Children and Medical Decision Making

Abstract

The Constitutional Court judgments of Teddy Bear Clinic for Abused Children and Another v Minister of Justice and Constitutional Development and Another 2014 (1) SACR 327 (CC) and Centre for Child Law and Others v Media 24 Ltd and Others 2020 (1) SACR 469 (CC) have set important precedents for a child’s autonomy and privacy. Two requirements are put forth in the Children’s Act 38 of 2005 for when a child may consent to his or her own medical treatment. The first requirement is the age of consent. A child aged 14 and older was allowed to consent to his or her own medical treatment and his or her surgery at 18 years without parental consent under the now repealed Child Care Act 74 of 1983. The Children’s Act however reduced this age of consent for both medical treatment and surgery and section 129 of the Children’s Act states that a child can consent to his or her own medical treatment without parental assistance at the age of 12. The second requirement is the maturity of the child which entails his or her ability to understand the nature of the medical procedure and the risk and consequence of giving consent to it. If one of the two requirements is not met, then consent may be obtained from the parent or guardian or caregiver of the child, the Superintendent of the hospital or the person in charge of the hospital, the Minister of Social Development or a High Court or Children’s Court.