The Portfolio Committee for Social Development continued its deliberations on the Prevention of and Treatment for Substance Abuse Bill [B12-2008], and started to discuss a new version of the Bill that had been prepared by the Department of Social Development.
Prior to commencing these discussions, the Committee heard the legal opinion it had previously requested from the Office of the Chief State Law Adviser, regarding the Constitutionality of certain clauses of the Bill dealing with delegation. It was assured that clause 60 would not offend constitutional principles. Members asked if this would apply to delegation across different spheres and questions were asked on the budgetary process and implications, whether a Minister, having delegated the powers, would be able to hold the Provincial MEC liable, and how the delegation would be funded. The Department noted the budgetary process to be followed. It was noted that sub-delegation was specifically provided for in the provincial sphere.
The Committee then read through a letter from the Department of Health, clarifying matters around detoxification procedures at private and public healthcare facilities. Detoxification could only be provided in public hospitals, and in those private treatment centres that had made application, met all the standards in the Public Health Act, and had been registered to provide the service. The detoxification at public hospitals would be funded by the State, whilst that patient would pay for this service at private treatment centres. The Department of Social Development noted that norms and standards must still be developed and that involuntary service users ordered to attend treatment by the Court would be treated at public centres. Members questioned the funding, the controlling mandate for the centres, regulation in the private sector, and the scope of “designation” and “health care facilities”. Members agreed that there should be a clear referral system developed.
The Committee then proceeded to consider a new version of the Bill, prepared by the Department of Social Development. It was decided that Chapters 2 and 3 should be combined, and the three distinct objects of providing for services, regulating their provision, and creating and enforcing an integrated response to substance abuse must be clearly set out, with a focus on the Central Drug Authority and the Drug Master Plan. The Bill needed to provide an over-arching framework for government response, but did also need to outline some key principles, for example, inter-sectoral collaboration.
The Committee continued to debate the responsibility of the various departments, noting that the Departments of Social Development and Education, whilst not having the sole responsibility for coordination, did have to ensure that they involved other Departments in their work. Members discussed the difference between prevention programmes and prevention measures. Technical amendments were made to some of the subclauses in clause 9. A Member raised a query whether it was necessary to involve the traditional leaders, but it was indicated that there were not existing initiatives being taken under customary law and communities.
Prevention of and Treatment for Substance Abuse Bill (the Bill): State Law Adviser’s Presentation
Mr Malusi Ncolo, State Law Adviser, Office of the Chief State Law Adviser, noted that the group dealing with the Bill had been asked to furnish a legal opinion on certain aspects. The main focus was on Clause 60, which dealt with the delegation of responsibilities by the Minister to officials of the Department. Clauses 61 and 62 also mentioned the issue. The question was whether the power of delegation, as contained in the Act, was constitutional. The legal opinion was that it was indeed constitutional, and that Ministers were often required to delegate functions, as had been found in a number of court cases. However, the Minister could not delegate a power that would require an official to exercise political discretion. This was not the case with this clause, and therefore the State Law Advisers believed that it would pass constitutional muster.
The Chairperson asked whether this would apply specifically to delegation across different spheres of government, namely, from national, to provincial, to local. He also asked what would be the budgetary implications of this delegation, and how would it impact on the “equitable shares” that all provinces were allocated out of the National budget. He asked whether provinces and municipalities would be required to provide for implementation of legislation, or whether the National Department of Social Development would be required to provide the necessary resources.
Kgosi K Morwamoche (ANC) agreed with the legal opinion, and noted that the Minister would be able to delegate functions to those who fell under the jurisdiction. If this was expressly included in the Act, it would cover the Department against litigation in the matter.
The Chairperson questioned how a Minister in the national sphere would be able to hold an MEC in the provincial sphere accountable, once power had been delegated. The MEC would be accountable to the provincial executive, not the national executive. He queried whether it was practically possible to delegate across the different spheres of government.
Ms Carin Booyse, State Law Adviser, Office of the Chief State Law Adviser, also raised the issue of accountability. The way in which the delegation was drafted would spell out how officials would be held accountable. The question then was how the delegation would be overseen.
