A summary of this committee meeting is not yet available.
SOCIAL DEVELOPMENT PORTFOLIO COMMITTEE
20 February 2003
OLDER PERSONS POLICY AND DRAFT BILL: WORKSHOP
South African Policy for Older Persons Eighth Draft
Draft Bill for Older Persons
Chapter Two of Draft Bill for Older Persons (Appendix)
Issues relating to the rewriting of Chapter Two of the Bill were discussed in the morning session. The discussion centred on the definition of abuse, the need for the input of the Justice department and the role of traditional courts. In the afternoon session the committee went through Chapter Two of the Bill clause by clause and discussed necessary changes
The Facilitator Mr Steve Rule (Director: Research, Office of the Minister) proceeded through the changes that had been effected onto the draft Bill.
Ms I Mentz (Department of Social Development) was concerned that all the issues were intersectoral and that if they were to focus on social development issues only, they would defeat their purpose.
Mr M Masutha said that as chapter two read, it was legally committing the Minister of Social Development to budget and provide as per the list, yet the list was multisectoral touching the services provided by other departments. He was concerned that in chapter two they ought to be looking at the role of Social Development exclusively. He also wanted clarity on whether the national office should run the programme or if they would look at subsidising the private sector that would deal with the program.
Further discussion clearly indicated that Social Development in South Africa was faced with a unique social challenge that they had to lead. Currently the bill was opening them up to all sorts of obligations whereas they had to think pragmatically what exactly the programme would be doing and if it fell under Social Development. They agreed that the Department of Social Development (DOSD) although the DOSD was not the only department it had the responsibility similar to that of a mother in that when everything in the system failed you, this acted as a safety net.
Of equal importance was that DOSD had the role of advocacy in that may not provide the service but facilitate the process. This would involve ensuring that other departments fulfilled their mandates and played their respective roles. Although the DOSD would support their roles Members still felt they needed emergency support systems.
The Chief Executive Officer (CEO) of Age In Action strongly felt that an underlying collaborative agreement. She sited housing as integral to community workers task and was concerned how they would ensure compliance.
Mr MV Ngema (IFP) felt that rather than wait to pick up the pieces after mistakes they needed to be proactive and ensure that the other departments made provisions to cover the interests of Social Development.
Ms M Turok (Task Team)cautioned that they could not pass the buck on housing because they had committed themselves to housing in social development for the elderly; with reference to "Programmes for development of Older Persons"
Mr Masutha pointed out that there was a gap in the policy and the provision of services in housing subsidies .He said that as it stood it did not specify which category of older persons. This opened them up to litigation if the budget did not fulfil chapter one, clause five (h): the provision of basic affordable accommodation for older persons. He cautioned that the opening clause bound the Minister to having the budget and capacity for the program.
Ms SP Rwexana (ANC) raised her concerns that there should be no difference between giving unemployed persons subsidies and giving the same subsidies to elderly persons.
Members agreed that chapter one clause five should be rephrased to include the Minister collaborating and consulting with other relevant line function ministers. However, Age In Action CEO still felt that they needed to strengthen the hands of the Minister.
Concerns raised on chapter two were the use of manager when management would be more appropriate. It was felt that the Act could not give the responsibility to a manager hence reference must clearly be to an organisation. Also raised was that the chapter seemed to be dealing with just residential issues. Closer inspection of and discussion on the chapter got the members deciding that the chapter had been lifted from the old Act and needed a "savage" rewrite. It lacked emphasis on care and assisted living.
The Chairperson implored members to assist Pierre Dupreez (research team?) in the rewriting of the chapter and ensuring that it is not restricted to residential facilities that are not appropriate in some cultures. She felt that the thrust of this chapter should be on facilities and how they could broaden the range of facilities. She added that the rural bias should be visible: the witch craft issue which is a problem in the rural areas had to be addressed, safe havens may be needed in the rural areas, and the formulation of monitoring processes.
Mr M Masutha suggested that certain aspects of clause five could be taken out and dealt with in more detail in chapter two.
Age in Action CEO felt that a whole new chapter should be written on community based services.
