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Ethics of Paediatric Surgery in Africa 79

strong movement, both internationally and locally, to advocate for “opt- weak protective effect in a selective adult population to infant circumci-
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out” testing, where HIV testing becomes part of routine medical care sion without any supportive data may not be appropriate.
unless patients refuse it. The problem for Africa is that antiretroviral Informed Consent during Emergency Operations
therapy is not universally available, making it difficult to legislate “opt-
out” testing. The current approach is to recommend voluntary testing Among the several legitimate exceptions to the right of informed con-
except in very limited emergency situations. sent are public health emergency, medical emergency, the incompetent
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patient, patient waiver of consent, and therapeutic privilege. When
Confidentiality, Privacy, and the Duty to Warn immediate action must be taken to prevent death or other serious harm
The stigma and discrimination associated with HIV/AIDS necessitate to the patient, the emergency exception mandates that appropriate care
confidentiality and privacy of information. If privacy of medical not be delayed. 24,25 Informed consent under this condition is based on
information is assured, it is more likely that patients will be prepared the legitimate presumption that the child or legal proxy would allow
to be tested, and it promotes patient autonomy and trust in the clini- treatment if the opportunity existed, so consent is implied. The exercise
cal relationship. of the emergency exception imposes responsibility on the paediatric
An important consideration for the paediatric surgeon is that a surgeon to be reasonably certain that immediate intervention is essential
diagnosis of HIV in a young child implies, in the majority of cases, that to preserve life or to prevent serious harm to the child. In addition, the
the mother is HIV infected. This impacts on confidentiality regarding paediatric surgeon must reach the judgment that treatment cannot be
the mother’s status and relationships and gives rise to a set of ethical safely delayed to obtain informed consent.
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and moral dilemmas. Consideration of informed consent during emergency surgery
Conflict may arise in the clinical situation where HCWs demand to might be met with some cynicism because the imperative to save life
know the status of patients as they believe themselves to be at risk of is seen as overriding patients’ autonomy. Surgical emergency creates
being infected. This is of particular importance in the case of surgeons, a special challenge insofar as decisions must be made in a relatively
who are at even greater risk of becoming infected due to the nature of short period of time. Submitting a child to emergency surgery is one of
their work. With the adoption of universal infection control precautions, the most profound and emotionally exhausting tasks most parents will
however, the risk of HIV transmission should be minimised, provided encounter. Added to the stress of sudden illness and the distress caused
the necessary resources are available. 18 by pain or other acute symptoms in their child, parents may have little
But what about HIV-infected HCWs? Do they also have a duty to time to grasp the important information required to give an informed
disclose their HIV status to patients or to health authorities? Should this consent. However, only the occasional situation (e.g., haemorrhagic
form part of the informed consent process? Disclosure may jeopardise shock) justifies the emergency exception. In the majority of children
HCWs’ ability to practice and their careers, and so the general guideline undergoing urgent or emergency surgery (e.g., appendectomy), there
is that HCWs may continue to practise without disclosure, but with is quite often ample time for preoperative education of the family and
restrictions so as to avoid situations in which the patient may be at high informed consent.
risk of becoming infected. 16 In Western countries, a surgical emergency rarely absolves the
Justice, Discrimination, and Access to Treatment surgeon of the requirement to obtain consent. We propose that African
The reality of medical practice in Africa is that it mostly occurs in paediatric surgeons observe this practice as a moral and ethical
resource-constrained environments. It is inevitable that distributive necessity, even though they may not yet have a legal obligation to do
justice will play an important role in ensuring the fair distribution of so. If the parent(s) or the family members are not present, the surgeon
these resources. Public policy dictates that those patients who would can decide according to the best interest’s paradigm. Some hospitals
benefit the most should have access to ART, and that eligibility criteria will have their own regulations, such as that the superintendent can give
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are just. At the same time, people admitted to the ART programme are consent to an emergency procedure as long as there is evidence that
expected to be compliant; resistant viral strains have been identified in the staff has tried to contact the family members. Telephonic consent
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patients who have not been on ART. The rights of the individual to is acceptable.
access therapy have to be weighed against the rights of the community Informed consent during paediatric surgery emergencies has been
put at risk by noncompliant patients. How does one manage a young the subject of a detailed review, including practical guidance on
child who is dependent on the caregiver for access to ARTs, but whose the methods of preoperative education that can be adopted in the
caregiver is not an adherent to therapy? Should the child be removed emergency surgery setting and areas in which further research might
from the caregiver? help to improve this important aspect of surgical care. 27
HIV-infected individuals have been subjected to discrimination Informed Child Assent
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in society as well as by the health care system. This discrimination
Strictly speaking, only those patients who have appropriate decisional
results in patients being deprived of services and care, which may cause
capacity and legal empowerment can give their informed consent.
them to lose faith in the system. Children may be denied access to
Under common law in most countries, the decision-making responsibil-
certain health services (e.g., intensive care or surgery) because of their
ity falls generally to parents or other surrogates. Because no one—not
HIV status. It is difficult for the individual surgeon unilaterally to make
even the most well-meaning parent acting in a surrogate capacity—can
difficult decisions, and policymakers increasingly have adopted the
approach of “accountability for reasonableness” to prioritise services. 16 always assure that the child’s best interests are being represented,
the doctrine of informed consent has limited direct application to
Neonatal Circumcision for the Prevention of HIV children. Although informed permission given by parents does not
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A full discussion of circumcision to prevent HIV is beyond the scope satisfy the strict moral standards of the doctrine of informed consent,
of this chapter. Three studies from Africa have demonstrated a protec- it is sufficient for ethical—and is often required for legal—purposes.
tive effect of circumcision against heterosexual HIV acquisition in adult In addition, older children and adolescents should be involved, to the
males, and this finding has been extrapolated to a recommendation to greatest extent possible, in their own decision making. Depending on
perform mandatory neonatal circumcision in sub-Saharan Africa. The the circumstances, the assent of the paediatric patient should be sought,
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argument that “newborns are extremely resilient and are programmed for appropriate to their development, age, and understanding, and often in
stress” to support the neonatal timing of circumcision does not take into conjunction with informed permission from the parent or legal guard-
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account the ethical issues surrounding the removal “of healthy tissue from ian. In many Western countries, the requirement for informed child
patients who are unable to consent to the procedure”. Extrapolating the assent has been codified, but in all cases, doctors should carefully listen
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