Regulations to Aged Persons Act: finalisation

Meeting report

WELFARE AND POPULATION DEVELOPMENT PORTFOLIO COMMITTEE
12 June 2000
REGULATIONS TO AGED PERSONS ACT: FINALISATION

Documents handed out
Regulations under the Aged Persons Amendment Act, 1998, as amended by the State Law Advisors following the presentation to the Portfolio Committee on 10 May 2000
Regulations to the Aged Persons Act, 1967 (Act No. 81 of 1967)

SUMMARY
The amendments to the Regulations under the Aged Persons Amendment Act as suggested by the Committee on 10 May were presented to the Committee. The Committee suggested a few more changes which will be implemented before submitting the final document to the Minister on 14 June 2000.

MINUTES
Mr Van den Heever, Director: Care of the Aged, reported that the regulations had been finalized by the State Law Advisors and 1 July 2000 had been fixed as the date for publication. The final regulations will be submitted to the Minister on 14 June 2000. He estimated that 70% of the needs expressed in the last week's hearings are met in the regulations and that the rest fall outside the jurisdiction of the Bill.

He identified three "wheels" in implementing the regulations:
- Operation Dignity, a community initiative to protect their elderly, which had been launched in six provinces
- The Protocol on Abuse, of which the first draft had been finished, according to which nurses and social workers will be educated on the new regulations.
- The community must be involved as soon as possible in finalising the protocol and in implementing the Ombudsman system. The final regulations will be available to communities within eight weeks.

Ms De Klerk, the legal advisor of the Department, went through the alterations that had been made to the draft regulations since the previous discussion.

Clause 1
A definition of "Ombudsperson" had been added. Mr Van den Heever commented that the implementation of the Ombudsperson is a big challenge and that after the public hearings the time is right to begin such a process.

Ms E Gandhi (ANC) commented that the definition of an Ombudsperson should be much broader and should include specifications on his power to make interventions whenever necessary, since that is a very important part of his function. All members agreed and the Chair asked the Department to attend to such an extension of the definition.

In response to a question as to how complaints are to be submitted. The Department replied that it is very important that as little as possible time should pass when dealing with elder abuse complaints. Therefore a system should be implemented at grassroot level, with a person specifically responsible for complaints. Such a person should report to the Management Committee immediately and ensure that action is taken. In this way a specific person can always be consulted with regard to such matters. It is however difficult to find such a person who will be willing to take on the responsibility. But the decision is already a good step forward. A proper definition of the duties of such a person will be added to the regulations at a later stage.

The Department said that there had been complaints about the term "aged person", as used under the definition of "resident", but that it could not be extensively attended to in this Act and will be dealt with in the next.

Clause 2
(1)(a) "care of approved persons" has been changed to "care of residents"
(1)(b) "all reasonable times" has been changed to "at any time"
(2)(c) "three months" has been changed to "nine months"

Clause 3
(1) and (2) "The manager" has been changed to "The management committee"
(2)(a) "of which one will serve as an Ombudsperson" has been added
(2)(b) "The manager" cannot be the chairperson as the person who is to be monitored would be the chief of the monitoring committee.
(d) has been added to give greater representation to the residents themselves.
(3) The clause "Provided that such a member does not hold the same office for two consecutive terms" has now been added
(4) has been added
(8) "Interest" has been specified as "financial or other". The Department explained that some people can manipulate services because of what they own and that this phrase has been included to prevent fraud and abuse.
(9) A committee member suggested that any person be disqualified if he fails to disclose information as under (8) above and this was agreed to.

Clause 4
(2)(a) Regulation 3(8) becomes 3(9) due to changes.

Clause 5
(1) "Thereafter meetings will be held monthly at such times and places as the management committee determines" had been added after previous discussion to ensure that complications are dealt with quickly.

Clause 8
The Department explained that this point had been discussed in detail and that is was decided that, as far as forms and administration is concerned, the easiest way to deal with admission is for the applicant to simply apply in writing. As for cases of illiteracy, a family member or adequate person should do it on behalf of the applicant.

