12 the new 'age of consent'
Doctors will have to ask children aged 12 and older for permission before they can perform surgery on them, according to the new Children's Act.
Children as young as 12 can, without their parents' knowledge, be tested for HIV and be given contraception. And the doctor must keep it confidential.
The Act, which came into force on April 1, places the onus on doctors and other health professionals to seek consent from their young patients for certain medical procedures, including HIV testing, surgery and contraception.
Medical personnel will also have to explain to children what is going on, and not just to the parents.
These and other issues pertaining to the health of South Africa's children are discussed in the South African Child Gauge 2009/2010, launched in Cape Town on Tuesday.
Produced by the University of Cape Town's Children's Institute, the publication monitors government and civil society's progress towards realising the rights of children with the latest issues focusing on child health.
According to Paula Proudlock of the Children's Institute: "The rationale for these changes to the law is to recognise that children are maturing at a younger age, and that many are sexually active at a younger age. Ensuring that they can access contraceptives, HIV testing and medical treatment is aimed at protecting their health, for example, by preventing them from acquiring STIs or falling pregnant. Involving children and parents in decision-making about their own health care also empowers them to take responsibility for making healthy choices and sticking to their treatment regimens."
According to the Act, even if a child needs his or her parent to consent on his or her behalf, the child still has the right to be involved in decision-making related to his or her health, especially if it is likely to significantly change or have an adverse effect on the child's health.
This means that the child should be given the necessary information in a child-friendly way to enable the child to express his or her opinion. The child's opinion must then be given "due consideration" in the decision-making process.
Children aged 12 years and older can now consent to medical treatment for themselves. The previous law set the age at 14 years. For surgery, the age of consent has also been lowered from 18 to 12, but the difference is that the parents must assist the child to consent. If the parent refuses to assist the child and sign the consent form, then the surgery cannot be performed unless ministerial or court-ordered consent is obtained.
The Act also states that the determining factor is not only the age of the child, but also the maturity and capacity of the child to understand the benefits, risks, social and other implications of the treatment or surgical operation.
There is agreement that different types of treatment require different levels of understanding and responsibility. For example, a 12-year-old child may be mature enough to understand the risks and benefits of receiving a plaster cast for a broken arm, but the same child may not be mature enough to understand the risks and benefits of undertaking long-term treatment for a chronic illness such as tuberculosis. If the child is not mature enough to consent then the health professional must involve the parent or guardian.
The Act is also clear on the various steps to be completed before consent is obtained, including proper consultation and the completion of consent forms in the case of surgery.
A child may also be tested for HIV if the testing is in his or her best interest and consent is obtained. If the child is 12 years or older they can give consent, without a parent or guardian's knowledge. Children younger than 12 and sufficiently mature, can still give consent.
Condoms must also be provided to a child on request from the child and without consent of parents or caregivers if the child is at least 12 years. For contraceptives other than condoms the child must undergo a medical examination and be given medical advice. The child is entitled to confidentiality.