Abstract

Keywords

Best interests of the minor child; blood transfusions; withdrawing life support; end-of-life decision making; consent; comparative law; constitutional imperatives; foreign law; African jurisprudence; Children's Act; inherent authority of the High Court; mediation before litigation; sensitivity training.

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1 Introduction

Judges, the world over are often faced with complex cases in which they are expected to decide disputes having a profound effect on the lives of children. 1

 Prof Henry Lerm. Adjunct Professor, Nelson Mandela University. B Proc (UPE) LLB (VISTA PE) LLM (VISTA PE) LLD (UP). Admitted Attorney. Lecturer in the Department of Criminal and Procedural Law, Nelson Mandela University, Port Elizabeth, South Africa. Non-Executive President of the South African Medico–Legal Association. Email: henry.lerm01@gmail.com. ORCiD: https://orcid.org/0009-0002-3388-1118

1 For cases in South Africa see S v M 2008 3 SA 232 (CC) on the effect of a custodial sentence for a primary care giver of minor children; M v M (15986/2016) [2018] ZAGPJHC 4 (22 January 2018) regarding the difficulty judges face in matters involving acrimonious parents and the effect on children; see also Michael v Linksfield Park Clinic (Pty) Ltd 2002 1 All SA 384 (A) on the difficulty a court faces when pronouncing a judgment where negligence had not been proven in a case involving a 17-year-old who became a quadriplegic after surgery.

What is more, judges in England are often up against even graver cases when they have to decide whether to order the withdrawal of life support treatment from children who are seriously ill or in a vegetative state. South African courts unlike their English counterparts, have hitherto escaped making those difficult and often solemn decisions. 3

3 For the English cases see Barts Health NHS Trust and Hollie Dance and Paul Battersbee and Archie Battersbee (Through His 16.4 Guardian) [2022] EWHC 1435 (Fam) (hereafter the Hollie Dance case); Fixsler v Manchester University NHS Foundation Trust [2021] EWCA Civ 1018 (9 July 2021) (hereafter the Fixsler case); Great Ormond Street Hospital and Yates and Gard [2017] EWHL 972 (Fam) (hereafter the Yates and Gard case).

End-of-life decisions hastening the death of the minor child-patients are often wrought with religious, ethical, legal and emotional challenges. 5

5 Van Aswegen and Nienaber 2017 THRHR (2) 553; for the English case law see Raqeeb v Barts NHS Foundation Trust [2019] EWHC 2531 (Admin) (3 October 2019) (hereafter the Raqeeb case); the Fixsler case para 34; and the Hollie Dance case 1435.

There appears to be a lack of clarity in the South African law as to how the courts are likely to approach this very contentious issue. What we do know is that our courts when trying to resolve the issue, are likely to rely on two fundamental principles, namely what is in the best interest of the child and using its authority as the upper guardian of minor children. 8

8 For the South African decision see the Hay case 492.

Both the South African Constitution 10

10 The Constitution of the Republic of South Africa, 1996 (the Constitution).

in every matter concerning the child"; 16

16 See s 28(2) of the Constitution.

Because of the consistency and thoroughness that the English courts have shown, it is suggested that the South African courts where possible approach the decision-making process along the lines of the English legal system. 20

20 Paris et al 2017 Journal of Perinatology 1268.

Consequently, this article will traverse the South African and English legal positions with regard to end-of-life decisions hastening the death of minor children, where sustaining children's lives would be futile.

In this triad involving the parents, the medical practitioners and the court, some of the fundamental issues caused to be decided include: who should have the final say over the withdrawal of life support treatment for minor patients? What criteria does the court use in resolving the dispute between parents of the minor patients and the medical teams overseeing the treatment of the patients?

2 Background

Making decisions as to the lawfulness of the withdrawal of life-sustaining treatment involving children, have featured prominently in the last few decades in England. 21

21 See the Yates and Gard case para 23; King's College Hospital for Children NHS Foundation Trust v Ms Thomas, Mr Haastrup and Isaiah Haastrup [2018] EWHC 127 (Fam) (hereafter the Haastrup case); see also the Fixsler case para 94 and the Hollie Dance case 1435.

the children's medical practitioners. 25

25 Auckland and Goold 2019 CLJ 288.

In these end-of-life cases, courts often face parents who contend that because their children cannot speak for themselves, 27

27 See Re A (Children) (Conjoined Twins: Surgical Separation) [2001] 2 WLR 480 (hereafter the Conjoined Twins case); see also the Fixsler case paras 81 and 82; for a South African perspective see Malherbe and Govindjee 2010 THRHR 61.