In agreement Mr Botes said from pilot programmes they had learnt that there was a lot of confusion as to what community based care and support services was. He said it should be a package of services in one basket based on the needs of a community. He added that the community could be encouraged to make provision for their own retirement; be involved in community based services; and be involved in after hospital care for the elderly until their full recovery.
Ms U Mguye (DOSD) asked how they would deal with the destitution of the elderly indigence in rural areas who had no water or warmth. She was also concerned with what indigence policy meant to rural people.
It was suggested that clause five could cater for these concerns.
Mr Masutha said Chapter two needed to provide for the area of life and death emergency situations, as it might not be enough to play a facilitatory role. Some residual capacity was needed to respond, such as Social Relief of Distress. This could be a facility that could help people for of say three months with food, blankets or food.
Ms Mahlangu (Chairperson) pointed out that they should be wary of gender inequality focus of services when it came to elderly men. She said elderly men found it difficult to associate with the three levels: independent living, assisted living and, continuous care. In addition, she sought the issues that they were going to legislate.
Mr M Masutha highlighted that the policy section had a role to play by providing flesh for the chapter. Mr Dupreez's job was not to define policy but to translate it to legal language. Clear policy would then be drafted into legislation.
The chairperson raised concerns as to whether the range of services would include everybody within the borders of South Africa and not exclude elderly refugees, illegal aliens and temporary residents. She said she felt this was relevant to chapter two because this is where government money per capita would be spent.
Discussion on this issue concluded that an agreement with the Department of Home Affairs was needed and for them (Home Affairs) to see this as the social aspect of their work. Provisions of the Immigration Bill would be looked at.
Mr Masutha (ANC) said that the House needed to get an idea of the key areas of legislation they want to provide for and to assess whether all the regulatory activities expressed in the Bill are necessary. The way forward would be to go through Chapter Two heading by heading and ensure that the headings are in agreement with the new paradigm being used.
Ms M Turok (Member of the Task Team) said that the primary content of Chapter Two should regard the establishment of community based programmes and residential facilities. In this section the committee needed include the registration of residential facilities and the financial support to these facilities.
Dr D Mahlangu (Deputy Director, Older Persons) suggested the introductory sentence to Chapter Two read: "The Establishment and maintenance of residential facilities and payment of subsidies to such services" rather than "payment of subsidies to residential facilities, organisations, welfare organisations and registered welfare organisations".
Ms Turok further suggested "payment of subsidies to service providers".
Ms W Bryan (CEO: Age in Action) enquired what exactly the phrase "enabling and supportive environment" in the Chapter Two's heading meant. She felt this should be clearly stated.
Mr Masutha said that the introductory sentence should be as Ms Turok and Dr Mahlangu suggested and that below this they might want to unpack the range of services provided.
Ms I Mentz (Department of Social Development) interjected that she was not happy with the way the house was deciding on what to include in the new draft of chapter Two. Rather than go through the Chapter heading by heading it would be more useful to identify broad issues to be included in the Bill otherwise the House would run out of time. This list of issues could then be given to Mr Du Preez to be appropriately worded.
Ms Mzuye (Department of Social Development) commented as an aside that with regards to issues such as old age grants, equity etc in terms of community based care where some of them are state funded and other are not, that the house needed to get the guidance from Social Security.
Mr Masutha said that Ms Mentz had made a good point and Dr Mahlangu asked the House if they were happy with following Ms Mentz's suggestion.
Ms Turok commented that she was worried that in following that route they would miss out important details such as the need to discuss the monitoring of service provision, how residents and participants in the services will have a say etc.
Ms Mentz replied that her route did not exclude these discussions. By not simply going through the Bill's heading but looking at broad issues the House could pick up gaps also left by the Policy document.
Mr Masutha briefly went through some of the relevant issues that going through the document chapter by chapter would bring up. The debate on which route to follow continued until Dr Mahlangu suggested that they follow Mr Masutha's route and make use of his input in the morning as he would be unavailable in the afternoon and after lunch they could follow Ms Mentz suggestion.
Discussion of Chapter Two continued in the afternoon session. Mr Masutha continued to Chapter Three.