The Chairperson asked how the delegation process should be funded.
Ms Nomathemba Kela, Chief Director, Department of Social Development, stated that, in her experience of recent budget processes, there was often some conflict between national and provincial priorities. A province would need to go through a budget process to get funding, and would had to compete with other provincial treasuries. When the provincial budgets were allocated, they should include business plans, which would align the priorities of the provincial and national treasures. However, whether provincial treasuries allocated money as requested was hard to ascertain.
The Chairperson then wondered what prompted the Department of Social Development (DSD) to opt for delegation as a tool for devolving functions to other spheres, as opposed to delineating specific roles in the Bill itself. This would have provided different groups with different functions. Allowing for delegation left the process open for argument. If power were going to kept at a national level, there would be no difficulty. However, delegating across spheres could cause problems, especially with regard to funding.
Mr Morwamoche thought that the concern was covered in the legislation, as provision was made for transferring money from the national to provincial levels. The question of costing in the Bill was usually done by the financial section. Thus, the concerns relating to the delegation of powers could be sent to the financial section for further clarity.
The Chairperson answered that this would partially cover the concern. The reality was that, once the money reached the provincial treasury in the form of their equitable share, it was sent in a single amount, and the provincial treasury could then decide how it would be allocated. The experience was that provinces would use their constitutional prerogative to deal with their equitable share but may not spend it as instructed by the National Treasury. However, if there were statutory obligations, then the legal liability rested with the Provincial Treasury if the functions were not fulfilled. It was difficult to hold officials accountable once functions had been delegated to them.
Ms Kela pointed out that if a function was delegated to an Executive Council, and something went wrong, the Minister would not be held accountable because the function was no longer his responsibility. Delegation compelled the provincial Premier to handle the problem. In practice, the Minister would usually not be held accountable.
The Chairperson agreed, noting that the litigation had generally focused on the provincial MECs when there was a problem with service delivery. The Minister may be cited as a second respondent, but the primary responsibility would lie with the person listed in the legislation. Thus, the matter could be laid to rest.
Mr Morwamoche agreed with this resolution of the matter but pointed out that, according to new law, there was nothing wrong with investing money in both the national and provincial spheres for the same purpose. However, he supported the idea of the Department of Social Development consulting with the State Law Advisers. He also requested that the Committee seek clarity from the Minister and the Director-General.
The Chairperson mentioned ring-fencing as a tool, but noted that the National Treasury did not like to use it; and the provinces did not like it as it was seen as interfering in their constitutional power. Although it had been used in extreme cases, this would need to be justified before it would be approved. The Chairperson then asked whether the Bill provided for sub-delegation. If a function was delegated to an official by the Minister, he asked if that official could then delegate the power again.
Mr Ncolo stated that sub-delegation had been provided for in the Act, and had been confirmed in the case law. However, an official could only sub-delegate if this had been enacted in legislation.
Ms Booyse agreed, stating that sub-clause 60 (6) provided for the Head of Department to further delegate across spheres, but this only applied to the provincial sphere. The officials could not delegate to the local sphere.
Detoxification Issues: Letter from Department of Health (DOH)
A Committee official read out the letter received from the Department of Health, which revolved around the issue of the process of detoxification. The Department of Health stated that detoxification could only be provided in public hospitals, and in those private treatment centres that had made application, met all the standards in the Public Health Act, and had been registered to provide the service. The detoxification at public hospitals would be funded by the State, whilst that patient would pay for this service at private treatment centres.
Ms Kela noted that the Department of Health would provide detoxification to people in public treatment centres; and that this service would be provided in public health facilities. Voluntary service users could receive detoxification in any health establishment designated by the Minister of Health. At this point, no norms or standards had been listed for the registration of private health facilities, and these would have to be developed. However, detoxification must take place under strict medical supervision; and, if this was done in a private facility, there must be a separate ward for detoxification. For involuntary service users – those designated to attend treatment by the Court – the initial detoxification treatment would take place at public centres.
