Asserting children as rights-holders

As a point of departure, a child is a developing person. When he or she obtains decisional capacity of such degree that affords him or her the kind of engagement necessary in decision-making comparable to that of fully developed persons, viz. adults, we will comprehend that as what is inferred by the Act as ‘sufficient maturity’. It appears to follow from this that a child with sufficient maturity ought to be equally afforded autonomy rights in decision-making, including medical treatment as is the case in adults. For ‘[c]onferring rights on children is viewed as ‘recognising their moral equality with adults, thereby underscoring the moral worth of all human beings, irrespective of their situation.’ (emphasis added) [12], and by autonomy rights we understand broadly those entitlements persons have which allow them the freedom of involvement in matters affecting them as members of civil society, be they public or private (also referred to herein as participatory rights); different perhaps to rights in general which are often conceived as entitlements persons have plainly by virtue of being persons . Having said that, do these rights also extend to those children who do not possess sufficient maturity and/or decisional capacity? The Act is unambiguous on this issue. Where a child is judged to lack sufficient maturity and decisional capacity to understand the benefits, risks, social and other implications of the treatment the authorisation of his or her consent devolves on the parent, guardian or caregiver. However, this question highlights a central problem in many rights theories as to what we mean by the notion of rights and who qualifies to be a rights-holder [15]? For if the conferring of participatory rights is contingent on possession of certain dispositions or traits such as capacity, degree of maturity, age, condition of dependency and so on as some commentators might argue then holding such rights indeed becomes exclusionary and further, fails dismally in serving the very groups it was purposed to protect [12, 15]. Hence, we maintain: if we are to truly recognise the moral equality of children with adults we ought to grant that capacity of whatever kind need not be the arbitrating principle on the conferring of rights on children.

Admissibly, as Mosikatsana observes, ‘[t]he difficulty with granting children rights is that their physical, emotional, and intellectual immaturity cause dependence on adults to assist children in exercising those rights’ [13], but, as O Neill writes (as cited by Mosikatsana) the fact that children ‘cannot claim their rights for themselves…is no reason for denying them rights. Rather it is reason for setting up institutions that can monitor those who have children in their charge and intervene to enforce rights.’ [13] Therefore, as convenient a notion as sufficient maturity and decisional capacity may appear, they do confine our discourse on the rights of the child to the exclusion of others and their claims.

Moreover, children have moral status (or moral worth) plainly by virtue of being humans or persons (these terms are used interchangeably in this paper). It would indeed appear morally unsound, let alone ‘morally monstrous’ [16], for one to argue that children have lower moral status compared to adults as it also appears unlikely that one can indeed justify it with sound moral reasoning. It is rather best assuming a value theory that does not in any manner legitimise preferences to the acquisition of certain capacities in the development of persons [17] in order for us to arrive upon the conclusion of equal rights and moral status of all persons plainly by virtue of their humanity. And by humanity we broadly refer to the totality of universal potentialities, qualities and dispositions which both constitute and distinguish us as persons, whatever these may entail. Here the conferring of rights is then premised solely on the notion of humanity and not on some other contingent condition. (This argument equally applies to the entities enumerated in the following developmental continuum: ‘blastocyst, zygote, embryo, foetus, neonate, baby, infant, child, minor, adolescent, adult’ [16].) This attribution of rights founded plainly on the notion of humanity is also apparent in the preamble of the UNCRC which recognises the ‘inherent dignity and…equal… rights of all members of the human family’ [12, 18]. It follows from this that children are indeed rights-holders for the same reasons we recognise in adults (that is, their humanity) and thus should be afforded equal rights as adults including participatory rights.

However, to exercise participatory rights requires autonomy – a capacity that is acquired over time through the process of development. It is obvious that certain age-groups will lack this capacity and thus may not have the commensurate wherewithal to exercise participatory rights in decision making [19]. Although there seems little contention to assert this, it need not necessarily follow that persons judged deficient of such capacity be stripped of that right completely as the argument herein advanced is that the affordment of participatory rights should not be predicated on the basis of capacity to exercise a right but rather on the existence of fundamental human interests that deserve protection from prejudicial forces.

It is for these reasons that we argue that children are rights-holders regardless of whether or not they possess the wherewithal to exercise these rights.

The doctrine of informed consent

In view of the above it may safely be declared that informed consent has occurred when a competent person has received a thorough disclosure, understands and appreciates the disclosure, acts voluntarily, and consents to the intervention [19]. We briefly elaborate on these in the following accounts.

Competence¹¹ simply refers to the ability to perform a task [20]. It is task and context-specific and changes over time. By convention, age and decisional capacity are thought to be the chief elements that constitute competence. Albeit several competence assessment tools for children have been devised by various authors e.g. Hopkin’s Competency Test, Competency Questionnaire-Child Psychiatric and the Competency Questionnaire-Pediatric Outpatient Modified Version, there currently exists no standard objective tool to assess a child’s competence to consent to medical treatment [9, 10]. This inclines assessors of competence (health practitioners) to make judgements based on subjective assessments. A patient’s competence is influenced by their experience with a medical condition, hospitalisation, family relationships and social roles and development [21].

The patient should also attach significance to the information disclosed.

‘The process of consent should also be conducted in a language that the patient understands and in a manner that considers the patient’s level of literacy. This is especially so with children.’ [5].

In addition, for informed consent to be valid it must be voluntary, that is, the patient must not be influenced by other individuals either by coercion, persuasion or manipulation [5, 19].

Lastly the patient’s choice to treatment or non-treatment may be expressed orally, in writing or may be implied, that is, tacit consent [19, 22].

