Older Persons’ Bill: finalisation

Meeting report

SOCIAL DEVELOPMENT PORTFOLIO COMMITTEE
09 March 2006
OLDER PERSONS’ BILL: ADOPTION

Chairperson: Ms T S Tshivhase (ANC)

Documents handed out:
Older Person's Bill [B68B - 2003]
Morning session: Proposed amendments
Afternoon session: Final Amendments proposed for Older Persons Bill [B68B-2003]

SUMMARY
During the morning session the legal drafters tabled a document containing the changes made to the Bill following the meeting of 8 March. The Committee considered the relevant portions which had been amended. Questions on certain clauses were answered by the Legal Services division of Social Development and the Chief Director: Welfare Services Transformation and the Principal State Law Advisor in the Office of the State Law Advisor. Members focused on the clauses relating to the definition of social workers, the Committee’s wish to have sight of regulations before publication, written notice to alleged offenders, whether sufficient protection was incorporated in the Act for abused older persons who were unable to use the telephone or report to the police, and the points of similarity between this Bill and the Domestic Violence Act.

The meeting adjourned briefly to allow Members and the State Law Advisors to formulate new drafts to address the major concerns. The new draft was tabled on resumption of the meeting and the principles of the draft approved, although it was agreed that the final wording should be presented at the afternoon session.

During the afternoon session the Chairperson proposed formally that the Committee approve the amendments, as contained in the new version, clause by clause. Each clause was introduced, discussed and agreed upon. On conclusion of the discussions the Committee unanimously supported a motion that all amendments be adopted.

The Bill would be debated by the House on 23 March.

MINUTES
Morning session:
Tabling and consideration of the latest amendments to the Bill, pursuant to the Committee’s meeting on the previous day

NOTE: (In these Minutes the word CLAUSE appearing in capital letters refers to the numbering of the clauses contained in B68B-2003. The word Clause appearing in bold and underlined refers to new clauses following on previous resolutions by the Committee. The page numbers are the pages of the document tabled before the Committee).

Mr P du Preez (Legal Services: Department of Social Development (DSD)) took the Committee through each clause of the document tabled

Page 2: CLAUSE 1, item 11: Definition of "residential facility"
This clause had been amended to include the word "primarily" and the words "and for providing a 24-hour service to older persons".

Adv M Masutha (ANC) asked whether the Bill contained a definition of service and Mr du Preez confirmed that it did.

The amendment was approved.

Page 3: CLAUSE 1: Definition of "social worker"
The references to a social worker had been altered.

Adv M Masutha asked whether the registration of welfare organisations was performed in terms of the National Welfare Act. Mr du Preez confirmed that this was so.

Ms H Bogopane-Zulu (ANC) asked whether any provision was made for social welfare workers in private practice who were not in the employ of the government or a registered welfare organisation.

Ms N Kela (Chief Director: Welfare Services, Department of Social Development (DSD)) replied that social workers in private practice were excluded because the services were required to be rendered by government. This definition had to be read in the context of the special cause requiring a Director General to assign responsibility. The clause did not prevent any older person from approaching a private social welfare practitioner of own choice, nor did it prevent a private welfare organisation from engaging a private practitioner. However, where the Director General assigned responsibility, it was deliberately limited only to the social workers encompassed in this definition. Similar provisions applied to the adoption of children.

Adv M Masutha clarified that this had already been discussed with DSD. Because the social workers were performing a statutory function, some measure of control was necessary. However, he stated there might be a practical problem in that many NGOs were not represented in deep rural areas, and that government services might not be adequate. In such cases, presumably the Director General would be able to contract with private practitioners. He therefore wondered if the use of the word "employ" was not too restrictive. Mr du Preez reported that the definition in the Children’s Bill used the words "in the service of", but it should be noted that private social workers were not excluded in that Bill.

Ms N Kela (DSD) asked if there was a difference between "employ" and "in the service of". Adv M Masutha replied that "in the service of" could have several interpretations. He suggested that a wording similar to that of the Children’s Bill should be used.

Ms H Bogopane-Zulu urged that older persons should not be treated in the same way as children. Older persons should be able to consult with a practitioner who met their expectations and she would therefore support a broader definition. Adv Masutha suggested that incorporating both expressions would cover all situations. He therefore proposed that the definition be amended to read

"a person registered as a social worker under section 17 of the Social Services Professions Act, 1978 (Act No 110 of 1978), and in the employ or service of government or a registered welfare organisation."

