[DOWNLOAD] "Using the Concept of 'Parental Responsibilities and Rights' to Identify Adults Able to Provide Proxy Consent to Child Research in South Africa (Report)" by South African Journal of Bioethics and Law # eBook PDF Kindle ePub Free
eBook details
- Title: Using the Concept of 'Parental Responsibilities and Rights' to Identify Adults Able to Provide Proxy Consent to Child Research in South Africa (Report)
- Author : South African Journal of Bioethics and Law
- Release Date : January 01, 2011
- Genre: Law,Books,Professional & Technical,
- Pages : * pages
- Size : 289 KB
Description
In South African law, consent must be given by a person who is legally capable of consenting. (1) Juristic acts are dependent on the expression of the will of the parties and therefore only those who possess a reasonable understanding and judgment have the capacity to act. (2) The capacity of children to participate in legal transactions is generally limited to protect them from their lack of intellectual or cognitive ability, inexperience and social or emotional immaturity. (2) Despite this general principle, it is recognised by the law that children have evolving capacity which develops with age. Accordingly, children are able to consent independently to a range of health-related interventions before adulthood, such as HIV testing (at 12 years) and male circumcision (at 16 years) (Children's Act, 2005). (3) Where children do not have legal capacity to consent independently, the Children's Act allows children to be assisted by appropriate adults, not limited to parents and legal guardians. (2) This includes in some circumstances those holding no parental responsibilities and rights towards the child such as caregivers (s 18 and s 32(1)). (3) Although the law recognises the evolving capacity of children with regard to various health interventions, the current legal framework for health research is more conservative. Section 71 of the National Health Act (No. 61 of 2003) does not allow children to consent independently to any form of health research. It also limits the ability to provide proxy consent to parents and legal guardians. Although passed by parliament in 2003 notice has never been issued of the date on which this section of the Act will be implemented. Accordingly, as the provisions on research with children in the National Health Act are not in operation and there is no other law establishing when children may consent to research most research ethics committees (RECs) rely on the principles in ethical guidelines. Some of these allow children to consent independently to research in certain circumstances and recognise a broader range of adults eligible to provide proxy consent in some instances. (4) This inconsistent approach across the Children's Act, the National Health Act and ethical guidelines regarding a child's evolving capacity (and the adults with authority to provide proxy consent) has lead to implementation complexities. (3) This article focuses on the issue of proxy consent to health research. It argues that the concept of parental responsibilities and rights within the Children's Act can assist research stakeholders to clarify this issue.