The legislation
South African legislation provides guidance as to how the consent process works when it comes to minors who need medical treatment or surgery. The rules are set out in the Children's Act (38 of 2005). A child is defined as a person under the age of 18 years. In terms of the Act, a parent or guardian of a child under the age of 12 may consent to the child's medical treatment or surgery. The same would apply if the child is over 12 but does not have sufficient maturity to consent to the treatment/surgery.
A child over the age of 12 may consent to medical treatment and surgical procedures. They must have sufficient maturity to consent to treatment or procedures and must be assisted by a parent or guardian when consenting to surgery. Consenting to a surgical operation must be done in writing on form 34, which can be found annexed to the Regulations of the Act. The form must be completed by the medical practitioner (or a representative of the hospital / clinic) and signed by the child and the parent or guardian.
Sufficient maturity
This requirement basically asks if the child has the mental capacity to understand the medical treatment or procedure, the associated risks and any associated social and other implications. The HPCSA guidelines suggest a similar approach; a competent child is one who understands the treatment or surgery, the accompanying risks and the alternative options and those consequences.
Can someone else consent on behalf of a child?
The short answer is yes, in certain circumstances. The Act comprehensively sets out which people or entities are allowed to consent on behalf of a child and under which circumstances this may occur.
Child A is under the age of 12 (or over the age of 12 but lacks sufficient maturity).
In this case, the parent or guardian may consent to the child's surgery. In the case of medical treatment, the parent or guardian and a caregiver may consent on behalf of the child. It is not uncommon in South Africa for a child's immediate and primary "care-giver" to be a distant family member, a family friend, a foster parent or a social worker.
There are even instances where a household is headed by a child who is responsible for his/her younger siblings. The Act empowers these people, who take care of the child (the "caregiver"), to consent to the child's medical treatment in the instances where the child cannot and where consent cannot reasonably be obtained from the child's parent or guardian.
However, the Act does not allow these care-givers to consent to surgical intervention.
Child B presents with a potentially fatal injury (or one that is serious enough to lead to a long lasting physical disability).
The superintendent of a hospital, in this instance, may consent to medical treatment or a surgical operation on behalf of the child if the treatment is so urgent that it cannot be delayed in order to obtain the required consent, and if the treatment or surgery will save the child's life or prevent long-lasting physical disability.
The parent or guardian of child C unreasonably refuses to consent on behalf of the child or to assist the child in consenting to the surgery or medical treatment. Alternatively, the parent or guardian is incapable of doing so. In a further alternative, the parent or guardian is deceased.
An application for consent to medical treatment or surgical operation by the minister may be made in terms of s129 (7) of the Act. This must be done in writing in the format of form 33 found in the Regulations of the Act. The minister may consent to the medical treatment or surgery on behalf of child C in the above circumstances and also in the circumstance where the child unreasonably refuses to give consent.
- A high court or a children's court may consent on behalf of a child in all instances where another person is permitted to consent on behalf of a child but is unable to do so or is unreasonably refusing to do so.
- In instances where the child's parent is under the age of 18 (a childparent), the child-parent must be assisted by their own parent or guardian (the child's grandparent) when consenting to the child's surgical operation. This must be done in writing on form 35 in the Regulations of the Act.
What one must bear in mind at all times is that the child's best interests are of utmost importance and take precedence over everything else. Having said this, medical practitioners must ensure that they obtain the required consent, be it from the child or a parent or guardian, before administering any treatment or performing surgery. Any views or wishes expressed by the child must be given due consideration.
