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submit that this interpretation is consistent with the This means that qualifying adolescents will be entitled to
purposes and context of the Children’s Act and is also privacy regarding their medical treatment choice of HIV
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consistent with constitutional values. prevention. Given the evolving capacity of adolescents it
will be easier for older children to meet these criteria. With
Implications of pre-exposure younger children, additional decisional supports will need to
prophylaxis falling within the scope be put in place to ensure that they are able to exercise sound
judgement regarding this form of HIV prevention. If they do
of medical treatment for adolescent not meet these capacity requirements, consent for PrEP will
consent approaches have to be provided by a parent, guardian or caregiver.

Based on the given reasoning, we submit the term Regarding adherence for adolescents, there is not yet robust
‘medical treatment’ should be interpreted to encompass evidence on effective adherence interventions specifically
interventions to prevent an at-risk person from acquiring tailored for adolescents; however, the early demonstration
a disease. This means that the term would cover both projects have provided some lessons. Access to refills should
therapeutic and preventative health interventions. It would be as easy as possible, enhanced by regular provider-contact,
also include but not be limited to, for example, the provision during and between visits, for example, with a navigator or
of antiretrovirals to prevent HIV acquisition (PrEP). We counsellor.
submit that this is in line with a careful statutory
interpretation of the term and it reflects its ordinary practical Support from family and close friends including an intimate
meaning. As suggested here, many practitioners already partner can be positive, but disclosure of PrEP use has also
provide preventative interventions within the scope of resulted in social harms such as intimate partner violence.
medical treatment such as contraceptive counselling, advice Providers should advise adolescents to seek counselling on
about the HPV vaccine and assistance with healthy diets. In safe disclosure.
short, this broad interpretation of medical treatment enables
doctors to provide more holistic healthcare independently Short-term incentives to maintain drug levels and plasma
for qualifying adolescents. drug level feedback have also been studied with varying levels
of effectiveness (Bekker, personal communication, 9 Jun 2020).
Further implementation research is warranted before this is
With regard to the implication for PrEP being viewed as a
form of ‘medical treatment’, there are two requirements for widely adopted.
adolescent self-consent. Firstly, they must be ≥ 12 years old, Conclusions and recommendations
and secondly they must have ‘capacity’. Capacity is the law’s
recognition of a person’s ability to perform a juristic act – any South African adolescents need an array of HIV prevention
action that has legal consequences – such as consenting to tools to address their risk of acquiring the life-long,
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medical treatment requires capacity. A person will have stigmatised condition, that is HIV. This public health crisis
capacity if he or she is able to exercise their judgement based requires us to consider current legal norms for consent to
on an understanding of the nature and consequences of the prevention tools by adolescents and ensure that service
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decision. In this context the Children’s Act provides that a providers are clear on the instances where self-consent is
child will have capacity to consent if he or she can understand permissible or when parental consent should be secured.
three elements of the proposed treatment; its ‘benefits, risks,
social and other implications’. 2,3,13 We recommend that PrEP should be interpreted as being
a form of ‘medical treatment’ so that it falls within the ambit
If we apply these factors to consent for PrEP we of one of consent norms in the Children’s Act. This
recommend that in order for an adolescent to self-consent recommendation is consistent with earlier recommendations
the following criteria should be met, the adolescent for self-consent for adolescents over 12 years to HPV
vaccination from Tathia and colleagues and builds on
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would need to be:
recommendations from Vawda and colleagues that the term
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• at risk of HIV infection ‘medical reasons’ is broad enough to include HIV prevention.
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• weigh more than 35 kg We elaborate on earlier recommendations by outlining and
• 12 years or older using tools of statutory interpretation to justify it.
• able to understand the benefits of using PrEP to reduce
their risk of HIV, relative to other HIV prevention tools Following this interpretation, self-consent to medical
• mature enough to understand and accept that there are treatment – understood broadly to include PrEP – is
risks attached to using PrEP permissible for persons over 12 years only when they have
• informed that there may be social or other implications the mental capacity to understand the benefits, risks, social
associated with taking PrEP such as stigmatisation for and other implications’ of the proposed treatment. 2,3
being in an ‘at-risk’ category
• able to understand the need for adherence and how this We recommend that service providers should take steps to
will be integrated into their lives, including the possible ensure that those persons who meet the age and capacity
need for parental or other support to ensure adherence. requirement for self-consent have access to PrEP.

http://www.sajhivmed.org.za 79 Open Access