Consent to Medical Treatment for Minors

by Cheralco Worship 

Introduction  

Over the last few years, there have been many South Africans that have been impacted by the COVID-19 pandemic in one way or another. The emergence of this pandemic and its spread worldwide has raised many concerns about health care and policy. What are the mechanisms in place that will allow us to protect ourselves and our families when it comes to medical treatment?  

Parental Consent to Medical Treatment 

With South Africa being a heterogenous country with many different cultures and people in its population, the family structure will differ from home to home. As a result, there may be situations where one parent may hold all the parental rights and responsibilities regarding a child and another where parents are co-holders of those rights and responsibilities. For example, in the former situation, the parent may consent to medical treatment for the child without requiring consent from another party; however, in terms of the latter, there may be uncertainty about who may consent to the medical treatment.  

In instances where there are co-holders of parental rights and responsibilities, the Children's Act1 ("the Act") provides guidance on how one may deal with the issue of consent to a medical procedure or treatment for a minor. In terms of section 30 of the Act, when parents are co-holders of parental rights, each can act without the other's consent, except in situations prohibited by the Act, a court order or any other legislation. However, if their decision has a significant impact on the child or the rights of the other parent, in terms of section 31 of the Act, the wishes and views of the other parent and child have to be seriously considered before the decision is made.  

Non-Parental Consent 

The Act provides for various instances in which minors may consent to their own medical treatment. Although the age at which the minor may give their own consent differs depending on the procedure, an important aspect that needs to be present is that the minor is sufficiently mature and mentally capable of understanding the risks2, benefits and implications of the medical treatment.  

Additionally, in many of the different cultures within South Africa, the community's role in child care is highly important. This gives rise to many instances where there would be persons voluntarily taking care of children. These individuals have no parental rights and responsibilities in terms of the children they care for; however, section 32 of the Act makes provision for them to consent to any medical procedure or treatment for a child if such consent cannot be obtained from a parent or guardian. Moreover, in emergencies or if parental consent is unreasonably refused or unable to be obtained, the hospital superintendent, the Minister of Social Development, the Hogh Court or the Children's Court may give consent.  

Conclusion  

Suppose you are faced with the problem in which consent is required for a medical procedure to be performed on a minor. In that case, it is crucial to know your rights as a parent, the current legislation, and its effect on your family. Therefore, consult with a legal professional before making any decisions that may have long-term effects on your family.  

Contact an attorney at SchoemanLaw for your legal needs by visiting our website at www.schoemanlaw.co.za

Cheralco Worship | SchoemanLaw IncCandidate Attorneywww.schoemanlaw.co.za