When the inherent authority of the High Court trumps parental authority in medical decision-making involving the withdrawal of life support treatment affecting minor children and their parents

Abstract

Judges are often up against very grave cases when they have to decide whether to order the withdrawal of life support from children who are seriously ill or in a vegetative state. What is more, medical practitioners attending to the medical care of the child affected, believe that clinically it would be in the best interest of the child that his or her life should be terminated. Any continued medical treatment would be futile. The parent(s) on the other hand do not agree with the medical team. Because the parties involved cannot reach agreement the dispute is consequently referred to the High Court. It is then up to the court to make the final decision. In this triad, some of the fundamental legal issues to be decided, include: who should have the final say over the withdrawal of life support treatment for minor patient? What criteria does the court use in resolving the dispute between the parties? This article provides a critical insight into when the High Court's inherent authority trumps parental authority in end-of-life decision making affecting minor children. What will become apparent is that the South African High Court has only sporadically been asked to exercise their inherent authority to interfere with a parent's decision-making power when, because of religious reasons, parents refuse to consent to their children being exposed to blood transfusions. Here, the High Court has often come to the rescue of children by adopting an orthodox approach. The court will firstly, in search of the welfare of the child, exercise its authority as upper guardian of children. Secondly, the court will search for the welfare of the child under the rubric of "what is in the best interest of the child". The South African High Court, unlike its English counter-part, has not been exposed to cases dealing with end-of-life decisions involving children. What is called for is for the South African courts to develop its own jurisprudence. A likely starting point would be for consideration to be given to South African domestic law, including the Constitution, the common law and customary law infusing African jurisprudence. To this end, the South African High Court is also urged to consider the well-developed criteria found in the English cases. But, before the parties engage in litigation, where possible, mediation should be attempted.