The Committee and the Department of Social Development continued with the deliberations regarding the submissions, working through clauses 23 to 41 of the Bill.
In respect of clause 23, submissions for the inclusions of Sections 105 and 110 from the Children's Act in this Bill were rejected, and it was decided instead to use cross referencing. It was noted that children who were abusers, and children in a family of abusers would both need protection. In respect of clause 24, accountability at treatment centres was discussed in relation to management and human resource functions, and it was decided that the re-drafting must ensure that the issues were treated separately. The Committee questioned why clause 26 was included, and suggested that the norms and standards could appear at the beginning or end of the Bill; this was to be considered by the Department, who should revert to the Committee. The language of clause 27 should be reworked. It was indicated that this clause resulted from lengthy discussions and debates with the Department of Health. The Director General of the Department of Health would be asked to give guarantees on capacity, and this would be copied to the Health Portfolio Committee. In relation to clauses 29 the agreement with the South African Police Service was outlined. Under Clause 32 there was a submission that addiction must be recognised as a disease, but Members did not agree to insert this specifically in the Bill. Under Clause 34 there was a suggestion that a medical officer should estimate the age of a child, but the Committee ruled that this be left to the discretion of the judicial officer. It was agreed that although the word “correctional facility” was not yet being used in the Correctional Services legislation, it was the preferred term and should be used instead of “prison”. In clause 38 the Committee asked the Department to ensure that there was transverse application of child protection and substance abuse, so that children would receive the necessary protection. There must be correlation between clauses 38(5) and 23. The wording of Clause 39 was improved.
Chairperson’s Opening Remarks
The Chairperson welcomed the Deputy Minister of Social Development, Dr Jean Benjamin, to the meeting.
The Chairperson stated that written submissions had been received from government departments and the public on the Bill, and this Committee was applying itself to the clauses of the Bill to see what changes it would like to have effected.
The Chairperson said that a planning workshop was arranged for the following week to interact with the National Council of Provinces on the Bill. The Committee had managed to get some sense of how to proceed with the Bill. The costing of the Bill had been looked at because provinces would be able to confer regarding the budget.
Prevention of and Treatment for Substance Abuse Bill: Clause by Clause deliberations
The Parliamentary Researcher read out the submissions received in regard to Clause 23 of the Bill, from Substance Misuse Advocacy Research Training (SMART) and the Department of Trade and Industry (dti).
Ms Nomathemba Kela, Chief Director, Department of Social Development, stated that she agreed with the proposal by SMART.
Mr Puseletso Loselo, Chief Director, Legal Services, Department of Social Development said that the Department would consider the reference to Section 105 of the Children’s Act to see if it was as relevant as suggested by the dti.
The Researcher read out Section 105 of the Children’s Act.
The Chairperson asked what the relationship was between this and what was under discussion.
The Researcher then read out Section 110 of the Children’s Act.
Ms Kela submitted that clause 23 in its present form was misleading.
Mr Loselo clarified that SMART was suggesting the use of ‘abusing substances’ rather than ‘addicted to substances’.
The Chairperson asked if the recommendations from the dti would be integrated.
Mr David Bayever, Deputy Chairperson, Central Drug Authority (CDA), explained that the submissions were asking that Sections 105 and 110 of the Children’s Act be inserted into this Bill in regard to children.
The Chairperson stated that Clause 23 of the Bill would no longer only cover children who were themselves abusers, but would be extended to cover children who may be affected by other substance abusers in their families. The provisions of the Children’s Act would therefore be extended to children who may be cared for by abusers. The proposal to include Section 110 from the Children’s Act was not necessary and should be rejected. Such children would be deemed in any event to be in need of care and protection. He summarised that Section 110 dealt with compulsory reporting and Section 105 of the Children’s Act dealt with protection.
Ms H Bogopane-Zulu (ANC) said that service users and children who were vulnerable because their parents were abusers of substances should be dealt with separately. She cautioned that care should be taken with the language used to identify the child as one in need of care. Firstly the child using substances could be a service user and substance abuser, and secondly, the child could be in need of care because the parents or carers were substance abusers. She thought that a cross reference was required for the child in either of these two cases.
