Is the COVID-19 regulation that prohibits parental visits to their children who are patients in hospital invalid in terms of the Constitution? What should hospitals do?

Abstract

This article deals with whether the COVID-19 regulation that prohibits parental visits to their children who are patients in hospital is invalid in terms of the Constitution of South Africa. The article contends that the ban on visits by parents to their children in hospital is a violation of the children’s rights provisions of the Constitution regarding the ‘best interests of the child’, and the ‘best interests standard’ in the Children’s Act 38 of 2005. The article also points out that the regulations are not saved by the limitations clause of the Constitution, because the restriction is not ‘reasonable and justifiable’ and a ‘less restrictive means’ can be used to achieve the same purpose of preventing the spread of the COVID-19 virus. The article concludes that the relevant regulation is legally invalid, and hospitals would be fully justified in allowing parental visits to child patients provided proper precautions are taken to contain the virus.