Central to this quandary is who should have the final say over the withdrawal of life sustaining treatment? That, necessitates an investigation into the general principles surrounding the conventional consent by the parents and alternative decision-making inter alia by the medical team and/or the courts.

3 Consent to medical treatment involving minor patients

3.1 The South African position

In terms of the South African common law, a medical practitioner may not provide medical treatment without first obtaining the consent of a competent patient.

Minor children, provided they meet the legislative requirements, do have the capacity to unilaterally consent to medical treatment and surgery without the parents' consent. To this end, the Children's Act 38 of 2005 (hereinafter referred to as "the Act") provides that –

if the child is over the age of 12 years; and the child is of sufficient maturity and has the mental capacity to understand the benefits, risks, social and other implications of the treatment. 32

32 Section 129(2)(a) and (b) of the Children's Act 38 of 2005 (the Act).

if the child is over the age of 12 years; and the child is of sufficient maturity and has the mental capacity to understand the benefits, risks, social and other implications of the surgical operation; the child is duly assisted by his or her parent or guardian treatment. 33

33 Section 129(3)(a), (b) and (c) of the Act.

In any of the categories involving minor children over the age of 12 years, where the child either lacks sufficient maturity or mental capacity, the child will be duly assisted by his or her parent or guardian. 34

34 Section 129(3) of the Act.

The Act also regulates consent to medical treatment and surgical operations in the following circumstances where the child has not attained the age of 12 years in age. In this regard, the Act determines:

The parent, guardian or care-giver of a child may, subject to Section 31 of the Act, consent to medical treatment of the child if the child is under the age of 12 years; or over the age of but is of insufficient maturity or is unable to understand the benefits, risks and social implications of the treatment. 35

35 Section 129(4) of the Act.

The parent, guardian or care-giver of a child may, subject to section 31, consent to a surgical operation on the child if the child is under the age of 12 years; or over that age, but is of insufficient maturity or is unable to understand the benefits, risks and social implications of the operation. 36

36 Section 129(5) of the Act.

All medical decisions taken on behalf of minors should be made in the best interests. 37

37 Section 9 of the Act provides that in all matters concerning the care, protection and well-being of a child is in the child's best interest and of paramount importance.

The Act also regulates that parents may not as a general rule refuse to assist a child or withdraw consent for religious or other beliefs. In this regard the Act provides:

No parent, guardian or care-giver of a child may refuse to assist a child in terms of subsection (3) or withhold consent in terms of subsections (4) and (5) by reason only of religious or other beliefs, unless that parent or guardian can show that there is a medically accepted alternative choice to the medical treatment or surgical operation concerned. 39

39 See s 129(10) of the Act

3.2 The English position

The age of majority in England and Wales is 18 years. 40

40 Section 1(1) of the Family Reform Act, 1969.

treatment, operations, withdrawal of the medical treatment etc. But, the England and Wales Court of Appeal in Fixsler v Manchester University NHS Foundation Trust 47

47 The Fixsler case with reference to Re Pippa Knight [2021] EWCA Civ 362 (19 March 2021) para 69. See also Barts NHS Foundation Trust and Raqeeb [2019] EWHC 2530 (Fam).

The United Kingdom, similarly, in terms of its common law allows parents to make decisions for their children in respect of medical care, including giving or withdrawing consent to medical treatment affecting their minor child. 49

49 Oates 2000 BMJ 1282; Auckland and Goold 2019 CLJ 287; see the English seminal case of Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112 per Lord Scarman 184 (hereafter the Gillick case).

The court in turn, may then use its inherent jurisdiction when making the all-important discretionary decision which runs counter to the decision of the consenting party. 54

54 See Re L [1998] 2 FLR 810; Birmingham Children's NHS Trust v B & C [2014] EWHC 531 (Fam).

The next section of this article investigates when the courts' interventions are justified.

4 The legal framework when a High Court will intervene

4.1 The South African position

The South African High Court owes its inherent jurisdictional authority to the English law influence most apparent in procedural law. 56

56 Lutchman 2018 https://www.nyulawglobal.org/globalex/South_Africa1.html with reference to Meintjes-Van der Walt et al Introduction to South African Law 31 at [1] and [35]. See Ritchie v Andrews (1881-1882) 2 EDL 254; Conolly v Ferguson 1909 TS 195; Ex Parte Millsite Investments Co (Pty) Ltd 1965 2 SA 582 (T) 585 G-H.

