Puzzling legislation – Scrap or re-write the Older Persons Act

October 1st, 2013
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By Neels Coertse

The Older Persons Act 13 of 2006 (the Act), regulations, forms and national norms and standards (NN&S) commenced on 1 April 2010 replacing the Aged Persons Act 81 of 1967 as amended. The aim of the Act is laudable, since it recognises the plight of the elderly and that they should be empowered and protected and that their status, well-being, safety, health and general well-being should be looked after. An older person is, in the case of a male, when he is older than 65 years of age and, in the case of a female, when she is older than 60 years of age.

The Act, regulations, forms and NN&S appear to be disjointed, fragmentary and haphazardly constructed and not capable of being interpreted properly. In some instances it is almost impossible to attempt a proper reading of it. I submit that it is beyond repair and recommend that the Department of Social Development should consider rewriting the legislation in its entirety. I intend to discuss only certain aspects of the Act; to prepare a commentary on the entire Act is beyond the scope of this article.

Interpretation of statutes

The statute, inclusive of the regulations, forms and NN&S, should be interpreted according to the intention of those who drafted it. However, in this case the question is what to do with it, since it is drafted so badly, to the extent that it does not make sense or is without foundation.

Solomon JA said: ‘Now prima facie the intention of the Legislature is to be deduced from the words which it has used. It is true that owing to the elasticity which is inherent in language it is admissible for a court in construing a statute to have regard not only to the language of the Legislature, but also to its object and policy as gathered from a comparison of its several parts, as well as from the history of the law and from the circumstances applicable to its subject-matter. And if, on considerations of this nature, a court is satisfied that to accept a literal sense of the words would obviously defeat the intention of the Legislature, it would be justified in not strictly adhering to that sense, but in putting upon the words such other signification as they are capable of bearing’ (Dadoo Ltd and Others v Krugersdorp Municipal Council 1920 AD 530 at 554 – 555) (my italics).

The ‘golden rule’ of interpretation of statutes was referred to and quoted with approval by De Villiers JA in Principal Immigration Officer v Hawabu and Another 1936 AD 26 at 31: ‘We are to take the whole statute together and construe it altogether, giving the words their ordinary signification, unless when so applied they produce an inconsistency … so as to justify the Court in placing on them some other signification, which, though less proper, is one which the Court thinks the words will bear’ (my italics). Is it possible to apply these dicta to the wording and still make sense of the legislation? I submit not.

Definitions

I submit that the following definitions are rather pivotal in understanding the Act, regulations and the NN&S. The definitions appear to be loosely and carelessly drafted. When one reads the definitions, one should be mindful of the dicta of the quoted cases in that we have to look at the statutes and regulations as a whole and not piecemeal. It should be interpreted altogether.

  • ‘Care’ means physical, psychological, social or material assistance to an older person, and includes services aimed at promoting the quality of life and general well-being of an older person.
  • ‘Caregiver’ means any person who provides care.
  • ‘Community-based care and support services’ mean any programme contemplated in s 11. This is a problem definition.
  • ‘Frail older person’ means an older person in need of 24-hour care due to a physical or mental condition that renders him or her incapable of caring for himself or herself.
  • ‘Health care provider’ means a health care provider defined in s 1 of the National Health Act 61 of 2003. This is a problem definition.
  • ‘Home-based care’ means care provided or services rendered at the place where a frail older person resides, excluding at a residential facility, by a caregiver in order to maintain such frail older person’s maximum level of comfort, including care towards a dignified death. This is a problem definition.
  • ‘Older person’ means a person who, in the case of a male, is 65 years of age or older and, in the case of a female, is 60 years of age or older.
  • ‘Older person in need of care and protection’ means an older person contemplated in s 25 (5).
  • ‘Operator’ means a person who operates a residential facility.
  • ‘Residential facility’ means a building of other structure used primarily for the purposes of providing accommodation and providing a 24-hour service to older persons. This is a problem definition.
  • ‘Respite care’ means a service offered specifically to a frail older person and to a caregiver and which is aimed at the provision of temporary care and relief.
  • ‘Service’ means any activity or programme designed to meet the needs of an older person.
  • ‘Shelter’ means any building or premises maintained or used for the reception, protection and temporary care of an older person in need of care and protection.

Problem definitions

Caregiver: A caregiver is defined alongside that of a health-care provider, an operator, residential facilities, respite care, shelters and social workers. Singularly and collectively all of these are inextricably linked to the office of ‘caregiver’. When reading this definition in isolation it seems to be fine, however ‘… a comparison of its several parts …’ (Dadoo case) reveals the muddled thinking of the draftsperson. Sadly it is symptomatic of the entire piece of legislation.

