The Committee continued to deliberate the version of the Bill prepared by the Department of Social Development (DSD), highlighting specific clauses where changes had been made, or where the Committee felt that further amendments were necessary to tighten up the wording.
In Clause 1 the references to “illicit drugs” and “mini drug master plan” were revised. Clause 3 should reflect that the Minister, together with the other Ministers, must develop and co-ordinate interventions that fell into three broad categories. It was noted that Clause 63 already dealt with the connection between the Executive and other statutory bodies.
It was accepted that Chapter 2 should remain limited to the combating of substance abuse, and should be kept separate from Chapter 3.
The responsibility of the Minister and communities under Clause 12 was discussed. The significance of the words “may” and “must” in relation to the duties of, respectively, the Minister and the MECs was clarified. The Department confirmed that it had consulted with other relevant departments, to allay the Committee’s disquiet about implementation and the fact that the legislation was being dealt with in a short space of time. The distinction between community treatment and outpatient treatment was clarified, as well as the role of support groups. The clause on support groups was to be used to the General Provisions section of the Bill.
Under Chapter 6 it was noted that the documents to be kept should be contained in regulations, but that investigations could extend to other documents as well, subject to privacy limitations and the Access to Information Act. Members expressed some unhappiness about the powers given to the Director General for immediate closure of a treatment centre, noting that there must be a valid basis to do so, preceded by a fair process of thorough inspection and investigation. There was a need to re-think the clause. It was also suggested that Chapter 7 of the Bill needed to be re-worded to include both infrequent and frequent substance use, and this could possibly be done by amending Clause 31(2)(b). The position of foreign nationals being admitted to public or private treatment centres under Chapter 8 was discussed. The Department suggested that Social Workers, and possibly also other centre staff, should be excused from apprehending absconding service users, as the police must take this function. The Committee suggested that Clause 51(2) should be further clarified as there were stiff penalties provided, and the Department should indicate what it would regard as an offence for purposes of this clause.
The Committee noted, in relation to Chapter 10, that representatives of departments would have to occupy at least Director level posts, as they would be responsible for co-ordinating responses to policy directives. It was noted that provision must be made to incorporate the existing National Drug Master Plan into the Bill.
Prevention of and Treatment for Substance Abuse Bill (the Bill): Deliberations
The Chairperson said that all reference to “illicit drugs” should be omitted and substituted with the term “substances”.
Mr Pierre Viviers, Deputy Director, Substance Abuse, Department of Social Development, added that the definition of “mini-drug master plan” should also be revised, where applicable, to read “ substances” instead of “drugs”.
The Chairperson noted that clause 3(1) should reflect that the Minister must, together with the other Ministers, develop and co-ordinate interventions that fell into three broad categories, namely; demand reduction, supply reduction and harm reduction of drugs.
The Committee and the Department of Social Development (DSD) accepted this correction.
The Chairperson added that the onus should clearly be on the Minister of Social Development to consult with other ministers on the guidelines pertaining to the prevention of and treatment of substance abuse.
The Central Drug Authority (CDA) should also ensure that a multifaceted approach was considered, to enhance and manage the reduction in supply of substances.
Mr Puseletso Loselo, Chief Director: Legal Services, DSD replied that Clause 63 already dealt with the connectivity between the Executive and other relevant statutory bodies, and set out who should take responsibility for which functions.
Ms Nomathemba Kela, Chief Director: Social Worker Services, DSD. asked whether certain of the provisions of Chapter 2 could not be incorporated into Chapter 3.
The Chairperson responded that Chapter 2 dealt with the combating of substance abuse, and not with interventions, and he considered that this was the correct way to deal with matters.
The Chairperson asked how other Ministers would be held accountable in the implementation of guidelines for community-based services. He noted that the onus should be on the community to start a community treatment centre and not on the Minister, as the Bill currently stated.
Mr Leselo replied that these Ministers had to liase with the DSD on the issue of guidelines as well as on norms and standards, and that the Minister would act as the supervisory entity, whilst communities would be assisted in setting up treatment facilities where possible and necessary.