Alongside the High Courts having the inherent authority to interfere with the decision-making authority of the parents as aforesaid, various other people and institutions by virtue of their legislative authority may also as surrogate decision-makers, intervene in the decision-making process affecting minor children.

The Superintendent of the hospital or his deputy in his absence may consent to medical treatment of or a surgical operation on a child if the treatment or operation will preserve life or prevent serious or lasting physical injury or disability; and the need for the treatment or operation is so urgent that it cannot be deferred for the purpose of obtaining consent. 63

63 See s 129(6)(a) and (b) of the Act.

The Minister may consent to the medical treatment of or surgical operation on a child if the parent or guardian of the child unreasonably refuses to give consent or to assist the child in giving consent or is incapable of giving consent or of assisting the child in giving consent or cannot readily be traced or is deceased. 64

64 See s 129(7) of the Act.

The Minister may also consent to the medical treatment of a surgical operation if the child unreasonably refuses to give consent. 65

65 See s 129(8) of the Act.

4.2 The English position

The legal framework for the High Court's power to intervene in disputes involving minor children has its roots in the English common law parens patriae doctrine and founded on the principle of welfarism. 66

66 Laurie 1999 Edin LR 95 cited by Auckland and Goold 2019 CLJ 293.

More recently, in the case of Re T (A Minor) (Wardship: Medical Treatment) 68

68 Re T (A Minor) (Wardship: Medical Treatment [1997] 1 WLR 242 (hereafter the Wardship: Medical Treatment case); see also J v C [1970] AC 668 710-711 (hereafter the J v C case) in which the paramountcy of best interests and the courts involvement was emphasised.

What follows is an investigation into the common law concept of "upper guardian", and when the High Court may act as upper guardian.

5 The High Court as upper guardian of minor children

5.1 The South African position

The legitimacy of our High Court to exercise its authority as an upper guardian and in the best interests of minor children, as seen earlier, stems from its inherent common law jurisdiction. 71

71 Van Heerden, Cockrell and Keighly Boberg's Law of Persons and the Family 500; Van Schalkwyk General Principles of the Family Law 311; see also the case of Kotze v Santam Insurance Ltd 1994 1 SA 237 (C) 244F-H.

welfare. 73

73 The best interest-standard was first limited to private law disputes pertaining to custody, guardianship or access; see Fletcher v Fletcher 1948 1 SA 130 (A) 134 (hereafter the Fletcher case). See however Davel "General Principles" 2-6 who asserts that the application has been extended beyond the realm of private law.

Besides the case law, legislatively, the Children's Act also limits the parental, guardian or care-givers' rights to withhold consent "by reason only of religious or other beliefs, unless that parent or guardian can show that there is a medically accepted alternative choice to the medical treatment concerned". 78

78 See s 129(4) and (5) of the Act and the application thereof in the Life Health Care Group (Pty) Ltd case 299.

5.2 The English position

The practice of the High Court acting as upper guardian of minor children in medical treatment is a phenomenon known in English law in both the so-called "Jehovah’s Witness" cases as well as the so-called "end-of-life treatment" matters. 79

79 Oates 2000 BMJ 1284.

to approach the courts to safeguard the welfare of the minor patients. 80

80 Oates 2000 BMJ 1283 with reference to the cases of Re F [1990] 2 AC 56 and Airedale NHS Trust v Bland [1993] AC 789 859F.

Because the concept "best interests of the child" in the latter category has been quite elusive in South Africa, the meaning will be explored in both the South African and English law.

6 The "best interests" of the child as a threshold in medical disputes in South Africa and England

6.1 The South African position

The "best interest" rule has for decades featured predominantly in custody matters involving minor children. 83

83 See the Fletcher case 130; see also McCall v McCall 1994 3 SA 201 (C).

In medical cases involving blood transfusions, the High Court has relied on "the interests of the minor child" to prevent the child from dying and so oust parental authority where parents, by reason of religious beliefs, refused to consent to the transfusion. 86

