The right to die and human dignity
by Jerome Veldsman
The facts in Stransham-Ford v Minister of Justice and Correctional Services and Others were as sad as this topic predicts. Mr Stransham-Ford (the Applicant), a legal practitioner, suffered from phase 4 prostate cancer, had only a few weeks to live, and approached the High Court, Pretoria for an urgent order, relying on the right to human dignity and related rights, to direct a medical practitioner lawfully to perform physician administered euthanasia (PAE) on him (to end his life).
On 30 April 2015 the High Court granted the order, including:
“The Applicant is entitled to be assisted by a qualified medical doctor, who is willing to do so, to end his life …”
“The medical doctor who accedes to the request of the Applicant shall not be acting unlawfully, and hence, shall not be subject to prosecution by [the National Director Of Public Prosecutions] or subject to disciplinary proceedings by the Health Professions Council] for assisting the Applicant.”
On 4 May 2015, the High Court delivered its reasons for granting the order. At the proceedings, the Government brought it to the Judge’s attention that the Applicant had died two hours prior to the High Court granting the order (on 30 April 2015), and applied for the order to be rescinded (recalled). The Judge ruled against the application, on the grounds that his judgment had broader societal implications.
The Government appealed to the Supreme Court of Appeal (SCA). The SCA allowed the appeal on three bases:
– When the Applicant died, his claim, entirely personal to him, ceased to exist and the High Court no longer had any authority to make an order on his application. (It appeared that the fact of his death had probably been intentionally withheld from the Judge on 30 April 2015.)
– The case had been conducted on an urgent basis that resulted in an inadequate record as far as the facts were concerned. (Essentially, the ‘test case’ had not been properly conducted.)
– The High Court had proceeded from an incorrect view of the current state of the law.
The SCA also set out the correct current state of the law. We provide a brief summary.
Neither suicide nor attempted suicide is a crime in South Africa. A person (with the mental and legal capacity to make the decision) may refuse treatment that would otherwise prolong life. If the person lacks such capacities, a family member or treating medical practitioner may apply to Court to authorise the withdrawal of medical treatment or artificial nutrition and hydration.
A person who encourages or assists another to commit or to attempt suicide may, depending on the circumstances, be found guilty of murder (or culpable homicide) or attempted murder, if the person’s actions were performed with criminal intent and there was no break in the chain of causation between their actions and the ultimate death of injury. This also applies to physician assisted euthanasia (PAE).
A ‘mercy killing’ undoubtedly constitutes the crime of murder. The sentence for such a crime, depending on the circumstances, is usually not severe. On a charge of murder, consent of the deceased is not a defence available to the person who brings about the death of the deceased.
A medical practitioner commits no crime by prescribing medication by way of palliative treatment for pain that the practitioner knows will have the effect of hastening the patient’s death. This is referred to as the “double effect”’, where the medication serves the purpose for which it was prescribed, but has potentially detrimental side effects.
In a properly presented test case, a Court may consider whether (or not) to develop the common law (on constitutional grounds) to allow lawful PAE. This will require comprehensive evidence and argument (both of which were not comprehensively dealt with in the High Court). The (conflicting) law in other jurisdictions will also have to be considered.
Regarding the foreign law aspect, the SCA mentioned one further concern:
“South Africa is a very different country facing very different challenges from countries such as [First World countries that are pro PAE]. Those countries and states have sophisticated health care systems and extensive palliative care networks. Comparatively speaking they are wealthy. South Africa is not. Our health care system faces significant challenges dealing with everyday cases. … Regulatory enforcement in many fields is under pressure or completely lacking. … Before a court could be satisfied that the acknowledged risks attendant upon permitting PAE … could be guarded against by way of regulation, … it would need to be satisfied that a proper regulatory framework was, or could be put, in place and that the framework would not be a pious hope designed in a bureaucrat or idealist’s office, but one the functional operations of which had been tested and not found wanting.”