Older Persons Bill Proposed Amendments: briefing by State Law Advisor

SOCIAL DEVELOPMENT PORTFOLIO COMMITTEE
16 November 2005
OLDER PERSONS BILL PROPOSED AMENDMENTS: BRIEFING BY STATE LAW ADVISOR

Chairperson: Ms T Tshivhase (ANC)

Document handed out:
Department of Social Development’s Proposed Amendments to the Older Persons Bill [B 68B-2003] (see Appendix)

SUMMARY
The Department of Social Development and the State Law Advisor presented the Committee with the proposed amendments. This was following a discussion on whether to withdraw the Older Persons Bill in its entirety or continue with amendments to the Bill as passed by the National Council of Provinces. If the NCOP rejects the amendments that are made during its processing by the Portfolio Committee, the Bill would then have to go before a Mediation Committee.

MINUTES
The Committee and the Department of Social Development (Ms V Nhlapo, DDG: Integrated Development; Ms N Kela, Chief Director: Transformation Services, Mr P du Preez, Legal drafter; Ms L Petersen: Parliamentary Liaison Officer; Ms Lulu Pemba Director Legal Services; Ms Isabella Sekwati: Deputy Director: Care and Service to Older Persons) were briefed by Adv Gideon Hoon, State Law Advisor, on changes that had been made to the Older Persons Bill.

The State Law Advisor, Adv Gideon Hoon, said he had had a discussion with the Head of Parliamentary Legal Services, Dr Palmer, on whether the legislative process required submitting a redrafted bill or an amendment bill. He had received a document that was an amendment bill from the Department.

Mr Masutha (ANC) said that when the Joint Programme Committee had discussed the issue of submitting a redrafted bill versus an amendment bill, it was understood that the Department had to submit an amendment bill. If the Department pursued submitting a redrafted bill, the Minister of Social Development would have to withdraw the original tabled bill first, and then the Portfolio Committee would take the process forward.

The State Law Advisor agreed that in terms of the Constitution, it had to be withdrawn. He said that Dr Palmer had suggested that the Department submit an amendment bill in terms of section 76(2).

Ms Nhlapo agreed that the Department had understood it to be an amendment bill

The State Law Advisor said that, with respect to the Department, he had received a bill which was "in the form of a redrafted bill" and it would take some time to draft technical amendments using this version. Some definitions used "in the redrafted bill" did not even appear in these amendments. It started with new clauses formulated on the bill.

Mr Waters (DA) asked if continuation of this nature was in order? Given the time constraints, it was time to go ahead.

Mr Nzimande (ANC) said that this process had been dealt with the previous week, they merely had to hear what the state law advisor had to present to them. There had been a consultation with the Minister, and the officials were aware of the views of the Committee. They had weighed all the options and the only option was to continue, given the target dates to complete the work. The State Law Advisor would have to effect amendments as best as he could. The approach to go forward was sound.

The State Law Advisor said that the amendments would be amendments, a whole new document will be presented to the Committee. The amendments could not be equated to a redrafted bill. Dr. Palmer had not objected, they could amend this bill.

Mr Masutha said that the issue of whether this bill moved beyond the scope and objectives from the bill adopted by Cabinet, has been discussed with the Department. Issues of community-based care had not been adequately addressed, and the issues raised in the public hearings had to be taken into account. He said that should the NCOP reject these amendments, they then moved into mediation to resolve this amicably. He moved that they proceed with the briefing from the State Law Advisor.

The State Law Advisor spoke to the document: Amendments proposed: Older Persons Bill.

Clause 1
Adv Gideon Hoon, the State Law Advisor, said that a new heading was inserted: "Creating enabling and supportive environment for older persons."

Clause 2
This clause was rejected.

New Clauses
Protection and promotion of rights of older persons
2. Older persons are protected by the same rights that are enshrined in the Bill of Rights and in addition, older persons have the right to –
(a) create opportunities for, and to participate in community services, and to serve as volunteers in positions appropriate to their interests and capabilities’
(b) participate in the design and implementation of policies that directly affect their well-being;
(c) participate in inter-generational programmes;
(d) establish and participate in structures and associations of older persons;
(e) have the opportunity to participate in activities that will enhance their income-generating capacity;
(f) live in environments that are safe and adaptable to their changing capacities; and
(g) access opportunities that will promote their optimal level of social, physical, mental and emotional well-being, in order to prevent and delay the onset of illness.

