Older Person’s Bill: hearings

Meeting report

SOCIAL DEVELOPMENT PORTFOLIO COMMITTEE
31 August 2005
OLDER PERSON’S BILL: HEARINGS

Chairperson: Ms T Tshivhase (ANC)

Documents handed out:
Alzheimer’s SA, Western Cape Region, submission
Alzheimer’s SA, Western Cape Region, submission by Lindy Smit
Resources Aimed at the Prevention of Child Abuse and Neglect submission
Luipaardsvlei Tehuis vir Bejaardes submission
South African Catholic Bishops Congress submission
Grandmothers Against Poverty and AIDS submission
Western Cape Provincial Department of Health submission
Leprosy Mission Southern Africa submission
Children’s Bill and related legislation: Implications for State Departments and other institutions
Comments on Chapter 4 (General And Supplementary Provisions)
Comments on Older Persons Bill (Version B68-2003) together with Proposed Amendments
Oral presentation notes for Older Person’s Bill
Distribution of Individuals by Province Part1
Distribution of Individuals by Province Part2
Overall Budget Estimates, MTEF 2005 - 2010 (2005 prices)
Composite Table of Total Costs for All Programmes for the Different Levels of Care on VOPs

SUMMARY
Several organisations presented submissions on the Older Person’s Bill (B68B - 2003). Concerns on the Bill included lack of adequate definitions, the primary focus on older persons in institutions, and whether younger disabled persons would be covered. Problematic definitions included ‘elder abuse’, ‘frail persons’ and ‘frail care’, ‘caregiver’ and the age boundaries for older persons. High court costs for older persons who wanted to press cases of elder abuse or resist being placed in institutions, was also a matter of concern.

The Committee questioned the organisations on points of clarity and debated the proposals. Overall, the Committee agreed that the Bill was unclear in many of the definitions, and it had substantial gaps that needed to be addressed before being approved. The Committee also agreed that steps had to be taken to increase cross-departmental synergies.

After the lunchbreak, the Committee received answers to issues that were raised at the inter-sectoral workshop in Johannesburg in December 2004. They learned that mothers with children were accommodated in single cells, and prisoners took part in various education programmes. There was a need for campaigns to encourage the use of contraceptives to reduce the rate of teenage pregnancy and HIV/AIDS.

MINUTES

Alzheimer’s South Africa (Western Cape Region) submission
Ms K Borochowitz, Regional Chairperson, and Ms L Smit, Vice-chairperson of the national organisation and a private social worker offered background on the debilitating effects of dementia in its various forms. It was as prevalent in South Africa as in the rest of the world, and one in 20 people over age 65 and one in five people over age 80 suffered from the condition. Dementia was often surrounded by stigma and myths, especially in rural communities, and sufferers often did not want to receive treatment. Home-based care and proper funding were vital to provide sustainability of care for older persons.

Ms Smit said that it was problematic that frail persons had been left out of the Bill as there was no reference to frailty. She suggested more assistive devices, day care facilities, and home care because it would delay institutional care. Also, they proposed that the Director-General form a multi-disciplinary task force in the provinces to investigate and make recommendations and to make changes after older persons had laid complaints. Another major proposal was that Clause 9 of the Bill should include that no older person be admitted to a facility without consent, a court order, or if they were at risk. She cautioned that elder abuse was not merely a problem in institutions, but that it more often occurred in homes from family members. This was a concern because the primary focus of the Bill was on institutional care. The Bill proposed that elder abuse cases be brought to the D-G, but this would be ineffective and a better solution would be an elder abuse hotline and task teams that would respond. They also proposed that an ombudsman be created.

Luipaardsvlei Tehuis vir Bejaardes submission
Mr CJ van Vuuren, Manager, said that his old-age home was a branch of NG Welfare in the Northwest Province. The definition of ‘luncheon club’ was problematic because older persons were largely disadvantaged and were not able to afford lunches and services. The idea of ‘consultation’ needed further clarification. The Bill’s definition of older persons as 65 years and older for males and 60 years and older for females was a problem because it neglected 60-65 year old men who were often unemployed, or had psychological illnesses but could not receive a disability grant. Non-elderly physically disabled people had previously been covered by the laws governing older persons, but were not included in this Bill. The Bill had to be revised to include provisions on how to deal with such people who were living in facilities for older persons.

