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two implications of this lacuna. Firstly, if the Children’s Act development and well-being of children’. It is submitted
or any other legislation does not set an age of independent that in the light of this discussion, the primary purpose of the
consent to a health service or if the child is below the age consent provisions are to protect children from being treated
specified in law for independent consent, then parental or without informed consent and to ensure their physical well-
2,3
guardianship consent will be required. Or, secondly, if the being is promoted.
intervention is not listed, one could examine any of the
other specified health interventions and establish whether Secondly, regarding the context of the provision within the
they could encompass it. In this instance, the only broad Act - the term is used in a chapter on the protection of the
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health service that an adolescent can self-consent to is health rights of children. The historical context of the
‘medical treatment’. Thus, one must ask whether something consent provisions were documented in the South African
that is not directly therapeutic in nature falls within the Law Reform Commission’s Review of the Child Care Act: Final
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ambit of term ‘medical treatment’. Report. This report noted that the previous approach to
consent to ‘medical treatment’ served as a barrier to children
Establishing the meaning of a obtaining appropriate medical care as the age of consent was
statutory term set at the older age of 14 years and only a limited number of
persons could provide proxy consent. A further contextual
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Where the breadth of a statutory term is unclear, it requires a issue is that (as we have set out in earlier articles) adolescents
process of interpretation to establish its scope. There are are able to consent to various other specified health prevention
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various approaches to statutory interpretation. Firstly, one interventions, such as contraceptives and HIV testing. With
can use internal aids such as definitions in the Act. The regard to both contraceptives and HIV testing, adolescents
Children’s Act does not contain a definition of ‘medical from the age of 12 are able to access them without parental
treatment’ nor does it list a gamut of the therapies that may consent. It is submitted that in this instance the context
fall under its umbrella. Furthermore, there is no definition of indicates that the legislator recognised that adolescents did
the term in other legislation. have the capacity to consent to certain preventative health
interventions. It would, therefore, be consistent with this
If we use external aids to statutory interpretation such as a approach if medical treatment was interpreted broadly to
dictionary, there are variations in the way they define include other non-specified prevention interventions.
‘medical treatment’. Some recognise medical treatment as an
‘action or manner of treating a patient medically or The last consideration from the Cool Ideas case is when
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surgically’. ‘Medically’ is further defined as ‘a way that interpreting a statutory provision one must find an
relates to medicine’, And others define the term around the interpretation that is consistent with the constitutional values
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objectives of the treatment, for example ‘the use of drugs, of human dignity, equality and freedom. The Constitutional
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exercises, etc. to improve the condition or an ill, injured Court has held that the recognition of a child’s dignity
person, or to cure disease’. Neither definition refers requires an acceptance that they have their own, independent
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expressly to medical treatment including preventing an and distinctive personalities. As such, it is argued that a
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illness that a healthy person is at risk of contracting. child’s right to inherent dignity requires a recognition of
their other rights such as the rights of access to basic
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Where there is limited assistance from internal or external healthcare services in section 28 of the Constitution. A
aids the general principles of statutory interpretation must narrow interpretation of the term ‘medical treatment’, which
be used. In the Constitutional Court judgement of Cool Ideas restricts it to therapeutic interventions, would undermine an
1186 CC v Hubbard and Another, the court identified three adolescent’s access to various preventative interventions
interconnected elements of statutory interpretation. such as the HPV vaccine or PrEP. This is not consistent with
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Firstly, an examination of the purpose of the provision. the constitutional value of dignity as it undermines
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Secondly, a review of its legislative context. Thirdly, fundamental rights.
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identifying a meaning, which is consistent with the values
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underlying the Constitution. The Constitution also Finally, a factor to consider is the approach in foreign
provides in section 39 that courts may consider foreign law jurisdictions. Here, there is limited assistance. A recent
when interpreting rights. 19 review by Taggart et al. found that at present, the only
country to explicitly include PrEP as falling within the
Firstly, if we apply the principles established in the Cool definition of medical treatment is France. 23
Ideas case, one must establish the purpose of the provision.
The term is used within Chapter 7 of the Children’s Act, which We submit that based on the interpretation principles
is headed ‘protective measures relating to health of children’. described here, it is possible to argue that ‘medical
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As stated here, this section deals largely with consent to a treatment’ ought to be understood broadly as meaning the
range of health interventions. In the Preamble to the Act, one treatment of a person for a current or a future condition that
of its stated purposes is to ‘make provision for structures, they may be at risk of contracting. Just as, for example,
services and means for promoting and monitoring the sound counselling an obese child on the need for a healthier diet
physical, psychological, intellectual, emotional and social and exercise programme could be seen as preventative
development of children’ and ‘to promote the protection, treatment to reduce their future risk of Type 2 diabetes. We

http://www.sajhivmed.org.za 78 Open Access