South African law provides that children under 18 years old can self-consent to medical treatments and terminations of pregnancy. An article published by van Heerden et al. in the South African Journal of Child Health in 2020 found that children 12 years and older were able to give informed consent to medical procedures because they were able to make a treatment choice, comprehend information, weigh options and provide reasons for their decision. However, only children older than 14 years possessed actual understanding of more abstract concepts. This paper considers whether the law is consistent with empirical data on child capacity. It does so by examining the evolution of laws regarding child capacity, interrogating current legal standards on capacity and ultimately evaluating whether the law reflects current empirical knowledge. We conclude that the law on medical treatment is not in conflict with the findings of van Heerden et al. However, there is less synergy between law and empirical data regarding terminations of pregnancy for children under 14 years old. Parliament placed an emphasis on access to health services and did not want age or parental consent to act as a barrier to adolescents getting medical assistance; however, data show that children younger than 14 years old struggle with more complex and abstract medical choices. We suggest that the recommendations in the Choice Act for counselling in terminations of pregnancy by children under the age of 14 years need to be more fully operationalised through the issuing of regulations or a national policy. Keywords. consent; medical treatment; capacity; law.
Human Sciences Research Council (Fri,) studied this question.