1. Age of Consent to Medical Treatment & Contraceptives
Felicita Hikuam

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

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

4. 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

5. 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

6. 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

7. 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

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

9. 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

10. 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)

11. 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.

12. 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

13. 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

14. 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

15. 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

16. 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

17. 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

18. Thank You