Discussion
The State Law Advisor began saying that in the draft from the Department, the bill had received new "objectives" which were really not necessary as this was also covered in the Preamble. Adv Hoon said that some of the rights here were contained in the Constitution and so did not create new rights, but merely extended them. He was unsure why provisions like (g) were added. They were difficult to enforce and/or implement.

Ms I Mars (IFP) agreed, and saw no reason to restate them here in the Bill.

Development of and compliance with national norms and standards
3. (1) The Minister must prescribe national norms and standards that define acceptable levels of service and provide the basis for the monitoring and evaluation of services rendered to older persons.
(2) Services provided to older persons must comply with such norms and standards.

Discussion
Adv Hoon saw some difficulties in the language and construction of the clause. Who had to define ‘acceptable?’ The clause was a bit vague generally.

Support for services delivered by third parties
4. (1) The Minister -
may, in consultation with the Minister of Finance, provide financial awards to service providers that provide services to older persons from funds to be appropriated by Parliament for that purpose;
may identify priority services required for older persons and in the prescribed manner enter into contracts with service providers in order to ensure that those services are provided;
must prescribe conditions for such financial awards, including accounting measures, compliance measures and norms and standards; and
must prescribe remedies for failure with the prescribed conditions

(2) The Minister must open and maintain a register of all assets bought with Government funds, and prescribe conditions for the management of such assets.

Discussion
Mr M Waters (DA) said that "may" should be replaced with "must" as the providers were acting on behalf of the Government and NGOs sometimes had to ‘carry the can’ for Government without getting adequate compensation.

Adv M Masutha (ANC) said that NGOs did not have constitutionally enshrined rights. Rights had to be created for natural persons. A right for financial awards could not be created, and it would remove the ability of the Government to control them.

Guiding principles for provision of services
5. Any service must be provided in an environment that –
(a) recognises the social, cultural, economic and political contribution of older persons;
(b) promotes participation of older persons in decision-making processes at all levels;
(c) recognises the multi-dimensional needs of older persons and promotes intersectoral collaboration;
(d) ensures access to information, education and training of older persons;
(e) promotes development and the basic care of older persons in rural and urban areas;
(f) promotes the prevention of exploitation of older persons;
(g) promotes the respect and dignity of older persons
(h) ensures that older persons receive priority in the provision of basic services; and
(i) ensures the optimal level of physical, mental and emotional well-being of older persons.
Discussion
Mr Waters asked what the purpose of including political contribution in the assessment was. It should not matter what the political affiliation of the person was in helping them.

Ms H Bogopane-Zulu (ANC) said that the political aspect had to be removed from the enquiry.

CHAPTER 2

COMMUNITY-BASED SERVICES FOR OLDER PERSONS

Rights of older persons receiving community based services
6. An older person receiving community-based services has, in addition to the rights referred to in section 2, the right to –
(a) reside at home as long as possible;
(b) pursue opportunities for the full development of their potential; and
(c) benefit from family and community care, and protection in accordance with society’s system of values.

Discussion
Adv Masutha said that this clause was an extension of the previous one. All these provisions could be put in one clause.

Ms H Weber (DA) asked the clause had to be clearer in terms of who decided how long ‘as long as possible’ was.

Establishment of community-based services
7. (1) The Minister must, in consultation with any relevant Minister, establish community-based services that fall into two broad categories, namely –
(a) programmes that ensure the independent living of older persons;
(b) home based care that ensures that frail older persons receive maximum comprehensive care.
(2) Community-based services may be provided within a home of an older person, in a facility especially erected for that purpose or a multi-purpose facility which serves the broader needs of the community.
(3) The Minister may, with the concurrence of the Minister of Finance, out of money to be appropriated by Parliament for that purpose provide resources to support such services.
(4) Any person who wishes to establish a community-based service must ensure that such a service complies with the prescribed national norms and standards.