Ms J Semple (DA) asked why the DSD had included the term “in the Republic “, as it was generally understood that South Africa was the Republic.
Mr Leselo replied that it should not have been included, as South Africa was indeed the Republic.
The Chairperson raised the issue that Chapter 5 stated that the Minister “must” set guidelines for the establishment of community based treatment centres (CBTC). He asked what these guidelines were, as norms and standards should set the guidelines and services rendered, and what type of services would be rendered at these treatment centres.
He added that the Bill also stated that MECs either “had to” or “must” provide the necessary funding for these treatment centres. This might be problematic, as provinces might not have the money for these services. He asked what the rationale was behind the terminology. He noted that national government should take the lead in the provision of the legislative and legal framework.
Ms Kela replied that in fact there were references to the MEC “may” do something (rather then “must”) and that the guidelines that were referred to in a peremptory fashion referred to the broader legal framework, which should be provided by the DSD and the Executive authorities responsible for Social Development, both on national and provincial level.
She said that the types of community-based services depended on the guidelines as well as on norms and standards, and that the Bill would aim to create treatment facilities within communities as well as the implementation of diversion programmes.
Mr Viviers added that the services that would be rendered were not “brand new services” as they had been available in communities for quite some time. The Bill would give the legislative framework for those existing and prospective CBTCs.
The Chairperson asked which Executive authority would assume responsibility for resource allocation and funding, as the Bill mentioned both the Minister and provincial MECs as the executive authorities responsible.
Ms Kela said that MECs would be the executive authority responsible for resource allocation and funding, as CBTCs would be on local level. MECs also had a duty to engage with the relevant local government structures on how and when the resources and funding would be allocated to CBTCs.
The Chairperson said that would be problematic if the different Ministries drafted their own regulations pertaining to this Bill. This could lead to confusion. The DSD had to be careful of taking policy issues to the extreme in this Bill, as the Minister of Social Development had to ultimately draft regulations in consultation with the other Ministers.
Ms I Direko (ANC) asked whether the DSD had engaged other government departments and agencies on the Substance Abuse Bill, as they were not present. She said that she would like to be assured that the DSD had consulted these departments, as the Bill would not succeed otherwise.
She added that there was a sense that this Bill was being rushed through Parliament, that this was a poor reflection on the Committee, and that more time was needed to adequately address the core issues that emanated from the deliberations.
Ms Kela replied that the relevant departments had been approached before the Bill was sent to the Social Cluster and other relevant entities.
The Chairperson asked where CBTC fitted in the value chain of services offered.
Ms Kela replied that CBTCs could offer preventative, early and aftercare treatment as well as early intervention services.
Ms Semple asked what was meant by “Community Based”.
Mr Viviers replied that it referred to a situation where a person had been removed from his or her immediate environment to attend the treatment programme.
The Chairperson added that the service users would stay in the communities as opposed to being sent away, irrespective of locations.
The Chairperson sought more clarity on how involuntary service users would be accommodated in CBTC.
Ms Kela replied that involuntary service users could be sent to a CBTC by a Court order and that the Department of Justice should provide the framework in relation to this.
Ms Direko said that she had a problem with CBTCs, as there was still a risk that service users might renege on their rehabilitation by taking drugs again, since the users were still in the very same socio-economic conditions that led to substance abuse.
The Chairperson replied that this was not necessarily the case. A community based treatment facility in Mitchell’s Plain had been quite successful, even though most of the service users lived in that community. He said that it was important for service users not to be treated in artificial environments, hence the efficacy of CBTCs in facilitating rehabilitation.
Ms Kela said that the Bill provided the legal framework for service users and former service users, civil society and government to establish support groups.
The Chairperson said that support groups had to be part of the treatment process, as they should be assigned during and after treatment.
Mr Leselo said that there had already been a separate clause that dealt with support groups, to avoid repetition in the Bill. He suggested that the clause on support groups be moved to “General Provisions” as support groups were a substantive part of the relevant legislation.
The Chairperson asked what the distinction was between community based and outpatient treatment.