86 See the Hay case 492. In the most recent unreported case, In Re Dr Nxolo Mbadi on behalf the Minor, a Durban Jehovah's Witness couple refused to allow their chronically ill son to have a blood transfusion because of religious reasons. They relied on an alternate medical approach. Their refusal to consent to their 5-year-old who suffers from sickle cell anaemia be given the blood transfusion, was opposed by the KZN Health MEC. Dr Noxo Mbadi, the head of Paediatrics at the Addington Hospital, who supported the MEC's application, opined inter alia that if the child did not receive blood transfusion, he could suffer a stroke or die. It is reported that an order was apparently granted by Judge Graham Lopes for the minor to receive blood transfusion.

preventing parents from withholding consent to treatment solely on religious grounds. 88

88 See the Hay case 494-495.

Similarly, the High Court also relied on the Children's Act 89

89 Section 129(10) of the Act provides that no parent may withhold consent for medical treatment of a child by reason only of religious or other beliefs, unless the parent can show that there is a medically acceptable alternative choice to medical treatment.

6.2 The English position

The "best interests of the child" as seen herein before, is a concept that originated in the English law under the prism of welfarism. 92

92 Auckland and Goold 2019 CLJ 294.

What has, however, not escaped criticism is the High Court's overriding authority that has at times found to be too wide. 97

97 Auckland and Goold 2019 CLJ 296.

to the generational values and beliefs passed on in families which include religion, culture and family considerations. 99

99 Auckland and Goold 2019 CLJ 323 with reference to Re King [2014] EWHC 264 (Fam).

The so-called "blood transfusion" cases appear to be fairly settled in South Africa. What is called for, is the development of our legal jurisprudence in the end-of-life cases. This aspect will be further explored in this paper.

7 The legal position regarding the withholding and withdrawal of life support treatment in South Africa

7.1 The South African position

The withholding and withdrawal of life support are two processes by which various medical interventions either are refused or are ceased with the understanding that the patient will die as a result.

The withholding of life sustaining treatment has been defined as "processes by which medical interventions are refused or denied being provided often with the understanding that the patient will most probably experience natural death from the underlying disease or related complications". 100

100 HPCSA 2023 https://www.hpcsa.co.za/Uploads/professional_practice/ethics/ Booklet_7-Guidelines_withholding_andwithdrawing_treatment_FINAL_% 20March2023.pdf (HPCSA Booklet 7) 1.

South African courts, unlike their English counterparts are not as resourceful in handling the so-called withdrawal of life support or end-of-life decision making. The only case featuring the court authorising the discontinuance of nasogastric feeding is that of Clarke v Hurst 103

103 Clarke v Hurst 1992 4 SA 630 (D) (hereafter the Clarke case).

cardiac arrest which led to him to sustain irreversible brain damages. Consequently, to stay alive he had to be fed through a nasogastric tube for five years.

The High Court, however, found that the discontinuance of an artificial feeding regime, would not be "the legal cause of the patient's death" 104

104 Clarke case 660B-C.

Despite the outcome of the case, the Clarke case cannot be equated with cases falling within the category of those forming the focus of this article. It is, therefore, uncertain what approach the South African courts is likely to adopt in respect of the withdrawal of life support or end-of-life decisions, including those affecting minor children.

The Health Professions Council of South Africa has recently introduced guidelines to provide an ethical framework of good practice for healthcare practitioners in respect of "end-to-life decision-making" affecting inter alia adult and child patients. This includes making decisions on whether to withdraw life-prolonging treatment. 107

107 HPCSA Booklet 7 2.

The guidelines recognise that where decisions are taken that do not serve the child's best interests, the High Court or the Children's Court may be approached to resolve the issue. No clear guidelines have, however, been formulated on how our courts should approach end-to-life decision-making. 109

109 HPCSA Booklet 7 12.

7.2 The English position

The English legal cases are replete with tragic end-of-life decision-making cases involving children born in England with congenital conditions 113

113 See the Fixsler case para 1; also the Haastrup case.

The English legal system has developed a rich jurisprudence in those courts, handling these cases, including a uniform approach when adjudicating these matters. 117

117 See the Fixsler case 1018.

7.3 The approach by the English courts when considering the withdrawal of life sustaining treatment

When courts in England consider the withdrawal of life sustaining treatment of minor patients, the courts assess the position by weighing up different factors, including legal principles. One of the primary considerations the courts entertain is the medical condition of the patient, for example, whether he or she is "brain dead", 118

118 See the Hollie Dance case.

not. 122

122 See the Haastrup case para 69 with reference to inter alia the cases of Wyatt v Portsmouth NHS Trust [2006] 1 FLR 554; Yates and Gard v Great Ormond Street Hospital for Children NHS Foundation Trust [2017] EWCA Civ 410.

