HIV Preventive research and minors

Pope, Anne

HIV Preventive research and minors

Journal Article

2007

Journal Title

South African Law Journal

Link to Journal

http://reference.sabinet.co.za/sa_epublication/ju_salj

Publisher

Juta Law

Publisher

University of Cape Town

Department

Department of Private Law

Faculty

Faculty of Law

Abstract

HIV preventive research using minors as participants is important and necessary in the South African context. However, whether the law permits minors to consent independently to research participation is unclear. This article asserts a weakness in the law regarding the protection of minors. Current policy of ethics committees to expend with the requirement of parental permission in the informed consent process flows from the lack of clarity in the law as well as a conflation of the requirements for consent to medical treatment with those for research participation. Key differences between treatment and research require careful consideration of the implications of permitting independent consent by minors. A failure to give sufficient attention to these differences exposes minors to inadequate protection where health-care research is concerned, especially that which is aimed at preventing the spread of HIV. This article examines the legal and ethical framework for health care research and minors, the complex issues that are involved, especially whether parental permission is expendable in light of the requirements of international instruments, national law and ethics guidelines. The article proposes that parental or guardian involvement is necessary in order properly to respect the rights of minors and their families and should be waived only in circumstances where all relevant circumstances have been properly canvassed and considered.

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