Mr Masutha said that with regards to the heading of Clause 16: "Prohibition of abuse of older persons" he was concerned about the definition of abuse used. He turned the discussion towards the definition of abuse in the definition section of the pre-amble, asking what the "infliction of power" actually means. He noted that the definition should be clear and simple or perpetrators of abuse could be acquitted on the grounds that the definition of abuse was too vague.
A lengthy discussion followed on the definition of abuse. The house noted that the definition should include not only actual physical abuse but should include threat of harm, withdrawal of care etc, which could be emotionally crippling. It was suggested that other departments definitions be consulted, as well as a sociological / psychological and legal definitions. Injury, abandonment, threat, neglect by the state etc were all to be listed as forms of abuse to come under the definition.
Ms J Chalmers (ANC) then referred back to clause 12 of Chapter Two, asking if it had been decided at a previous meeting that "Inspection" be replaced by evaluate or quality assurance.
Mr Botes (Department of Social Development, Free State) responded that the term "monitor" was more comprehensive and appropriate.
Ms Turok asked Mr Du Preez if the whole of clause 17 was the same as that in the previous Act. He replied that it is a combination of the 1998 and 1967 Acts. The section was previously promulgated but never put in operation.
Mr Masutha noted that the establishment of abuse of the elderly as a specific form of abuse was new and what was so important about the Bill.
Mr P Du Preez (Law Advisor: Department of Social Development) said that they had wanted the Justice Department at the meeting. There have been examples of prosecutors who had no idea of the particulars pertaining to older persons.
Ms P Lindgren (Director: Action on Elder Abuse/ HEAL) said that there were many instances of older persons withdrawing their charges of abuse when informed that they had to go to court. In many instances the abusers were family members. Perhaps there could be some way for the responsibility of going to court to be given to someone else on his or her behalf.
Mr Botes shared a similar example.
Mr Du Preez pointed out that if the police question the original complainant and he or she claims nothing happened, there is no case.
Ms Bryan noted that there was not enough protection for older people in such cases especially when they live with their abusers. She said that there needs to be a lot of awareness created of the rights of the elderly and a lot should be done to encourage them to come out against ill treatment.
A comment was made that the way many older people in certain communities express themselves, especially in anger, is not literal but oblique, sarcastic and was misinterpreted by the authorities.
Mr Masutha agreed that they need the Department of Justice on board and that they should send chapter Three to the department for specific comments. He then asked if the elderly where entitled to mediators when giving evidence.
Ms Mzuye mentioned that many elderly in the rural areas used or were referred to the traditional courts rather than the Magistrates court. She mentioned cases of alleged witchcraft as an example.
Mr Masutha replied that the constitution recognises the right of tradition institutions to act in parallel with other institutions. The traditional court has no criminal competence. The Magistrates courts do sometimes take up cases referred to them by the traditional courts. He commented that their respective roles needed better definition.
Ms Lindgren added that amongst the poor, especially in rural areas, they couldn't find legal aid. She said that the Department of Labour also needs to be brought in, as certain labour laws do not help protect the elderly. For example if an elderly resident has her possessions stolen the management cannot charge the staff member responsible unless they catch the culprit in the act.
At this point the chair adjourned the meeting for lunch and expressed the apologies on behalf of members absent for from the meeting.
Ms M Koornhof (Age in Action) said that they should not list all the community-based services available in the new Act, noting that new ones may be thought up after the Act was drawn up. The wording should be: "a) establish and maintain residential facilities and community based care and others as set out in the regulations, b) payment of subsidies to the managers of these facilities as set out on the regulations". She suggested that as a way forward they see each heading as comprising of two sub-sections, for residential facilities and community-based care respectively.
Ms Chalmers said that they should list the range of services now to get an idea of what is available.
Mr Botes replied that Acts provide for the broader brush strokes but that the regulations will contain the details. He suggested that the Act should just give a description of what residential facilities and community based are. Mr Botes listed three different levels of service provision and requirements. Level one referred to independent living:
-Information and awareness programmes
-Preparation for retirement
-Housing, transport etc
-Promote and protect rights of older persons
Mr Turok interrupted by saying that Mr Botes was taking the proceedings backwards and that they had already agreed to include this in clause 5.
