'There will be major pushback': lawyer on children 'not needing parental consent' for Covid-19 vaccine

A lawyer has criticised the health department for saying children over 12 did not need their parents' consent to get the Covid-19 vaccine.

He said there had been a spike in consultations about the issue after the comments made on Friday “and I don't quite know what to tell them”.

Health minister Joe Phaahla said from Wednesday children between the ages of 12 and 17 would be eligible for Covid-19 vaccinations.

Director-general of the national health department Nicholas Crisp said parents would not be required to give consent for their children to be vaccinated as the Children’s Act provided for 12 to 17 year olds to give their own consent for any medical treatment.

But according to Johannesburg divorce lawyer Shando Theron, the Children's Act says the opposite.

“In terms of the Children's Act, children under 18 need their parents consent for most things. The Termination of Pregnancy Act is an exception.”

The Termination of Pregnancy Act says children from 12 who have the mental capacity and maturity to understand the benefits, risks, social and other implications of medical treatment, may consent without consent from parents or guardians.

“But that is specifically the [Termination] Act. Now the minister of health comes along on Friday and says 'children over 12 don't require the consent of their parents',” said Theron.

“There is no law that says that — as a matter of fact, there are laws that pretty much say the opposite. In terms of section 17 of the Children's Act, a child under 18 can't give consent. There are certain exceptions but they are written into laws. 

“There is no law that says: 'For the Johnson & Johnson [or] Pfizer vaccine, you don't require the consent of your parents.' The high court is the upper guardian of all children, not the minister of health.”

But, he said, the minister could remedy this as part of the Disaster Management Act, making it a regulation.

Crisp said the 12-18 age group comprises about 6-million people. 

“It would be good to vaccinate at least half of them between the school holidays and the end of exams,” said Crisp.

Theron said he understood why the health department made the statement. 

“Right now in Israel and the UK, the 'most vaccinated' countries, there is a resurgence of Covid-19 hospitalisation and it is among young people who haven't been vaccinated. 

“A lot young people are asymptomatic and do pass the virus along. Imagine the heavy burden on a child who brings death to their family. Recently there was a case where a schoolchild brought the virus home and both his parents died. The psychological burden on the child for causing the death of a loved one — unwilling — is heavy.”

He added that the more bodies the virus passed through, the more chance of mutations which could be more lethal.

“Parents say these are their children and so they could parent as they [feel fit]. But let's look at the laws about vehicles: you own the car, so 'my car, my rules' — but that's not the case because you share the road with a community of other cars and you need to keep them safe [from reckless driving for instance]. In the same way, our children form part of the greater community and, especially as many children are asymptomatic, you have a responsibility to keep the community safe.”

Theron said the rights of the parents also needed to be considered and that these two “laws” were in exact opposition.

He said if a child wanted to get the vaccine and the parent did not agree, the courts would usually rule in favour of the best interest of the child. That would block parents from preventing their children from getting the vaccination. 

Then again, he said, if the vaccine were to cause complications and the child got the vaccine against their parents' permission: “Who pays the hospital bill? Who is responsible?”

Theron said there would be “major pushback to this. It has not been thought out properly.”

He said he didn't know what to tell his clients because the regulations were unclear on this issue.  

Last month the SA Health Products Regulatory Authority (Sahpra) approved emergency use of the Pfizer vaccine in children aged 12-17.

Sahpra told TimesLIVE children would experience the same side-effects as adults, adding that studies had also shown rare cases of heart inflammation in young boys after receiving a second dose. 

Phaahla said these would be monitored.

“The VMAC [vaccine ministerial advisory committee] advised that for now we only give one dose, while assessing information which suggests that in a few cases there have been short-lived cases of transient myocarditis after two doses,” he said.

“The timing of the second dose will be informed by further information on this rarely observed side-effect which has no permanent risk.”

TimesLIVE