Capacity for responsibility

A deciding subject, in this instance a child, ought not to only consider given choices but also accept the prospective responsibilities involved. And to ‘accept responsibility means to be able to be held accountable for whatever decisions are taken, on the basis of the assumption that reasons can be provided, that they have been thought through, and even though they might be fallible.’ [23]. That is, a deciding child must also have the capacity for responsibility for that particular choice decided upon, whatever this may entail. Capacity for responsibility therefore refers to a deciding subject’s ability to deal with the likely outcomes of his or her decision.

To clarify this definition, let us make an example: a child patient is newly diagnosed with type I diabetes mellitus and it is required that she consents to using insulin injections as her treatment. To determine whether she has sufficient maturity to consent to using insulin injections the health practitioner must consider, among other factors, whether the child would be able to take the chronic medication as frequently as prescribed. A child who has previous experience with a chronic illness like asthma may be presumed to already possess the capacity to assume the responsibility of taking chronic medication. Those children whom it is believed cannot demonstrate the forgoing capacity in order to assume responsibility can be facilitated to attain this capacity. In the case where a child patient refuses treatment we advise that recourse be made to the best interest principle. A child (or adult) who fails this definition of sufficient maturity may be considered incompetent to make a decision.

The Constitution on autonomy and the legal conception of a person

Human dignity is expressly enumerated in the Bill of Rights Chapter of the Constitution as a human right that deserves respect and protection. It is a foundational value that ‘informs the interpretation of other specific rights’ [24]. Albeit some authors, such as Jordaan [24], claim that one of the fundamental elements of human dignity include the capacity for autonomy whether understood as free-will or rational deliberation [25], we maintain throughout this paper that human dignity in general denotes a universal, and objective value inherent to all human persons notwithstanding capacity.

The notion of autonomy is derived from the Greek expressions: ‘autos’ – self, and ‘nomos’ – law, referring to a self-legislating agent [19, 24, 25]. Autonomy is a constitutional value defined by the Courts as ‘the ability to regulate one’s own affairs, even to one’s own detriment’ [24]. Implicit in this juridical definition is the acknowledgement of autonomy as a developmental phenomenon. This is inferred by the term “ability” implying that autonomy is an evolving capacity that is, acquired in the process of human development. According to the provisions of the UNCRC and the ACWRC, a child has autonomy rights. The Children’s Act first defines a child as a person below the age of 18 years and further specifies in section 129 which children can fully exercise autonomy rights in the setting of consent to medical treatment (as dealt with above) [4] It is plain from the forgoing definition of a child that rights are ascribable only to persons not things¹². According to Black’s Law dictionary a natural person considered in juridical contexts is a human being; a legal entity with rights and duties that deserve protection and respect [26]. However, it still remains unclear as to what is truly meant by the notion of person or human being; what potentialities, qualities and dispositions declare us as persons and thereby entitle us to constitutional rights (e.g. autonomy rights), and duties in general. We acknowledge the import of such a definition as a desideratum not only in juridical but also in philosophico-ethical contexts with regard to moral status and abortion.

African communitarianism on autonomy, the conception of a person and the consent of a child to medical treatment

Communitarianism is a moral theory concerned with the pursuit of the communal good. It expressly repudiates individual autonomy (and liberal moral theory) and exalts community. In this theory, individual rights become docile whilst duties owed by a member to his or her community are held to be of great import, and communal values such as mutual reciprocity, collective loyalties and solidarity are endorsed [19, 28]. The consideration of a person has always been at the centre of consternation in this moral theory. The problem can be stated as follows: is a person wholly embedded in a communal matrix of interrelations and interdependencies without the concession of individual autonomy as radical communitarians insist or does one retain his or her individual merits like autonomy within a community as moderate communitarians argue?¹³ [19, 28].

Personhood in the African ethos is thought to be acquired through a process of incorporation into the community [29] and this involves executing one’s duties owed to the community. And we may add here that this requires a good measure of social maturity. Personhood in this view is something that one can indeed fail. Moreover, in this view a child is not considered as a person as it is yet to fulfil its duties to attain personhood [29]. This however raises an important question: How can we acknowledge the rights of children (as we asserted elsewhere) if we cannot conceive of them as full persons? To answer this we appeal to an alternative interpretation of the notion of human dignity established upon the African communitarian value for vitality [25] as opposed to autonomy and declare this as follows: a child (or being) has human dignity thereby human rights insofar as he or she has vitality¹⁴.

In truth, however, African communitarianism¹⁵ is premised upon a duty-based system; not naturally perceived nor experienced as being oppressive to the individual since the individual himself or herself realises his or her interests as being consonant with the pursuit of the communal good and sees nothing else outside this [31]. He or she therefore finds little sense in “going on” about individual rights that seemingly conflict with the harmony of interrelations and interdependencies shared within the very community whence he or she derives self-worth and security with regard to individual welfare.

In healthcare where informed consent is a necessary ethical and legal requirement to solicit from a patient before performing an indicated medical intervention a patient from an African communitarian society may often wish to consult with his or her community to make a decision [32, 33]. This derives from the fact that in African communitarian societies the best interests of all persons, not only the child, are determined by the community based on the communal value-system. Hence important decisions are arrived upon through collective discussions, often in the presence of elders from the community since their wisdom is highly regarded concerning (moral) decision-making to guard the interest of the community. Where consent to the medical treatment of a child (or person) is concerned it is likely that the community from which the child belongs will collectively decide on this. It appears therefore that the African value system is indeed in conflict with the law which permits a child 12 years or older to make an autonomous decision regarding his/her medical treatment.