Discussion
Ms H Bogopane-Zulu (ANC) said that disabled persons who were not old were simply disabled but not included by the Bill. However, all older persons experienced some form of disability by virtue of being old. Because of this, however the Bill developed it was expected to accommodate disabled older persons. Since old people had trouble using stairs, facilities were likely to be only one level high, which was also of use for the disabled. To ensure that facilities would not become a dumping ground for parents whose children did not want to take care of them, measures would be taken to allow older persons the right to a court order to make their own decisions. In response to the submissions on dementia, it was of note that many black people considered those with dementia to be witches and some had even been stoned to death. Part of the funding for development programmes should be used for education.

Ms H Weber (DA) took exception to Ms Bogopane-Zulu’s remark that all those aged 65 and older were disabled. She verified that the Alzheimer’s association existed nationwide and linked with other related regional Alzheimer’s groups. The Committee should address the high court fees for older persons who argued that they should not be admitted to facilities.

Adv M Masutha (ANC) said dementia, as he had seen with his grandmother, was agonising and rendered the family members helpless. The kind of services rendered and persons involved in the Bill often involved a health component, such as assistive devices. He asked in what areas of the Bill the Alzheimer’s group thought a synergy could be developed between the Social Development and Health Departments. The language in the Bill regarding curatorship should be re-evaluated to include more options than merely facilities. Other options should be included, such as Department grants that allowed a social worker to disburse funds as needed for the welfare of older persons. The Committee should explore ways of intervention that did not necessarily involve the courts, such as the Children’s Bill had done.

Mr K Morwamoche (ANC) queried whether the Alzheimer’s programmes would be accessible to those living in the townships. Regarding the question of curatorship and the Old Age Home, he noted that to many Africans it was not part of their culture to send older family members to such facilities. He asked how social workers managed to flourish and run so many programmes yet the government found it hard to find enough social workers. He also asked Mr van Vuuren whether traditional healers were included in the referral process of the Old Age Home.

Mr M Waters (DA) inquired whether the Bill accommodated those in need of frail care. Regarding the notion of court orders and curatorship, he agreed that it should not be expected of poorer families to pay the legal costs. The Bill as it stood did not adequately cover those with dementia and the poor. Social Development and Heath needed to exhibit greater co-operation, as that had been the problem in the Children’s Bill, and so this Bill needed to be looked at in greater detail.

Ms J Chalmers (ANC) agreed that frail care needed to be included and should receive funding and support. Home-based care needed further attention. Units could be deployed to assist home-based caregivers in a given area. This should also include cases of dementia, not merely HIV/AIDS as was the current trend.

Ms Bogopane-Zulu reiterated that when persons grew older they naturally developed disabilities such as sight and hearing loss. She amended an earlier point about the training of social workers and said that social workers need not have extensive degrees, but that it did take 4 years of training and ultimately offered little pay. Young people did not want to do it and it was a scarce resource. In the best interest of older persons, there should be a middle ground between extensive academic degrees and simple development work. There should be an expedited way to train social workers to assist and implement programmes in the facilities. Such people could then be ‘all-rounders’ who visited homes and provided multiple services for all ages and types of care needed. Several departments should work closely together to bring about such an all-around caregiver.

Mr Masutha responded to Mr van Vuuren about his submission that no non-governmental organisation (NGO) would agree to allow residents in facilities to form committees that had a so-called consultative power over the appointment of the staff. He offered that ‘consultation’ be interpreted in its simple context. Staff should simply inform residents of candidates for proposed staff appointments and ask them if they had any objections and that the staff would then take those comments into consideration when they made their decisions. Residents were good judges of who was fit and of good character to be their caregivers. To do otherwise was undemocratic.

Ms Smit said currently that power of attorney lapsed when a person was no longer able to comprehend the contents of what they were signing, and this had important implications in terms of consent. She agreed that curatorship was expensive and that other options should be examined to make it more accessible to more people. The Bill neglected frail care to the detriment of many people. Support of families involved in home-based care should be extended beyond just those in HIV/AIDS care. ASA programmes were currently underway to train auxiliary workers to respond to more types of home issues such as the care of older persons.

