Title page for ETD etd-09102012-150647

Document Type Master's Dissertation
Author Du Preez, Willie Renier
Email renier.dp@mweb.co.za
URN etd-09102012-150647
Document Title The medical treatment of children and the Children's Act 38 of 2005
Degree LLM
Department Private Law
Advisor Name Title
Prof A M Skelton Supervisor
  • Children's Act 38 of 2005
  • medical treatment
Date 2012-04-11
Availability unrestricted
During the last decade a considerable number of statutes were adapted in South Africa pertaining to the medical treatment of children. Following international norms regarding this matter, South African law also prescribes a minimum age of consent for children seeking medical treatment without the parent’s or guardian’s consent.

The long awaited Children’s Act revolutionised child law in South Africa in that it is a piece of legislation touching on a wide spectrum of issues which impact on children’s lives. Before the Children’s Act, matters regarding children were found in scattered fragments in a number of Acts and were not always focused on the child. The Act was hailed by children’s rights activists and generally welcomed. However, as with all legislation, the Act is not without its shortcoming and there are several areas which are vulnerable to criticism.

In any communication or transfer of information, the manner in which the message or information is constructed will influence the ultimate decision. The Act does not address the manner or mode in which information is conveyed to the child. For instance, it does not address the predisposition that the medical practitioner consulting the child may have, nor does it require an impartial medical practitioner to assist the child in his/her assessment and decision in the matter. In this regard, the caution offered by Du Preez may be applicable, that “if the effective meaning of the information predominates over the conceptual meaning thereof, the listener/ reader will fail to make a proper judgement of what is being said.” 1

Section 129 does not contain any guidelines or provisions on how a medical practitioner should test whether a child has the mental capacity to understand the information regarding the proposed treatment. The study will report on the results of a consultation with a counselling and educational psychologist to determine which tests or methods could be used by medical practitioners to evaluate the maturity of child patients and the implications this could have on the child and his/her medical treatment. The prerequisites as set out in the new Children’s Act will be examined and the possible problems which might occur will be discussed.

Copyright © 2011, University of Pretoria. All rights reserved. The copyright in this work vests in the University of Pretoria. No part of this work may be reproduced or transmitted in any form or by any means, without the prior written permission of the University of Pretoria.

Please cite as follows:

Du Preez, WR 2011, The medical treatment of children and the Children's Act 38 of 2005 , LLM dissertation, University of Pretoria, Pretoria, viewed yymmdd < http://upetd.up.ac.za/thesis/available/etd-09102012-150647 / >


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