Mr Botes replied that unlike clause 5 this section included all those responsibilities specific to Social Development and not other sectors. He continued with level two, community based care and support:
-Primary health care
-Home based care
And level three:
-Place of safety
Ms Bryan requested that assistant advisors be added to the list, as many people could not access the necessary equipment. She said that there are also too many cases of people sitting in hospitals who should be in residential care but old age homes would not take them as they felt that the level of care they needed was too demanding for the available level of staff. In light of this the Act needs to include the Health department as well. Ms Bryan also asked about interim homes for crisis cases.
Mr Botes responded that this was covered under "place of safety".
Ms Bryan noted that there was a difference between emergency situations where medical care is required versus taking someone out of an abusive home as an emergency but they do not require medical care.
Mr Mantata (Member of the Task Team) referred back to the issue of equipment and said that those caring for the aged sometimes approached clinics for equipment but they had run out of stock.
Ms Turok suggested that they say "safe houses" for those emergency cases not needing medical care and that "provision of a help line" be inserted under "counselling".
Mr Botes asked whether they should specify the enabling system that would be needed to carry out services.
Ms Koornhof responded that this was captured in clause 6(b) where it mentions where subsidies will go. It is not necessary to list them but she noted it was important to be clear on who is eligible for subsidies.
Ms Turok said that only registered peoples were eligible for subsidies otherwise there would be no way of monitoring the use of funds.
Ms Koornhof pointed out that they did not want to be disenabling small proactive groups from giving care.
Ms S Rajbally (Minority Front) said that they cannot have 'fly by nighters' operating for their own benefit and that all groups wanting subsidies must register.
Mr Botes said that conditions for being granted subsidies should include:
Complying with the norms and standards
The body should have a management committee
It should be registered
Should have a bookkeeping system or comply with financial requirements
He added that services which Social Development funds must be in line with the needs or policies of government.
Ms Bryan said that they should include: affiliation to a mother body for smaller grassroots initiatives, as they may need assistance to handle funding.
Dr Mahlangu asked at what point the smaller initiative is allowed to go it alone. In some instances affiliation can kill initiative.
Ms Turok suggested that the conditions for subsidies ask for bookkeeping and financial requirements or affiliation to a mother body so as not to prejudice those with capacity.
Dr Mahlangu suggested that if possible they should regulate that mother bodies should have a period (for example three years) with the smaller body after which the mother body would have to account for the fact that the smaller initiative is not able to stand on it own. She said further that the condition of payment section should stay as it is with the addition of the need for mother bodies to indicate the growth they have developed in the smaller initiative.
Mr Botes asked about the possible situation of a smaller initiative being ready before three years. He added that a further condition for subsidisation was the signing of a memorandum of agreement between the Department and the service provider.
Dr Mahlangu said that they did not want to prevent people from running services for the elderly that are not registered but that in the case of residential facilities, services that look after six or more people that are not family members have to register.
Ms Bryan noted that even people looking after fewer than six need to be monitored.
Dr Mahlangu then suggested registration for those looking after six or more and those looking after any number of people in residential care for remuneration.
Mr Botes commented that asking everyone who looks after another and gets a grant for such service is impossible.
Ms Turok suggested that those looking after 6 or fewer do not have to register but have to inform provincial and local authorities.
Mr M Da Camara (Democratic Party) said that this issue should be clarified at the definition stage of the Bill i.e. "facility" needed to be defined as having X number of resident for example. He said that one could not suddenly define this in the body of the Bill.
Ms Turok moved on to ask what happens to residents if a facility is closed down by the department due to mismanagement by staff. She felt that it was the duty of the management to find alternative accommodation. If the management decided to close down they should consult the Minister and give the resident sufficient time to find alternative accommodation.
Ms Bryan pointed out that it was not appropriate to put the responsibility of finding alternative accommodation for residents on the management of a facility being closed down for incompetence. The state would have to take responsibility for this.
Mr Botes commented that they needed to monitor the alternative arrangements made. He said that before closing down a home they must first ensure attempts have been made to rectify the problem, closing it down should be a last resort.
Ms Bryan said this should be a provincial responsibility.
