Loved to death

Last updated: Thursday, May 28, 2009 Print

Parents are expected to act in the best interests of their children. But do they always make the best decisions, especially when it is in conflict with their own religious beliefs?

The tragic death of John Travolta’s 16-year-old son Jett, raised some concern about the possible reasons for his sudden death. Media speculation was rife that the Travolta’s strong affiliation with the Church of Scientology, created by the controversial Ron Hubbard, may have influenced decisions regarding his medical treatment.

Parents are expected to always act in the best interests of their children. But do they always make the best decisions when it comes to the health of their children, especially when these decisions come into conflict with their own religious convictions?

A number of cases where parents have denied treatment to children with life-threatening illnesses have come under media scrutiny recently.

An 11-year old girl died of untreated diabetes in Wisconsin in the US, surrounded by her family, who believed that all she needed was a prayer.

In Minnesota, US police had to issue a court order to pin down the mother of a 13-year-old boy who suffers from Hodgkins lymphoma, a highly curable form of cancer. The boy and his mother rejected chemotherapy, saying that putting toxic substances in the body is against their religious beliefs.

Closer to home, a 12-year-old girl suffering from leukaemia, was forced by the Johannesburg High Court to receive a life-saving blood transfusion, after she and her parents, who are Jehovah’s Witness, refused to consent to the procedure.

What does the SA law say?
The fragile line between faith and medicine is by no means easily traversed. While science may be the obvious answer for some, belief in a higher spiritual power by others should not be undermined. The matter is made even more complex when a parents’ responsibility toward their child comes into question.

In all the cases mentioned, state intervention was required to “protect” children from themselves and their own, in order to secure the necessary treatment.

While parents have the right to dignity, privacy and freedom of conscience, a recent High Court ruling has established that these rights are superseded by a child’s right to life in cases where the child’s life is at risk, according to Professor David McQuoid-Mason, James Scott Wylie Professor of Law at the University of KwaZulu Natal.

In an article published in the South African Medical Journal in January 2005, McQuoid-Mason refers to a case where a paediatrician applied to the court for an urgent order to give a life-saving blood transfusion to a baby against the wishes of the parents. The parents opposed the doctor’s application because blood transfusions were contrary to their religious beliefs and they were concerned about the risks of infection associated with blood transfusions.

The High Court authorised the doctor to administer the blood transfusion immediately. In the court’s judgement, it stated that:

1. in terms of the Constitution, a child’s ‘best interests’ were of paramount importance;

2. the right to life in the Constitution is a basic constitutional value and the baby’s right to life could not be violated;

3. while the parents’ religious beliefs had to be respected, and their concerns were understandable, they were not reasonable and justifiable and could not override the baby’s right to life; and

4. the interests of the baby in receiving the blood transfusion outweighed the reasons given by the parents for opposing it.

What does the constitution say?
The South African constitution also states quite clearly that a medical practitioner can perform an operation or administer treatment to a child, without the parent’s consent, if the practitioner believes that this action is necessary to save the child’s life or to save him or her from serious and lasting physical injury or disability.

The Child Care Act 74 of 1983 also states that if the treatment the child requires is so urgent that there is no time to get the parents’ permission, the doctor may also go ahead with treatment.

Not only is the doctor permitted to carry out the treatment, but the constitution adds that the parent or personal in charge of maintaining the child will be liable for the cost of the treatment.

Can minors speak for themselves?
Last year, a terminally-ill British teenager fought and won “the right to die” when she was taken to court by hospital authorities to try and force her to have a transplant against her wishes.

Thirteen-year-old, Hannah Jones was diagnosed with a rare form of leukaemia at the age of 5. After enduring numerous operations and their side effects over eight years, Hannah had simply decided that it was enough. Her only wish was to be at home, close to her family and to be granted the space to “die with dignity”.

While many people will question the ability of a 13-year-old to take such a sobering decision, one can’t help but feel that there should come a time when the patients’ needs and wishes – irrespective of their age – should be sanctified.

New law on cards for SA minors
For South Africa youth, this time may be fast approaching. A proposed new law will give 12-year-old South African children the legal right to make independent decisions about their own medical treatment.

Currently, children over the age of fourteen are deemed “competent” to consent to receiving any medical treatment without the assistance of a parent or guardian. For surgical procedures, the age of consent is 18-years.

According to the proposed Children’s Act, not yet in operation, if the child is of “sufficient maturity and mental capacity to understand the benefits, risks and social implications of the operation”, he/she may consent to medical treatment.

For surgical operations, a child can consent, but must be assisted by a parent or guardian. If the child is deemed to be “insufficiently mature”, a parent or guardian or caregiver must consent on the child’s behalf, according to The Legal Guide to Age Thresholds for Children, written by Prinslean Mahery and Paula Proudlock of the University of Cape Town’s Children’s Institute.

At face value the proposed law appears quite straightforward, however, the notion of having to evaluate the maturity of a twelve-year-old to literally take life or death decisions, is rather daunting. On the other hand, history has already taught us that parents are not always the best decision makers either.

(Thania Gopal, Health24, May 2009)

Sources:
Mahery P & Proudlock P (2008) Legal guide to age thresholds for children. Edition 4. September 2008. Children’s Institute, University of Cape Town, & Centre for Child Law, University of Pretoria.
McQuoid-Mason DJ, Parental refusal of blood transfusions for minor children solely on religious grounds — the doctor’s dilemma resolved, South African Medical Journal Vol 95, No 9 (2005)