Here is what the law says when it comes to consent for Covid-19 vaccination in SA children
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Cape Town – The Children’s Institute at UCT has shared what the law states about consent to vaccination in children from the ages of 12 to 17, after an outrage erupted.
There has been some backlash after Department of Health’s announcement that children aged 12 to 17 can consent to get one dose of the Pfizer Covid vaccine – and they can do so without their parents’ consent.
Vaccinations for this age group kicked off on Wednesday, amid a debate about the Children’s Act and the relationship between children’s rights and parents’ responsibilities and rights.
The Children’s Institute at UCT said now that Covid-19 vaccination of children in South Africa had begun, it was essential that the law on who could give consent is well understood by parents, carers and most importantly the children themselves.
The institute explained that the law says we all have a right to decide what happens to our bodies.
Section 12 of the Constitution says everyone has a “right to bodily and psychological integrity”, which includes the right to make decisions concerning medical treatment and the right not to be subjected to medical procedures or scientific experiments without their informed consent.
The right to physical and psychological integrity in the context of health is about being the ultimate decision maker when it comes to what you would allow to be done to your body, the institute said.
Isabel Magaya, of the Centre for Child Law, University of Pretoria, said: “Consent plays a significant role in the realisation of right to physical and psychological integrity because it allows an individual to make decisions about their bodies, such as getting the Covid vaccine.”
The Children’s Act (s129) states that children can consent to medical treatment, including vaccination, if:
(a) the child is over the age of 12 years.
(b) the child is of sufficient maturity and has the mental capacity to understand the benefits, risks, social and other implications of the treatment.
The Children’s Act recognises and respects children’s evolving capacities and gives them the responsibility to make decisions but ensures that they do so only if they have the ability to understand the choice they are making.
There is also a duty on adults to help children make good decisions.
Prof Ann Skelton, of University of Pretoria and a member of the UN Child Rights Committee, said: “The UN Convention stresses that parents have the right and responsibility to provide direction and guidance to their children. However, such guidance must be directed to the promotion of the child’s rights and be provided in a manner consistent with the evolving capacities of the child.
“This principle establishes that as children grow and develop new knowledge and skills, they are able to take greater responsibility for decisions that affect their lives,” Skelton said.
Where a child is over 12 but does not understand the risks and benefits of medical treatment, a parent, guardian or caregiver may give consent for them, but they should still be part of the conversation as they have a right to be heard and their views respected.
In addition to respecting children’s evolving capacities and their right to bodily integrity, we need to consider children’s rights:
- to have their best interests considered
- to participate in all decisions that affect them
- to information and health education
- to access health-care services
- to privacy and confidentiality
The Constitution provides that “a child’s best interests are of paramount importance in every matter concerning the child”. This includes matters affecting the health and well-being of the child.
The institute said that generally, parents wanted the best for their children and their concerns were based on wanting to protect them from harm, and just because children aged 12 to 17 had the right to decide for themselves, this did not mean that parents shouldn’t be involved in helping them weigh up the risks and benefits.
It added that parents have a responsibility to ensure their child’s health and wellbeing, both physical and psychological, and to foster their children’s ability to make their own choices.
When children are very young, parents make all the decisions for them, but as children get older they are given more responsibility to make choices for themselves.
Lucy Jamieson, of the Children’s Institute at UCT, said: “The law tries to balance giving children autonomy and protecting them from burdensome decisions by requiring parents, caregivers or other adults to support them.
“Even though adolescents can choose for themselves, it is important for parents and caregivers to listen to their children and discuss the risks and benefits,” Jamieson said.