Mr De Camara said that if a facility knows it is in danger of closing down for financial reasons for example, it must inform the authorities, which can investigate possible options to keep it open.
Ms Bryan noted that they were talking about two separate issues: that of the state closing a facility down and that of management of a facility closing itself down. She said that both needed to be separately legislated for.
Mr Du Preez said that the Minister could not do all the work and that it should be delegated to the MEC to do the groundwork.
Ms Mzuye asked where the department would move those affected by the closing down of facilities.
Dr Mahlangu gave examples of social workers unable to find alternative accommodation for the affected.
Mr Botes said that in the Free State Department they recognise it is not possible for the social workers to handle such situations on their own and they thus call all the role players together to find a solution.
Mr Da Camara suggested that the department has to have a contingency plan for such situations. For example they could draw up a register of people in the community who can be called on to provide temporary care, but he noted that the department would have to ensure they are not moving people from one abusive situation into another.
Ms Bryan said that because most people in the communities have little money the department could provide a grant to encourage people to open their homes to the elderly.
Ms Mzuye cautioned that this was not necessarily realistic.
Mr Da Camara responded that there needed be a grant system but an emergency fund from which the money can be drawn to compensate those on the register.
Ms Lindgren said that there should be pressure put on the Department of Housing, as they needed to put accommodation in place for the elderly in these situations. She further commented that Social Development needed to ensure that once someone has been caught abusing the elderly in residential care they do not merely have their registration revoked and set up again somewhere else.
Mr Botes said that they should stipulate that the registration certificate was non-transferable.
Ms Turok said that she found Clause 9 unsatisfactory. She said that it was from the old Act and was not implemented. Mr Du Preez confirmed this.
Dr Mahlangu referred to clause 9(1) and said that in an emergency one could not wait for the Minister to appoint a designated body.
Mr Du Preez suggested that Clause 9(1) should read "the Director General should appoint a social worker" rather than "the Minister should appoint a designated body" to deal with situations of non-compliance (see Clause 8(3)). He said this would facilitate a more immediate response.
Ms Turok said that they could thus remove sub-clauses 9(2) and 9(3).
The House agreed to both suggestions.
Ms Turok noted that many service providers were unhappy with the idea of management committees comprising of residents. Either management handpicks the committee members to ensure they support their views or management committees interfere with the running of the facilities.
Dr Mahlangu acknowledged this but said that they have to ensure that management cannot do whatever they wish to residents.
Mr Botes said that they needed to research this more.
Ms Turok responded that there was no justification for further research, as it would hold the Bill up even further. She suggested that the government structure of a home follow the type of structure governing it. For example if a company runs the facility it would follow the Companies Act for guidance on governance structures. She suggested they change the wording to "residents" or "users committees" which allow residents input but they do not run overall management.
Ms Mzuye enquired if the smaller voluntary caring initiatives that were emerging and home based care should have management committees in order to apply for funding. She clarified that she was not referring to Ms Turok's concern about residents committees but was referring to the need for small initiatives that are applying for funding to have a management plan.
Mr Botes agreed that they should.
Dr Mahlangu said that "Admission to residential facilities" would be changed to "Admission to residential facilities".
Ms Turok noted that the reason for this clause was to prevent old age homes from discriminating against non-whites in their admissions.
Mr Botes said that many such homes claimed that the reason they had so few non-whites is because they prefer to stay with their families. He said that if that were true then the department should be channelling funds to community based care. He said that homes wanted greater subsidies for taking on poorer people.
Mr Botes noted that for state-funded care they could say that people with a monthly income below R700 qualify for a place in residential care. He said that he was working on costing residential versus community-based care. Residential care averaged R2000-R21000 per month but the government could not afford to pay the whole amount for each person. Community based care averaged R300 per month. He noted that since 1998 homes only had to admit those at the stage of needing frail care, so there was a higher turnover.
Ms Lindgren pointed out that the problem with only admitting those with incomes below R700 per month is that those above this income subsidise the poorer residents.
Ms Mzuye said that there should not be a strict R700 per month cut off, but there should be a needs based criterion.
