Many parents have raised concerns about the appropriateness and health implications of the Covid-19 vaccination being made available to children, from this week, and this includes questions about the legality of this.
Here Mtho Maphumulo, Senior Associate at local law firm Adams & Adams, examines the law related to children’s legal consenting age to medical treatment, what happens when a child wants to get the vaccine but their parents do not want to give consent, as well as potential legal recourse where a child develops health complications.
The government's efforts to drive the vaccination program towards herd immunity are still ongoing. This is obviously not without hurdles, especially as most people are still hesitant to vaccinate due to various reasons.
The government, for the most part, has been targeting adults for vaccination, though it seems like children (below age 18 but 12 years or older) are now also next in line.
In the past few weeks, there have been reports and concerns about the rise in Covid-positive cases amongst children. Since the reports surfaced that the government intends to reduce the vaccination age limit to just 12 years, many parents have raised huge concerns about the appropriateness and health implications of this.
Some have even questioned the legality of this. In view thereof, it is pertinent to take a closer look at the children’s legal consenting age to medical treatment.
In addition, this piece will also consider a situation where a parent refuses to have his/her child vaccinated where a child wants to vaccinate. Lastly, we will zoom into potential legal recourse where a child develops health complications.
The law is very inconsistent with regard to the age limit for consenting to various medical treatments, procedures and medical decisions in general.
In some instances, age 12 is applicable; in some, 16 is applicable; and, in some, age 18 is applicable. Some of these are discussed hereunder. In law, age is just one consideration in the determination of competence to consent.
The other critical consideration is the mental capacity to consent. With mental capacity, a minor child needs to fully understand and appreciate the associated risks of the treatment, the ramifications and the benefits.
The child needs to be given all the necessary information and have it all explained to him or her, before consenting.
Equally important is the fact that informed consent may be withdrawn at any stage before the treatment or procedure is undertaken.
Examples of consenting age:
- A minor child, aged 12, may consent to medical treatment. This is in terms of the Children's Act, Section 129.
- A minor girl (of any age) may terminate a pregnancy without anyone else's consent (only her consent is necessary). This is in terms of the Choice on Termination of Pregnancy Act, Section 5.
- No minor child (below 18 years of age) may consent to sterilisation.
- A minor child, aged 12, may undergo an HIV test with just the minor's consent only. This is in accordance with Section 130 of the Children’s Act.
- A minor child, aged 16, may undergo a virginity test with their written consent. This is as per the dictations of Section 12 of the Children's Act. The parent/guardian may need to assent. This is also the case with circumcision for males only.
These are but some of the examples of a minor's consenting age.
"The best interests of the child"
There may be instances where a minor child's views and standpoints are inconsistent with those of the parent/guardian, insofar as medical treatment (including vaccination) is concerned.
In this case, the overriding principle is "the best interests of the child". In determining the best interests of the child, the maturity, views, opinions, and suggestions of the minor child are considered.
Similarly, the objections of the parent/guardian, reasons, views and opinions are given their worthy consideration.
If the disagreements cannot be resolved, the matter has to be referred to the legal department of the hospital wherein the relevant officer may approach the court for a ruling or apply to the Minister of Health for consent.
In a case where a child, subsequent to consenting and receiving treatment, develops serious health and long-lasting complications, a parent may (depending on the facts and the circumstances) sue the Department of Health or the relevant practitioner.
Where informed consent was properly given, it may be comparatively difficult to hold anyone legally accountable unless the parent can prove medical negligence or medical malpractice.
However, in an instance where, for example, the parent had to assent to the medical treatment, but the hospital failed and/or refused to do so, then it may be less difficult to succeed with the claim.
It will be interesting to see how the child vaccination program unfolds and whether the legalities pertaining to consent will be strictly enforced and complied with.
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