Mr Morwamoche then asked why funding for detoxification was only provided to public hospitals. He asked why, if a certain amount of money was made available for detoxification, then why was none of this being made available to private centres. He asked whether the treatment at private centres fell under the mandate of the Provincial or the National Department of Health. He also noted that the Department of Health had specifically disagreed with the use of the word “designate” in Clause 28(3) and (4).
Mr Puseletso Loselo, Chief Director, Legal Services, Department of Social Development, pointed out that the letter was written before the latest draft of the Bill was available. Thus, it might not be up to date with the current draft.
The Chairperson reiterated the question around the provision of detoxification in the private sector. He also asked whether the provision of services in the private sector was properly regulated. This would again raise the issue of norms and standards. An agreement between the two departments of Health and Social Development would need to be spelt out in the legislation.
Ms J Semple (DA) asked if it was possible to just replace the word “designation” with “licensed”.
Mr Loselo answered that the Department of Health was saying that it did not want to be forced to designate certain health establishments for detoxification as this could be done anywhere. However, if any centre had been licensed to provide detoxification, it must do so and could not deny treatment to anyone.
Ms Kela then said that consideration needed to be given to whether “designation” actually referred to detoxification, or to the centre’s designation as a health establishment.
Ms Semple further asked if “health care facilities” would include centres like spas or saunas, asking if these types of facilities were able to offer detoxification.
The Chairperson also noted that the difficulty lay around using concepts in legislation that did not deal primarily with social development, but rather with health. Therefore, the letter to the Department of Health asked who would be designating the health centres where services would be provided. If the regulation of services was at the heart of that Department’s concerns, then surely that should be more reason to clearly regulate who could provide the services This would have to be regulated through a specific legal dispensation. No norms and standards were laid out for who could provide detoxification services.
Mr Loselo then clarified that initially the term “health care facility” was used, but the Health Care Act used the term “health establishment”, which included private or public clinics or hospitals. Thus, “health establishment” was used, to be in line with other legislation. According to the letter from the Department of Health, if a centre, whether private or public, applied to be licensed and registered to provide detoxification services, then they should be able to do so.
Ms H Weber (DA) then asked if the detoxification provided was only for drugs and substance abuse.
Mr Pierre Viviers, Deputy Director, Substance Abuse; DSD, raised a concern about involuntary service users who were brought before magistrates, and were in need of intervention. These persons should be removed to a health facility without the involvement of the Department of Health. However, these persons often caused problems because they could be disruptive. It was also possible that the hospital would rather send the person to an outpatient facility. The Department of Health would need to help with the assessment of persons, and give guidance as to where these people should be sent, otherwise all the different establishments would simply pass such persons back and forth.
The Chairperson answered that a referral system should set this out. A full and clear process should be established for dealing with the temporary placement of a person. In practice, a person would present themselves at a treatment centre, would often be referred to a health facility for detoxification, and then referred back to the treatment centre. The Chairperson asked if a system had been written into the law so that each role-player had a responsibility clearly delineated. He suggested that perhaps this needed to be stipulated in detail.
Department of Social Development new version of the Bill
Chapter 1: Definitions
Ms Lana Petersen, Parliamentary Liaison Officer, Department of Social Development, stated that she expected there to be corrections to this version.
She also noted that “people with disabilities” was included in the category “vulnerable persons”.
Ms Dudley then asked who was included under “vulnerable”, in particular whether this would include every youth, child, elderly person, or person with a disability, instead of just vulnerable users.
Ms I Direko (ANC) stated that the term related to vulnerable users and not to all vulnerable people.
Mr Loselo agreed, stating that the definition of vulnerable persons related to those recovering from substance abuse.
The Chairperson then questioned the definition of “substance”, and asked whether it included tobacco.
Mr Loselo answered that tobacco would be included in the next draft.
The Chairperson also asked if there was there an overlap between the definitions of “treatment” and “rehabilitation”. If so, he asked whether this overlap was intentional.
Mr Viviers answered that rehabilitation was part of the treatment process, which also included reintegration. As soon as a person’s treatment started, reintegration and rehabilitation would begin.
