On Tuesday, 11 April 2017, Justice Francis, sitting in the Family Division of the High Court (UK), found in favour of treating doctors wanting to withdraw life support from a baby with a rare genetic condition, against the wishes of his parents.
Charlie Gard, eight months old at the time, was born with mitochondrial depletion syndrome, a condition which causes progressive muscle weakness and brain damage. He is said to be one of 16 people in the world diagnosed with the disease.
Debra Powell QC, representing Great Ormond Street Hospital, argued that life support treatment should stop. She stated that Charlie was barely able to move and had significant irreversible brain damage. She argued that “world-renowned” experts were in agreement with stopping life support and that Charlie’s quality of life was poor.
Barrister Sophia Roper, representing Charlie’s parents, argued that Charlie should be given a chance to improve. She said there was a chance that Charlie’s health would improve once he received treatment in America. Further, she argued that the opinion of Charlie’s parents should carry “great weight”.
Barrister Victoria Butler-Cole, who was appointed by the court to act in the interests of Charlie Gard, argued that life support treatment should stop. She said the treatment that Charlie’s parents planned to expose him to in America was “purely experimental” and had “no real prospect of improving Charlie’s condition or quality of life”.
Best interests of the child
In coming to his decision, Justice Francis relied on the “best interests of the child” principle. Further, he stated that while the parents have parental responsibilities, overriding control is vested in the court exercising its “independent and objective judgment in the child’s best interests”. Further, he indicated that in determining what is in the best interests of the child, the court must look at the question from the assumed point of view of the child.
The “best interests of the child” is a well-recognised concept and right, in both international law and South African law. Section 28(2) of South Africa’s Constitution provides that a child’s best interests are of paramount importance in every matter concerning the child.
In Mpofu v Minister for Justice and Constitutional Development and Others, the Constitutional Court confirmed that the High Court sits as upper guardian in matters involving the best interests of the child (be it in custody matters or otherwise), and it has extremely wide powers in establishing what such best interests are. It is not bound by procedural strictures or by the limitations of the evidence presented, or contentions advanced or not advanced, by respective parties.
The Health Professions Council of South Africa has published guidelines dealing with withholding and withdrawing treatment. The guidelines set out general principles of good practice and create a framework within which to make such decisions. On children, the guidelines provide that practitioners should respect the decisions of children who have the legal capacity to make decisions about refusing healthcare – except in cases where the practitioners believe that it is not in the child’s best interests – in which case they should approach the court for a decision.
Given the paramountcy principle – that the child’s best interest and welfare is the paramount consideration – it is likely that a South African Court would come to the same conclusion.
By: Jay Page, senior associate and Richard Bryce, candidate attorney at Bowmans
