2.7 The law and the child’s right to be heard and to be involved in health care decisions
As you learned in the previous study session, Article 12 of the UN Convention states that every child capable of forming a view has the right to express that view and have it taken seriously in accordance with age and maturity. This provision is generally known as participation of the child. It has been incorporated into the national laws in East Africa as follows:
Ethiopia: Article 29 of the Constitution enshrines the right of every citizen to freedom of expression and access to information. The Revised Family Code also recognises the principle of child participation in some processes. For example, in adoption, the Court must consult the child and seriously consider his or her opinions (Article 194/3/a). There is also a discretionary power for the court to consult the child before deciding on the appointment or removal of guardians and tutors of the child. Finally, where there are disputes between parents on the matter of child custody, the court is expected to make a decision after hearing the opinion of the child.
Kenya: The Children Act requires that in any decision made by the Children’s Court, it must have regard to the ascertainable wishes and feelings of the child, with reference to the child’s age and understanding. The Court can also order that the child has legal representation. The wishes and feelings of the child must also be taken into account when determining custody of the child. An adoption order requires the consent of the child if she or he is 14 years or over.
Tanzania: The Law of the Child Act states that a child has the right to an opinion, and that no one can deprive a child capable of forming a view of the right to express an opinion and to participate in decisions that affect him or her. In addition, the Act requires that social welfare officers involved in care and protection cases must consult with the child when planning for the child’s future. When courts make care or supervision orders, children must be interviewed by social welfare officers if the children are of sufficient age and maturity and their views reported to the court. In parental custody disputes the views of the child must be taken into account. In adoption cases the wishes of any child capable of forming an opinion must be taken into account, and the consent of a child aged 14 and over must be given before an order can be made.
Uganda: A guiding principle of the Children Act is that in making any decision concerning a child, the courts or any other person shall have regard in particular to the ascertainable wishes and feelings of the child concerned, and they must be considered in the light of his or her age and understanding. When making reports to the court in relation to supervision or care orders, social welfare officers are required to interview the child if he or she is of sufficient age and understanding. Social welfare officers are also required to bear in mind the wishes of the child in any follow-up work once the order is made. In adoption, the wishes of any child capable of forming an opinion must be taken into account, and the consent of a child aged 14 and over must be given before an order can be made.
Overall, you can see that many measures have been taken in all four countries to try to ensure the right of the child to be heard. Although there are no provisions that introduce specific rights in respect of being heard in health care decisions, in Tanzania and Uganda there is a general recognition in law that children have a right to be heard in all matters affecting them, and this extends to the field of health.
In Ethiopia and Kenya, where the provisions are related to specific proceedings, there is recognition of the fundamental importance of listening to children when key decisions concerning them are being made. So it is clearly in line with government policy in all four countries, as well as with the UN Convention, that efforts should be made to ensure that children are listened to in matters affecting their health care. This will apply, for example, in the following ways:
- Health workers generally tend to talk with the parents about the child’s condition, what treatment is needed and why, how it will be provided and when, and what will be the impact or consequences, while excluding the child from that conversation. The right to express views requires that children are directly involved in those discussions.
- Children sometimes need access to confidential medical counselling and advice, regardless of age, and without them having to get parental consent. It is important to recognise that the right to counselling and advice is distinct from the right to give medical consent and should not be subject to any age limit.
- Children will sometimes disclose information that indicates that they are seriously at risk of harm – for example they are being sexually abused – but they do not wish this information to be passed on to anyone else, or acted on. In these circumstances, it will be necessary for a health worker to consider how to balance the right to confidentiality with the right to protection. The health worker needs to appreciate that children should be invited to contribute their views and experiences to planning and programming of services for their health and development.
- Although health workers must comply with the laws in relation to consent to treatment, the philosophy of the UN Convention requires health workers to recognise the need to gradually involve children more fully in decisions relating to their health. Health workers also need to help parents recognise the importance of actively involving their children in decisions about their health care.
Listening to the voices of children
‘Parents can do what they like until you get married or become self reliant. Some parents force you to have an injection if they think you have started having sex rather than get the shame of a pregnancy.’
‘They broadcast your secrets. They start by telling their own family. I will go to another health facility far away.’
Activity 2.6: A child’s privacy versus parental rights
Read the scenario below and answer the questions.
A 16-year-old girl comes to your clinic. She wants to be given information and advice about contraception, but she does not want her parents to know.
- What questions might you ask the girl?
- Would you report the girl’s request to her parents?
- How would you respond to the request?
Compare your answer with the one given at the end of the study session.