End of Life Decisions in South Africa – Part 1

“Life is dependent on the will of others, death on ours.”[1]

Introduction

In 1998 the South African Law Commission, after extensive consultation with stakeholders, put forward a report entitled “Euthanasia and the artificial preservation of life” (“the Report”) [2]. The Minister of Health declared that it was a report that favoured the rich [3]. It was declared that the Report, as well as the Bill it contained, was not a priority. However, the Report became relevant again in a recent Court decision.

The Constitution mandates bringing the common law into line with its norms and standards. In this case, the Court did develop the common law by handing down a judgment which makes assisted suicide possible.

The Court noted that at present assisted suicide or active voluntary euthanasia is unlawful.[4] A point that continues to be of interest is the actual content of “active”[5]. The Court recognised and relies upon Section 39, “Interpretation of the Bill of Rights”,[6] in its decision to develop the Common Law.[7]

The Background

On 17 April 2015 Mr RJ Stransham-Ford (“the Applicant”) brought an application asking for, inter alia, the following:

1. that the Applicant may request that a medical practitioner assist in ending his life;

2. that the medical practitioner not be held accountable and shall be free from any civil, criminal or disciplinary liability;

3. that the common law be developed in line with the constitution to give effect to the Applicant’s wishes.

On 20 April 2015 the Departments of Justice and Health as well as the National Director of Public Prosecutions (“the Respondents”) opposed the application. On the eve of the hearing the Court heard arguments from Doctors for Life and Cause for Justice (“the amici”) as to their involvement as amici in the matter and they were admitted to the proceedings. One of the immediate concerns raised by the Minister of Health was that the precedent would create the situation in which family members would collude with doctors and have a life ended for the financial benefit that would accrue to them.[8]

The matter was heard on 29 April 2015 and the Court made an order on 30 April 2015, inter alia, the following order (“the Order”):

1. the Applicant is entitled to be assisted by a willing and qualified medical practitioner in ending his life;

2. the medical practitioner will not be considered to be acting unlawfully and will thus not be subject to prosecution or disciplinary proceedings by the respective Respondents.

On 4 May 2015 the Court handed down reasons in the matter (“the Judgment”)[9]. It established the following principles:

Public opinion not relevant

At para 19 the Court noted that the “applicant’s Counsel submitted that the Commission’s approach and the community’s opinion was of limited value only and the ultimate question for determination was not what the public opined, but rather, what the Constitution provided”.

A Case-by-case approach

The Court stated that until such time as there was legislative intervention, cases of this nature would be decided upon by the Courts on a case-by-case basis:

“…I agree that there should be minimum safeguards in any given context, but at the end of the day each case must be decided on its own merits, and I am sure that any envisaged legislation will provide for sufficient safeguards to be applied depending on the circumstances of each individual sufferer. Any future Court will also determine the necessary safeguards on its own facts” [10].

The minimum safeguards would necessitate a context in which assisted suicide may lawfully occur.

Capacity of the applicant

The Court noted that this matter is dealt with strictly on the merits before it. However, to reinforce the notion of a requisite capacity the Court stated at para 2 that “this to indicate that I am dealing with an Applicant who is highly qualified, of vast experience also in the legal profession, and who knows exactly what he requires and why”[11].

The importance of dignity

At para 12 the Court begins its analysis of the Applicant’s claims to “Freedom, security and control to die with dignity”. The Court notes the argument put forward that the values enshrined in our Constitution need to be considered and determined objectively. The Court, however, held that in line with the Constitutional Jurisprudence that the rights enjoyed by individuals in terms of the Bill of Rights were “subjective rights”[12].

The Court makes a valuable statement regarding dignity[13]:

“[T]he concept requires us to acknowledge the value and worth of all individuals as members of society. It is the source of a person’s innate rights to freedom and to physical integrity, from which a number of other rights flow, such as the right to bodily integrity. It is my view also that persons must be regarded as recipients of rights and not objects of statutory mechanisms without any say in the matter…‘human dignity is not only a justiciable and enforceable right that must be respected and protected, it is also a value that informs the interpretation of possibly all other fundamental rights and it is further of central significance in the limitations enquiry.’”

The Court reiterates the importance of dignity by noting at para 18 that:

“…I agree therefore with Applicant’s Counsel that it should not be for the State to say as the Third Respondent did, that it was not a matter of dignity at all, and that the Applicant had other options at his disposal in the context of well-managed palliative care. The author of the Opposing Affidavit of the Third Respondent obviously did not keep in mind that a decision of a person on how to cease to live was in many instances a decision very important to their own sense of dignity and personal integrity, and that was consistent with their lifelong values and that reflected their life’s experience.”

Clarification of the right to life

At para 12 the Court, in emphasising that the “right to life must be a life worth living”, quotes O’Regan J in S v Makwanyane 1995 (3) SA 391 (CC):

“the right to life is, in one sense, antecedent to all other rights in the Constitution. Without life in the sense of existence, it would not be possible to exercise rights or to be the bearer of them. The right to life is central to such a society. The right to life, thus understood, incorporates the right to dignity. So the rights to dignity and to life are intertwined. The right to life is more than existence, it is a right to be treated as a human being with dignity: without dignity, human life is substantially diminished. Without life, there cannot be dignity.”

At para 14 the Court reaffirms that the “sacredness of the quality of life should be accentuated rather than the sacredness of life per se, contrary to what Counsel for the Respondents and the amici submitted”. A notion that is further elaborated on at para 23 where the Court states:

“This provision safeguards a person’s right vis-à-vis the State and society. It cannot mean that an individual is obliged to live, no matter what the quality of his life is.”

Conclusion

The Order enables the Applicant to request assistance from a medical practitioner and that they cannot be held civilly or criminally accountable, although the Court states that the medical practitioner need not accede to such a request [14].

This Judgement changes the law, especially in relation to the medical profession. In doing so, it has not been swayed by general arguments by the State deciding what is in society’s best interest. Individual circumstances are what will count.

Chris Pieters and Arvitha Doodnath are Legal Researchers at the Helen Suzman Foundation.

This article first appeared as an HSF Brief. 

Footnotes:

1. At para 14 the Court notes that “dying is part of life, it is completion rather than its opposite. We can, however, influence the manner in which we come to terms with our mortality.”

2. The South African Law Commission released the Report as well as a Media Release.

3. W A Landman – “End-of-life decisions, ethics and the law: A case for statutory legal clarity and reform in South Africa” Page 18 fn 5.

4. at para 10

5. See BDLive report where the author, from the perspective of palliative care, notes what constitutes “active” as opposed to “palliative” euthanasia.

6. The Constitution of the Republic of South Africa Act 108 of 1998 (“the Constitution”).

7. at para 12 “In a post-constitutional era, the law requires development to give effect to Applicant’s constitutional rights.”

8. See here

9. See here

10. at para 17

11. The provisions of the Order include capacity as part of it.

12. at para 12 Reference to the Constitutional Court’s ruling in Carmichele

13. at para 12.

14. This, however, is not the sentiment of the South African Medical Association who have warned their members that they face disciplinary procedures should they assist their patients in this manner.