Age of Consent to Medical Treatment & Contraceptives Felicita Hikuam

Outline Trends in similar legislation in Southern Africa ; Regional position; Position in South Africa (inc. strengths and weaknesses); Key issues to consider .

Credits Anne Strode, University of Kwazulu Natal Michaela Clayton, ARASA

Trends Increasingly, new legislation is being passed in the Southern Africa region, which is recognising the emerging autonomy of children and allowing them to consent independently to HIV testing without parental consent This is a significant step towards ensuring that children have greater access to health care services Requiring parental consent for HIV testing creates a number of barriers to adolescents accessing HIV prevention services as many would not want their parents to know they were sexually active and others may not have parents or legal guardians as they have been orphaned by the epidemic

Regional position Lesotho X 12 Mauritius Mozambique 16 SA Children can access HIV testing without parental consent Age of consent Lesotho X 12 Mauritius Child must demonstrate understanding Mozambique 16 SA

Position in South Africa HIV testing has been distinguished from medical treatment in the new Children’s Act HIV testing may only take place if: Testing is in the best interests of the child It is done with consent It is accompanied by counselling The results of the test are confidential

Position in SA cont’d Children from the age of 12 may consent independently to HIV testing Children below the age of 12 may consent independently to HIV testing if they are “sufficiently mature” Whilst children of 12 who are sufficiently mature can consent independently to medical treatment

Position in SA cont’d HIV testing Age requirement if over 12 Medical treatment Age and capacity requirement if 12 and over

Position in SA cont’d Children of 12 and over can also access contraceptives and contraceptive advice from the age of 12 i.e. there is only an age requirement

Strengths of the SA Approach Allows expanded access to HIV testing and contraceptives for sexually active youth Sets norms regarding the process of HIV testing (e.g. must be a lawful reason for the test - test must be in the best interests of the child, test must be accompanied by counselling and the child has a right to confidentiality)

Weaknesses of the SA approach Distinguishes HIV from other forms of medical treatment – re-inforcing arguments of AIDS exceptionalism. Doesn’t have a capacity requirement for HIV testing – this lowers the protection for children.

Key Considerations cont’d Ensuring that a single norm for consent to health related interventions is created in the legislation Recommendation: An age and capacity requirement e.g., age 12 and sufficient maturity In line with English law approach in Gillick v West Norfolk and Wisbeck Area Health Authority and the DHSS

Key Considerations cont’d Include norms in the legislation regarding the process of HIV testing to ensure that testing is done appropriately Recommendation: Do not create a separate provision on consent to HIV testing, allow this to fall under medical treatment Allow consent at 12 + capacity Follow SA model and require HIV testing to be: In the best interests of the child With consent Accompanied by counselling Results kept confidential

Key Considerations cont’d HIV testing offered to children under the age of 18 should be adolescent friendly. Consider the guidelines that need to be in place to ensure that this occurs Recommendation: Develop guidelines on youth friendly services Recent research in Lesotho on the Know Your Status Campaign found that the testing guidelines did not deal expressly with testing young adolescents and that counsellors were not trained on how to ensure that informed consent was appropriately obtained and that the special needs of children in post-test counselling were addressed

Key Considerations cont’d The legislation should create a right to access contraceptives and contraceptive advice Recommendation: This should be a separate right as not all forms of contraceptives would be considered medical treatment From the age of 12 + capacity Confidentiality should be protected

Key Considerations cont’d The legislation should consider other sexual and reproductive rights of adolescents including: TOP, circumcision etc. Recommendation: Further research into other sexual and reproductive rights that should be included in the legislation

Key Considerations cont’d Key complexities and possible clashes with other legislation Allowing children to consent independently to sexual and reproductive services may clash with sexual offence legislation regarding the age of consent to sex, e.g., in SA required to report all sexual offences with children to police, thus a doctor providing contraceptives to a 14 year old must report this to the police! Recommendation: Ensure that legislation regarding the age of consent to sex does not undermine access to sexual and reproductive health services

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