It is worth noting that the courts have on occasions found in favour of the parents, especially where their aim is to serve the best interest of the children. 128

128 In Re Z (Identification: Restrictions on Publication) [1997] Fam 1.

Consequently, some of the main principles that influence the decision-making process of the English courts, will be investigated.

7.3.1 Legal capacity of the minor

Where a child is capable of consenting it should be accepted especially in the light of his or her age and understanding. 131

131 See the Haastrup case para 115 of the judgment.

for the child to undergo treatment. 132

132 This is sometimes referred to as the Gillick rule, emanating from the judgment of the Gillick case 184 per Lord Scarman.

7.3.2 Parental responsibility and the upper guardianship of the courts

The High Court acknowledges parental responsibility in relation to the minor child. 136

136 The J v C case 710-711 and the Wardship: Medical Treatment case; see the Gillick case 184; also the Yates case 942.

7.3.3 The jurisdiction of the court to make orders

The High Court's jurisdiction to make orders authorising the withdrawal of medical treatment from minor children has been summarised by the courts as follows, where the child cannot make the choice it then has to be made by the parents, caregivers or the courts on behalf of children, serving their best interests. 141

141 The Fixsler case para 87.

are brought before the court, it is then for the judge to decide what is in the child's best interests. 142

142 See the Fixsler case para 14 with reference to the Wyatt case.

7.3.4 Assessment of the child's medical condition

The child's medical condition and prognosis serve as a profound influencing factor when the court weighs up inter alia the best interest of the child and whether or not it will issue an order for the life-support system to be withdrawn. 143

143 See the Raqeeb case paras 19, 31.

7.3.5 The best interest and welfare of the minor child

The best interest and welfare approach have been relied on by the courts for a number of decades. 149

149 See the Fixsler case para 87; see also the Wyatt case page 554; the Yates and Gard case para 13.

consideration is the worth that child-life brings to the parents, siblings and the collective family. 155

155 See the Fixsler case 1018; also the Hollie Dance case para 165.

For the courts to satisfy the best interests of the patient test, Judges often embark on a balancing exercise by weighing up every kind of consideration capable of impacting on the decision. In reaching a decision the welfare of the child is paramount. Putting the child through more pain and suffering is not conducive to the child's best interests. 156

156 See the Yates case para 128 with reference to the CAFCASS case.

7.3.6 Weighing up the interests of the litigants

The courts have often stated that the views and opinions of both the doctors and the parents should be weighed up carefully. 158

158 See the CAFCASS case 319 with reference to the Yates case paras 39, 165.

7.3.7 The assumed point of view of the child criteria

The so-called "substituted judgment test" has recently been designed to assist courts in making decisions for persons whose future medical treatment seems to be futile. Here, the Judge tries to place himself or herself in the position of the person lacking capacity and considers the matter from the “assumed point of view of the child'”by asking what the child's attitude to treatment would likely to be? 163

163 Re Pippa Knight [2021] EWCA Civ 362 (19 March 2021) referred to in the Fixsler case para 11; see also the Raqeeb case para 122.

guidance of their parents in promoting the sanctity of human life. 165

165 See the Haastrup case para 100; also Re J (A Minor) (Wardship: Medical Treatment) [1991] Fam 33 (CA) 46H-47B referred to in the Fixsler case para 15.

7.3.8 Consideration of mediation as a dispute resolution mechanism

Mediation has been described in England as a flexible, confidential process which involves a neutral third party helping the parties in dispute towards a negotiated resolution, where the parties have the final say as to whether agreement is reached and if so, on what terms. 167

167 See Centre for Effective Dispute Resolution date unknown https://www.cedr.com/about_us/library/glossary.php.

The English Courts have on a number of occasions in these end-of-life cases involving minor children ended the judgments with a procedural note, encouraging potential litigants in like matters to make use of mediation to resolve their disputes. 171

171 See the Yates and Gard case para 130.

This article will also suggest that the nucleus of the approach adopted by the English courts, should be followed in South Africa.

