130803L - CONSENT IN CASES OF CHILDREN

Lecture the Muslim Health Professionals Ramadhan Workshop Mombasa August 3, 2013 by Professor Omar Hasan Kasule Sr. MB ChB (MUK), MPH (Harvard), DrPH (Harvard)

Consent for children is governed by legal concept of competence, ahliyyat. A legally competent person makes decisions and takes actions on his person and property and is responsible his actions of commission or omission. Actions cannot be valid without legal competence. The defining conditions of legal competence are intellect, 'aql; puberty, buloogh; knowledge, 'ilm; and civil liberty or freedom, hurriyat. The main condition is that of intellect. No human action can be carried out well and correctly without using human intellect correctly.

Competence is not the same as capacity. A legally competent person may not have the capacity to make decisions based on problems like inability to speak and inability to understand.

Legal competence can be full competence, ahliyyat kamilat, or deficient competence, ahliyyat naqisat. Children below puberty are generally considered to have deficient competence. Decisions regarding their treatment have to be made by their legal guardian who in most cases is the parent. In the absence of the parents other close relatives can be legal guardians. In the absence of any relatives the government takes over the role of legal guardian.

The Law makes divides children into 2 groups for purposes of legal competence. The Law considers the age of 7 years as the age of discrimination, sinn al tamyiiz.  Below the age of 7 all decisions are made by the legal guardian. Between the age of 7 and puberty and depending on the speed of development, a child may have intellectual competence to make correct decisions about some matters but no actions can be valid unless approved by the legal guardian. Competent children can consent to treatment but cannot refuse treatment. In either case it is the best interests of the child that we have to consider.

If the 2 parents disagree, the physician can proceed if one of the parents consents. If the child disagrees with the parent, the parental choice is followed. The court can override parental consent for some procedures on youths for example if parents demand sterilization of their child. The physician can proceed to give life-saving treatment to a child even if parents refuse to give consent. The general rule of the shari ’at is that the minor cannot sue for injury following a parental decision.

Consent for child organ donors creates a special situation. Is it in the interests of the child that the life of a close relative be saved?. The child as a donor of a regenerative organ bone marrow is less of an ethical problem than consent for non-regenerative organs like a kidney.

There are cases in which children have full powers of consent for example children who are married, children who are parents (?are they still children), or if there is a special Law giving them powers of consent like in cases of rape or emergencies.

At puberty youths become legally young adults and have full competence to make all decisions on their own. However not every youth adult has full capacity to make correct decisions and some restrictions may still apply after puberty. Generally youths above the age of 16 have full capacity whereas some below that age do not have full capacity to understand and make decisions. Parental responsibility cannot override the decision of a youth who is aware of what is going on and is judged to have both competence and capacity.