Clause 9
Form 1 is now specified.

Clause 10
"Aged person" had been changed to "resident" as discussed earlier.
(1)(g) For the sake of completeness "or any other place contemplated in section 4(1)(a) "of the Act" had been added.
(4) "Welfare of residents" had been changed to "of aged persons" to include victims of abuse in private homes. On this point the Chair asked if only the names of those convicted will be revealed in the register and the Law Advisor answered that it was unconstitutional to include the name of a person who has not been officially convicted.

Clause 11
It was decided that minimum standards should not be changed by means of forms and other administrative ado, but that it would be most effectively done if the Minister could determine it simply by notice in the Gazette.

Clause 12
(1) One of the members raised the issue of a patient being dangerous to those around him and it was decided to add to the regulation "or other residents and members of the staff".
(2)The definition of the concept "medical practitioner" was debated, especially as to whether it includes nurses or not. It was concluded that the term does not refer to nurses and it was decided that the delegation of medical authority should be included in (1) above.

The issue of how traditional healers are accommodated in this specific regulation was raised. Dr Mbulawa (ANC) informed the committee that an extensive exploration of the position and definition of traditional healers is currently in process. She suggested that any reference to such medical practitioners in these regulations should be reserved until that process is completed. It was agreed upon by all members.

(4) The detailed register was considered a good mechanism to force the management committee to be properly accountable, but it was put forward that members must therefore be properly educated in the new regulations and that the Ombudsperson should check on this.

(5) was added. It was discussed whether "as soon as possible" should not be changed to "24 hours", but the notion was rejected in the light of the fact that often old people are left by their families and it might be very hard to find them under such circumstances. It was, however, emphasised that the management committee is obligated to involve the families of residents.

(6) It was unclear to whom complaints should be reported. It was pointed out that residents might be intimidated by staff members, or even the management committee. It was concluded that the role of the Ombudsperson was exactly that, to be a neutral and reliable person to whom residents can report any complaints with emotional security.

(7) Ms Gandhi pointed out that it should be specified that the exact treatment of the problem, as decided upon at the meeting, must be recorded and not possibly only the fact that the problem was discussed. This was agreed to.

It was suggested that there should be a clause stating exactly what the Ombudsperson should be doing, to ensure that inspection is done regularly and such person is available to hear any complaints. It was also decided that their was a definite need to ensure that people felt free to complain about unfairness without fear of being maltreated. It was agreed that this would also form part of the Ombudsperson's duties. The Department will insert such a clause.

Clause 13
Ms Gandhi suggested that the clause should read "must contain amongst others the following" and not just " the following" and it was so agreed.

In (a) and (b) "Type of" has been omitted. Subclause (b)(i) will be changed to read "at least three nutritionally balanced meals per day".

It was suggested that "taking into account their health status" should be added, but the Department pointed out that that was already taken care of in the Minimum Standards document. Mr Van den Heever said that the Committee had to start trusting the process and that this should be a natural result of it. If the regulation in the end obligates the homes to appoint a special person for this function, the extra costs will come down on the residents.

(c)(i) "from time to time" must be deleted.
(c)(ii) There will be no difference in the basic treatment residents receive, whether they are subsidised by government or pay for themselves. The contract, the policy and the minimum services document provide for equal services to all residents.

General remarks
- It was emphasised that the Ombudsperson should be completely independent and readily available to residents.
- The Committee should embark on a national awareness campaign against abuse and people should be released from their fear to report abuse.
- As far as the involvement of the families of residents, common sense should be applied and easy-to-resolve minor complaints need not be reported to families.
- The rights of residents should be publicly displayed in the home and be well known, although care must be taken not to over-regulate the system.
- Families who can afford it should take responsibility for the necessary payments, since the budget for subsidies cannot accommodate them as well.
- No person should be discharged from a home with no proof of alternative care.

The Chair concluded that all the issues that had been raised had been well attended to. The Department will make the further alterations as decided by the Committee and the final document will be presented to the Minister on 14 June.