While divorce does not affect the parental responsibilities and rights that parents had during the marriage in respect of their minor children, healthcare practitioners are often unsure about the consent requirements following divorce for the treatment of minor children. Healthcare practitioners may also be understandably concerned about providing treatment to minor children without consent from both parents, if the relationship between the co-holders of parental responsibilities and rights is particularly acrimonious. Thankfully, as will be discussed below, the legal position is in fact quite clear.
In terms of section 129(4) of the Children’s Act No. 38 of 2005, a parent or guardian of a child may, subject to section 31, consent to the medical treatment of a child if the child is under the age of 12 years, or is over that age but is of insufficient maturity or is unable to understand the benefits, risks and social implications of the treatment. The Act does not contain a definition of medical treatment, but it may reasonably be understood to include less invasive interventions (as opposed to surgery), as well as psychological treatment.
As a general rule, a parent may act without the consent of a co-holder of parental responsibilities and rights. In this regard, section 30(2) of the Act provides that when more than one person holds the same parental responsibilities and rights in respect of a child, each co-holder may act without the consent of the other co-holder or holders when exercising those responsibilities and rights, except where the Act, any other law or an order of court provides otherwise.
It should be noted that the biological mother of a child has full parental responsibilities and rights in respect of the child unless revoked by a court. The same holds true for a biological father who is married to the mother of the child, or who was married to the child’s mother at the time of the child’s conception, birth or any time between conception and birth, unless revoked by a court. An unmarried father also acquires full parental responsibilities and rights in respect of the child if, at the time of the child’s birth, he is living with the mother in a permanent life-partnership, or if he, regardless of whether he has lived or is living with the mother, consents to be identified or successfully applies to be identified as the child’s father, or pays damages in terms of customary law, contributes or has attempted in good faith to contribute to the child’s upbringing for a reasonable period and contributes or has attempted in good faith to contribute toward expenses in connection with the maintenance of the child for a reasonable period. In most instances, both parents will thus be considered co-holders of parental responsibilities and rights in respect of their child in terms of the Act.
In some instances, however, parents are obligated to consider one another’s views prior to making a decision in relation to the child. In this regard, section 31(2)(a) of the Act provides that before a person holding parental responsibilities and rights in respect of a child takes any decision that is likely to change significantly, or to have a significant adverse effect on, the co-holder’s exercise of parental responsibilities and rights in respect of the child, that person must give due consideration to any views and wishes expressed by any co-holder of parental responsibilities and rights in respect of the child.
Generally, medical treatment is unlikely to change significantly, or to have a significant adverse effect on, the co-holder’s exercise of parental responsibilities and rights. In addition, even if there is indeed a duty on one parent to consult the other regarding the child’s medical treatment (this might conceivably be the case where invasive or high-risk treatment is being considered), the parent consenting to such treatment is not obligated to give effect to the views and wishes of the co-holder or non-consenting parent. Furthermore, such a consulting duty would apply to the co-holder of the parental responsibilities and rights, and not the healthcare professional in question. The National Health Act No. 61 of 2003 (NHA) also confirms the position that consent to the medical treatment of a minor child may be granted by a parent or guardian or another person authorised by law to act on the child’s behalf, and there is no indication in the NHA that consent from both parents is required.
Regardless of the marital status of the child’s parents, a healthcare practitioner is thus not obligated to procure informed consent from both parents for the treatment of a child under the age of 12 years. If one parent therefore does not consent to treatment and wishes to prevent the treatment from proceeding, (s)he would be required to approach a court for an order to that effect. Healthcare practitioners are nevertheless encouraged to seek legal guidance in the case of a dispute arising in relation to consent.
Read the article on the SAMA Insider (page 23)
