A rights-based approach to physician assisted-suicide in South Africa: towards realizing the ‘right to die’

Abstract

The Constitution protects everyone’s right to life. However, often people become so ill that they desire to terminate their lives to alleviate pain and suffering, through the assistance of medical practitioners. This is known as physician-assisted suicide (PAS), which is currently criminalized in South Africa, and viewed as a violation of the right to life. This article argues that as much as everyone has the right to life, a person’s right to die should be recognized, and incorporated into the legal framework to preserve a person’s dignity. This is predicated on the fact that when a person is terminally ill, their rights to dignity, privacy, and freedom are adversely impaired, equally needing protection. Hence, a person’s autonomous decision-making should permit them to request assistance to die, and such assistance should not constitute murder or culpable homicide. To give full effect to the Constitution’s dignity-orientated rights-based transformative agenda, the judicial interpretation of the law in Suzanne Walter and Others v Minister of Health and Others should result in the decriminalization of PAS. It is argued that in instances of endless palliative care, with no hope of life, consent to be assisted with death should be considered a legitimate constitutional entitlement.

INTRODUCTION

For the past century, rights-based approaches have been instrumental in terms of informing legal developments and advocating for social peace and human wellbeing. It is further ascertainable that rights-based approaches have been prominent because they enforce established normative frameworks that rely on established international covenants and conventions possessing more power¹ to protect living beings, including animals. As much as policymakers have been engaged in rigorous processes of formulating health policies regarding the state’s obligation to fulfil the right to health,² it has become urgent for South Africa’s legislature and policymakers, including the judiciary, to become adequately proactive towards achieving legal certainty on the question of PAS and or euthanasia. This is essential because the continued lack of certainty and hesitation in terms of policy direction and the strengthening of the rights frameworks is slowly becoming a counterforce on rights and enforcement, and enjoyment of fundamental freedoms. Therefore, there is a need to embrace a broader interpretive approach when discussing the right to life, especially in instances where a person endures endless pain and suffering due to terminal illness. Because rights-based approaches are a dominant framework in contemporary social justice movements,³ it is vital for a person who is terminally ill to have a say in terms of what must happen to their life. This article presents a critical perspective that advocates for an expanded conception of a rights-based approach to PAS. It stresses that while it is constitutionally correct to protect the right to life, it is equally important to consider all other rights such as the right to dignity, the right to privacy, the right to health care, and freedom and security, all of which get severely compromised when a person is terminally ill. Of particular importance, the right to dignity, which is at the core of the rights normative value system⁴ suffers immeasurably when a person is in a vegetative or palliative state. If dignity is accepted as a multi-faceted value, whose prime predication is on preserving human worth rather than simply embedding a legal norm in a text,⁵ there has to be an appreciation that living a life where dignity and mental well-being cannot be claimed is meaningless. This article is centred on showing that PAS is the type of death that occurs when a terminally ill⁶ person decides to commit suicide by taking the authorized poisonous medication provided by medical practitioners at the request of such a patient suffering from a fatal illness or an incurable condition.⁷ Section 11 of the Constitution of the Republic of South Africa, 1996 (hereinafter, the Constitution), provides that everyone has the right to life. Owing to this position, any person who supports another person with PAS can be criminally charged, prosecuted, and convicted for murder.⁸

PAS has been a topical issue over the years but to date, calls for decriminalization have not yielded positive outcomes. It is from this premise that this article seeks to contribute some thoughts on the decriminalization of PAS in South Africa. It also argues that decriminalizing PAS will be advantageous to the South African health system as the medical costs incurred in sustaining the life of a person without prospects of a prolonged life will diminish and be redirected to instances where lives can be saved.

This article commences with the context and problematization of PAS, which addresses the need to balance the right to life against the right to dignity. It provides the basis for the problem which arises when a terminally ill patient is confronted with the need to endure intense pain as opposed to opting for assistive mechanisms of ending their lives in order to alleviate the unbearable pain. Subsequent to the context and problematization, the article presents a theoretical framework, which uses the natural law theory in conjunction with the humanist perspective as tools that can be used to assess the viability of the introduction of PAS as an alternative to human suffering. Thereafter, we reflect on legal norms around PAS in South Africa, with some comparative reflections from international jurisdictions such as the Netherlands, which have legalized and regulated PAS, thus opposing reliance on selective practices such as religion to serve as determining factors. In the subsequent sections, the article juxtaposes discussions on the right to life and the right to dignity, with emphasis on case law and the South African Law Commission’s stance on PAS. At the centre of attention, it is argued that being in a vegetative state has a negative impact on the quality of life that the patient can lead and that a narrow interpretation of legal agency should not be deployed to deprive a person’s inherent liberties, including on proposing a PAS.