The Committee supported Adv Masutha’s suggestion and resolved to amend the wording.

Page 6, NEW CLAUSE: Clause 7: Rights of Older Persons
Mr P du Preez stated that the word "unfairly" had been inserted in the preamble.

The Committee approved the amendment.

Page 7 NEW CLAUSE: Clause 8: Support for services delivered by third parties
Mr P du Preez stated that the wording had now been divided into two subparagraphs (b) and (c).

Adv M Masutha stated that this clause originally dealt with subsidies, but now spoke of support services delivered by third parties, which was another form of subsidisation. It enabled the Minister to decide who should receive subsidies, and how they should be prioritized. However, he was concerned that the language used did not support the policy objectives.

Ms N Kela (DSD) confirmed that Adv Masutha’s interpretation was correct and that the section had been separated as it did not wish to restrict the Director General to subsidies only.

Adv Masutha stated that the only intervention the Director General could make was in the field of subsidy, and not in the field of admission policies to facilities, He therefore suggested that the wording be amended to reflect that the Minister should first identify and prioritise needs of and services to older persons. He also suggested that there should be cross-referencing of subsections (a) and (b) to clarify that the prioritisation was done for the purposes of the funding.

Mr G Hoon (Principal State Law Advisor, Office of the Chief State Law Advisor (OCSLA)) proposed that the clause be amended to read :
"8(1) The Minister-
((a) …..)
(b) may, for the purpose of subparagraph (a), prioritise the needs of, and services to older persons"

The Committee supported the proposal of Adv. Masutha and Mr Hoon, and approved the amendment.

Page 10, NEW CLAUSE : Clause 13(2) : Registration of community-based care and support services
Mr du Preez pointed out a technical amendment to delete a superfluous word.

The Committee approved the amendment of this clause.

Page 11, NEW CLAUSE :Clause 13: Registration of community-based care and support services : subparagraph (4)
Ms M Gumede was concerned that subparagraph (4) made provision for stoppage of services, but did not mention any time frame. Ms N Kela (DSD) replied that no time frames were specified in respect of any community-based services. She queried whether the Minister’s power to regulate under 13(2) would extend to this situation, or whether subparagraph (4) needed to be amended.

Adv M Masutha cautioned that the Committee should keep a flexible approach to community based services. He pointed out that the services could be, for instance, as simple as a soup kitchen, and undue restrictions would be counter-productive. If it was considered desirable to name a time frame, this should be done by way of regulation, rather than an amendment to the Act.

The Committee agreed that Clause 13(2) should be amended to incorporate stoppages of services under Clause 13(4) in the matters that could be regulated by the Minister, and requested the State Law Advisor to draft the appropriate wording.

Discussion in principle: consideration of regulations
Ms H Bogopane-Zulu elaborated on the point raised on regulations. She would like regulations to at least to be tabled before the Committee, to enable her to perform her oversight function better.

Adv M Masutha replied that the Constitution allowed Parliament to legislate for delegated legislation to be tabled before, and approved by Parliament. Parliament had not yet done so. The Rules Committee had debated this issue in 2003 but there had been no decision on their recommendations. Different pieces of legislation contained different requirements. The Interpretation Act required delegated legislation to be "tabled", but only some legislation called for "approval" by a Committee of Parliament or of the National Assembly. It was therefore up to this Committee to decide how it wished to proceed. The Committee should be aware that "approval" normally did not encompass an examination of the substance of the regulations, but merely ensured that they were administratively acceptable – for instance, that the regulations were not unduly restrictive, did not usurp legislative function, did not attempt to amend other legislation, and similar matters. He suggested that the Committee should ask for the regulations to be "tabled for comment" after comment by members of the public.

The Committee accepted Adv Masutha’s suggestion and requested the State Law Advisor to draft a new provision.

Page 11, NEW CLAUSE: Clause 15: Monitoring and evaluation of community-based care and support services
Mr P du Preez reported that the words "in any facility" had been removed following the Committee’s deliberations the previous day. The wording of this clause referred to residential facilities such as buildings and activities therein, and to services, which could be offered in any place. The Committee confirmed, in answer to a query from Adv Masutha, that the service, and not the facility, formed the subject of registration.