Registration of facilities for community-based care and support services and prohibition of operation of such facilities.
8. (1) Any facility other than a facility owned by the State in which community-based care and support services are rendered must be registered.
(2) The Minister must prescribe conditions for the registration of such facilities, including application for registration, approval of registration, temporary registration, withdrawal and termination of registration.
(3) If the registration of a facility has been cancelled or if the management of the facility for any reason wishes to close down a facility prior to closure of such facility, the management must –
(a) notify the Director-General of the intention to close or implications of such closure to older persons;
(b) inform older persons affected about the intended closure of the facility; and
(c) take reasonable steps to ensure that older persons are not adversely affected, put at risk, and are placed in other facilities that render similar services.
(4) Registration granted in terms of this section is not transferable to another facility.
(5) Services rendered in facilities contemplated in this section must comply with section five.
(6) Any person who contravenes or fails to comply with any provision of this section is guilty of an offence.

Discussion
Ms Webber asked that since State-owned facilities did not have to be registered, were they exempt from visits from inspectors.

Mr Waters was unsure why State-owned facilities did not have to register. He wanted to know if they would be closed down if they did not comply with the norms and standards.

There was not enough time to answer these questions.

The meeting was adjourned


Appendix
AMENDMENTS PROPOSED

CLAUSE 1

1. On page 4, in line 23, to omit the heading and to substitute:

Clause rejected.

1. That the following be new clauses:

Protection and promotion of rights of older persons

2. Older persons are protected by the same rights that are

enshrined in the Bill of Rights and in addition, older persons have the

right to—

(a) create opportunities for, and to participate in community

services, and to serve as volunteers in positions appropriate to

their interests and capabilities;

(b) participate in the design and implementation of policies that

directly affect their well-being;

(c) participate in inter-generational programmes;

(d) establish and participate in structures and associations of older persons;

(e) have the opportunity to participate in activities that will enhance

their income-generating capacity;

(f) live in environments that are safe and adaptable to their

changing capacities; and

(g) access opportunities that will promote their optimal level of

social, physical, mental and emotional well being, in order to

prevent and delay the onset of illness.

Development of and compliance with national norms and

3. (1) The Minister must prescribe national norms and

standards that define acceptable levels of service and provide the

basis for the monitoring and evaluation of services rendered to older

persons.

(2) Services provided to older persons must comply

with such norms and standards.

Support for services delivered by third parties

4. (1) The Minister—

(a) may, in consultation with the Minister of Finance, provide

financial awards to service providers that provide services to

older persons from funds to be appropriated by Parliament for

that purpose;

(b) may identify priority services required for older persons and in

the prescribed manner enter into contracts with service

providers in order to ensure that those services are provided;

(c) must prescribe conditions for such financial awards, including

accounting measures, compliance measures and norms and

standards; and

(d) must prescribe remedies for failure to comply with the

prescribed conditions.

(2) The Minister must open and maintain a register of

all assets bought with Government funds, and prescribe conditions for

the management of such assets.

Guiding principles for provision of services

5. Any service must be provided in an environment that—

(a) recognises the social, cultural, economic and political

contribution of older persons;

(b) promotes participation of older persons in decision-making

processes at all levels;

(c) recognises the multi-dimensional needs of older persons and

therefore, promotes intersectoral collaboration;

(d) ensures access to information, education and training of older

persons;

(e) promotes development and the basic care of older persons in

rural and urban areas;

(f) promotes the prevention of exploitation of older persons;

(g) promotes the respect and dignity of older persons;

(h) ensures that older persons receive priority in the provision of

basic services; and

(i) ensures the optimal level of physical, mental and emotional well-

being of older persons.

CHAPTER 2

COMMUNITY-BASED SERVICES FOR OLDER PERSONS

Rights of older persons receiving community based services

6. An older person receiving community-based services

has, in addition to the rights referred to in section 2, the right to—

(a) reside at home as long as possible;

(b) pursue opportunities for the full development of their potential;

and

(c) benefit from family and community care, and protection in

accordance with society's system of cultural values.

Establishment of community-based services

7. (1) The Minister must, in consultation with any

relevant Minister, establish community-based services that fall into two

broad categories, namely—

(a) programmes that ensure the independent living of older

persons;

(b) home based care that ensures that frail older persons within the

community receive maximum care through a comprehensive

range of integrated services.

(2) Community-based services may be provided within

a home of an older person, in a facility especially erected for that

purpose or a multi-purpose facility which serves the broader needs of

the community.

(3) The Minister may, with the concurrence of the

Minister of Finance, out of money to be appropriated by Parliament for

that purpose provide resources to support such services.

(4) Any person who wishes to establish a community-

based service must ensure that such a service complies with the

prescribed national norms and standards.

