Dutton - Medical Malpractice in SA

Unlawfulness (Wrongfulness) 55
which involve their consent: HIV-testing, 154 confidentiality of information on
HIV/AIDS status of children 155 and access to contraceptives. 156
A question which frequently arises in practice is how to assess whether a child
is ‘of sufficient maturity and has the mental capacity to understand the benefits,
risks, social and other implications’ 157 of the treatment or surgical operation. In
this respect it is crucial to appreciate that, as with all other patients, the constituent
elements which make up informed consent must be met: the medical
practitioner must assess whether the child has sufficient knowledge, appreciation
and consent to provide informed consent. Our law emphasises the ‘actual
capacity to give informed consent, as determined in each and every case by the
medical practitioner, based on the emotional and intellectual maturity of the
individual concerned and not on arbitrarily pre-determined and inflexible agebased
criteria’. 158 An understanding of the principles underpinning the doctrine
of informed consent is therefore a prerequisite for a proper assessment, as are
the principles relating to the concept of the reasonable medical practitioner, as
the standard expected of the medical practitioner in assessing the maturity and
capacity of the child is, as always, that of the reasonable medical practitioner in
the particular branch of the profession and, provided this standard is met, the
practitioner will not be negligent.
4.24 Consent to medical treatment and surgical operation by children
Consent to medical treatment and surgical operation by children is governed by
section 129 of the Children’s Act, 2005. 159 The section provides that a child may
consent to medical treatment if the child is over the age of 12 years and is of
sufficient maturity and has the mental capacity to understand the benefits, risks,
social and other implications of the risk. 160 A child may consent to the performance
of a surgical operation if, in addition to the factors required for medical
treatment, the child is duly assisted by his or her guardian.
4.25 Consent to termination of pregnancy by children
The Constitution grants everyone the right to bodily and psychological integrity,
which includes the right to make decisions concerning reproduction. 161 Section
5(2) of the Choice on Termination of Pregnancy Act 162 gives legislative effect to
this right, and provides that a girl of any age can consent to a termination of
154
Section 130–132.
155
Section 133.
156
Section 134.
157
See e g ss 129, 130, 132 and 133 of the Children’s Act 38 of 2005.
158
Christian Lawyers Association v Minister of Health (Reproductive Health Alliance as Amicus Curiae
2005 (1) SA 509 (T) at 516.
159
Act 38 of 2005.
160
Section 129(2) of the Children’s Act.
161
The Constitution of the Republic of South Africa, 1996, s 12(2)(a).
162
Act 92 of 1996.