Ms Borochowitz responded to the question of ASA’s connection to other Alzheimer groups that ASA had changed its name in the last two years from Alzheimer’s and Related Dementias Association (ARDA) and that next year represented its 20th year of existence. Regional offices were all connected to the national office and the national office was aware of and had endorsed the current submission from the Western Cape. Funding to non-profit organisations was an ongoing problem. ASA had been in consultation with various provincial departments, including Health and Social Services.

In response to ASA’s involvement with the townships, she said that the ASA’s proposal involved placing an isiXhosa-speaking social worker in these areas to provide education for the underserved. ASA had introduced the proposal two years ago and had received no response. ASA included traditional healers; they were used in the Free State as part of a pilot project that the ASA had hoped to spread elsewhere if funding permitted. The fact that the Bill did not include the mentally and physically frail was of concern.

Mr van Vuuren replied that traditional healers were treated with the same authority to make referrals as general practitioners. Many facilities in his region of the Western Gauteng and Northwest Province were required to be multi-service centres that catered for HIV/AIDS patients and physically disabled people but there was no clarification of any age distinction involved.

Resources Aimed at the Prevention of Child Abuse and Neglect submission
Ms C Bower, RAPCAN Executive Director, presented that, as a child’s rights organisation, they related to the Older Person’s Bill because often the burden of care for children had fallen on older persons. This was often because of the prevalence of HIV/AIDS. Older persons were often unable and ill-equipped to provide an environment that was conducive to child-rearing the second time around. She was presenting the submissions with the interest of the child first in mind rather than the older persons. Programmes were needed that were aimed at assisting older persons caring for orphans. This was preferable to old-age grants. There was also a need for intersectoral co-ordination and flexibility to facilitate the creation of additional programmes; a major development would be the creation of standards and also reporting measures among the departments involved.

SA Catholic Bishops Congress submission
Mr M Pothier from the SACBC Parliamentary Liaison Office, reminded the Committee that the current hearing on the Older Person’s Bill showed that democracy was alive and well in South Africa since it proved that the country had been taking into account the most vulnerable. The SACBC stressed that the views of the elderly be valued and protected and that they were to be treated in a dignified manner. He endorsed the RAPCAN point about the effects of HIV/AIDS as a burden on older persons to care for the young and encouraged the Committee to take this into closer consideration. SACBC had found the Bill problematic because it dealt almost exclusively with older persons living in institutions, and this represented only a minority of older persons.

The Bill’s definition of elder abuse covered a wide variety of actions but it was unclear what was meant by terms like ‘harm’ and ‘distress.’ The mandatory reporting of abuse by any person who suspected it was a questionable element of the Bill because it violated older persons’ right to autonomy. He also questioned the Bill’s proposal of a register of elder abuse offenders because, although it was good in theory, may be limited in effectiveness and could create a false sense of security. Very few people were convicted of abuse, and it was not clear if it was also going to apply to people who were convicted of abuse under other pieces of legislation, such as the Domestic Violence Act.

Grandmothers Against Poverty and AIDS submission
Ms M Mafuya, project manager for Grandmothers Against Poverty and AIDS (GAPA) said that two grandmothers from Khayelitsha were speaking on behalf of the organisation because they represented the voice of the whole township. Mrs Fisher and Mrs Sohena then spoke, both in English and isiXhosa, of their experience of being older in the township. They requested that it be made illegal to not report incidents of elder abuse so that the communities became used to reporting and so that older persons were protected.

Long queues for obtaining services were a problem and older persons were forced to stand outside clinics long before they opened at 7a.m., often with no shelter. They often became wet and hungry. When they did receive treatment at the community health care centres, there was no special caretaker for them. They requested that special facilities for older persons be developed. Medical histories were a problem, especially for those moving from rural areas who did not have a formal medical history, and this meant that often older persons went without treatment. There were problems with crime, security, and the slow response of police to reported cases of elder abuse. Older persons cared for young children and should be given priority during the allocation of affordable accommodation. Older persons often wanted to stay in their own homes for the rest of their lives and moving to an old-age home was ‘the worst thing that could happen.’

Western Cape Health Department submission
Ms E Kennel, Provincial Deputy-Director: Chronic Care, Rehabilitation, Home-Based Care and Geriatrics, said the organisation had problems with the issues of community-based programmes, the definition of ‘frail care’, the monitoring and registration of old-age homes, and the treatment of older persons with HIV/AIDS. There was inadequate monitoring in facilities, a lack of education and training for caring for elder persons with dementia, and a lack of a provision for occupational health programmes. Community-based health care needed to be more fully described in the Bill and transportation should be included. Frail care and frail persons needed to be included in the Bill, and the organisation would be working with the Department of Social Development to establish it more firmly. Without the inclusion of these terms, people who received care would likely lose access to it.