Dr Mahlangu suggested that the Bill stick to the DQ98 as a measure of need and not specify a monthly income criterion.
Mr Botes agreed and said that to qualify for a subsidy the person should have an income of less than R700, but that people with a greater income could still be admitted to residential facilities.
The House agreed.
Dr Mahlangu said that the heading "Inspection" would be changed to "Monitor".
Ms Mzuye commented that with regards to 12(1) it should not just state that social workers should carry out monitoring but that use should be made of development workers.
Ms Turok asked what social and development workers know about frail care.
Ms Lindgren said they should include "health professional" as well as social or development worker.
Mr Botes said that they should also provide for the monitoring of the monies paid to the caregivers and monitor the number of people residing in the home.
Ms Mzuye said that they should specify how often inspection should take place.
Ms Turok said that this clause was now covered by the role of the ombudsman and could thus be removed.
Mr Du Preez confirmed this.
Mr Botes suggested that the following be inserted in Clause 14: "monitoring of the achievements of the objectives as set out in the memorandum of agreement" (agreement on norms and standards of service provision).
Management committees are to report to the Director General not the Minister as previously specified (see 14(1)).
Clause 15 on rights of older persons in residential facilities is to be moved to Chapter Three: "Protection for Older Persons".
The meeting was adjourned.
Chapter Two of Older Persons Draft Bill
ENSURING AN ENABLING AND SUPPORTIVE ENVIRONMENT FOR OLDER PERSONS
Establishment and maintenance of residential facilities and payment of subsidies to residential facilities, organisations, welfare organisations and registered welfare organisations.
The Minister may, subject to the provisions of this Act and with the concurrence of the Minister of Finance, out of moneys appropriated by Parliament for the purpose -
establish and maintain residential facilities for older persons; and
pay subsidies to the managers of these facilities and to organisations, welfare organisations and registered welfare organisations providing services to older persons and frail persons.
Conditions for subsidies to residential facilities and organisations
7.(1) When a subsidy is paid in terms of section 6, the Minister must, by regulation in terms of section â€¦â€¦.., prescribe the conditions of use of that subsidy, including conditions regarding the accounting for the subsidy so paid.
Any person to whom a subsidy is paid in terms of section 6 must use, and account for, the subsidy in accordance with the conditions referred to in subsection (1).
If any condition referred to in subsection (1) is not complied with, the Minister may after one month's notice of the intention to do so, withdraw the subsidy in question.
Any person to whom a subsidy in terms of section 6 is paid is personally liable for the refund of the amounts used contrary to any condition referred to in subsection (1).
Prohibition on management of unregistered residential facilities, and registration of such facilities.
8.(1) No person shall manage a residential facility (except such a facility maintained by the State), unless such facility has been registered under this section.
If any person desires to manage a residential facility he or she may in the prescribed manner apply to the Minister for registration thereof.
After consideration of an application referred to in subsection (2) the Minister must -
refuse the application or grant it subject to such conditions as he or she may determine, and if he or she grants it, direct that a registration certificate specifying those conditions be issued to the applicant in the prescribed form; or
subject to such conditions as he or she may determine, grant authority to the applicant to manage the residential facility for such period (not exceeding twelve months) as the Minister may determine, and direct that a registration certificate specifying those conditions be issued to the applicant in the prescribed form for that period, and after expiration of the said period, or after notice by the applicant in the prescribed manner that the said conditions have been complied with, whichever may occur first, reconsider the application.
The Minister may at any time after one month's notice of his of her intention to do so, and after consideration of any representations received by him or her during such month, amend or cancel, subject to the provisions of subsection (5), a registration certificate issued in terms of subsection (3)(a).
The amendment or cancellation of such registration certificate must be effected by notice to the holder thereof, and must take effect on a date specified in the notice, not being earlier than three months after the date of the notice, unless the Minister and the holder of the registration certificate have agreed otherwise.
A person to whom a registration certificate has been issued in terms of subsection (3), may not without the prior approval of the Minister transfer it to any other person.
If the registration of a residential facility has been cancelled in terms of subsection (4), or if the manager of a residential facility desires to close down such facility for any other reason, he or she must take reasonable steps to ensure that on the closing down of such facility the older persons in question can be accommodated in another facility or with persons who, in the opinion of a social worker, are fit and proper persons for accommodating them.