In the Principal Immigration Officer case De Villiers J stated that: ‘We are to take the whole statute together and construe it altogether …’. All of these different offices relate to each other and have an influence on the definition of caregiver, but they were mixed up with one another.

Community-based care and support service: Mean any programme contemplated in s 11. Section 11 however, makes it clear that ‘service’ is not a service but a community-based programme and that it might fall into two categories, namely prevention and promotion programmes on the one hand and home-based care on the other. I submit that home-based care and community-based care and support services are mixed together. In subsequent subsections, there are attempts to separate them.

Once again the Department of Social Development should be lauded for having compassion for the plight the older person finds himself or herself in and it is clear that it really wanted to make a difference through this legislation.

The programmes in terms of s 11(2) are carefully constructed and aimed at the economic empowerment of the elderly, information, education and counselling services, provision of nutritionally balanced meals, and so on. Those in s 11(3) refer to ‘home-based care programmes directed at frail older persons within the community.’ It seems as if the aims of the programmes created in terms of s 11(2) and (3) are at loggerheads with one another, while the older person in need of care is neatly excised from these programmes. It is my contention that a frail older person and an older person in need of care and protection in terms of the statute’s definition are, essentially, exactly the same.

Health-care provider: The Act’s definition makes s 1 of the National Health Act 61 of 2003 (the NHA) applicable. The NHA defines a ‘health-care provider’ as ‘a person providing health services in terms of any law, including in terms of the –

(a)     Allied Health Professions Act, 1982 (Act 63 of 1982); [an ayurveda practitioner, therapeutic massage therapist or a phytotherapist are just some of the allied health practitioners].

(b)     Health Professions Act, 1974 (Act 56 of 1974);

(c)     Nursing Act, 1978 (Act 50 of 1978) [this Act has been repealed in its entirety by the Nursing Act 33 of 2005];

(d)     Pharmacy Act, 1974 (Act 53 of 1974); and

(e)     Dental Technicians Act, 1979 (Act 19 of 1979)’.

Home-based care, community-based care and residential facility: When one compares the definitions for ‘home-based care’, ‘community-based care’ and ‘residential facility’ one is left with a sense of bewilderment. They are not clearly distinguished.

These aspects are, I submit, essentially and materially the same – I further submit that these definitions should be re-visited and re-drafted to make it very clear what the differences are, if any. These definitions create insurmountable problems to understand and to apply chs 3 and 4 of Act and the relevant chapters of the regulations.

Chapter 3 creates community-based care and support services, while ch 4 creates residential facilities. It seems as if two separate types of facilities are created, but it is mixed in the Act.

Community-based care and support services as well as residential facilities should apply to be registered (ss 13 and 18 respectively). A person who provides home-based care does not have to register; such a person should ensure that caregivers receive prescribed training (s 14).

Home-based care is completely mixed up with community-based care, as well as with residential facilities. The definitions are vague, convoluted and incomprehensible to interpret. It is not possible to put ‘upon the words such other signification as they are capable of bearing’ (Dadoo case).

Section 14 mixes a number of things that should be kept separately and therefore creates enormous confusion. It refers to a person who provides home-based care, caregivers, social workers and health-care providers. Some of which have to be registered, others are bound by a code of conduct while others should be trained in terms of a prescribed training programme (reg 10).

Why did the department not entertain these aspects in separate sections and maybe even separate chapters?

The Act (ch 2) requires that community-based care and support services should register (s 13). Neither the Act nor the regulations differentiate between category A, B, C or D services at all. The prescribed registration certificate (form 3) that is issued to the entity on registration, also does not differentiate between any services.

All of a sudden, and therefore without a legal base, the NN&S introduces no less than seven different categories of services. In para 1.1 of the NN&S, the first four different categories are listed under Part I of the heading ‘Delivery of service’ as –

  • A: Basic services – luncheon/service clubs informal/temporary accommodation (rural).
  • B: Basic services (formal).
  • C: Intermediate services – service centre.
  • D: Tertiary services – comprehensive service, which could include assisted living/respite services.

Then another three different categories come to light in para 1.3.13 –

  • A: Basic services – primary support.
  • B: Intermediate services.
  • C: Tertiary services.

There is no explanation of these categories of services to be found anywhere in the legislation.

Conclusion

The question can be asked, and it is a valid question, what can be done to this statute, regulations and annexures? I am of the opinion that there are two things that should be done:

  • Scrap it.
  • Re-write it.

It is totally beyond repair. I further suggest that a proper think tank be convened with knowledgeable and capable people to re-draft a proper piece of legislation.

Neels Coertse BIur LLB (UJ) is an attorney at RCJ Coertse Attorneys in Johannesburg.

This article was first published in De Rebus in 2013 (Oct) DR 26.