Whilst it is clear that where only one parent holds full parental rights and responsibilities in respect of a child, that parent may consent to the child’s medical treatment without the consent of any other party, there has been some uncertainty as to the position regarding medical consent for a child’s medical treatment when both parents co-hold parental rights and responsibilities. The position is clarified below, with a focus on occupational therapy and psychological treatment of a child.
The Law: An Overview
The Children’s Act 38 of 2005 (“The Act”) states as follows:
Section 30(2): when more than one parent holds the same parental rights and responsibilities in respect of a child, each of the co-holders may act without the consent of the other co-holder, when exercising those rights and responsibilities, except where this Act, any other law or a Court Order provides otherwise;
Section 31: Before a person holding parental rights and responsibilities in respect of a child takes any decision which, is likely to significantly change, or to have an adverse effect on, inter alia, the child’s health or generally the child’s well-being, that person must give due consideration to any views and considerations expressed by the child, bearing in mind the child’s age, maturity and stage of development. Moreover, before a person who co-holds parental rights and responsibilities in respect of a child makes any decision which is likely to change significantly or to have significant adverse effects on the co-holder’s parental rights and responsibilities in respect of the child, they must give due consideration to the views and wishes expressed by the co-holder;
Section 32: A person who has no parental rights and responsibilities in respect of a child but who voluntarily cares for the child either indefinitely, temporarily or partially, including a care-giver who otherwise has no parental rights and responsibilities in respect of a child, must, whilst the child is in that person’s care:
- safeguard the child’s health, well-being and development; and
- protect the child from maltreatment, abuse, neglect, degradation, discrimination, exploitation, and any other physical, emotional or mental harm or hazards.
Moreover, a person referred to above may exercise any parental rights and responsibilities reasonably necessary to comply with points 1 and 2 set out above, including the right to consent to any medical examination or treatment of the child if such consent cannot reasonably be obtained from the parent or guardian of the child;
Section 129: A child may only be subjected to medical treatment or surgical operation if consent has been given, as set out below:
A child who is 12 years or older, who is of sufficient maturity and has the mental capacity to understand the benefits, risks, social and other implications of the treatment can consent to their own medical treatment. If a child is under 12 years of age, or over the age of 12 but is insufficiently mature or unable to understand the benefits, risks and social implications of the medical treatment or surgical operation, the following persons may consent to medical treatment or surgical operations on the child’s behalf:
- the parent or guardian;
- in emergencies, the superintendent of a hospital (or the person in charge of the hospital in the absence of superintendent);
- if the parent or guardian unreasonably refuses to give consent or assist, is incapable of doing so, cannot be readily traced or is deceased, the Minister of Social Development; and
- in all instances where another person who may give consent refuses or is unable to give such consent, a High Court or a Children’s Court.
Is there any difference in consent of parents’ pre and post- divorce?
As is clear from the above, a child who is 12 years or older and who has the necessary maturity and mental capacity can consent to their own medical treatment, without assistance from their parents.
However, where a child is under the age of 12 years or above 12 but lacks the necessary maturity and mental capacity they will not be in a position to consent to their own medical treatment. Accordingly, where parents are co-holders of parental rights and responsibilities the consent of one of the parents is sufficient in respect of medical treatment of the child. However, where the decision will have ‘profound and irreversible’ consequences both parents should be consulted where practicable. It is noteworthy that there is no distinction made between parents who are divorced and those that are still married.
In the case of Joubert v Joubert the court had to decide to what extent co-holders of parental rights and responsibilities could exercise their rights independently of one another. The Court found that in terms of section 30 of The Act, co-holders enjoy a large measure of autonomy. The question raised in this case was whether the mother of the child (whom the child was living with) should have consulted with the father before enrolling the child in a specific school. The Court found that the choice of school was not something that would have a significantly adverse effect on the father’s exercise of his parental responsibilities and rights. The Court noted that even if there had been a duty to consult, the mother would not have been bound to give effect to the father’s views and wishes, however, failure to do so would leave the decision open for review.