The Chairperson then asked if the two were parallel processes, or if they were two separate, distinct processes.
Ms Kela answered that the processes could run concurrently. As a person was treated, their rehabilitation was being worked on at the same time.
The Chairperson asked if the term “rehabilitation” was included each time the word “treatment” was mentioned. In other words, would this phrase consistently be written as “treatment and rehabilitation”, or would the Bill say that “treatment includes rehabilitation”, to avoid having to repeat it.
Mr Mogotsi Kalaeamodimo, Director: Substance Abuse, DSD, answered that the two terms had been used together because “treatment” had elements not included in “rehabilitation”, for example skills development. This had been applied consistently throughout.
Ms Petersen then noted that detoxification was defined as a medically supervised process, but that the Department of Health saw it as a “health service rendered in a health facility”. In the original definition, it was not mentioned that the service was only offered at health facilities.
Ms Kela noted that the correspondence with the Department of Health did not cover that aspect. Many treatment centres had very good detoxification facilities and, if they complied with Section 158 of the Health Care Act, they would be allowed to provide this service. The Department of Social Development therefore needed to work out the norms and standards with the Health Department. Treatment centres that could provide detoxification could not all be closed, as this would clog the health care system.
The Chairperson noted that there was a need for clarity when describing the processes contained in the Bill. If a process was already regulated by law, the Bill would have to create a linkage between the concept being defined, and the law regulating it. In terms of detoxification, the Bill must state who was able to provide this, what was provided and so forth. The Bill also needed to make it clear that the references to treatment and detoxification could only be provided at licensed health establishments.
Chapter 2: Combating of Substance Abuse
The Chairperson questioned the Chapter heading of “Combating of substance abuse”, and asked what its full implication should be. He stated that the implication was that the process was holistic in nature, and should incorporate the totality of the programme, from production of substances, to people taking the substances, to treating the substance abuse, and addressing its impact on the community. However, this Bill alone could not be responsible for combating substance abuse, and was meant to respond to a particular aspect in the value chain. Because no other legislation covered this principle completely, this Bill would have to contain the most complete description of the process. He then questioned the relationship between Chapter 2 and Chapter 3.
Ms Kela read out a new version of Chapter 2, which would substitute certain of the clauses.
The Chairperson said that there were three distinct objectives that had to be achieved in this Bill. The first was to provide for certain specified services and deliverables. The second was to regulate the provision of these services. The third was to provide or create a compelling situation for an integrated response to the challenge of substance abuse from government’s perspective. This would be achieved by creating a statutory mechanism through which integration, coordination and collaboration should occur, and that would be through the Central Drug Authority. This was required to be constituted in a specific way, through various line-functions, but also through creating an institutional framework for collaboration in vertical lines. The Bill would also need to assist in coming up with a Drug Master Plan, which would focus on the “demand and supply” side of the problem. The Drug Master Plan would decentralise the process to lower spheres of government. The Bill also needed to create legislative framework to outline and define the concept of an integrated response to substance abuse. While it would not always specifically regulate the services in each of these spheres, it would create the necessary means for each of these role-players to come together and collaborate.
Ms Petersen stated that if the purpose was to reconstruct the Chapter to provide guidelines for government’s approach to combating substance abuse, then the title of the Chapter might need to be changed. The title of Chapter 1 also contained the words “guiding principles”, although actual guiding principles were not mentioned in the chapter.
The Chairperson stated that there was no real need to change the title of Chapter 2; instead, Chapters 2 and 3 could be collapsed into one, as Chapter 3 also dealt with combating substance abuse.
Ms Kela noted that “combating” was an all-encompassing term, including supply, demand and harm reduction. The Bill was only addressing itself to two areas: harm-reduction (limited to treatment); and demand reduction. Supply reduction was not extensively addressed. However, it was often provided for in other legislation. The “guiding principles” related more to service delivery in line with this Bill.
Ms Dudley asked if the term “guiding principles” would be taken out of the title of Chapter 1, and put into the title of Chapter 3 instead.
