The child’s right to family and parental care during hospitalisation: Exploring legal obligations and policy standards for hospitals

• DOI: 10.7196/SAJBL.2021.v14i2.753
• Author: P Mahery
• Published date: 01 August 2021
• Date: 01 August 2021
• Pages: 62-66

Online publication SAJBL

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Everyone, including children, has the right to access healthcare

services. This right is found in section 27(1) of the South African

(SA) Constitution.[1] As healthcare establishments, hospitals provide

healthcare services in accordance with this Constitutional right. On

the other hand, s28(1)(b) of the Constitution gives parents and family

the Constitutional duty to care for and protect children in accordance

with the child’s rights to family or parental care.[1] This article seeks

to determine the extent, if any, of the duties on hospitals in respect

of the child’s rights to family and parental care while in hospital. It is

argued that facilitating the child’s enjoyment of family and parental

care is in the best interests of children who have been hospitalised.

This article also highlights ways in which hospitals could facilitate

the enjoyment of family and parental care for child patients. This

essentially requires effective implementation of existing national

and international health policy standards, and an exploration of

new policy considerations to advance the child’s right to family and

parental care during hospitalisation.

What does the right to family and

parental care entail for the hospitalised

child?

Every child (<18 years old) has the right to family care or parental care,

as indicated in s28(1)(b) of the Constitution. Parental care includes

care provided by biological parents, and family care includes care

provided by extended family.[2] However, despite the disjunctive

framing of the right as a right to family ‘or’ parental care, these rights

are not necessarily mutually exclusive in the life of a child.S28(1)(b)

is ultimately aimed at protecting family life,[3] and this should be

understood to mean that a child’s right to family care does not

necessarily exclude parental care, and vice versa. Drawing on this

view, the article continues on the premise that s28(1)(b) also entitles

children to a right to family and parental care, as has been alluded to

in several cases.[4-6]

The right to family and parental care is given substance through

the provisions of the Children’s Act No. 38 of 2005.[7] Section 1 of the

Act gives a broad definition of ‘care’ as it applies to all children. When

applied specifically in the context of the hospitalised child, ‘care’

includes promoting the child’s wellbeing, ensuring that the child’s

rights are respected and given effect to, guiding and assisting the child

to make treatment or surgical decisions if the child is old and mature

enough to do so,[8] having contact and maintaining a relationship with

the hospitalised child and generally ensuring that the best interests of

the child are served during his or her stay in the hospital.

Parents and families are expected to fulfil these and other care

duties in accordance with the child’s right to family and parental

care. This right must therefore be realised even and especially when

a child is hospitalised. This is so because hospitalisation increases

the vulnerability of children, and thus requires a heightened level

of care and support from parents and family that will minimise the

challenges faced by the child during the period of hospitalisation. The

next section considers the relationship between the right to family

and parental care and the right to access healthcare services.

Linking the right to access healthcare

services and the right to family and

parental care

First, it must be noted that children have a right to basic healthcare

services under s28 of the Constitution. However, it is unclear whether

inpatient hospital care falls within the scope of basic healthcare

services, given that a ‘package of basic healthcare for children’ has

yet to be formulated by decision-makers.[9] Hence the focus on the

broader right to access healthcare services in this section.

This open-access article is distributed under

Creative Commons licence CC-BY-NC 4.0.

The child’s right to family and parental care during

hospitalisation: Exploring legal obligations and policy

standards for hospitals

P Mahery, LLB, LLM

Oliver Schreiner School of Law, University of the Witwatersrand, Johannesburg, South Africa

Corresponding author: P Mahery (prinslean.mahery@wits.ac.za)

All children are guaranteed the right to family or parental care in section 28 (1)(b) of the South African Constitution. This right also applies to

hospitalised children who require support from parents and family during hospitalisation. The entitlements that stem from this right create

various obligations for public and private hospitals. These include the obligation that hospitals should refrain from interfering with the

hospitalised child’s right to family and parental care, as well as their obligation to facilitate the enjoyment of this right in the best interest of

all child patients. The effective implementation of existing and perhaps additional healthcare policy standards can assist hospitals in ensuring

consistent and equal enjoyment of family and parental care for all hospitalised children.

S Afr J Bioethics Law 2021;14(2):X-X. https://doi.org/10.7196/SAJBL.2021.v14i2.753

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