Page 16: NEW CHAPTER 4: CLAUSE 9.6: Rights of older persons in residential facilities
Mr P du Preez reported that subsections (3) and (5) had been redrafted.

The Committee approved the re-drafted subsection (5).

In regard to subsection (3) several members agreed that the wording "(consent may be given)…by an adult child or brother or sister of the older person, in the specific order as listed" gave greater rights to a male. The Committee agreed that the word "sibling" should be substituted for "brother or sister".

Mr K Morwamoche (ANC) enquired whether, in subsection (3)(c), the reference to "a medical practitioner" would include a traditional healer. Mr G Hoon (OCSLA) confirmed that a traditional healer who had been registered in terms of the Health Professions Act 1974 would be included.

PAGE 20: NEW CLAUSE: Clause 24: Older person in need of care and protection
Mr P du Preez reported that the amendment made was one consequential to the change in the definition of "social worker". The words "in the employ of government or a registered welfare organization" had been deleted.

Mr P du Preez also corrected a typographical error in Clause 24(5)(a) and asked that the word "economic" should be substituted for "economical"

The Committee approved the amendments.

PAGE 21: NEW CLAUSE : Clause 25 : Notification of abuse of older persons
Mr P du Preez reported that this clause had been amplified so that a person suspecting abuse should notify the Director General "or a police official"

Mr K Morwamoche pointed out that in the deep rural areas, people would tend to report all problems to the traditional leader, who assumed many functions. He queried whether traditional leaders should be mentioned in this clause. Mr B Solo (ANC) agreed that this was the factual position, but that there should not be unnecessary duplication. He suggested that traditional leaders were not excluded by this clause, and that officials should establish close relationships with traditional leaders.

The Committee agreed that there was no need to amend the clause further.

The Committee approved the amendments tabled to sub-clauses (4) and (5).

PAGE 21: NEW CLAUSE: Clause 26: Written notice to alleged offender
Mr P du Preez reported that the preamble to this clause had been changed but the amendment was of a technical nature.

Ms S Rajbally (MF) expressed disquiet with this section. She stated that there were many homes occupied solely by the abuser and the older abused person. If the abused person was bedridden, or unable to reach a telephone or police official there could be no reporting, and the abuse would persist. She queried whether there was any obligation on social workers to visit these homes on a regular basis. She did not agree with other members that neighbours or community members would intervene or be proactive in making a report. Ms H Weber (DA) pointed out that on the previous day members had decided that there should be immediate removal of the abuser. She agreed that the clause, as presently worded, did not offer sufficient protection.

Ms H Bogopane-Zulu reminded members that the Committee had already agreed to make reference to the Domestic Violence Act, which set out measures for removal and arrest of offenders. Legislation dealing with older persons should contain equally strong safeguards and she queried why this issue had not already been addressed in the wording. She urged that the references to the Domestic Violence Act must be inserted in this draft.

Ms S Rajbally felt that the amendments proposed would still not address the real problems and that abuses would continue unless social workers were obliged to make visits.

Mr G Hoon (OCSLA) stated that the draft did not exclude application of the Domestic Violence Act. Cross-referencing could create some problems, but there was no reason in principle why some of the applicable wording from the Domestic Violence Act could not be inserted. He reminded members that the laws were of a general nature and could not prescribe exactly how the duties under the Act would be carried out.

Adv M Masutha noted various similarities between the current Bill and the Domestic Violence Act. Section 3 of the Domestic Violence Act authorised a police officer to make an arrest if there was a reasonable suspicion of abuse. A respondent (similar to an abuser) was also clearly defined in the Domestic Violence Act. Interventions provided for in the Domestic Violence Act were protection orders, arrest, and enforcements. The current Bill sought to introduce a situation where social workers would investigate and report to the Director General who would then provide interventions. Clause 26 also included removal from the premises, as well as arrest. The current Bill therefore contained measures over and above the Domestic Violence Act. He took Ms Bogopane-Zulu’s point that given the similarity there was a cogent argument to link the pieces of legislation, either by cross-referencing or by incorporation by reference.

Mr B Solo proposed that Ms Bogopane-Zulu, Adv M Masutha and Ms H Weber – all of whom had raised concerns on this section – should meet with the legal drafters and formulate a new wording for this section to address all the concerns raised.

