Consent for Covid-19 vaccination in children: Knowing the law

Millicent Nkosi is about to receive her vaccination at the OR Tambo Community Health Centre in Diepsloot, Johannesburg. (Photo: Shiraaz Mohamed)

By Lucy Jamieson, Ann Skelton and Isabel Magaya

22 Oct 2021

This week adolescents between the ages of 12 and 17 became able to get vaccinated at government and private vaccination sites without their parents’ consent. This has sparked a debate about the Children’s Act and the relationship between children’s rights and parents’ responsibilities and rights.

Now that Covid-19 vaccination of children in South Africa is starting, it is essential that the law on who can give consent is well understood by parents, carers and, most importantly, the adolescents themselves.

What does the law say?

We all have a right to decide what happens to our bodies. Section 12 of the Constitution says everyone has a “right to bodily and psychological integrity” which includes the right to make decisions concerning medical treatment and the right not to be subjected to medical procedures or scientific experiments without their informed consent.

The right to physical and psychological integrity in the context of health is about being the ultimate decision-maker when it comes to what you would allow to be done to your body. Consent plays a significant role in the realisation of the right to physical and psychological integrity because it allows an individual to make decisions about their body, such as getting the Covid vaccine.

The Children’s Act (s129) states that children can consent to medical treatment, including vaccination, if:

(a) The child is over the age of 12 years; and

(b) The child is of sufficient maturity and has the mental capacity to understand the benefits, risks, social and other implications of the treatment.

Citizens between 12 and 17 began receiving their Covid-19 vaccines at a vaccination site in Sandton on 21 October. They will only receive one dose of the Pfizer shot. (Photo: Gallo Images/Papi Morake)

The act recognises and respects children’s evolving capacities and gives them the responsibility to make decisions but ensures that they do so only if they have the ability to understand the choice they are making. There is also a duty on adults to help children make good decisions.

The UN Convention on the Rights of the Child stresses that parents have the right and responsibility to provide direction and guidance to their children. However, such guidance must be directed to the promotion of the child’s rights and be provided in a manner consistent with the evolving capacities of the child. This principle establishes that as children grow and develop new knowledge and skills, they are able to take greater responsibility for decisions that affect their lives.

Where a child is over 12 but does not understand the risks and benefits of medical treatment, then a parent, guardian or caregiver may give consent for them, but they should still be part of the conversation as they have a right to be heard and their views respected.

In addition to respecting children’s evolving capacities and their right to bodily integrity, we need to consider children’s rights:

To have their best interests considered;

To participate in all decisions that affect them;

To information and health education;

To access healthcare services; and

To privacy and confidentiality.

The Constitution (section 28) provides that “a child’s best interests are of paramount importance in every matter concerning the child”. This includes matters affecting the health and wellbeing of the child. Generally, parents want the best for their children and their concerns are based on wanting to protect them from harm, and just because 12-to-17-year-olds have the right to decide for themselves does not mean that parents shouldn’t be involved in helping them weigh up the risks and benefits and make a decision that is right for them.

Health Minister Joe Phaahla monitors the Covid vaccine roll-out to South Africans aged between 12 and 17 at OR Tambo Community Health Centre in Diepsloot, Johannesburg on 21 October 2021. (Photo: Gallo Images/Sydney Seshibedi)

Children are entitled to access health services on their own, in which case healthcare workers have a duty to offer support – and to give effect to children’s rights – by:

Presenting information about the vaccine in ways that children can understand and that are relevant to their age group;

Allowing the child to ask questions about the vaccine, the potential benefits and associated risks, including short- and long-term side-effects, and to express any fears or concerns; and

Exploring children’s level of understanding of the risks and benefits in order to establish their competence to consent to the vaccine.

It is in children’s best interests to help them to make good decisions

Parents have a responsibility to ensure their child’s health and wellbeing, both physical and psychological, and to foster their children’s ability to make their own choices.

Millicent Nkosi receives her Covid-19 jab at the OR Tambo Community Health Centre in Diepsloot, Johannesburg. (Photo: Shiraaz Mohamed)

When children are very young, parents make all the decisions for them, but as they get older they are given more responsibility to make choices for themselves. The law tries to balance giving children autonomy and protecting them from burdensome decisions by requiring parents, caregivers or other adults to support them. Even though adolescents can choose for themselves, it is important for parents and caregivers to listen to their children and discuss the risks and benefits.

Learning to make good choices is an important part of children’s development and growth, so finding out about the vaccine and weighing up the risks and benefits should be a positive experience.

Upholding the wishes of children about their own medical treatment is part and parcel of acting in their best interests. However, we should aim to balance respect for children’s evolving capacities as well as their autonomy with developmental realities and parental interests on this critical issue. DM/MC

Lucy Jamieson is a Senior Researcher at the Children’s Institute, University of Cape Town. Isabel Magaya is a project coordinator and researcher at the Centre for Child Law and holds an LLB and an LLM (Child Law). She is also a doctoral candidate with research focusing on protecting children against violence in three southern African countries. Ann Skelton is a Professor of Law at the University of Pretoria and a member of the UN Committee on the Rights of the Child.

For more information see The Children’s Act Guide for Health Professionals.

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