Ms Semple replied that “community based services” meant services provided to persons who used, abused or had been dependent on substances, as well as to persons affected by substance abuse, while they remained within their families or communities. Outpatient services referred to a non-residential service outside the family, provided by a treatment centre or halfway house, to persons who abused substances. These were managed for the purpose of providing a holistic treatment service.
Ms C Dudley (ACDP) asked why Clause 21(3)(a) used the word “contemplated”.
The Chairperson agreed that he too would like to know the rationale for this.
Mr Leselo replied that it would be deleted, as he agreed that it did not make sense.
Mr Viviers added that the majority of private treatment centres had not been registered, and that the Bill would oblige them to register.
Ms Direko said that the Bill was clear on what it wanted to achieve, and that private treatment centres had to comply with the relevant legislation.
The Chairperson said that Chapter 6 was straightforward, as it was aimed at preventing private halfway houses or treatment centres from operating without a license.
Ms Dudley asked whether the Bill would prescribe which documents the Manager of such centres should keep, as it was not clear what documents would be needed in the case of an inspection.
Mr Leselo said that the documents should be relevant to the investigation.
The Chairperson said that the DSD had to be mindful of the Access to Information Act as well as the right to privacy as enshrined in the Constitution. He said that the DSD had to indicate whether there would be a statutory obligation to keep documents.
Ms Direko said that during the inspection it would be indicated which records would be required, as it would be a given that the Manager would have the prescribed and required documents.
The Chairperson noted that the documents needed would thus be relevant to the investigation into compliance. The main point would be that an investigation should be able to be conducted without hindrance.
Ms Dudley asked what would happen if the required documents were not included in the regulations; she was worried that the Manager should not, in this case, be prosecuted for failing to have what he did not know about.
The Chairperson added that an investigation could be specific in its scope, as it could also look into documents that Managers were not strictly speaking “required” to have, but which would be valid to the investigation. He said that in cases like these the law should be read in full context and there should not be reliance only on certain words.
Ms Kela explained that treatment facilities would be required by the Norms and Standards to have certain documents, especially when a Centre had medicine on the premises.
Ms Semple said that it was important to ensure that no human rights violations occurred as a result of this Bill.
Mr B Solo (ANC) said that it was important to clarify these points. At present there seemed to be a very abstract environment, where decisions could be taken at a whim, without taking the legal framework into consideration.
Ms Dudley noted, in relation to the immediate closure of a treatment centre by the Director-General, that there seemed to be a loophole, as there were now corrective measures and steps in place to adequately assist service users. She noted that other treatment centres might not have space for service users transferred from a centre closed down by the Director General.
Ms Kela said that corrective measures would be taken where, for example, a child was abused or where other malpractice might occur.
The Chairperson stated that there should be a valid basis for closing down any private or public treatment centre, preceded by a fair process of thorough inspection and investigation.
Mr Solo added that the DSD should refrain from giving the Director General too much power when it came to the immediate closure of treatment centres. The DSD had to first try and assist these centres in dealing with the problems at hand, before the Director General could close down a centre. He said that government funded centres, such as Noupoort, would probably be the first centres to be closed, as many people had complained about the strict conditions at this centre.
Ms Dudley stated that it would be disastrous if a centre were to be closed down because of the risk to one or two people. She said that this specific clause on the disestablishment of treatment centres had to be looked at again.
The Chairperson noted that immediate closure would be a valid response to a situation where all the service users housed within a specific treatment centre were at risk, provided that suitable alternative arrangements had been made. He said it was important for the DSD to ensure that this clause reflected the due process of the law.
Ms Dudley said more clarity was needed on clause 24 (1)(a), which required that the Director General may, subject to the laws governing the public service, appoint a suitably qualified person, as prescribed, as a manager of a public treatment centre. She wondered what “suitably qualified person, as prescribed” meant. The manager of a treatment centre may not necessarily have all the required skills.
Mr Leselo replied that in the event of a manager not being qualified as prescribed, he or she had to be assisted by a qualified professional.
Ms Dudley noted that Clause 26 (1) read that a manager had to report an unnatural death to the relevant authorities. She said that as she understood it, all deaths had to be reported to the police, regardless of whether they were as a result of natural or unnatural causes.