Members supported Mr Solo’s proposal, and the Committee adjourned for a short period to allow consultation and re-drafting to take place.

On resumption, Adv M Masutha advised members of relevant rules of interpretation of statutes. Firstly, the lawmaker should be deemed aware of all existing legislation. If a lawmaker omitted to refer to relevant statues, this must be presumed a deliberate omission. Secondly, if a new law were contradictory to an existing law, then the new law would prevail, unless there was specific reference that the existing laws not be amended. Some situations contemplated by this Bill and by the Domestic Violence Act did overlap - in particular the definitions where "abuse" as defined in the Domestic Violence Act contained almost all the elements of "abuse" contemplated in the current Bill. To avoid any confusion the Bill should be amended to make the intentions of the Committee clear. The drafters and members concerned with this section therefore proposed to introduce an overriding heading and new clause in Chapter 5, clarifying the relationship between that Chapter and the Domestic Violence Act.

Mr G Hoon (OCSLA) suggested a possible wording. Mr B Solo proposed that members agree upon the principle, and that the drafters be given sufficient time to word the clause, presenting the final version that afternoon.

The Committee supported Mr Solo’s proposal and requested the drafters to finalise a clause for consideration at the afternoon session.

Mr G Hoon further pointed out that there had been an omission during drafting of this clause. The Clause needed to contain a penalty clause to make it an offence for a person to refuse to comply with a written notice, and to specify punishment. He asked that the Committee approve an amendment to this effect in principle, to enable the section to be enforced.

The Committee agreed that the necessary amendment be made.

PAGE 30: PREAMBLE
Mr P du Preez reported that the third paragraph would be substituted by a new paragraph incorporating the words "And whereas" and the correcting of the reference to the Bill of Rights.

The Committee agreed to accept the amendments.

The meeting adjourned until 13:30.

Afternoon session:
Tabling and final approval of amendments proposed to Older Persons Bill: Draft 9 March 2006; 13:00 pm
NOTE: All references in this section of the Minutes follow the document tabled at the afternoon session (described above). The word CLAUSE appearing in capital letters refers to the numbering of the clauses contained in [B68B-2003]. The word Clause appearing in bold and underlined refers to the new clauses inserted by resolution of the Committee).

Mr P du Preez (DSD) reported that further amendments had been effected during the lunch break and the document now tabled was the final draft. He took the Committee through each clause of the document as follows:

CLAUSE 1 : Definitions
A number of amendments had been agreed upon in various drafts.

The Committee approved the amendments as tabled and approved this clause.

Chapter 1: replacing CHAPTER 1 previously rejected
This chapter contained:
Clause 2 : Objects of Act

Clause 3 : Implementation of Act

Clause 4 : Application of Act

Clause 5: General Principles

The Committee approved the amendments tabled and approved clauses 2 to 5.

HEADING TO CHAPTER 2
The heading had been amended by deletion of the word "ENSURING" and substitution of it with the word "CREATING"

The Committee resolved to approve the altered heading.

CHAPTER 2:
CLAUSE 3 previously rejected: substitution of new Clause 6 : Development of and compliance with national norms and standards

NEW CLAUSES:

Clause 7 : Rights of older persons

Clause 8 : Support for services delivered by third parties

Clause 9: Guiding principles for provision of services

The Committee resolved to approve clauses 6 to 9.

New Chapter 3: COMMUNITY-BASED CARE AND SUPPORT SERVICES FOR OLDER PERSONS

New Clause 10: Rights of Older persons receiving community-based care and support services
Clause 11: Community-based programmes for older persons
Clause 12: Community –based care and support services to be registered
Clause 13: Registration of community-based care and support services
Clause 14: Persons providing home-based care
Clause 15: Monitoring and evaluation of community-based care and support services
All clauses contained the final wording as approved by the Committee at previous meetings.

The Committee approved clauses 10 to 15 in this Chapter.