The Chairperson answered that this was the case. The Bill needed to rather provide an over-arching framework for government response, but did need to outline some key principles, for example, inter-sectoral collaboration. Departments needed to make a collective effort to ensure that they did not work at cross-purposes. They needed to assist each other, and collaborate across the different spheres. The Chairperson asked if the Chapters at least were creating these principles.
The Committee agreed with the Chairperson’s assessment.
The Chairperson then stated that the Committee would work from the premise that the new clauses, as read out by Ms Kela, already existed. It would follow on from there. The Committee would need to look at a copy of the new formulation; and see what else needed to be included or taken out.
The meeting was adjourned for lunch.
The Chairperson noted that the Central Drug Authority and related structures would reciprocate efforts at provincial and local level to fight drugs. The National Drug Master Plan was essentially an integrated government policy to fight substance abuse. One of the reasons why, hitherto, the coordinating mechanism had not been effective was that the CDA was merely a forum where departments would independently report on what they were doing, but that the CDA did not have the ability to compel and monitor a coordinated response. Their new independent role should make them more independent. He noted that the National Drug Master Plan was not dealt with under a dedicated Chapter, and he thought that there was a need to explain it, its intentions and what it set out to achieve.
The Chairperson noted that the funding would be done from existing resources, in the context of the existing mandate. He noted that a principle was being created.
Ms Dudley wanted to know the deference between the principle and the guiding mechanisms.
The Chairperson responded that this Bill covered a wide range of intervention, well beyond the awareness programme which would collectively contribute towards prevention; whether the efforts were direct of indirect. These programmes would not necessarily depend on Department of Social Development driving them. Each Department could take its own initiative and work on the programmes: for instance there were distinct programmes under the Department of Education.
Ms Kela noted that the Minister of Social Development, together with a National Committee, was to act and take responsibility. However, she enquired whether the concept of joint and several liability implied that the Minister was not responsible for ensuring that coordinated efforts took place with other Ministries..
The Chairperson said that the responsibility to ensure coordinated efforts in terms of the Bill would not be resting with one Minister, as all the Ministers tasked with their own responsibility were accountable to the central policy enforcement. However, the Bill did say that the two Ministers of Social Development and Education must ensure that they were collaborating with other departments.
Mr Loselo read out clause 9, which dealt with the purpose of providing prevention programmes.
The Chairperson indicated that this clause dealt with prevention of substance abuse and the programmes to deal with the matter. He thought that sports activities were not prevention programmes, but prevention measures.
Ms Semple wanted to know the difference between programmes and measures.
The Chairperson said that the difference was that programmes were structured around narrow concepts of prevention. For instance, he would have thought that awareness training around substance abuse was not an adequate preventative measure in itself, as a person could speak to children about drugs, but this would not actually address the issues of why they were tempted to try the drugs, whereas measures would be ongoing programmes that gave the children something to do other than try the drugs.
Ms Kela noted that the programmes were integrated across all manner of government departments. She did not necessarily agree that programmes and measures must always be different.
Mr Loselo noted that there had been some amendments in clause 9(1)(a), which now read “ preserving the family structure of the persons affected by substance abuse and those who are dependant and addicted to substance abuse” He proposed that the words “on substances” should be added after the word “dependant”. Members agreed that this would make sense.
Mr Loselo further noted that instead of using the word “engage” in clause 9(2)(d), the word “develop” be used. This was agreed to.
Mr Loselo read out clause 10(9). He noted that there had been queries as to the meaning of the word “prescribe”. He explained that this meant facilitating the establishment of programmes, and it was similar to what was already in clause 8.
The Chairperson said that his understanding was that the Bill was essentially the legal environment within which certain things would happen. The Bill would not create the programmes and these would be created through the regulations.
Ms Semple asked about the involvement of the traditional leaders in the Bill, which was silent on this point.
The Chairperson noted that there were no initiatives within the context of cultural practices to run these programmes. It did not seem that there were many initiatives at present in traditional communities and this would be the responsibility of the Departments to extend their reach to all areas.
The meeting was adjourned.
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