The manager of a residential facility which immediately prior to the date of commencement of this section is being subsidized by the State, must be entitled to have such facility registered in terms of subsection (3)(a) subject to such conditions as the Minister may determine.
A residential facility which is in existence immediately prior to the date of commencement of this section but which is not then being subsidized by the State, is deemed to have been registered in terms of subsection (3)(a) during the period of twelve months immediately following upon the said date.
Any person who contravenes or fails to comply with a provision of this section, or of a condition imposed thereunder, is guilty of an offence.
Monitoring compliance with conditions for registration of residential facilities
9.(1) If there is reason to believe that any of the conditions referred to in section 8(3) have not been complied with, the Minister must appoint a designated body -
to monitor compliance with those conditions; and
to order specific measures to be adopted to facilitate compliance with those conditions.
The applicant concerned must at all reasonable times report to the Minister any circumstances which may result in his or her inability to fully comply with the conditions referred to in section 8(3).
If the registration of a residential facility has been cancelled in terms of section 8(4), or if the manager of a residential facility desires to close down or transfer that facility for any other reason, the manager must -
prior to any decision to close down or transfer that facility is made, consult with the Minister on the matter;
furnish the Minister with a full report on the steps taken regarding the future accommodation of the older persons in question as contemplated in section 8(7); and
at least six months before the closing down or transfer of that facility in writing notify the older persons in question and the Minister of such closure or transfer.
Establishment of management committees for residential facilities
10.(1) If more than 10 older persons reside in a residential facility, a management committee must be established as prescribed by the Minister by regulation in terms of section â€¦â€¦..
The Minister must, by regulation in terms of section â€¦â€¦â€¦â€¦, prescribe -
the composition of every management committee to be established under subsection (1), which must include representation of the residents and staff of the relevant residential facility and the public in general;
the election and appointment, qualifications, term of office, and grounds of removal from office, of the members of that committee and the filling of vacancies on that committee; and
the number of, and procedure at, meetings of that committee.
A management committee established under subsection (1) must ensure that the manager of the residential facility in question -
facilitates interaction between the residents of the facility and their families, the public in general and that committee;
provides quality service to the facility;
provides opportunities for the training of the staff of the facility;
applies principles of sound financial management and submits quarterly financial reports to the residents and staff of the facility;
monitors activities at the facility in order to deal speedily with any incidents of abuse of the residents of the facility and takes steps to report such incidents to the appropriate authority;
consults the management committee in the appointment of the staff of the facility;
establishes complaints procedures for the residents and staff of the facility and persons who wish to lodge a complaint on behalf of any such resident; and
does everything necessary or expedient for the effective functioning of the facility.
Admission to residential facilities
11.(1) When deciding whether or not to admit a person to a residential facility, no person must unfairly discriminate directly or indirectly against the first-mentioned person on one or more grounds referred to in section 9(3) of the Constitution.
Any person who contravenes the provisions of subsection (1) is guilty of an offence and is notwithstanding section â€¦.., liable on conviction to a fine or to imprisonment for a period not exceeding five years, or to both such fine and such imprisonment.
The need for a residential facility to reflect broadly the race composition of South Africa must be considered when determining eligibility for admission to that facility.
Admission to a residential facility will be based on the level of dependency as measured by the DQ98.
If a person is refused admission to a residential facility, the manager of that facility must, on the request of that person, give reasons for such refusal to the person.
12.(1) A social worker may at any time -
visit and inspect a residential facility or any other place where an older person is cared for or accommodated for remuneration, whether by way of money or goods, or any place which the social worker believes upon reasonable grounds to be a residential facility or such a place;
interview any older or frail person accommodated in such facility or place;
either with or without the assistance of a medical practitioner, there enquire into the welfare of any such person;
direct any person who has in his possession or custody any book or document relating to such residential facility or place, to submit such book or document to him or her for inspection.
A social worker exercising any power in terms of subsection (1) must, at the request of the manager of the residential facility in question or the person who has control over the place in question (as the case may be), produce a certificate issued by the Director-General and stating that he or she is such an officer.
