Autonomy of the child in the South African context: is a 12 year old of sufficient maturity to consent to medical treatment?

Abstract

BackgroundA child is a developing person with evolving capacities that include autonomy, mental (decisional) capacity and capacity to assume responsibility. Hence, children are entitled to participatory (autonomy) rights in South Africa as observed in the Children’s Act 38 of 2005. According to section 129 of the Act a child may consent to his or her own medical treatment provided that he or she is over the age of 12 years and is of sufficient maturity and decisional capacity to understand the various implications of the treatment including the risks and benefits thereof. However, the Act does not provide a definition for what qualifies as ‘sufficient maturity’ nor does it stipulate how health professionals ought to assess the decisional capacity of a child. In addition, South Africa is a culturally diverse country. The Western liberal notion of autonomy may not necessarily find equal prominence in the mores of people with a different worldview. Hence we demonstrate a few salient comparisons between legal liberal moral theory and African communitarianism as pertinent to the autonomy of the child.DiscussionChildren are rights-holders by virtue of their humanity. Their dignity as individual human persons affords them the entitlement to human rights as contemplated under the Constitution of the Republic of South Africa. However, contrary to the traditional Western notion of individual autonomous persons African societies hold a communalistic notion of person hence there is less regard for individual autonomy and rights with more emphasis on the communal good and maintaining the continuity of relationships and interdependencies shared within a community. A child considered in this view is not regarded as a full person. This implies that decisions concerning the child, including consent to medical treatment are discussed and determined by the community to which the child belongs. Lastly, in this article, we draw on the notion of capacity for responsibility to produce a pragmatic definition of sufficient maturity.ConclusionIt seems reasonable to suggest a move away from a general legal age of consent for medical treatment toward more individualised, context-specific approaches in determining the maturity of a child patient to consent to medical treatment. Perhaps, decision-making with respect to consent to the medical treatment of a child belonging to a traditional African community where the notion of a person is embedded in communitarianism ought to involve the child’s parents/guardians/caregivers where possible provided that the best interests of the child are awarded priority.

Child-Centred Care in HIV Service Provision for Children in Resource Constrained Settings: A Narrative Review of Literature

“…HCW paternalism presents as a barrier to child-centred care for HIV seropositive children [74]. This is because of the additional cognitive limitations related to understanding, reasoning and retention of information experienced by children, which compels HCWs to take a paternalistic stance when providing care to these children [74].…”

“…HCW paternalism presents as a barrier to child-centred care for HIV seropositive children [74]. This is because of the additional cognitive limitations related to understanding, reasoning and retention of information experienced by children, which compels HCWs to take a paternalistic stance when providing care to these children [74]. Studies suggest that HCWs have an ethical, legal and clinical obligation to support children's involvement in consultations and decision-making processes [25, 74].…”

Evaluation of the minimum age for consent to mental health treatment with the minimum age of criminal responsibility in children and adolescents: a global comparison

“…In contrast, the Czech Republic, Denmark, Ireland, the Netherlands, New Zealand, Portugal, Chile and the UK, along with a few middle-income countries, including Ghana, Lithuania and South Africa,26 are identified as having the most substantially developed policies, possibly because they have a longer history of service development and availability of resources 6 32…”

“…Further MAMHC was determined by The Law Library of Congress (UK)22 and in articles for Ireland23 and Iran 24. The MAMHC for Malawi, Ethiopia, Swaziland, Turkmenistan, Burkina Faso and Singapore was identified in a Human Rights textbook25and that for South Africa in established legislation 26. Likewise, the MAMHC for Cyprus, the Czech Republic, Denmark, Estonia, Greece, Hungary, Lithuania, Portugal, Slovakia, Slovenia and Spain was determined from Stultiëns et al, 2007 27…”

Principles of research ethics: A research primer for low- and middle-income countries

“…Consent processes may also be challenging when approaching female subjects, who may require approval of a male head of household in addition to their own consent [ [25] , [26] , [27] ]. While 18 years is considered the age of adulthood in many Western countries, other cultures may consider younger persons to have reached maturity [ 28 , 29 ]. In one qualitative study of 15–19 year old participants in HIV research in Kenya, 50% thought parental consent should be sought, 25% felt this was not necessary, and 25% had mixed feelings [ 30 ].…”