What emerges from the above is the unequivocal understanding that the right to health for
children includes the right to sexual and reproductive health care. Taken in context, this
conforms to the principles of life, survival and development of the child; non-discrimination
and the best interests of the child - principles which underlie the very fabric of the UNCRC
and the ACRWC. Any limitation of the right, which is captured in section 81(1)(f) of the
Constitution has to pass constitutional muster in that it must meet the stipulations and
criteria in section 86 (the limitations clause). It would appear such limitation comes in the
form of section 52(2) of the Medicines and Allied Substances Control (General) Regulations.
For unconstrained access to health care, it would appear that section 52(2) of the Medicines
and Allied Substances Control (General) Regulations, 1991 would need revisiting to address
the catch-all approach that it takes insofar as it demands parental consent for a person
below 16 years of age to access “a household remedy or a medicine listed in Part I of the
Twelfth Schedule”, without a written order signed by the parent or guardian of the child
known to such person. The Twelfth Schedule in the Regulations is quite a broad list of
medication. What such a requirement does is simply to cut access to health care from
children, bearing in mind that most children would simply not inform their parents or
guardians when in need of sexual and reproductive health care. The question arising is
whether such a limitation is desirable, in terms of whether it serves to advance or promote
the best interests of children insofar as sexual and reproductive health care is concerned,
bearing in mind the context given above.
The new Public Health Act [Chapter 15:17] which was gazetted in August 2018 partially
addresses the issue of consent. The Act defines a child as a person under eighteen years of
age, in line with the Constitution, 2013. This new Act was passed to replace, update and
align to the Constitution the old 1924 Public Health Act. The Act introduces a number of
features, among them rights and duties in public health to align the law to section 76 of the
Constitution. The preamble to the Act makes reference to the Bill of Rights in respect of
sections 76 and 81(1)(f) of the Constitution, thereby placing a premium on the right to
health in the Constitution. In that Act, the issue of “informed consent” is addressed in the
following manner:
“35 Consent of user
(1)
(2)
For the purposes of this section "informed consent" means consent for the provision
of a specified health service given by a person with legal capacity to do so and who
has been informed as contemplated in section 34.
A health service shall not be provided to a user without the user's informed consent
unless(a)
the user is unable to give informed consent and such consent is given by a
person mandated by the user in writing to grant consent on his or her behalf
or authorised to give such consent in terms of any law or court order;
(b)
the user is unable to give informed consent and no person is mandated or
authorised to give such consent, and the consent is given by the spouse or
partner of the user or, in· the absence of such spouse or partner, a parent,
15
Select target paragraph3
Add to table of contents