The Chairperson stated that two systems were important here. One was the system of child protection as dealt with in the Children’s Act and the second was a system within this Bill to deal with children who were abusers. He said that flexibility should be created to ensure that the child received the best possible intervention under the circumstances.
Ms Kela asserted that Section 110 in the Children’s Act was broad enough and covered everything.
Ms Bogopane-Zulu said she was not sure what was still being debated because the category of the child was covered. She added that there was still a gap if the child was itself being abusive to others, but must still be dealt with as a child, and this was missing from the legislation. She added that she thought there was agreement to acknowledge this element.
The Chairperson said that Section 110 of the Children’s Act dealt with a specific entry point regarding reporting. There was a need to identify other entry points, or state that a child as contemplated in Clause 23 of the Bill was deemed to be a child in need of care and protection. He noted the gaps identified by Ms Bogopane-Zulu and thought that some of the interventions in the Children’s Act could well be cross referenced back. There was a need to ensure that all roads led to a treatment centre that accommodated the child.
Mr Loselo said that Clauses 28 and 29 did make provision for the child to be admitted to a treatment centre, but this referred to involuntary service users.
Ms J Semple (DA) said that these clauses did not make any reference to circumstances surrounding the child’s arrival at treatment centres.
Ms Bogopane-Zulu proposed that Clause 23 be set aside for the moment, and reconsidered when the Committee was dealing with Clauses 28 and 30.
The Chairperson said that the way to cross-reference would emerge as the systems were dealt with by the Committee.
Ms Kela noted that, by way of cross referencing, it could be ensured that treatment facilities abided by Section 191 of the Children’s Act.
The Chairperson stated that all that was required in this Bill was to affirm those provisions in the Children’s Act that would allow for the possibility of providing treatment.
The Parliamentary Researcher read the submission from SMART
The Chairperson said that this clause seemed to be dealing with management and the different legal arrangements for facilities.
Ms Semple said that Clause 24(3) talked about providing quality services and effective functioning, but she suggested that it must be more clearly defined, or removed. It was not specific enough.
Ms Bogopane-Zulu asked if it was envisaged that treatment centres would be run as companies, non profit organisations (NPOs) or combinations of both. She felt it should be stated in the registration process what form they would take.
The Deputy Minister felt that subsections (1), referring to management, and (3), referring to financial management, did not correlated properly with each other and should be separated out.
Ms Bogopane-Zulu suggested that subsection (3) should be moved to the parts dealing with registration.
Ms Kela noted that some of the treatment centres operated for profit, and others not. In the case of a non-profit centre, governance issues were important. Centres that operated for profit were governed by the Companies Act. The question was who would be held accountable for anything that went wrong. She noted that there was a perceived vacuum in the Bill with regard to the alignment by or regulation under the Public Finance Management Act (PFMA).
Ms Bogopane-Zulu said that she would not have a problem with keeping the references to manager and management in the clause, as long as the clause was properly drafted and did not overlap the areas of governance and human resources.
The Chairperson said that this clause should be reworked, taking into consideration that some services were for profit and others not.
Ms C Dudley (ACDP) noted that this clause stated that this was not applicable to certain forms of governance. She asked it was the general feeling of Members that it should be applicable to any form of governance. She asked if something like a treatment centre governing body would be included.
The clause would be re-drafted.
The Parliamentary Researcher said that there were no submissions on Clauses 25, 26 and 27.
The Chairperson asked if the implementation of this law would located in the national sphere of government.
Ms Dudley said that it the Bill provided that the Minister could establish after-care reintegration programmes. She asked what would happen if the Minister did not do this, and which programmes would be in place to provide such care.
Ms Kela asked what the level of accountability was of the Minister, as principal of this Bill.
The Chairperson responded that the MEC would be accountable, but it depended on what the legislation were to say regarding the location of responsibility.
The Chairperson said that this clause seemed to be a loose provision. He asked the State Law Advisers why this Clause was certified.
Ms Suraya Williams, Principal State Law Adviser, replied that the Department had instructed the Office of the Chief State Law Adviser to do so.