Based on the above, where parents are co-holders of parental rights and responsibilities the consent of one of the parents should be sufficient for medical treatment of their child except where such decision would have a significantly adverse effect on the other parent’s exercising of parental rights and responsibilities. However, failure of the one parent to consider the views and wishes of the other parent will not render the consent invalid; it would merely leave the decision open to review by a Court.
Notwithstanding the above, whilst either parent who co-holds parental rights and responsibilities may consent to medical treatment of their child. Where the non-consenting parent believes that such decision is not in the best interest of the child or will adversely affect the exercise of their parental rights and responsibilities, they may apply to Court for an order to that affect. If such order is granted, the medical treatment would not be allowed to proceed or it would have to be terminated in the event that it had already commenced..
As regards psychiatric or psychological treatment, according to the South African Professional Conduct Guidelines in Psychology ‘when a psychologist is approached to engage in professional services to a minor it is imperative that the practitioner obtain the informed consent of the legal guardian of the minor child. The psychologist must also ascertain the legal status of each parent in relation to the minor and preferably gain both parents’ consent to the professional activities conducted with the minor.’
The position in respect of Occupational Therapy is set out in the Occupational Therapy Association of South Africa Code of Ethics and Professional Conduct which states that: ‘Informed consent will be obtained prior to commencing intervention. Except where authorised by a Court or in exceptional instances, such as a child, uncommunicative or mentally ill individual, informed consent will be obtained to the extent and at the stage in which the person is able to provide such consent. Where necessary the informed consent of the parent/guardian shall be obtained.’
However, as the best interests of the child are paramount, the medical professional in question may also refuse to give the requested medical treatment on the basis that it is not in the best interest of the child, regardless of whether one or both parents consent.
Who can consent to medical treatment of a child where the parents are suspected of abusing the child?
In terms of Section 110 of The Act, a healthcare worker (which includes a Psychologist and Occupational Therapist) who suspects a child is being abused or neglected must report suspected abuse to the relevant authorities. This report must be based on an actual conclusion that abuse or neglect occurred and not merely a suspicion of abuse or neglect (the said grounds are set out in regulation 35(2)).
In general, where a child is not legally competent to give or withhold informed consent, the parent or guardian may authorise investigations or medical treatment which are in the child’s best interests. A parent or guardian may refuse any medical intervention where they believe doing so is in the best interest of the child. However, healthcare workers are not bound by the refusal and may seek a ruling from the Court.
Moreover, in terms of Regulation 38(2) of The Act, where a child is of sufficient maturity and has the requisite mental capacity they must consent prior to the examination or assessment by a medical practitioner for purposes of establishing whether such child has been abused. However, an assessment or examination may proceed in the absence of a child’s consent if it is deemed to be in the best interests of such child, in which case the reasons for proceeding with the assessment or examination must be noted in writing by the person doing the assessment or examination and explained to the child and to their parent/guardian/caregiver.
However, The National Instruction (specifically in relation to sexual abuse of children) given to police officials states: ‘If the victim of the alleged sexual offence is a child, the investigating officer must explain the necessity of the examination to the parents or guardian of the child and obtain their consent for the examination. However, if consent cannot be obtained from the parents or guardian then an application must be made to a Magistrate for consent to conduct the medical examination…’
Overall, it appears that a medical practitioner cannot provide medical treatment to a child, under 12 years of age or over the age of 12 but who doesn’t have the necessary mental capacity and maturity without the consent of a parent. However, in terms of Section 32 read with Section 129, as set out above, a concerned caregiver would be in a position to take the child for, and consent to, medical treatment in such instances.
Ultimately however, a medical practitioner can only provide medical treatment to a child without the consent of the parent where that child is 12 years or older and has the necessary maturity and mental capacity to consent for themselves or where there is no time to contact the parent and the medical practitioner considers that it is in the child’s best interests to proceed, provided it is limited to treatment which is reasonably required in that emergency.
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