8 The suggested approach of the South African courts when considering the withdrawal or withholding of medical treatment

The withdrawal, withholding or sustaining of life support treatment in the so-called end-of-life decision-making involving minor child patients in South Africa, has received very little attention. 173

173 Although the court in the Hay case on application, dealt with the administration of blood transfusion to a minor child, it did not have to deal with the sustaining of life

our case law as well as academic writings how our courts are likely to approach the withdrawal, withholding or sustaining of life-support treatment affecting especially minor children. That leaves the South African courts very much exposed when judges are called upon to preside over trials involving those type of matters. A likely starting point would be for judges to traverse the South African domestic law, including the Constitution, common law and customary law infusing African jurisprudence or indigenous knowledge. 174

174 Manthwa 2023 Obiter 661, 662 with reference to the case of Alexkor v Richtersveld Community 2004 3 All SA 244 (LCC) para 51.

South Africa is a religious and culturally diverse country 175

175 Moleya 2018 De Rebus 30.

Factors that have received very little attention in South Africa but is worthy of scrutiny are the values and practices concerning death in the African society. Here, in terms of their religious and cultural beliefs life should be preserved by all means even if the case is a hopeless one. 181

181 Ekore and Lanre-Abass 2016 Indian Journal of Palliative Care 371.

has commenced and also do not favour any artificial termination of life. 182

182 Onukwugha date unkwnown https://www.nathanielturner.com/deathanddy ingafrican.htm referred to by Ekore and Lanre-Abass 2016 Indian Journal of Palliative Care 371.

Other sources of law likely to enjoy judicial scrutiny include legislative enactments, 185

185 The Children's Act 38 of 2005

Judges may where necessary also draw on English law to develop the South African law in the so-called end-to-life decision making cases. The reason for involving English law is two-fold. First, it is the country with the greatest experience in end-to-life decision making. Second and most importantly, the English legal system lends itself to comparison with the South African legal system due to the common heritage of the two systems. 188

188 The strong bond between the two legal systems in a socio-economic context is borne out by a number of cases involving health and medicine including Minister of Justice and Correctional Services v Estate Late James Stransham-Ford (531/2015) [2016] ZASCA 197 (6 December 2016) para [32] regarding an array of English cases. See also para [34] with regards to the Clarke case with reference to the English decision of R v Adams 1957 Crim LR 365; the Hay case with reference to the case of In T (A Minor) (Wardship: Medical Treatment) 1997 1 All ER 906 (CA); Soobramoney v Minister of Health (KwaZulu-Natal) 1998 1 SA 765 (CC) para [30] with regard to the English case of R v Cambridge Health Authority [1995] EWCA Civ 49.

Although foreign law is not binding on the South African courts, 189

189 Rautenbach, Van Rensburg and Pienaar 2003 PELJ 1-19.

of adopting the foundational principles of foreign law to suit the needs of the South African jurisprudence in developing its common law. 193

193 The Soobramoney case; also Castell v De Greef 1994 4 SA 408 (C) 419-423.

It is suggested that when any of the South African courts find difficulty in dealing with end-of-life decisions involving minor children in future, the court dealing with the matter may likely consider adopting the criteria crafted in paragraphs 7.3.1 to 7.3.8 above. Because mediation is a fairly new form of dispute resolution in South Africa, this article suggests that we follow the practice displayed in England where the parties to the dispute first attempt mediation before resorting to litigation.

It is for that reason that this article suggests that both health care practitioners and Judges alike, acquire a greater knowledge and understanding of the religious and cultural beliefs, needs and practices of those affected patients. For the former, it may mean integrating their awareness into the treatment planning and care, 195

195 Rumun 2014 International Journal of Education and Research 47.

This article also suggests that before the High Court's inherent authority trumps parental authority, the court should first have substantial regard to the following factors, namely the emotional, religious, cultural and family in the parent-child relationship.

9 Conclusion

Resolving disputes between parents of minor patients and the treating medical team regarding end-of-life decisions affecting the patients, will always be arduous. Where possible, mediation should first be attempted to resolve the dispute between the parties, before they resort to litigation. Where they cannot, it would then be left to the court to intervene and make the correct decision. The parents may object on moral, cultural and religious grounds to consent to the withdrawal of life-support treatment suggested by the treating medical team. The treating clinicians on the other hand, may argue that the parents' refusal is not in the best interests of the child patient. Any further treatment they may argue, would be futile. The task of the courts is then to decide whether life sustaining treatment should be discontinued or not. The South African courts, unlike their English counterparts, have not been exposed to the so-called end-to-life cases. There is thus a lot of uncertainty how the courts are likely to approach this contentious issue. It may very well be necessary and in public interests to develop our

jurisprudence along the lines of the English court decisions. Our courts should, however, have substantial regard to the following factors, namely the emotional, religious, cultural and family in the parent-child relationship. Both our common law as well as our Constitution supports such a move.