Registration of facilities for community-based care and support

services and prohibition of operation of such facilities

8. (1) Any facility other than a facility owned by the State

in which community-based care and support services are rendered

must be registered.

(2) The Minister must prescribe conditions for the

registration of such facilities, including application for registration,

approval of reaistration, temporary registration, withdrawal and

termination of registration.

(3) If the registration of a facility has been cancelled or

if management of the facility for any reason wishes to close down a

facility prior to closure of such facility, the management must—

(a) notify the Director-General of the intention to close or

implications of such closure for affected older persons;

(b) inform older persons affected about the intended closure of the

facility; and

(c) take reasonable steps to ensure that older persons benefiting

from the service are not adversely affected, put at risk, and

where appropriate, are placed in another facility that renders

similar services.

(4) Registration granted in terms of this section is not

transferable to another facility.

(5) Services rendered in facilities contemplated in this

section must comply with section 5.

(6) Any person who contravenes or fails to comply

with any provision of this section is guilty of an offence.

Management of professionals and staff in home-based care

9. (1) Managers of home-based care must ensure that

caregivers receive training and supervision.

(2) All professionals and associated auxiliary workers

rendering home-based care must be registered with the appropriate

statutory council responsible for the relevant profession.

(3) (a) The Minister must keep a register of all

caregivers rendering home-based care and must prescribe a code of

conduct for such caregivers.

(b) Paragraph (a) does not apply to

professionals and associated auxiliary workers referred to in

subsection (2),

(4) No person may provide home-based care unless

registered in terms of section 9.

(5) Any person who contravenes or fails to comply

with any provision of this section is guilty of an offence.

Community-based programmes for older persons

10. (1) The Minister may, in consultation with any relevant

Minister—

(a) develop any programme contemplated in subsection (2) or (3):

and

(b) support any person who runs a programme contemplated in

paragraph (a).

(2) Programmes for services include:

(a) economic empowerment of older persons;

(b) establishment of recreational opportunities for older persons;

(c) information, education and counselling services, including HIV

and AIDS, care for orphans, Atzheimer's, dementia;

(d) spiritual, cultural, medical, civic and social services;

(Q) provision of nutritionally balanced meals to needy older persons;

(f) promotion of skills and capacity of older persons to sustain their

livelihoods;

(g) professional services, including care and rehabilitation to ensure

independent living of older persons;

(h) appropriate services contained in the indigent policy for

vulnerable and qualifying older persons;

(i) the utilisation and management of existing facilities for older

persons as multi-purpose community centres;

(j) integrated community care and development systems for older

persons; and

(k) inter-generationat programmes.

(3) Programmes for home-based care services that

are directed at frail older persons within the community include:

(a) provision of the hygiene and physical care of older persons;

(b) provision of professional and lay support for the care of older

persons within the home;

(c) rehabilitation programmes that include provision of assistive

devices;

(d) provision of respite care for older persons and their carers;

(e) information, education and counselling for family members,

care-givers and the community regarding ageing and associated

conditions; and

(f) provision of free health care to frail, vulnerable, and poor older

persons.

Management of community-based care and support services

11. (1) A management structure must be established for

facilities providing community- based care and support services.

(2) The Minister must prescribe—

(a) the composition of the management structure, which structure

must include representatives of the beneficiaries of the service,

members of the staff of the relevant community- based facility

and members of the public;

(b) the election, appointment, qualifications, terms of office and

grounds for removal from office of members of the structure and

the filling of vacancies; and

(c) the number of and procedure at meetings of a management

structure.

(3) A management structure established in terms of

subsection (1) must ensure that the manager of the facility—

(a) provides quality service to the facility;

(b) provides opportunities for the training of staff of the facility;

(c) applies principles of sound financial management and submits

quarterly progress and financial reports to the beneficiaries of

services and staff of the facility;

(d) monitors activities at the community-based facility in order to

deal speedily with any incidents of abuse of the beneficiaries

and take appropriate steps in terms of Chapter 5;

(e) establishes complaints procedures for the beneficiaries of

services and staff of the facility and persons who wish to lodge a

complaint on behalf of any such beneficiary; and

(f) does everything necessary for the effective functioning of the

facility.

Monitoring and evaluation of community-based care and support

12. Section 22 applies with the necessary changes in respect

of the monitoring of facilities in which community based care and

support services are rendered.