CONTEXT AND PROBLEMATIZATION

South Africa’s post-1994 Constitution, the premise of its democratic dispensation, and the widely celebrated Bill of Rights, engrained the tenet of improving the quality of life for everyone at the core of its normative value system, and the legislative and policy framework. It is for this reason that the framing of all rights in the Bill of Rights accords with the ideals of safeguarding a better life for all. This was also discernible in the state’s Reconstruction and Development Programme (RDP), which was centred on implementing redress-orientated initiatives towards achieving an improved quality of life for all, particularly the previously disenfranchised citizens. Consistent with Armatya Sen’s perspective on human wellbeing, the post-1994 rights-based values mandated the state to focus particular attention on what people are able to do and achieve, which fundamentally secures individual freedoms for the pursuit of what people consider as their own values and interests. According to Sen, this notion of fundamental freedoms has both intrinsic and instrumental significance. As an intrinsic value, it permits persons to achieve or do or be, thereby becoming a constitutive of the good life, whereas it serves as a means to other ends when viewed as an instrumental value.⁹ As a subsequence, a fundamental question to ask is whether a terminally ill person is capable of enjoying such vectors and whether their quality of life can consistently improve for the better when they are incapable of exercising agency due to a palliative state of health?¹⁰ There is also a need to engage with a dignity construction argument to enquire about the possibility of enjoying the right to dignity in the midst of palliative state of health.

In its preamble, the Constitution proclaims that it is a product that originates from the people, thereby carrying and advancing their aspirations, and which is intended to establish a society guided by democratic values, principles, justice, and fundamental human rights. Encompassed in the foregoing claim is also an ideal of creating an egalitarian democratic dispensation based on the will of the people, and where every citizen enjoys equal protection of the law. Emanating from the aforementioned proclamations is a fundamental commitment to ensure that the law is used to advance social justice by protecting the rights and interests of every person. In this regard, we ponder to enquire if rejecting constant pleas for recognition and legalization of PAS is aligned with the spirit and purport of the Constitution and its overarching rights framework. This is particularly important because South Africa’s criminal law regimes state that any person who participates in the act of practices such as PAS and euthanasia may be a subject of criminal prosecution for murder. In the extreme, section 51(1) of the Criminal Procedure Amendment Act 65 of 2008 goes further to empower the regional court or High Court to impute a life imprisonment sentence against a person convicted of offences associated with PAS or euthanasia. Others have stated that this legal perspective clearly insists on the view that any person who assists another person to commit suicide will be guilty of murder or culpable homicide,¹¹ the effect of which is visible when medical practitioners are confronted with a situation where a terminally ill person makes a request for assisted suicide.

This article identifies the aforementioned provisions as the precursors of the ever-compounding problem. In particular, it is argued that the present legal framework is sustaining the continued pain, physical degradation, and psychological suffering being endured by terminally ill persons, and has resulted in trained medical practitioners being reluctant to intervene for fear of reprisals,¹² even when such requests are supported by close family blood relatives with the necessary legal capacity to do so. We argue that while the legal contestations are raging on, the ultimate autonomy of a person is being compromised, in direct contradiction with the constitutional ideals identified earlier. We further propagate that the court a quo in Stransham-Ford v Minister of Justice and Correctional Services and Others (27401/15) [2015] ZAGPPHC 230 was correct when Judge Fabricius argued that while the right to life is both socially and constitutionally sacrosanct, this does not necessarily imply that a person must be compelled to live irrespective of the debilitating levels associated with the quality of life there is for that person. This case has built a solid foundation for South Africa to begin a process of practically integrating moral issues and social norms into the legal system, and towards fostering a synergy between lived experiences and stringent legal positions. It has created an invaluable opportunity for the legislature and policymakers to start engaging on the subject of PAS and euthanasia in legal, political, cultural, and sociological contexts.¹³ Otherwise, the problem continues.

THEORETICAL FRAMEWORK

There is a raging revolution of thoughts around the question of euthanasia, and South Africa cannot continue to be a passive spectator in the ongoing debate. Although this article generally uses the concept of PAS as a catchphrase, its context is intended to cover a wide range of methods, including both active and passive euthanasia. We are also conscious of the fact that others have advanced arguments that invoke forming legal criteria centred on the concept of Ubuntu as a thesis for the practice of PAS.¹⁴ With its Greek origin being in attempting to confer good death unto a person, euthanasia propagates for allowing a person to exercise such a discretion.¹⁵