Any person who obstructs or hinders a social worker in the exercise of his or her powers in terms of subsection (1), or who refuses to give him or her at his or her request access to an older or frail person accommodated in a residential facility or place referred to in subsection (1), or who refuses or fails to comply with a direction in terms of subsection (1)(d), is guilty of an offence.
Enquiry by designated body into matters regarding older persons
13.(1) The Minister may appoint any designated body to inquire into and consider any matter relating to the rights of an older person.
(2). The designated body so appointed may, for the purposes of that enquiry -
summon in the manner prescribed by regulation in terms of section â€¦â€¦â€¦ any person -
who, in the opinion of the designated body, is able to furnish information of material importance to the enquiry; or
who the designated body has reason to believe has in his or her possession or custody or under his or her control, any book, document or record relating to the subject of the enquiry,
to appear at a time and place specified in the summons to be examined or to produce that book, document or record and may retain for examination any book, document or record so produced;
through the person presiding at the enquiry -
(i) administer an oath to, or accept an affirmation from, any person summoned in terms of paragraph (a); and
examine or cause him or her to be examined by a person designated by the designated body to lead the evidence at the enquiry and instruct him or her to produce any book, document or record in his or her possession or custody or under his or her control.
(3) A summons referred to in subsection (2) must contain the information and must be served in the manner, prescribed by regulation in terms of section â€¦.., and section 51(2) of the Magistrates' Courts Act, 1944 (Act No. 32 of 1944), will with the necessary changes apply in respect of any person on whom that summons has been so served.
The law relating to privilege, as applicable to a witness summoned to give evidence or to produce a book, document or record in any civil proceedings, will with the necessary changes apply in respect of the examination of or the production of any book, document or record by any person summoned in terms of this section.
If the record of any criminal or civil proceedings is relevant in any enquiry in terms of this section, that record is on the mere production thereof prima facie proof of the facts stated therein.
If the conduct which forms the subject of any enquiry referred to in subsection (1), forms or is likely to form the subject of any criminal or civil proceedings, the designated body may postpone the enquiry until those proceedings have been concluded.
Any person against whom an enquiry is instituted in terms of this Act, is entitled, in person or through his or her legal representative, to answer the charge and to be heard in his or her defence.
(8)(a) The designated body may, generally or in any specified case, appoint a committee in the manner prescribed by regulation in terms of section â€¦â€¦. to exercise and perform all powers and duties of the designated body conferred or imposed by this Act.
If the designated body so appoints a committee, those powers and duties are regarded to have been delegated to the committee.
Any person who, having been duly sworn or having made an affirmation, tenders false evidence at an enquiry held in terms of this section, knowing that evidence to be false, is guilty of an offence and is, notwithstanding section â€¦â€¦., liable on conviction to the penalties which may be imposed for the offence of perjury.
Report to Minister by managers of residential facilities
14.(1) The manager of a residential facility must within 60 days after the end of the financial year of that facility submit to the Minister a report on -
compliance with -
the service standards, prescribed by regulation in terms of section â€¦â€¦; and
the measures, so prescribed, to prevent and combat abuse of older persons, during that financial year; and
the content of the service level agreements, so prescribed, concluded during that financial year.
When the manager of a residential facility fails to submit a report in accordance with subsection (1), the Minister may -
give notice to that manager that if such report is not submitted within 90 days after the date of that notice, any subsidy paid in respect of that facility in terms of section 6 will be withdrawn; and
if such report is not submitted within 90 days after the date of the notice given in terms of paragraph (a), withdraw such subsidy after giving one month's notice of the intention to do so.
Rights of Older Persons residing in residential facilities
An older person residing in a residential facility has the right to -
appoint a representative to act on his or her behalf;
have reasonable access to assistance and visitation;
have reasonable access to his or her medical records;
keep and use personal possessions;
have access to basic care;
be informed about the financial status of the facility and changes in management;
participate in social, religious and community activities of his or her choice;
remain in the residential facility even though continuous care is required;
his or her own physician; and
be given at least 30 days notice of a proposed transfer or discharge.
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