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’s 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 decisions. In this triad, some of the fundamental legal issues caused 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 medical decision-making involving the withdrawal of life support treatment, affecting a minor child. 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, the parent refuses to consent to the child being exposed to blood transfusions. Here, the High Court has often come to the rescue of the child 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. What is called for is for the South African courts to develop its own jurisprudence. To this end, the South African High Court does not have to look further than adopting the well-developed criteria found in the English cases. But, before the parties engage in litigation, mediation should be attempted.