The Children’s Act provides that children cannot simply be tested for HIV, and that their status be held confidential
A child cannot merely be tested for HIV; a valid reason must be given in order to protect the child from being unnecessarily tested, potentially causing emotional or physical harm. According to the Children’s Act, no child may be tested for HIV, except when it is in the best interests of the child and consent has been given, or the test is necessary to establish whether someone may have contracted HIV from the child.
Consent for an HIV-test
Consent for an HIV-test on a child may be given by:
- the child;
- the parent or caregiver;
- the provincial head of social development;
- a designated child protection organisation arranging a placement of the child;
- the superintendent or person in charge of the hospital; and/or
- a children’s court.
Confidentiality of status
The law states that no person may disclose (without consent) that a child is HIV-positive, except when:
- the law states that it is the person’s duty; and/or
- it is necessary for legal proceedings.
Consent to disclose that the child is HIV-positive may be given by the same role players that are to give consent for the HIV-testing procedure.
Note that when it comes to the HIV-testing of a child, whether regarding the procedure of testing or the confidentiality of the child’s status, that there exist specific requirements for all potential role players to actually be granted as valid persons to be giving consent.
This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)
References:
Children’s Act 38 of 2005. http://www.justice.gov.za/legislation/acts/2005-038%20childrensact.pdf