The Deputy Minister asked what was wrong with asking for compliance with norms and standards, after dealing with all the different types of treatment.
The Chairperson felt that this Chapter was badly engineered.
Ms Semple suggested that since clause 4 was in any event to be moved, perhaps at this stage the Committee could consider what should go into the clause.
Ms Kela thought that there were two options and that norms and standards could appear at the beginning or end of the Bill.
The Chairperson said that the Department should discuss this and report back.
Ms Kela noted that the Department might have other kinds of support groups besides the ones presented in the Bill.
Ms Semple found the language in subclause (2)(a) clumsy. She said that there should be additional prepositions added to subclause (b) and indicated these to the drafters.
The Parliamentary Researcher read out submissions from the South African National Council on Alcohol and Drug Dependence (SANCA), the CDA and the Department of Health (DOH).
The Chairperson said that there were detoxification facilities, but the requisite capacity was not available to provide this service to all. It was the responsibility of the Department of Health to provide health care services and to regulate them. The inter-sectoral nature of this service was very clear and this was the premise that should be adhered to.
The Deputy Minister said that the way the clause was formulated was the result of a long struggle with the Department of Health, and that Department had decided that the services being mentioned must be done in institutions controlled by the Department of Health.
The Chairperson asked if the formulation was appropriate.
Mr L Nzimande (ANC) said that there was enough in the clause to make the obligations clear, but there seemed to be some doubts about the capacity of the Department to deliver in compliance with the standards.
The Chairperson asked the legal drafters if they considered the drafting of this clause was adequate.
Mr Bayever said that it did impact on public and private treatment centers, as referred to in Subsection (3), where the private health care system was excluded.
Mr Loselo suggested that the heading could be changed to reflect private treatment centres. He added that he agreed with the Deputy Minister’s suggestion that the Director-General, specifically, must provide services in public treatment centres.
The Chairperson stated that the Department of Health would be asked if they wanted to abolish competency within treatment centres, and if they insisted the Committee would get their comments in writing. He added that a letter would be sent to the Minister of Health regarding sub-clause (3) and (4).
Ms Semple asked if the Department of Health could be asked for guarantees regarding capacity.
The Chairperson said that since the legislation was administered by the Director General, a letter would be addressed to him.
The Deputy Minister said that the Department of Health had been holding up the progress of this legislation by objecting to this clause from August to November 2007.
The Chairperson said that the letter would be copied to the Chairperson of the Portfolio Committee on Health to try to speed matters up.
Ms I Direko (ANC) took over the Chair.
Clauses 28 and 29
The Parliamentary Researcher read the submission from the South African Police Service (SAPS), in relation to the admission of a service user to treatment centres.
Ms Kela said that a meeting was held with SAPS and the agreement reached was that SAPS would remove the person from a cell and take that person straight to hospital for detoxification where necessary.
Ms Semple needed clarity on whether this would apply to alcohol and drug abusers.
Ms Kela noted that where a person had not committed an offence that person would not be taken to prison.
The Deputy Minister pointed out that when a person abusing substances was arrested for having committed a criminal offence, the family could ask the prosecutor to get an order for referral to a treatment centre.
Mr Loselo stated that when the matter was discussed with the SAPS, it was raised that the Mental Health Act already provided for a procedure where a person apprehended for an offence would be taken directly to hospital for detoxification treatment.
Ms Semple asked if this was an agreement between the SAPS and Department of Social Development.
Ms Direko asked if, against this background, the clause would be reworked.
Ms Kela informed her that it would be.
Ms Kela indicated that the Department of Home Affairs had raised an issue regarding the admission of foreigners. This could be dealt with by inserting another subsection into Clause 28, regarding involuntary treatment.
Ms Semple asked if the addition could be made to Clause 45.
Ms Kela said a place could be found in Clause 45.
Ms Semple asked if a separate clause altogether could be created.
Ms Kela responded that a separate clause for this issue could be developed.
Ms Direko asked if the wording would be changed.
Mr Loselo said that it would be dealt with under Clause 45.
Mr Loselo reminded the Committee that the discussions with the SAPS had resulted in an agreement that a person committing a crime while abusing substances should not be put in police cells but should be referred to treatment centres,. go to police cells, but referred to a treatment centre.