Discussion
Mr B Solo (ANC) commented that it was clear that the Bill had not taken into consideration a number of the issues that had been raised. The question of dignity and of persons with needed skills still remained. The Bill was too focused on those in institutions rather than those being cared for in communities. He suggested that the Committee travel to townships, especially in the Western Cape, and ask older persons for their inputs. The Bill had major gaps.

Mr Masutha agreed that the Bill was thin on substance and said that the Committee had to express its disappointment. Specific clauses had been ‘short-cut’ rather than being fully addressed in a more substantive way and as a result there were many conceptual gaps and redrafting was necessary. He questioned RAPCAN’s submission about the role of the elderly in caring for children and said that perhaps this concern should have been brought up during the Children’s Bill hearings rather than the current Bill. He also commented that the SACBC’s proposed redefinition of elder abuse did not help to solve the vagueness problem. He agreed with the Provincial Department of Health’s submission point that there was a need for an integrated approach among services. He proposed that a statement or charter of rights for older persons be developed.

Ms Bogopane-Zulu commented that many of the problematic terms in the Bill had already been defined in previous Bills and that the Department should cross-reference them. For example, the Domestic Violence Act had defined abuse and the Children’s Bill defined caregiver and these definitions did not need to be completely reworked. She disagreed with the implementation of a register of offenders because the Department already had several registers to maintain. She invited Ms Kennel to share more insight about her experiences and the Department’s ability to assist older persons and what sort of synergy occurred between the various departments.

Ms S Rajbally (MF) asked why the grandmothers from GAPA and others had felt it was a problem that they were not able to remain in their communities. She wondered who had been removing them from their homes. She suggested that the social workers liase with hospital officials to provide shelters for older persons who had to wait for the clinics to open.

Mr Waters said that RAPCAN and others should have pushed harder for children’s rights during the Children’s Bill process, especially the issue of grandparents obtaining guardianship over their grandchildren when the parents had HIV/AIDS. He agreed with SACBC that it was problematic that young children would bear responsibility to report elder abuse under the Bill’s mandatory reporting of abuse. The issue of a register of offenders was not sufficiently addressed in the current wording of the Bill. He said that Departments did not have a cross-departmental synergy to monitor residential facilities.

Ms Weber said that the Department of Labour should be invited to address the issue of aging workers being included as part of ‘vulnerable groups.’ Also, she suggested that older persons be permitted to be heard on camera, as had happened in the Children’s Bill, rather than forcing them to attend court. She suggested that the Department of Justice examine this matter.

Mr Masutha asked RAPCAN and SACBC to comment on the Maintenance Act, which outlined a mutual duty of support between parent and child. This extended to those children in institutions, and perhaps applied to older persons.

Ms Chalmers said the matter of transport was insufficiently addressed since older persons were often unable to access viable transportation.

Leprosy Mission Southern Africa submission
After the lunchbreak, Mr Peter Laubscher (Executive Director) said that leprosy was a chronic but curable disease that could lead to infirmity and disability. Loss of sensation in the hands, eyes and feet were some of the problems associated with leprosy. However, leprosy tended to attack mostly the older persons of our population. This was largely due to lack of treatment from early childhood development. There were about 3000 elderly people currently suffering from leprosy in South Africa. He pointed out that Leprosy Mission’s primary focus was the amelioration of the plight of elderly, especially those with disability caused by leprosy.

He urged the Committee to consider the inclusion of a model developed in Bangladesh. This model sought to pool the resources of the elderly, thus pension and disability grants would be put together for the benefit of all the elderly. The resources pooled together in the form of stokvels could help build home-based care centres. Resources could help in providing rudimentary medical aid schemes for the elderly. He believed that if the project were started it would also help job creation. The home-based care centres would employ and train young members of the community. Elderly people would become less of a target for criminals. The transportation needs of the elderly should also be addressed through special carriages set aside for them. Furthermore he supported the idea of subsidised public transport for older persons.

Discussion
Ms Rajbally (MF) pointed out that 75% of monthly pensions went to food and groceries. She asked whether families staying with the elderly were contributing to the grocery bills.

