Criminal and Medical Law
Permanent URI for this community
Browse
Browsing Criminal and Medical Law by Author "Kruger, J. M."
Now showing 1 - 1 of 1
Results Per Page
Sort Options
Item Open Access A proposed framework for the legal protection of premature and critically-ill neonates in the context of South African child law(University of the Free State, 2012-07) Van der Westhuizen, Catharina Susanna; Oosthuizen, H.; Verschoor, T.; Kruger, J. M.English: Until relatively recently extremely premature babies and critically-ill neonates would not have survived because medical science was insufficiently advanced to save them. Infanticide was a common practice among the Greeks and Romans as a form of birth control and a means of disposing of malformed offspring. Certain indigenous South African tribes also committed infanticide to rid society of deformed infants. Gradually the law came to take a stricter view of infanticide, and with the rise of Christianity it was regarded as murder. The advancement in medical technology, skills and expertise increased the need to take account of biomedical ethics, since this is the framework within which critical care decisions should be made. The principal ethical theories, namely deontology, utilitarianism and virtue ethics, are discussed, as well as the principles of biomedical ethics, namely beneficence, non-maleficence, autonomy and justice. Since actions for wrongful life and wrongful birth also touch on the sanctity of life and quality of life principle, these aspects are briefly discussed. Various international human rights instruments not only guarantee the right to life, but also prescribe a high standard of health care to member states. The right of access to health care, the right to emergency medical treatment and the best interests of the child are entrenched in the Constitution of the Republic of South Africa, 1996. The best interests of the child are of paramount importance in all matters concerning the child and this concept runs like a golden thread through all cases in which children’s rights are considered. In terms of the National Health Act 61 of 2003, free health services are offered to children below the age of six years. Section 129 of the Children’s Act 38 of 2005 specifically deals with medical treatment of children, while section 11 deals with children with disabilities and chronic illnesses. A legal comparative study was undertaken in which the legal position in England and Wales, as well as that of the Netherlands, was considered in order to formulate a framework of legislation for the protection of premature babies and critically-ill neonates. The position in England and Wales can best be determined by studying the judgments delivered in court cases. A comprehensive report, “Critical care decisions in fetal and neonatal medicine: ethical issues”, was compiled by the Nuffield Council on Bioethics. This report was drafted by a multi-disciplinary working party and provides guidelines regarding the medical treatment of neonates. In the Netherlands euthanasia is legal, but then the person requesting it must be above the age of sixteen years. Since neonates cannot request euthanasia, the preferred term is “end-of-life decisions”. The Groningen Protocol was drafted by paediatricians assisted by the public prosecutor coroner to prevent a physician from being criminally prosecuted if the guidelines in the Protocol are adhered to in the case of end-of-life decisions. In the thesis three recommendations are made: Guidelines that would be suitable for South African conditions should be drafted by a multidisciplinary team along the lines of the Nuffield Council on Bioethics. When cases concerning whether treatment should be withheld or withdrawn reach a South African court, it is recommended that the cases adjudicated in England and Wales be used as a precedent. It is recommended that mediation be considered as an option when there is disagreement regarding the treatment of critically-ill neonates between health care professionals and parents, or between parents. Since the High Court is the upper guardian of all minors, the outcome of the mediation should be made an order of court.