Abstract:
Informed consent for medical treatment is a developed legal concept in
South African common law; the elements of which have been clearly set
out by our courts. The overarching principle is viewed as a collaboration
between medical practitioner and patient to understand the medical
prognoses, medical advice and recommended treatment as well as the risk
associated with such treatment. It should be done in such a way that the
medical practitioner is not viewed as the “gatekeeper” of the medical
treatment, but that the practitioner has confidence that they have provided
the necessary information to enable the patient to decide. Where children
are concerned, there is a greater duty to ensure informed consent for
medical treatment is obtained in a manner that safeguards the short-term
and long-term, best interests of the child, while also respecting the
evolving capacities of the child. This paper examines the rights of children
to consent to gender-affirming treatment and explores how this issue
could be dealt with in an approach that recognises the autonomy of
children while ensuring that their short-term and long-term best interests
are upheld. The paper argues that the provisions of section 129 of the
Children’s Act 38 of 2005 and the Gender Affirming Healthcare Guidelines
provide sufficient guidance as to how informed consent for gender reaffirming treatment for children should be obtained in line with their
evolving capacities.