New Chapter 4
Mr P du Preez presented the new Chapter 4, which incorporated some new clauses and re-numbered clauses from B68B-2003, as follows:

Chapter 4: RESIDENTIAL FACILITIES
Clause 16: Rights of older persons in residential facilities
Clause 17: Services at residential facilities
Clause 18: new numbering of CLAUSE 5, with various amendments

CLAUSE 6 had been previously rejected
CLAUSE 7: renamed Clause 19: some amendments of a technical nature
CLAUSE 8 : renamed Clause 20: some amendments of a technical nature
CLAUSE 9: renamed Clause 21: amendments of a technical nature regarding admission to facilities
CLAUSE 10: renamed Clause 22: amendments in line with previous decisions by the Committee

CLAUSE 11: renamed Clause 23: amendments in line with previous decisions by the Committee
The Committee accepted all amendments and approved clauses 16 to 23 contained in this Chapter.

CHAPTER 3 to be renamed CHAPTER 5
The Committee resolved to approve this technical substitution.

CHAPTER 5:
Containing:
CLAUSE 12 : had been previously rejected
CLAUSE 13 : had been previously rejected

New Clause 24: Effect of Act on Domestic Violence Act, 1998
Mr du Preez reported that this new clause addressed the concerns raised during the morning meeting and reflected the decision of the Committee to incorporate a reference to the Domestic Violence Act. Adv M Masutha added that the new clause would provide sufficient safeguards. He stated that in terms of general principles of interpretation a meaning ascribed in the definition section to a particular word would apply only within the context of that Act and could not change the dictionary definition of the word. Therefore, the definition of "abuse" in the Domestic Violence Act applied only to that Act, and would not be extended automatically to any other Act.

The Committee approved the insertion of the new clause, and approved the wording.

New Clause 25 : Older person in need of care and protection
New Clause 26: Notification of abuse of older persons
The Committee approved clauses 25 and 26.

New Clause 27: Written notice to alleged offender
This clause now included the penalty clause referred to during the morning session.

The Committee approved clause 27.

CLAUSE 14: renumbered Clause 28: containing technical amendments
CLAUSE 15: renumbered Clause 29: containing an amendment approved previously by the Committee
CLAUSE 16 rejected

The Committee approved clauses 28-29.

New Clause 30: Prohibition of abuse of older persons and special measure to combat abuse of older persons
Ms H Bogopane-Zulu asked whether the Committee did not need to debate a formal amendment to ensure that the new Clause 30 corresponded with the newly inserted Clause 24. Mr P du Preez (DSD) replied that this was not necessary since this Clause had not appeared in the B-version of the Bill. Certain wording would be "tidied" before the Bill was finally tabled before Parliament.

CLAUSE 17 : renumbered Clause 31: amendments in line with previous decisions of the Committee
CLAUSE 18: had been previously rejected
The Committee resolved to approve clause 30 and 31.

CHAPTER 4: now renamed CHAPTER 6

The Committee resolved to approve the renaming of this Chapter.

CLAUSE 19: renumbered Clause 32 No amendments were made other than the renumbering.

CLAUSE 20: renumbered Clause 33:
Some references had required amendment since the morning meeting. The references to sections were now fully correct.

The Committee approved clauses 32 and 33.

CLAUSE 21: renumbered Clause 34:
This clause contained some amendments of a technical nature.

In addition, a new subsection (7) addressed the concerns raised by Ms Bogopane-Zulu during the morning session. The new subsection required the Minister to submit draft regulations to Parliament, together with comments received from the public, before final publication of the regulations. This was in line with members’ requests during the morning session.

The Committee approved clause 34.

CLAUSE 22: renumbered Clause 35 No amendments
CLAUSE 23: renumbered Clause 36
There was a technical amendment of the commencement date.

ARRANGEMENT OF SECTIONS
This had been substituted to take account of all amendments

PREAMBLE
The third paragraph had been substituted in line with a previous decision of the Committee. An amendment had been made also to the twelfth line, in line with a previous decision of the Committee.

The Committee approved clauses 35 and 36, the Arrangement of Sections and the Preamble.

Adoption of Bill
A motion to adopt the Bill with the amendments tabled during the afternoon session. This was moved and seconded by Mr B Solo and Ms H Bogopane-Zulu. The Committee was unanimous in its support.

Ms I Direko, on behalf of the Committee, expressed thanks to the Chairperson, members of the Committee, the State Law Advisors and officials of the Department of Social Development for all their efforts on the Bill. Ms N Kela (DSD) thanked the Committee and expressed her appreciation of the manner in which the Bill had been handled.

The Chairperson announced that the Bill would be debated on 23 March.

The meeting adjourned.