Clause 29 1(a) to (c) said that if a criminal offence had not been committed, the person could be sent to a treatment centre.
Mr Bayever suggested that it was only necessary to include subclauses (a) and (b). He was concerned that subclause (c) could be used by parents to plead that the offender not be treated like a criminal, in order to manipulate the situation. This might disadvantage the Department.
Mr Loselo stated that if an arrest was made, the Magistrate could either send the offender for treatment at a treatment centre or to prison.
Mr Frank Jenkins, Parliamentary Law Advisor, said that no provision was made for a submission from the victim of a crime. He added that where a magistrate was of the opinion that the person being charged fell under clause 29(1), then there would be a referral out of the criminal justice system. An insertion could be made in Clause 29(c), that if a person who was a victim of a crime should be given the opportunity to address the magistrate.
Ms Semple asked if this would not be covered in sub-clause (2) to give an opportunity to a victim.
Mr Jenkins said that if sub-clause (2) covered this then the prosecutor could call the victim. If it was not specifically included then the victim could not appear before the magistrate.
The Chairperson took over the Chair again from Ms Direko.
The Parliamentary Researcher read the submission from the Department of Education.
Clauses 31 and 32
The Parliamentary Researcher read the submission from the Aids Rights Alliance in South Africa (ARASA).
Ms Kela said that this submission was calling for recognition of the relapsing nature of addiction. She did not feel it would be sensible to accommodate the issue of relapse.
The Deputy Minister stated that if a person did not go back to a treatment centre, the family could approach the police again. She added that this was an ideological matter.
The Chairperson asked Members if this proposal by ARASA was to be rejected
The Deputy Minister said that this proposal reflected ARASA’s harm-reduction approach. ARASA wanted to have inserted in the Bill the fact that addiction had to be treated like a disease.
Ms Kela explained that ARASA was intending to convey that addicts had the tendency to relapse, that this should be taken into consideration and that a health professional should do an assessment. This might prevent these persons from going back.
Mr Pierre Viviers, Deputy Director: Substance Abuse, DSD, said that some substance users would come into the programme with the wrong attitude, and in the interest of the treatment centre they should be referred back to court.
Ms Semple agreed that if a person was not complying, then alternative sentencing must take its course.
The Deputy Minister stated that a relapse would generally mean that the person had absconded from the treatment centre.
The Chairperson reminded Members that SMART had said that the one way in which the harm reduction process was carried out was to gradually scale down the dosage of drugs, to make the drug-users capable of functioning without the substance. According to the Department of Health, this whole process was already being worked on, at a practical level. The sentence would not prescribe the manner in which treatment was to be carried out, and the Court would not set conditions to defeat the treatment process. He said that if there was a violation of the conditions of sentence – the treatment process - then the court would decide on an appropriate action. ARASA was calling for the courts to take certain circumstances into account and show consideration.
Ms Semple stated that in the heading of this chapter, the word ‘inquiry’ should be spelled ‘enquiry’.
The Parliamentary Researcher read the submission from the South African Commission for Human Rights (SAHRC).
The Chairperson asked if it should be left to the court to decide about the age. He thought that what was being said was sufficient.
Mr Loselo said that it was suggested was that a medical officer should estimate the age of the child.
The Chairperson asked if there was a problem with saying that a presiding officer, with the advice of a medical practitioner, could estimate the age.
Ms Williams said that other legislation did provide for the estimation of age by a medical practitioner, and this could be mirrored here. She suggested that a medical officer should decide on age.
The Chairperson asked if it could be left to the presiding officer, who could take into account the advice from a medical practitioner.
Ms Williams responded that the recognition of customary marriages had a very simple process, where a presiding officer would fill in a form and a medical advisor would provide the assessment, and she suggested that this would create uniformity and consistency in law.
The Chairperson did not accept this, and said that the matter should be dealt with at the discretion of the presiding officer.
No matters were raised regarding this clause.
Ms Semple asked for comment from the Department regarding the replacement of the word ‘prison’ with ‘correctional services’.