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Van Aswegen and Nienaber 2017 THRHR (2)

Van Aswegen C and Nienaber A "The Law Related to End-of-Life Decisions Concerning Imperilled Neonates in South Africa: Where Angels Fear to Tread (2)" 2017 THRHR 553-564

Van der Westhuizen 2015 THRHR

Van der Westhuizen CS "The Solution to Demands Made on Parents' Decision-Making in the Neonatal Intensive Care-Unit: Mediation or Litigation?" 2015 THRHR 63-79

Van Heerden, Cockrell and Keighly Boberg's Law of Persons and the Family

Van Heerden B, Cockrell A and Keighly R Boberg's Law of Persons and the Family 2nd ed (Juta Cape Town 1999)

Van Schalkwyk General Principles of the Family Law

Van Schalkwyk LN General Principles of the Family Law 3rd ed (Printburo Pretoria 2009)

Wilkinson, Barclay and Savulescu 2018 Lancet

Wilkinson D, Barclay S and Savulescu J "Disagreement, Mediation, Arbitration: Resolving Disputes about Medical Treatment" 2018 Lancet 2302-2305

Case law

Alexkor v Richtersveld Community 2004 3 All SA 244 (LCC)

Calitz v Calitz 1939 AD 56

Castell v De Greeff 1994 4 SA 408 (C)

Christian Education South Africa v Minister of Education 2000 4 SA 757 (CC)

Clarke v Hurst 1992 4 SA 630 (D)

Conolly v Ferguson 1909 TS 195

Ex Parte Millsite Investments Co (Pty) Ltd 1965 2 SA 582 (T)

Fletcher v Fletcher 1948 1 SA 130 (A)

Hay v B 2003 3 SA 492 (W)

Kotze v Kotze 2003 3 SA 628 (T)

Kotze v Santam Insurance Ltd 1994 1 SA 237 (C)

Life Health Care Group (Pty) Ltd v JMS (As Parent and Guardian of the Infant Child MT) (34758/2014) [2014] ZAGPJHC 299 (20 October 2014)

M v M (15986/2016) [2018] ZAGPJHC 4 (22 January 2018)

McCall v McCall 1994 3 SA 201 (C)

Michael v Linksfield Park Clinic (Pty) Ltd 2002 1 All SA 384 (A)

Minister of Justice and Correctional Services v Estate Late James Stransham-Ford (531/2015) [2016] ZASCA 197 (6 December 2016)

Mpofu v Minister for Justice and Constitutional Development 2013 9 BCLR 107 (CC)

Oosthuizen v Road Accident Fund 2011 6 SA 31 (SCA)

Ritchie v Andrews (1881-1882) 2 EDL 254

S v L 1992 3 SA 713 (E)

S v M 2008 3 SA 232 (CC)

S v Makwanyane 1995 3 SA 39 (CC)

Soobramoney v Minister of Health (KwaZulu-Natal) 1998 1 SA 765 (CC)

TC v SC 2018 4 SA 530 (WCC)

Thebus v S 2003 6 SA 505 (CC)

United Kingdom

Aintree University Hospital NHS Foundation Trust v James [2013] UKSC 67

Airedale NHS Trust v Bland [1993] AC 789

Alder Hey Children's NHS Foundations Trust v Evans [2018] EWLA Civ 805

An NHS Trust v MB (A Child Represented by CAFCASS as Guardian ad Litem) [2006] 2 FLR 319

Barts Health NHS Trust and Hollie Dance and Paul Battersbee and Archie Battersbee (Through His 16.4 Guardian) [2022] EWHC 1435 (Fam)

Barts NHS Foundation Trust v Raqeeb [2019] EWHC 2530 (Fam) (3 October 2019)

Birmingham Children's NHS Trust v B & C [2014] EWHC 531 (Fam)

Fixsler v Manchester University NHS Foundation Trust [2021] EWCA Civ 1018 (9 July 2021)

Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112

Great Ormond Street Hospital and Yates and Gard [2017] EWHL 972 (Fam)

Great Ormond Street Hospital for Children NHS Foundation Trust v Yates (No 2) 2018 1 All FLR 623

In Re A (Children) (Conjoined Twins: Surgical Separation) [2001] Fam 178 (AC)

In Re Z (Identification: Restrictions on Publication) [1997] Fam 1

In T (A Minor) (Wardship: Medical Treatment) 1997 1 All ER 906 (CA)

