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WELFARE AND POPULATION DEVELOPMENT PORTFOLIO COMMITTEE
10 April 2000
AGED PERSONS ACT: DRAFT REGULATIONS
Documents handed out
Minimum Standards on Services
Chairperson: Mr E Salooje
The draft regulations to protect aged persons against abuse and neglect was presented to the Committee. The provisions state that a written agreement between the aged persons and homes would have to set out what the services and charges of that home are. Service level agreements have to meet stated requirements. The regulations provide for the conditions for use of the government subsidy received by homes and give clear detail on the management committees that have to be formed within 60 days of the regulations coming into effect. Measures are enumerated to prevent and combat abuse of aged persons. Homes for aged persons have to meet specified minimum service standards. A national register must be kept of the full details of cases of abuse.
Concerns were raised by members that the slow progress of court cases results in injustice to the elderly and that regulations should look into that. Also, that it is not clear in what instances the management committee minutes should be confidential and fear is that this might result in cases on abuse being ignored and kept secret. It was pointed out that the regulations fail to specify who should forward the details of a conviction to the Minister for entry into a national register on abuse of aged persons. The Department stressed that the regulations were only in draft form and any suggestions would be looked at.
Mr van den Heever, Director: Care of the Aged, as background to the regulations, mentioned that a draft had been published in the Government Gazette in August 1999 but a number of complaints were received from provinces and stakeholders that the Department had not consulted them. Comments were then called for and received by the end of September 1999.
Stakeholders are in agreement that the Aged Persons Act of 1967 is outdated as it was drafted when focus was on residential care and specific focus on White elderly only. It is acknowledged that there is a number of reasons why Black elderly do not go to homes for the elderly. Amongst these reasons is that to some it is seen as a strange idea to move away from a family home (to stay with strangers in a home for elderly), and the fact that places where homes for elderly are situated are far from their communities. However, it is the Department's intention to break the subtle discrimination that still exists in this regard.
One of the areas of focus is the democratisation of the management structures of the homes for the elderly. The Act would therefore have to be amended and the proposed amendment structures implemented. Certain aspects of the proposed amendments have to be looked at carefully. For instance, provision for the "designated body" seems to take away the social workers entitlement to investigate complaints of abuse and neglect. It is thought that such powers should not be taken away from the social workers.
The way forward after this meeting is that the draft will be submitted to the State Law Advisors and afterwards receive the Minister's approval before end of May 2000. It is hoped that it will be introduced by 1 July 2000 and an amendment to the Act effected.
Draft Regulations for the Aged Persons
Ms de Klerk, Legal Advisor in the Department of Welfare, gave a briefing on the content of the regulations.
Clause 1 deals with definitions.
The clause sets conditions of use for subsidies paid to homes for the aged (paid in terms of section 2 of the Aged Person's Act). One such condition is that the use should only be for care of aged persons and "approved persons".
Clause 2(2) provides the accounting procedure for homes for the aged. A definition of a financial year is given in Clause 2(3). Clause 2(4) provides that financial statements must comply with generally accepted accounting principles and other directions that the Ministers of Welfare or Finance may give. Clause 2(5) states that the management committee or organisation that owns a home has to keep financial records for a period of five years.
This provides for the establishment of a management committee for a home for the aged. Within 60 day of these regulations coming into effect, the manager or organisation has to advertise for community members to nominate suitable persons to serve on the management committee.
The manager or organisation must then make suitable appointments to the committee after considering the nominations, which must consist of not less than five and not more than nine persons representing the local community (which representation must have regard to demographic composition of population, gender, race equity and fair geographic spread); the manager who is also chairperson; and where home is owned by an organisation, a representative designated by such organisation.
The term of office of members, excluding the manager, is limited to three years and reappointment may take place. Where a member dies or vacates office, the manager or organisation may appoint another suitable person to serve for remainder of the term of office. Instances where members of the management committee will be reimbursed and use of assets are specified. Before appointment to the management committee, members have to disclose their interest in the relevant home in writing. Instances where one is disqualified from appointment as a member of the committee are mentioned.
The clause provides instances where a member vacates office and when removal from office takes place.
Clause 5 and 6
The clauses provide for meetings and keeping of minutes of the management committee.
Here provision is made for assignment and delegation of powers.
