Understanding Consent for Therapy with Children and Adolescents in South Africa: A Guide for Parents and Therapists
When it comes to providing therapy for children and adolescents in South Africa, understanding consent is essential. Parents, caregivers, and therapists alike need clarity on who can give consent, under what circumstances, and what the legal framework says about minors accessing mental health services. Let’s explore the key legal considerations surrounding consent for therapy, keeping in mind the best interests of the child.
What Does South African Law Say About Consent for Therapy?
In South Africa, the primary laws governing consent for medical treatment and therapy for minors include:
• The Children’s Act 38 of 2005
• The Health Professions Council of South Africa (HPCSA) Guidelines
The Children’s Act provides a framework for the rights of children to access healthcare services, including mental health care, and outlines when they can make decisions about their treatment independently.
At What Age Can Children Give Consent for Therapy?
According to the Children’s Act (2005), children aged 12 years and older can give consent for their own therapy if they have the maturity and mental capacity to understand the implications of the treatment (Section 129). This means that therapists must assess not just the age of the child, but also their ability to comprehend the process and consequences of therapy.
Key points to note:
• Under 12 years: Consent must be provided by a parent or legal guardian.
• 12 years and older: The child can consent independently if they are deemed to have sufficient maturity and understanding.
• In cases where the child cannot provide informed consent, a parent or legal guardian must step in to provide consent on their behalf.
The law aims to balance a child’s autonomy with their need for protection, ensuring that their best interests are always prioritised.
What About Parental Consent?
Even though children over 12 can consent to therapy independently, it’s still good practice for therapists to involve parents or guardians in the process whenever possible, especially when it comes to ongoing care. However, there are cases where it may be necessary for a therapist to work with a child confidentially, particularly if parental involvement may cause harm to the child.
Section 13 of the Children’s Act emphasizes that children have a right to confidentiality regarding their health status. This right must be respected by therapists, except in cases where disclosure is necessary to protect the child or others from harm.
What If Parents Are Divorced or Separated?
In cases where parents are divorced or separated, the issue of consent can become more complex. The Children’s Act recognizes both parents’ rights to be involved in important decisions regarding their child’s health and well-being. If both parents have equal guardianship rights, they both have a say in consent for therapy.
However, in cases where one parent has sole guardianship, that parent has the authority to make decisions regarding the child’s healthcare.
Therapists should always verify the legal custody arrangements and seek clarity on who holds decision-making power before proceeding with therapy.
Can a Child Refuse Therapy?
Yes, a child with the legal capacity to give consent (usually 12 years or older) can also refuse therapy. This decision must be respected if the child is deemed mature enough to understand the consequences of their refusal. In situations where a child’s refusal poses a significant risk to their well-being, therapists should follow ethical guidelines, seek supervision, and, if necessary, consider legal interventions to ensure the child’s safety.
Special Considerations for Adolescents (12-18 Years)
Adolescents often face unique challenges that impact their mental health. The law recognizes that they are capable of making decisions about their care, but it also acknowledges the need for support.
Some important aspects to consider:
• Confidentiality: Adolescents have a right to confidentiality in therapy, unless there is a risk of harm.
• Autonomy vs. Parental Involvement: While adolescents can consent to therapy, therapists should navigate the balance between respecting their autonomy and involving parents in a supportive role.
Implications for Therapists
Therapists working with children and adolescents need to ensure they:
• Assess the child’s capacity for informed consent before proceeding with therapy.
• Understand the legal guardianship status of the child to confirm who can give consent.
• Respect the child’s right to confidentiality, while balancing ethical and legal obligations.
If therapists are unsure about a specific case, it is advisable to seek legal advice or consult the guidelines provided by the Health Professions Council of South Africa (HPCSA).
Understanding consent for therapy with children and adolescents in South Africa is crucial for protecting the rights and well-being of young clients. The legal framework prioritises a child’s best interests while recognizing their growing autonomy. For parents and therapists, navigating consent can sometimes feel complex, but with the right information and guidance, we can ensure that children receive the care they need in a safe and supportive environment.
References
Department of Social Development. (2005). Children’s Act 38 of 2005. Retrieved from https://www.justice.gov.za
Health Professions Council of South Africa (HPCSA). (2019). Guidelines for Good Practice in the Health Care Professions. Pretoria: HPCSA.