J v C [1970] AC 668

King's College Hospital for Children NHS Foundation Trust v Ms Thomas, Mr Haastrup and Isaiah Haastrup [2018] EWHC 127 (Fam)

NHS Trust v MB quoting RA (A Child) [2016] EWCA 759

Portsmouth Hospitals NHS Trust v Wyatt [2005] EWCA Civ 1181

R v A (Children) [2001] 1 Fam 147 (HC)

R v Adams 1957 Crim LR 365

R v Cambridge Health Authority [1995] EWCA Civ 49

Raqeeb v Barts NHS Foundation Trust [2019] EWHC 2531 (Admin) (3 October 2019)

Re A (A Child) [2016] EWCA Civ 759

Re A (Children) (Conjoined Twins: Surgical Separation) [2001] 2 WLR 480

Re F [1990] 2 AC 56

Re J (A Minor) (Wardship: Medical Treatment) [1991] Fam 33 (CA)

Re King [2014] EWHC 264 (Fam)

Re L [1998] 2 FLR 810

Re McGrath (Infants) [1893] 1 Ch 143

Re Pippa Knight [2021] EWCA Civ 362 (19 March 2021)

Re R (A Minor) (Blood Transfusion) [1993] 2 FLR 757

Re S (A Minor) (Medical Treatment) [1993] 1 FLR 149

Re T (A Minor) (Wardship: Medical Treatment) [1997] 1 WLR 242

Wyatt v Portsmouth Hospital NHS Trust [2006] 1 FLR 554

Yates and Gard v Great Ormond Hospital for Children NHS Foundation Trust [2017] EWCA Civ 410

Legislation

South Africa

Children's Act 38 of 2005

Constitution of the Republic of South Africa, 1996

National Health Act 61 of 2003

United Kingdom

Children Act, 1989

Family Reform Act, 1969

Internet sources

Centre for Effective Dispute Resolution date unknown https://www.cedr.com/about_us/library/glossary.php

Centre for Effective Dispute Resolution date unknown Glossary of Terms https://www.cedr.com/about_us/library/glossary.php accessed 2 June 2024

Gasa 2020 https://anaesthetics.ukzn.ac.za/wp-content/uploads/2020/10/04 -September-2020-Palliative-Care-Medicine-EOLC-M-Gasa.pdf

Gasa ML 2020 Palliative Care Medicine: End-of-Life Care in the Intensive Care Unit https://anaesthetics.ukzn.ac.za/wp-content/uploads/2020/10/04-September-2020-Palliative-Care-Medicine-EOLC-M-Gasa.pdf accessed 28 July 2024

HPCSA 2021 https://www.hpcsa-blogs.co.za/wp-content/uploads/ 2023/02/Booklet-1-General-ethical-guidelines-for-health-care-professions.pdf

Health Professions Council of South Africa 2021 General Ethical Guidelines for the Healthcare Professions. Booklet 1 https://www.hpcsa-blogs.co.za/wp-content/uploads/2023/02/Booklet-1-General-ethical-guidelines-for-health-care-professions.pdf accessed 28 July 2024

HPCSA 2023 https://www.hpcsa.co.za/Uploads/professional_practice/ ethics/Booklet_7-Guidelines_withholding_andwithdrawing_treatment_ FINAL_%20March2023.pdf

Health Professions Council of South Africa 2023 Guidelines for the Withholding and Withdrawal of Treatment. Booklet 7 https://www.hpcsa.co.za/Uploads/professional_practice/ethics/Booklet_7-Guidelines_withholding_andwithdrawing_treatment_FINAL_%20March2023.pdf accessed 22 July 2024

Lutchman 2018 https://www.nyulawglobal.org/globalex/South_Africa1.html

Lutchman S 2018 Researching South African Law https://www.nyulawglobal.org/globalex/South_Africa1.html accessed 1 August 2024

Onukwugha date unknown https://www.nathanielturner.com/ deathanddyingafrican.htm

Onukwugha GO date unknown Death and Dying in the African Context https://www.nathanielturner.com/deathanddyingafrican.htm accessed 2 June 2024

RCPCH 2015 https://issuu.com/joballrcpch/docs/rcpch_annual_review 15web3

Royal College of Paediatrics and Child Health 2015 Annual Review https://issuu.com/joballrcpch/docs/rcpch_annual_review15web3 accessed 28 July 2024

List of Abbreviations