Mr Laubscher replied that often during their home visits they found that elderly persons were without food and groceries despite having received pensions and disability grants. He cited the plight of one elderly woman left to die by her family in Mpumalanga. ‘Stokvels’ were critical saving vehicles that could also prevent the elderly from being robbed of their pensions and disability grants.

Ms Rajbally was convinced that community-based services should be strictly monitored in order to avoid abuse of the elderly. She submitted that some elderly people were frightened to leave their homes due to victimisation.

Ms Webber wanted to know if there were children with leprosy in South Africa. She also wanted to know whether the South African Social Security Agency (SASSA) by using an electronic payment system would prevent theft from the elderly. SASSA was a system developed to guard against fraud and theft of social grants but has not yet been launched.

Ms E Kennel, Deputy Director (Western Cape) explained that funds had been received from the European Union to develop home-based care. Since the 1983 Tricameral Parliament, there had been many changes in regard to home-based care and inspection services had been lacking. The Western Cape provincial legislature had developed an official policy for home-based care for the elderly. This policy was not well-known among the residents and perhaps needed to further disseminate information about the policy of home-based care.

She further pointed out that the problem was that old-age homes were currently regarded as non-health institutions. Old-age homes were classified under the auspices of social services and this created problems when the health of the elderly required intervention from the Department of Health. The question of old-age facilities required the formation of a strong partnership between the Departments of Health and Social Development.

Ms Kennel submitted that it would be extraordinarily difficult for older persons to claim maintenance on behalf of their children/grandchildren. She pointed out that such a situation had to be reconciled with the legal obligation imposed on the elderly to provide support to their grandchildren.

Mr Mike Pothier explained that there was a legal obligation on grandparents to support their grandchildren and vice versa. He expressed the view that the definition of "abuse" in the Bill was vague and had to be broadened to include other forms of abuse. In this regard, he proposed that the Children’s Bill be revisited for incorporation of certain aspects into the Older Persons Bill.

He said that the Older Persons Bill created many offences that were covered in the Children’s Bill and other pieces of legislation. For example, the offence of physical assault was mentioned in numerous statutes and was not limited to older persons.

The drafters of the Bill needed to review these definition clauses in conjunction with other pieces of legislation to avoid duplication. He also proposed that the scope of consultation contained in the memorandum to the Bill needed to be broadened to include experts in the field of care-giving and old-age facilities. He held the view that the drafters did not solicit broader consultation with people providing services to older persons. Therefore, he submitted that consultation be done with private organisations.

He argued that the differentiation in the ages of between 60 years and 65 years was problematic and needed review by the drafters. He observed that Clause 14 placed an onerous obligation on adults and older persons to report abuse. The elderly were adult, independent thinkers whose privacy could be infringed by this provision. Furthermore, it was up to the elderly person concerned to report the abuse.

Clause 16 specified that every citizen would be obliged to notify the Director-General of any suspected abuse of older persons. He deduced from this clause that every citizen would be legally obliged to report the alleged abuse of older persons and such a situation could yield undesirable consequences.

A Member wanted to know who provided home-care support and who regulated the provision of such support. Ms Kennel replied that the Western Cape government was providing home-based care as a policy. This policy was not known to many older persons as the Social Services Department provided it.

Adv. Masutha explained that reporting of suspected abuse by families was based on the understanding that older persons were afraid to report incidents of abuse. Therefore, he argued that the Bill wanted to assist the elderly and therefore cast the net of reporting wide. Mr Pothier reacted that it was the ideal that every citizen would be obliged to report the abuse of older persons. But such reports by third parties could be in violation of the privacy rights of older persons.

Mr Laubscher responded that it was difficult to legislate on the model proposed by the Leprosy Mission due to its economic implications. However, he said that the government could start phasing-in the project of "pooling the resources of the elderly" as a pilot project. Leprosy was under control in South Africa. The rate of contraction by children under the age of 10 was consequently very low.

Chief Director’s closing remarks
Ms Nomathemba Kela, Chief Director, highlighted key issues for the redrafting of the Bill. She noted that home-based care had featured strongly during the hearings but was adequately covered in the Bill. Furthermore, she highlighted the significance of broad consultation with all sectors involved in the provision of services for the elderly and disabled.

The meeting was adjourned.