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Sterilisation Act, 1998 (Act No. 44 of 1998)

3. Person incapable of consenting or incompetent to consent due to mental disability

 

(1) Sterilisation may be performed on any person who is incapable of consenting or incompetent to consent—
(a) upon a request to the person in charge of a hospital and with the consent of a—
(i) parent;
(ii) spouse;
(iii) guardian; or
(iv) curator;
(b) if a panel contemplated in subsection (2) after considering all relevant information, including—
(i) the person’s age;
(ii) whether there are other safe and effective alternatives to sterilization;
(iii) the person’s mental and physical health and wellbeing;
(iv) the potential effect of sterilisation on the person’s mental and physical health and wellbeing;
(v) the nature of the sterilisation procedure to be performed;
(vi) the likelihood that the person will become capable of consenting to sterilisation;
(vii) whether the sterilisation is in the best interests of the person to be sterilised; and
(viii) the benefit which the person may derive from sterilisation,

concurs that sterilisation may be performed; and

(c) if the person is mentally disabled to such an extent that such a person is incapable of—
(i) making his or her own decision about contraception or sterilisation;
(ii) developing mentally to a sufficient degree to make an informed judgement about contraception or sterilisation; and
(iii) fulfiling the parental responsibility associated with giving birth.

 

(2) The person in charge of a hospital contemplated in subsection (1) must upon request, as prescribed for sterilisation, convene a panel which will consist of—
(a) a psychiatrist, or a medical practitioner if no psychiatrist is available;
(b) a psychologist or a social worker; and
(c) a nurse.

 

(3) Where a person to be sterilised is in custodial care, no member of the panel may be an employee of the custodial institution.

 

(4) If sterilisation is to be performed in a private health care facility, the members of the panel may not be employees of, or have a financial interest in, that facility.

 

(5) The person performing the sterilisation must ensure that the method of sterilisation used holds the least health risk to the person on whom sterilisation is performed.

 

(6) For the purposes of this section, ‘‘mental disability’’ means a range of functioning extending from partial self-maintenance under close supervision, together with limited self-protection skills in a controlled environment through limited self care and requiring constant aid and supervision, to restrained sensory and motor functioning and requiring nursing care.