A person wishing to be so admitted has to complete and submit the prescribed form to the relevant management committee.
Notification of abuse of a person in a home for the aged has to be done on a warrant to enable removal of such person to a hospital. The warrant has to substantially correspond with Form 4 in the appendix to the regulations.
A national register has to be kept on the abuse of aged persons. The purpose of this is to protect aged persons. This clause specifies the details to be carried in the register. The Minister may authorise examination of the register for purposes of determining prevalence of abuse, collecting information on abuse and interventions made, and collecting information for purposes of employment and registration purposes. The Minister may disclose the information in the register to serve the interests, safety and welfare of aged persons. The provisions absolve anyone who provides information for the register as long as it is in good faith in accordance with the regulations.
The homes must comply with the minimum standards of service which must be carried in the letter of agreement between a home and an aged person admitted to it. The manner in which these minimum standards are to be set out in the regulations is still to be determined by the State Law Advisor. Currently they are contained in an annexure.
Clause 12 Measures to prevent and combat abuse of aged persons
Unless to ensure the safety of a resident or to treat an aged person's medical symptoms, they shall not be physically restrained or given drugs to restrain them. If necessary, such a restraint must be authorised by a medical practitioner. The restraint has to be recorded in a register for that purpose and the management committee and family are to be informed of all restraints at each of their committee meetings. Besides being recorded, any restraint must be monitored regularly. Complaints by staff, residents or their representatives should be recorded in a register for that purpose and dealt with immediately by the manager. The management committee has to be informed of such complaints at each of their meetings. Discussion and outcome of grievances, complaints and abuse in management committee meetings must be noted in official minutes which are to be treated as confidential.
Information to be contained in a service level agreement is specified under this clause.
Questions and Comments
Ms P Cupido (DP) suggested that the Clause 3 provision for the term of members of the committee being limited to three years be extended. This is to allow certain members to continue into the next term so that the new members should not be operating on their own, allowing a transfer of skills and experience to occur.
It was suggested that medical details should be included in the list of details to be entered in the national register on abuse of aged persons.
Ms E Ghandi (ANC) queried the provision that minutes of the management committee dealing with complaints and grievances be treated as confidential. She asked against whom? Is it against staff or residents? The fear is that this would result in the minutes being concealed and never receiving attention after the meeting.
A.) The Department replied that the only aim for their stressing confidentiality of the discussion is to protect the complainant from the perpetrator. He pointed out that by making the complaint a public statement, the perpetrator would read it. The Department is currently working on a protocol on abuse and is trying to put a monitoring system in place.
A committee member asked why a home has to make its own regulations in addition to these ones.
A.) The regulations the home has to make are seen more as rules on the day-to-day running of the home, which cannot be prescribed by the these regulations. As long as these are within the minimum standards and regulations, the homes are within their right to make them.
Mr A Van Jaarsveld (NNP) advised that a separate provision be included in the regulations for holding meetings as quickly as possible to deal with complaints.
A.) The Department suggested a provision whereby meetings to deal with complaints of abuse be held at least every three months.
Adv Masutha (ANC) said no mention is made of whom should forward details identifying a convicted perpetrator for recording in the national register on abuse of aged persons. He asked if that could be the responsibility of the clerk of the court or the prosecutor.
A concern was raised that considering that elderly persons forget quickly, has any thought been given to speeding up criminal cases involving their abuse as court proceedings can be extremely slow?
A.) The Department pointed out that it cannot regulate procedure for the Courts. However, they realise that there is a massive need to train both prosecutors and magistrates in the application of the Aged Persons Act. A request could be made to the Justice Department that they effect a provision in their regulations to fast track cases that involve elderly persons.
Ms D Morobi (ANC) asked what are the legal implications of people setting up homes without training or proper qualifications and with a disregard of health requirements.
A.) The Department said when Welfare regional or provincial offices know of such homes, it is the responsibility of the State to assist them to register, failing which, close them down and arrange for the elderly person to be removed to an alternative home.
Ms J Chalmers asked how will the general public know about the presence of the register for protection of elderly people against abuse.
A.) The Department suggested awareness campaigns to bring the provisions of the regulations to the attention of the public.
The Chairperson made an appeal to the Department to keep the Committee informed of future progress regarding the regulations. The meeting was adjourned.