Consent in children and young people
Wandile Ganya, a medical student at the University of Stellenbosch and winner of last year’s MPS Ethics Essay Competition, explains why valid consent is just as important when treating children and young people as it is with adults.
“Children have the right to express [their] views freely in all matters affecting [them]…the views of the child being given due weight in accordance with the age and maturity of the child.” UN Convention on the Rights of the Child (1989)1
The South African Constitution makes provision for children’s rights, and in particular participatory rights. Under the Children’s Act 38 of 2005, as amended by the Children’s Amendment Act 41 of 20072 (the Act), children are defined as individuals, not merely the property of their parents or a passive object.
The concept of informed consent holds that patients should be allowed to make the final decision concerning treatment, providing that the following necessary elements are fulfilled:
- Disclosure of information
- Understanding and appreciation of information disclosed
- Voluntariness in decision-making
- Ability to express a choice3, 4.
Competence refers to the ability to perform a task3 and, by convention, age and mental (decisional) capacity are thought to be the chief elements that constitute competence.
Consent to medical treatment
The age at which a person is able to consent to treatment in South Africa is 12, provided they have sufficient maturity and decisional capacity “to understand the benefits, risks, social and other implications of the treatment”.2
For children who lack decisional capacity and/or are under 12 years of age, consent for medical treatment is obtained from the parent, guardian, or caregiver. (A care-giver can also be a child head of a household.)2 Where surgical operations are concerned, only a parent or guardian may provide consent.
When consent cannot be obtained in the usual way, and the treatment or operation is necessary to preserve the life of the child, or to save the child from serious or lasting physical injury or disability, the hospital superintendent may act as a proxy in providing consent for the child, only in emergency circumstances.
The Minister for Social Development may give consent if the parent or guardian unreasonably refuses to give consent
The Minister for Social Development may give consent if the parent or guardian unreasonably refuses to give consent (or to assist the child in giving consent), is incapable of giving consent (or assisting the child in giving consent), cannot readily be traced, or is deceased. The Minister may also consent when the child unreasonably refuses to give consent. The High Court or Children’s Court may be approached to give consent in all instances where another personal that may give consent refuses, or is unable to give such consent (see reference for application form(s) to be completed).5
In emergency situations where the hospital superintendent is unavailable, a doctor may perform life-saving treatment on a child in the absence of consent. The treatment should be limited to what is immediately necessary, and consent should be obtained as soon as possible thereafter.
Consent to surgical operations
A child may consent to a surgical operation granted that they are over the age of 12 years and of sufficient maturity and decisional capacity to understand the benefits, risks, social and other implications of the surgical intervention; and they are duly assisted by his/her parent or guardian.2 Written informed consent is required (see reference for application form(s) to be completed).5 Remember, sterilisations are not contemplated under the Act.6
Consent to termination of pregnancy
Although dealt with in a different Act, consent regarding termination of pregnancy is worth a mention. The Choice on Termination of Pregnancy Act7 provides that any female, regardless of her age, may consent to a termination of pregnancy without the assistance of her parent, guardian or care-giver.
If a child makes a final decision which appears to be irrational or incompatible with the doctor’s opinion, it does not necessarily mean that the child is incompetent to make an informed decision.8 In such circumstances, you should ensure that the child understands the implications of his/her decision.
Informed consent should be sought for all medical and/or surgical interventions involving the child by a treating healthcare practitioner.
It is a legal obligation for healthcare practitioners to disclose relevant information to their patients regarding:
- The patient’s health condition (except when disclosure of information would be contrary to the patient’s best interest)
- Available diagnostic and treatment options
- Risks, benefits, costs and consequences attached with each option
- The option of non-treatment, that is, informed refusal and its implications.9
For informed consent to be valid, the child must not be influenced by other individuals either by coercion, persuasion or manipulation
You might wonder: “How much information should I disclose to safely declare a patient ‘informed’ enough to consent?” The ‘reasonable’ patient standard is often employed which dictates: disclose as much relevant information, that a reasonable person who, placed in the patient’s position and informed of all such pertinent information, including material risks, would find significant to in order to decide.10
The process of consent should also be conducted in a language that the patient understands and in a manner that considers the patient’s level of literacy.9 This is especially so with children. Avoid or clearly explain medical jargon. For informed consent to be valid, the child must not be influenced by other individuals either by coercion, persuasion or manipulation.3
Lastly, the child’s final decision may be expressed orally, in writing or may be implied – termed tacit or implied consent. However, it is advisable that you get written informed consent, and always make contemporaneous notes on what was discussed. Caution is placed against tacit consent as a child’s submission to treatment may not necessarily imply informed consent.
South Africa is a culturally diverse country. It is only sensible for any healthcare practitioner to be aware of the value systems held in the community where they practise. In the African context, for example, individual autonomy is of smaller status than the pursuit of the communal good. A child in such context often has no say in decision-making on matters concerning them and thus may often defer decision-making to his/her parents, elders, or extended family.
Further, the parents (or the child) may disagree with performing indicated medical or surgical treatment based on cultural, social or religious reasons, for example, parents belonging to the
Jehovah’s Witness faith refusing transfusion of their critically ill child.11 It must be emphasised here that all decisions must have the child’s best interests at heart. In emergency cases, even if the parents or child disapprove of the intervention, their wishes need not be acceded to in cases when they appear not to be in the child’s best interest. The Children’s Act states that a parent, guardian, or care-giver may not refuse to assist a child or withhold consent by reason only of religious or other beliefs, unless that parent or guardian can show that there is a medically accepted alternative choice to the medical treatment or surgical operation concerned.
For more information see MPS’s factsheet, Consent: Children and Young People: www.medicalprotection.org/southafrica/factsheets/consent-children-and-young-people
- UN Convention on the Rights of the Child (1989) www.unicef.org.uk/unicefs-work/our-mission/un-convention
- Children’s Act 38 of 2005 (as amended by Children’s Amendment Act 41 of 2007) www.justice.gov.za
- Beauchamp TL and Childress JF (Eds), Principles of Biomedical Ethics (2001)
- Dhai A and McQuoid-Mason D, ‘Consent’ in McQuoid-Mason D and Dhai A (Eds)Bioethics, Human Rights and Health Law: Principles and Practice 69-85 (2010)
- Mahery P, Proudlock P and Jamieson L, A Guide to the Children’s Act for Health Professionals (2010) www.ci.org.za
- Sterilisation Act 44 of 1998
- Choice on Termination of Pregnancy Act 92 of 1996
- HPCSA, Seeking Patients’ Informed Consent: The Ethical Considerations (2007) www.hpcsa.co.za
- National Health Act 61 of 2003
- Singh JA, ‘Law and the Health Professional in South Africa’ in Moodley K (Ed) Medical Ethics, Law and Human Rights: A South African Perspective 109-141 (2013)
- Kling and Kruger, ‘Paediatric Ethics’ in Moodley K (Ed) Medical Ethics, Law and Human Rights: A South African Perspective 183-200 (2013)