Implications of the patient self-determination act: Guidelines for involving adolescents in medical decision making

The Children's Act 38 of 2005 provides that children over the age of 12 years can consent to their own medical treatment or that of their children, provided they are of sufficient maturity and have the mental capacity to understand the benefits, risks, social and other implications of the treatment (section 129(2)). The predecessor of the Children's Act set the age at which children could consent to medical treatment at 14 years, and no maturity assessment was required (Child Care Act 74 of 1983 section 39(4)). Children over the age of 12 years can consent to the performance of surgical operations on themselves or their children, provided that they have the level of maturity described above and they are duly assisted by their parents or guardians (Children's Act section 129(3)). Before the Children's Act came into operation, the Child Care Act allowed children over the age of 18 to consent to their own operations (section 39(4)). Neither a maturity assessment nor parental assistance was required. (Note that when the Child Care Act was in operation the majority age was still 21 years.) In this article the question is considered if the relaxation of the limitations on children's capacity to consent to medical treatment and surgical operations in the Children's Act recognises the right of children to make independent decisions without the assistance of their parents or guardians or other substitute decision-makers. Firstly the article investigates the theoretical foundations of the protection of children's rights, particularly their autonomy rights. Secondly the meaning of the concept "competence" in medical decision-making and the related concept of "informed consent" are discussed. Thirdly some developmental and neuroscientific research on children's decision-making capacities and how they influence children's competence to give consent valid in law are highlighted. Fourthly possible legal foundations for the protection of children's right to self-determination in medical decision-making are sought in the Constitution and international and regional human rights treaties. Finally the relevant provisions of the Children's Act are examined in order to ascertain whether children's right to self-determination is sufficiently protected in South African law

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Self-Determination, Substituted Judgment, and the Psychology of Advance Medical Decision Making.

Psychosocial issues near the end of life: A resource for professional care providers. ◽

10.1037/11262-004 ◽

2006 ◽

pp. 89-109 ◽

Cited By ~ 3

Author(s):

Peter H. Ditto

Keyword(s):

Decision Making ◽

Medical Decision Making ◽

Self Determination ◽

Medical Decision ◽

Substituted Judgment

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THE GROWTH OF PATIENT AUTONOMY IN MODERN MEDICAL PRACTICE AND THE DEFINED LIMITATIONS UNDER THE SHARĪ’AH

IIUM Law Journal ◽

10.31436/iiumlj.v22i2.135 ◽

2014 ◽

Vol 22 (2) ◽

Author(s):

Puteri Nemie Jahn Kassim

Keyword(s):

Decision Making ◽

Medical Practice ◽

Patient Autonomy ◽

Medical Decision Making ◽

Self Determination ◽

Medical Decision ◽

Legal Cases ◽

Modern Medical Practice ◽

The Right ◽

Islamic Values

The concept of patient autonomy or self-determination is one of the dominant ethos in modern medical practice. The demands by patients to be given respect, independence and dignity in medical decision making have been heeded and mirrored in many ethical codes and judicial decisions. The development of the law relating to informed consent, euthanasia, confidentiality, and reproduction issues have clearly reflected the reinforcement of patient autonomy in which patients’ choices should be free from coercion and unwanted interference. Paternalistic infringement in these areas have been regarded as outmoded and are disfavoured, as respect for a patient’s right to determine his own destiny is given precedence. The escalating medico-legal cases have further emphasised the salience of this concept in the provision of medical services. Nevertheless, while the importance of patient autonomy is duly recognised, the advancement of this concept is not without its limitations; it accordingly has to evolve within the perimeters of one’s religious and cultural precepts. For Muslim patients, the right and ability to make their own choices and decisions about medical care and treatment must be within the defined limitations of the Sharī’ah. The emphasis on individualism, personal gratification and the denial of faith in medical decision making is inconsistent with Islamic values. Therefore it is necessary that principles relating to the concept of patient autonomy be developed within the sphere of the Sharī’ah, in order to ensure their coherence with the doctrinal requirements stipulated in Islam.

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