8.2. Protection of children from medical negligence At common law, children below the age of 16 years have no capacity to enter into binding contracts. In addition, such children have no capacity to institute legal proceedings on their own without parental assistance, or the assistance of a legal guardian. Having children under 16 years access sexual and reproductive health services on their own is not and should not be a problem, for reasons enunciated throughout this document. However, a key question lingers for attention: given the incapacity at law of children to initiate legal proceedings on their own, what would the legal regime be surrounding medical negligence and liability when it involves a person who is under 16 years old who accesses sexual and reproductive health services without parental or guardian consent? In other words, how is the child protected from medical negligence? Who sues and who is liable? One reading into these questions may lead one to arrive at the conclusion that section 52(2) of the Medicines and Allied Substances Control (General) Regulations, 1991 may have been inserted to protect the health professionals against such tricky situations, as with section 76 of the Children’s Act [Chapter 5:06]. One could also go further and argue that such provisions provide children with some form of shield from medical negligence and unintended consequences, given their immaturity to form informed opinions in the first place regarding their treatment needs and options when they access medical treatment while unrepresented and without adult consent. However, this is not and cannot be an end in itself. What needs to be addressed is, if children are indulging in widespread consensual sexual activity among themselves, what health care provisions should be put in place for them, and what mechanisms should be put in place to protect them in cases of medical negligence? The fundamental principle of child law and protection in our country is that “a child's best interests are paramount in every matter concerning the child”, in terms of section 81(2) of the Constitution. Whatever position is adopted must, therefore, ensure that it is in advancement of the best interests of the child in the following terms: a. b. c. The reality of adolescent and child sexuality must be acknowledged. Additionally, while early sexual activity is and must be discouraged, the reality of it must be met with sex education as opposed to criminalising it and withholding health services from the children; The constitutional right to access health services must be honoured, and that right includes sexual and reproductive health care; There must be recognition of the immaturity of children and their inability at times to make informed decisions on medical or sexual and reproductive health choices, even in the presence of professional advice; and 17