Ms Kela said that South African Police Services (SAPS) had indicated that if a doctor had certified death, then it was unnecessary for them to confirm the death. The same principle was applied in the Children’s Act.
The Chairperson asked why appeals were included in this section, as they should have been dealt with in the “general provisions” section.
Mr Leselo replied that they were incorporated into this section due to the application function of the establishment and disestablishment of a treatment centre.
The Chairperson said that this Chapter of the Bill, dealing with aftercare and rehabilitation, excluded all other people who had been using substances and were not attending a formal treatment programme. He said that that the Bill should cover all people who were abusing substances, as the current definition of service user was limited to existing and former service users. He added that if a person took a substance once a month it was important to be able to classify this person as an addict as well.
Ms Kela replied that there was a distinction, as a person that used substances once a month or a few times a year could technically not be classified as having an addiction.
Mr Leselo said that the clause should stay, as it is as the onus was on excessive usage of substances.
The Chairperson challenged this view and stated that the mere fact that people were using illegal substances, whether in moderation or in excess, qualified them for treatment. He said that abuse was termed as doing something that was morally, ethically or legally not allowed.
Ms Kela replied that the definition of substances included both illicit and legal substances.
The Chairperson emphasised a previous comment, and stated that the mere fact that an individual or individuals used substances called for intervention. He added that the Bill was intended to address abuse, and the definition of service had in some way to be broadened to include both infrequent and frequent substance use.
Ms Kela suggested that this could be addressed by omitting “addiction” in Clause 31(2)(b), to broaden the definition.
Mr Leselo noted that the DSD had a discussion with the Department of Home Affairs pertaining to the admission of foreign nationals to a public or private treatment centre. The general understanding was that such service users would be subjected to the Immigration Act, whether they were admitted on an involuntary or voluntary basis.
Ms Dudley asked what was meant by a health facility, in Clause 32, as it the implication was that some treatment centres might not be classified as health facilities and thus would not able to perform detoxification services.
Ms Kela replied that the Bill was clear on what a health facility was, and that treatment centres could perform detoxification services. She suggested that the definition of health establishment was broad enough. She added that sub-clause (4) covered it in full.
Ms Dudley believed that it was still not specific enough and called on the DSD to review the relevant clause.
Mr Solo noted that the National Health Act was broad enough and thus would concur with Ms Kela that it was clear that treatment centres may provide detoxification services.
Ms Kela said that it was important that Social Workers be omitted from clause 52(2), which dealt with the apprehension of involuntary service users absconding, as this might put them in physical danger.
Mr Leselo said that if Social Workers were to be omitted, then other staff had to be considered as well.
The Chairperson noted that it was generally agreed upon that the SAPS should apprehend those involuntary service users. However, treatment centres had to take all precautionary measures to ensure that involuntarily-admitted service users did not escape.
Mr Viviers replied that all State institutions that housed involuntary service users did have adequate safety mechanisms in place to prevent them from escaping.
The Chairperson noted that Clause 51(2), which dealt with disciplinary action against a service user, allowed for very strong penalties. He said that, for instance, a service user might steal some bread because he or she felt hungry, and would then be facing criminal charges. He believed that the DSD should include something in the framework as to what it would consider warranted action.
The Chairperson indicated that this Chapter dealt with the Central Drug Authority (CDA) and supporting structures.
Ms Dudley asked whether the person representing a Department would be a senior departmental official.
The Chairperson said that was very important that each representative had to be a senior official at a Director level, as they would ultimately be responsible to co-ordinate their Department’s response to the CDA policy directives.
He noted that no provision was made here for the adoption of a National Drug Master Plan (NDMP) as part of the powers and functions of the CDA. He said that the NDMP was defined, but that there had been no explanation on what it entailed.
Ms Kela replied that there was already a National Drug Master Plan, and that the preparation of this had therefore not been included in the Bill.
The Chairperson asked whether the current Plan would be preserved and incorporated into the CDA, or whether it was to be abolished. He pointed out that the law did not allow for the establishment of a new NDMP.
Ms Kela replied that a provision would be inserted to incorporate the existing NDMP into the Bill.
The meeting was adjourned
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