(3)
(4)
grandparent, an adult child or a brother or a sister of the user. in the specific
order as listed;
(c)
the provision of a health service without informed consent is authorised in
terms of any law or court order;
(d)
failure to treat the user, or group of people which includes the user will, in
the reasonable opinion of the health practitioner, result in a serious risk to
public health; or
(e)
any delay in the provision of the health service to the user might result in his
or her death or irreversible damage to his or her health and the user has not
expressly or by conduct refused that service.
A health practitioner shall take all reasonable steps to obtain the user's informed
consent.
Any health practitioner who fails to comply with subsections (2) and (3) shall be
guilty of an offence and liable to a fine not exceeding level ten or imprisonment not
exceeding one year or both such fine and such imprisonment.”
This provision goes hand in hand with another provision, which is section 44 of the same
Act:
“44 Participation in decisions
(1)
(2)
(3)
A user has the right to participate in any decision affecting his or her personal health
and treatment.
If the informed consent of the user is given by a person other than the user, such
person must, if possible, consult the user before giving the required consent.
If a user is unable to participate in a decision affecting his or her personal health and
treatment, he or she must be informed after the provision of the health service in
question.”
Essentially, the Act retains the position that children require parental or adult consent to
access medical health services in terms of exiting law, although new provisions are added.
These additional provisions give medical practitioners a leeway to treat children when an
adult has not provided the informed consent on behalf of the child in situations where
failure to treat the child, or group of people which includes the child, will, in the reasonable
opinion of the health practitioner, result in a serious risk to public health; or any delay in the
provision of the health service to the child might result in his or her death or irreversible
damage to his or her health. [See subsection 35(2) paragraphs (d) and (e) above]. Added to
the new Act is the right to be heard for a child, who must be consulted before an adult gives
consent. This accords with the right to be heard – which is one of the four cardinal principles
of child protection.
Underlying any legal reform should be a practical realisation and acceptance that children
are, in fact, engaging in sexual activity among themselves. Coming with that are unwanted
pregnancies, and sexual and reproductive health issues, which are matters we cannot afford
to ignore ironically in the name of protecting the children.
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