Is it a competent child’s prerogative to refuse medical treatment?

• Date: 20 August 2019
• Author: Mariana Buchner-Eveleigh
• DOI: 10.10520/EJC-17a613e1e8
• Pages: 242-256
• Record Number: dejure_v52_n2_a15
• Published date: 20 August 2019

242 2019 De Jure Law Journal

Is it a competent child’s prerogative to

refuse medical treatment?

Mariana Buchner-Eveleigh

LLM, LLD

Senior lecturer, Department of Private Law, University of Pretoria

SUMMARY

The purpose of this article is to analyse the legal position pertaining to the

refusal of medical treatment by a competent child as an expression of his

or her rights to physical integrity and autonomy guaranteed in the

Constitution of the Republic of South Africa, 1996. The article also

examines how the Children’s Act gives effect to the child’s right to refuse

medical treatment in order to determine whether it demonstrates respect

for a child’s rights to bodily integrity and autonomy. Thereafter the

question whether the refusal of a competent child should be overridden

with specific reference to the child’s best interests is addressed.

1Introduction

All persons, including children, have the right to bodily integrity

(including the ability to make autonomous decisions regarding one’s own

body) which in the simplest of terms means that a person has the right

to decide what happens to his or her body. In a health care context, this

right necessitates a right to give or withhold informed consent,1 before

any procedure is undertaken or another process affecting one’s body

begins.2

For purpose of medical treatment,3 children are considered to have

the capacity to consent if they comply with two requirements namely (1)

age and (2) maturity and understanding.4 When children reach the age

of 12 and provided they are of sufficient maturity and have the mental

capacity to understand the benefits, risks, social and other implications

of the medical treatment they are deemed to be competent to consent to

1 With reference to Castell v De Greef 1994 4 SA 408 (C), Mojapelo J found in

Christian Lawyers Association v Minister of Health 2004 4 All SA 31 (T) that

the rationale behind the requirement of informed consent in medical

procedures was to give effect to the patient’s fundamental right to self-

determination (autonomy), which is protected by amongst others s 12(2)

(the right to bodily and psychological integrity, including the right to

security in and control over the body) of the Constitution of the Republic of

South Africa, 1996 (hereafter the Constitution).

2 Nienaber & Bailey “The right to physical integrity and informed refusal: Just

how far does a patient’s right to refuse medical treatment go?” 2016 SAJBL

74.

3 For the purposes of this article, medical treatment means a non-invasive

intervention usually in the form of a drug.

4 Mahery in Boezaart (ed) Child law in South Africa (2017) 263-264.

How to cite: Buchner-Eveleigh ‘Is it a competent child’s prerogative to refuse medical treatment?’ 2019 De

Jure Law Journal 242-256

http://dx.doi.org/10.17159/2225-7160/2019/v52a15