Mr Loselo said that after discussions with SAPS, the Department had agreed to remove any reference to custody in a police cell, as there was an indication that police cells would not be an appropriate place. With regard to the word ‘prison’, the Correctional Services Act still made reference to a ‘prison’, as the preferred description of ‘correctional facility’ was not yet part of that Act.
The Chairperson asked if all arrested persons were taken to police cells.
Ms Kela responded that Department of Correctional Services had said they did not have facilities for temporary custody of persons. The issue was around the time taken for persons to experience withdrawal symptoms. The Department of Correctional Services felt that hospitals could better deal with, and had the facilities for detoxification.
Mr Loselo said that the issue was informed by the fact that the police did not have facilities for persons experiencing withdrawal symptoms.
Mr Viviers suggested that hospitals be included in this clause for detoxification.
The Chairperson said that any place that the magistrate deemed suitable would be sufficient.
Ms Kela said that the term ‘health establishment’ would be sufficient as it covered almost all of the available options.
Mr Bayever suggested that it was more appropriate to say ‘a health care facility’ as it could deal with withdrawal symptoms.
Ms Semple said that health care facility or establishment was used, but she asked whether this would cover the concerns of Clause 28(4).
The Chairperson said that any reference to ‘health’ would be referred to the Department of Health for their approval.
Ms Semple asked again if the word ‘prison’ was going to be changed to ‘correctional facility’.
The Chairperson said that ‘correctional facility’ should be used.
The Chairperson asked for and received confirmation that the legal drafters were satisfied with the formulation of Clause 37.
The Chairperson stated he did not know what the words ‘child is to be placed’ meant in Clause 38(5)a.
Ms Kela asked if there would be designated child and youth care centres as treatment centres, and she requested guidance on this matter.
The Chairperson said that fundamentally it was possible to create a treatment centre with the competence to provide a service to the younger generation. Equally it was possible to create a child and or youth care centre. In this centre there should be an enabling arrangement to deal with children with abuse problems.
He said that as far as issues relating to substance abuse were concerned, this Bill was the principal guide. He added that there should be an element of transversality between child protection and substance abuse treatment systems to ensure that the needs of children could be adequately addressed. The cross referencing should be done accordingly.
Mr Nzimande stated that the Department had promised to make a presentation to the Committee, and this was very important as the demand for treatment was on the increase.
The Deputy Minister said that it seemed that when children were placed in a treatment centre by a magistrate they did not necessarily benefit from the programmes but were locked up in rooms. Clause 38(5)b was saying that if a child was to be placed in a child and youth care centre, then that centre should be regarded as a private treatment centre. No mention was made of access, and the clause should therefore include a statement about access to medical help.
The Chairperson said that a situation could arise where a child and youth care centre might not be in total compliance with the provisions of this legislation.
Ms Kela said that that issue would be addressed under Clause 23.
The Chairperson said that the Department had a task to accomplish and had to bring a proposal to the Committee regarding this matter. There must be correlation between clause 38(5) and Clause 23.
Ms Semple said that the transfers between private centres and others, as mentioned in Clause 39(1)(c), did not make sense.
The Deputy Minister said that the word ‘if’ should precede sub-clauses (a),(b), and (c), then it could be applied to all.
Ms Williams agreed, saying that this amendment would capture the essence of Clause 39 and made good sense.
Mr Nzimande asked what the responsibility of the Director-General would be in this clause.
The Chairperson said that once the magistrate had ordered placement, the person under such order would fall under the care of the Director-General. There had been no problems with transfers of children this far.
There were no comments on this clause.
Submissions from the CDA and the Department of Trade and Industry were read out.
It was pointed out that the Department of Correctional Services did not have treatment centres, only medical services within their facilities.
The Chairperson said that the Court had the option to refer persons to treatment centres.
Mr Viviers said there was provision in the existing legislation for transfers, but he was not aware of successful transfers.
Ms Kela said that most of these treatment centres were not set up for drug dealers. She said that the law would have to be redrafted.
Ms Semple said that not only the security of users was at stake, but this posed huge problems for the treatment centre.
Mr Nzimande stated that 60% of all crimes committed were driven by substance abuse.
The meeting was adjourned
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