3.37 As indicated in Chapter 1, this investigation has certain limitations.156 Because of concerns raised by family and carers about behaviour of persons with Alzheimer’s disease in particular, questions were nevertheless included in Issue Paper 18 regarding the need for additional measures to deal with issues related to individual autonomy and public safety of such persons; the need for legislation to regulate the behaviour of adults with incapacity; and whether a diagnosis which entails incapacity should be reported to a public agency. On the whole commentators believed that there is no need for reform in this regard:
♦ In a small percentage of cases practical problems with for instance, driving motor vehicles, the possession of fire-arms and the practice of certain professions might exist but the majority of respondents were of the opinion that additional statutory measures are not called for.157
155 See eg the comments of the SA Federation for Mental Health.
156 See par 1.7 above.
157 Examples of problems mentioned by respondents included numerous quality of life questions centering on the social integration or isolation of persons with incapacity and included, for instance, whether persons with incapacity can move around safely without becoming lost; whether they should have access to potentially dangerous objects like firearms, sharp objects, and power-driven machinery; whether they are still fit to safely drive a motor vehicle; and whether they are fit to
♦ Although single commentators expressed a need for legislation regulating the behaviour of persons with incapacity and the possible liability of their family and carers, the general view was that there is no need outside already existing legislation and the prevailing principles regarding contractual and delictual liability to provide for this. In this regard reference was specifically made to the existing provisions of the Mental Health Care Act, 1973 dealing with intervention in cases of urgency or where the mentally ill are dangerous.158 Caution was expressed not to over-legislate. It was also pointed out that to single out a specific group as target for such legislation is undesirable and would probably be regarded as unfair discrimination. Strong views emerged that general legal principles should govern the activities of adults with incapacity.
♦ Finally, the vast majority of respondents believed that routine reporting of incapacity would entail an unacceptable intrusion into several fundamental rights of adults with incapacity and found it to be an unacceptable suggestion.
Emphasising the social nature of the problems usually encountered with regard to behaviour of persons with incapacity, and the fact that “the law cannot hope to cover all eventualities” some respondents suggested that these problems should rather be dealt with by training family, carers and relevant authorities on existing legislative measures aimed at regulating behaviour of persons with incapacity;
and on how to empower persons with incapacity without controlling them.159 In the latter context it was specifically suggested that guidelines (for instance in the form of a code of conduct) are needed as yardstick indicating desirable limits of authority and power to act in respect of persons with incapacity. Such a code should be underpinned by clear principles on when intervention in the affairs of
continue their usual occupation (see eg the comment of the Occupational Therapy Association of SA). See par 1.7 et seq above and the accompanying footnotes where the applicable legal framework in respect of most of the activities mentioned is briefly set out.
158 See sec 8-27 of the 1973 Act. The Mental Health Care Act, 2002 also contain provisions in this regard (see sec 32-34 and 40 dealing with involuntary mental health care and the authority of the South African Police Service to intervene when necessary).
159 See eg the comments of the SA Federation for Mental Health; and Dr Felix Potocnik and colleagues.
persons with incapacity would be appropriate and could be developed by relevant experts, bodies and lobby groups.160
3.38 The public was also invited to bring to the Commission’s attention any additional issues for possible law reform related to this investigation. Issues raised in response include the following:
♦ The need for procedures regulating mediation and settlement of disputes related to decisions concerning adults with incapacity.161 This need is addressed under the Commission’s investigation into Arbitration:
Alternative Dispute Resolution (Project 94) and the comments concerned have been referred to the relevant researcher.
♦ Sexual autonomy of persons with Alzheimer’s disease.162 Comments in this regard were referred to the Commission’s researchers involved in its investigation into Sexual Offences (Project 107). The Commission’s Report on Sexual Offences was published in January 2003.
♦ Issues related to parental authority of adults with incapacity with minor children.163 These comments were referred to the Commission’s researchers involved in its investigation on The Review of the Child Care Act (Project 110). The Commission’s Report on The Review of the Child Care Act was published in January 2003.
♦ Issues related to procedure with regard to dissolution of marriage on the ground of mental incapacity; and protection of the interests of adults with incapacity in the case of divorce.164 These concerns have been brought to the attention of the researcher dealing with the Commission’s current investigation on The Review of Aspects of the Law of Divorce (Project 128).
160 See eg the comments of the Occupational Therapy Association of SA. Cf also the comment of Dr Felix Potocnik and colleagues of the Department of Psychiatry, Faculty of Health Sciences, University of Stellenbosch who suggested practical ways of dealing with, for instance, situations where a person with incapacity becomes incapable of effectively driving a motor vehicle. Dr Potocnik and colleagues offered to assist with training of traffic authorities to show them how to identify such incapacity and how to implement the current statutory measures.
161 Comments by Prof Jan Bekker.
162 Comments by Prof JMT Labuschagne.
163 Comments by Prof Jan Bekker and the Family Advocate, Pretoria.
164 Comments by Prof Jan Bekker and Prof Francis Bosman.