scholarly journals The Protection of Children's Right to Self-Determination in South African Law with Specific Reference to Medical Treatment and Operations

2018 ◽  
Vol 21 ◽  
pp. 1-34
Author(s):  
Hanneretha Kruger
Keyword(s):  
Decision Making ◽  
Child Care ◽  
Medical Treatment ◽  
South African ◽  
Medical Decision Making ◽  
Self Determination ◽  
Medical Decision ◽  
Maturity Assessment ◽  
Consent To Medical Treatment ◽  
Surgical Operations

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    

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

1996 ◽  
Vol 19 (5) ◽  
pp. 319-324 ◽  
Author(s):  
Mary Ann McCabe ◽  
Cynthia H. Rushton ◽  
Jacqueline Glover ◽  
Melinda G. Murray ◽  
Sanford Leikin
Keyword(s):  
Decision Making ◽  
Medical Decision Making ◽  
Self Determination ◽  
Medical Decision ◽  
Patient Self Determination Act

Adolescent Involvement in the Medical Decision Making Process

1999 ◽  
Vol 30 (4) ◽  
pp. 3-9 ◽  
Author(s):  
Lisa Harrison ◽  
Brandon Hunt
Keyword(s):  
Decision Making ◽  
Healthcare Professional ◽  
Medical Decision Making ◽  
Ethical Dilemmas ◽  
Medical Decision ◽  
Rehabilitation Counselors ◽  
Decision Making Process ◽  
Reasoning Ability ◽  
Rehabilitation Counselor ◽  
Consent To Medical Treatment

Many adolescents reach full cognitive development by age 15. Age 18, however, has been designated the age when adolescents may give consent to medical treatment. When the reasoning ability of the adolescent has reached maturation, but the law does not afford the adolescent the ability to utilize his or her reasoning ability, conflicts may arise. Parents may wish one set of treatments for their child and the child may wish for a different type of treatment. When the adolescent is the client of a rehabilitation counselor or healthcare professional, ethical dilemmas may also arise. Supporting the adolescent will support his or her autonomy, however, it may concurrently stifle beneficence or nonmaleficence. This paper addresses issues relevant when dealing with adolescents and informed medical consent. These issues include legal, ethical, and familial implications. Guidelines to assist rehabilitation counselors are also offered.

scholarly journals Children’s autonomy in medical decision-making

JAHR ◽  
2019 ◽  
Vol 10 (1) ◽  
pp. 171-180
Author(s):  
Michael Cheng-tek Tai
Keyword(s):  
Decision Making ◽  
Medical Treatment ◽  
Medical Decision Making ◽  
Well Being ◽  
Young Age ◽  
Medical Decision ◽  
The Past

Should children be allowed to express their opinion in regards to medical treatment or experiment? In the past, the practice seemed to assume that children are not matured enough to make decision affecting their well-being, their guardians therefore are given the power to decide for them. In this article the author will argue that this practice should be changed and children should be allowed to get involved. The author quoted findings of Grootens-Wiegers P., Hein I. M., van den Broek J. M. and de Vires M. C. in regards to children’s ability from developmental and neuroscientific aspects that children actually start knowing their like, dislike, good and bad… from a very young age. Though these processes are gradual, the finding tells us that children are not as immature as we used to think. The author thus argues that children’s autonomy must be respected in some way when medical decision is to be made. At least, they must be told what options are available and seek their opinion.

scholarly journals MEDICAL TREATMENT V SURGERY: WHERE DOES MEDICAL TREATMENT END AND SURGERY BEGIN IN TERMS OF SECTION 129 OF THE CHILDREN’S ACT?

Obiter ◽  
2018 ◽  
Vol 39 (3) ◽  
Author(s):  
Carina van der Westhuizen
Keyword(s):  
Child Care ◽  
Medical Treatment ◽  
South African ◽  
Medical Practitioner ◽  
Termination Of Pregnancy ◽  
Proxy Consent ◽  
Medical Procedure ◽  
Consent Requirement ◽  
Consent To Medical Treatment ◽  
A Minor

It has been firmly established in South African law that informed consent prior to the commencement of any form of medical procedure is required by the patient, or proxy decision maker. This principle has been established in South African law by two cases, namely Stoffberg v Elliott (1923 CPD 148) and Castell v De Greeff (1994 (4) SA 408 (C)). If the necessary consent is not obtained, the doctor may, among others, incur liability for civil or criminal assault.Initially, consent to the medical treatment of minors was regulated by the Child Care Act (74 of 1983). In terms of section 39(4) of this Act, a minor who reached the age of 18 years was legally competent to consent to an operation while a minor over the age of 14 could independently consent to medical treatment. (This would include a termination of pregnancy, inclusive of an anaesthetic. See Van Oosten “Choice on Termination of Pregnancy Act: Some Comments” 1999 SALJ 67. A termination of pregnancy is performed in terms of the Choice on Termination of Pregnancy Act (92 of 1996) and not the Children’s Act (38 of 2005), therefore it will not be discussed in this note). Van Oosten also notes that neither the terms “medical treatment” nor “operation” are defined in the Child Care Act.The Child Care Act prescribed a cumbersome procedure that had to be followed if the parent or guardian of a child needed to consent to an operation or medical treatment and the responsible person could not be found, could not consent by reason of mental incapacity, refused to consent or was deceased. In such cases the medical practitioner had to report the matter to the Minister of Social Development who could then give proxy consent (s 39(1) of the Child Care Act). In the case of an emergency when an operation or treatment was necessary to save the life of a minor or prevent serious physical injury and a competent person could not be found to consent, the superintendent of the hospital could consent to the necessary procedure (s 39(2) of the Child Care Act). Concerns were raised that the process was cumbersome, led to delays and was therefore not in the interest of minors who need immediate access to medical treatment. As will be pointed out below, the terms “medical treatment” or “surgery” have also not been defined in the Children’s Act. This note therefore seeks to find a workable solution to address the issue of where medical treatment ends and surgery begins as this has an effect on the consent requirements for these procedures. Finally, recommendations will be made based on the research. To put it in context, the consent requirement in the Children’s Act will be discussed, followed by definitions of medical treatment and surgery as well as the way in which other jurisdictions treated the issue of medical treatment and surgery.

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

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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