is important that norms and standards established under the Bill are national. It therefore wants the delegation provisions to recognize this. It is opposed to idea of the establishment of norms and standards being delegated to provinces. Furthermore the Council suggests that the delegation provisions should also be compatible with the constitutional powers of and relations between national and provincial spheres

The Council suggests that some provision should be made for the funding of compliance with regulations, especially under minimum norms and standards for admission to facilities, the use of subsidies and service standards. It also wants to see broad consultation with stakeholders where regulations are made.