This article derived impetus from juxtaposing the natural law theory and the humanist perspective to formulate a theoretical framework. In this article, we are not preoccupied with the supposed limitations of theological speculations¹⁶ associated with Thomas Aquinas’ natural law perspective and the many challenges it encountered, especially from the subsequent proponents of legal positivism. In fact, we are also critical of Aquinas’ linking natural law with some perceptible religious disposition of self. Nonetheless, we focus our attention on pertinent principles espoused in natural law theory to posit progressive legal values that align with universal doctrines of human experience on intolerable human suffering. We concur that natural law theory is predicated on human nature and experiences that are both rational and creative to the point that principles that guide life, and which promote and protect human rationality and human dignity are derived from the philosophically articulated human structure.¹⁷ In this context, we believe that because natural law theory is grounded in human beings possessing natural intellectual capabilities to distinguish between right and wrong, it therefore empowers a terminally ill person to exercise particular human reason to freely determine their fate of life. The natural law theory also emphasizes the point that moral principles defining human nature are universal.¹⁸ One of such preeminent moral principles is that human suffering is deplorable. Further the realization of human dignity is impossible in the midst of human suffering, especially where the psychological wellbeing of a person is also compromised. It is for this reason that global discussions around the concept of euthanasia have been centred on intolerable suffering, which necessitated its legalization in countries such as the Netherlands, Belgium, and Luxembourg.¹⁹ Therefore, because human beings are accepted as rational creatures that are better positioned to interpret the law of nature, why should a terminally ill person not be permitted to use their free will to exercise rational reasoning such as authorizing euthanasia on themselves?

There is also another school of thought comprising secular humanists who have advanced a humanistic perspective on euthanasia. In alignment with the natural law theory, they believe that naturalism has strong theoretical meaning as it is grounded in human experience and that it has an objective basis in approach.²⁰ As a humanist consideration, the Dutch experience insists on obtaining an unambiguous voluntary, and well-thought request from a terminally ill patient for termination of their life.²¹ Therefore, the Dutch make two major ethical considerations when determining a case for euthanasia, to wit; first, they require that the patient must themselves make an autonomous request in their own capacity, and second, that the condition of illness must be so severe that the patient is suffering unbearably and hopelessly.²² This humanist perspective is rooted in the belief that every person has an inherent natural worth and is capable of expressing rational thought.²³ In the context of PAS, the ‘worth’ is in reference to a person’s dignity and psychological wellbeing, and thus posits that dignity must be foundational to considerations that precede their decision on whether or not to terminate their life. It is for this reason that others rely on the humanist perspective to use dignity to demand a universal right to a dignified death.²⁴

In summation of this theoretical framework, we draw two analytical elements that inform discussions in the subsequent parts of the article. First, we believe that natural law theory directs legislators to respect a person’s inherent autonomy and decision-making capabilities. Further, the humanist perspective is central to the debate of ending intolerable suffering through dignity-informed good death.

REFLECTING ON SOUTH AFRICA’S FOUNDATIONAL LEGAL NORM ON PAS

Often medical practitioners are willing to invoke the critical elements of natural law theory and human approach to health care towards allowing their patients to have a say in decision-making affecting their lives, including in instances that involve invoking euthanasia. However, it has been established that the lack of protection for medical practitioners who participate in PAS has created an endless frustration. Being criminally held liable for acts that are characterized as crimes while such acts were/are committed with good intentions may come with unforeseen consequences such as charges for murder or culpable homicide. South Africa’s criminal law still criminalizes PAS, thereby making it difficult for those who are terminally ill to explore the option of exercising the right to die with dignity. While PAS has been regarded as an unacceptable practice based on moral considerations, it is argued that such moral considerations are also capable of strengthening the antihuman suffering perspective that advocates for PAS. In addition to morality and religion being used as determining factors, it has been submitted that the legalization of PAS otherwise contradicts the core objectives of medical practice, which is to preserve the lives and wellbeing of patients.²⁵The criminality of PAS spreads across all African countries. To date, there is no country in Africa that has legalized PAS. But at the international level, PAS is legalized in countries such as Belgium, the Netherlands, Luxembourg, and Switzerland among others.²⁶ Those arguing for PAS to remain criminalized use aspects such as personal beliefs, sex, religion, and the cultural practice they ascribe to as well as the sentimental relationships developed with their terminally ill patients.²⁷ Several Christian scholars have submitted that death should come from God and that the death of that person should not be in the control of another human being.²⁸ In a country where the Constitution safeguards freedom of religion, belief, and opinion,²⁹ the imposition of certain religious beliefs on others should not be a common practice. While those in opposition to PAS hold on to hope for recovery and permitting nature to take its course,³⁰ those in favour of passive euthanasia always consider the pain, the incurability, and the unbearably of the illness at hand based on the humanist perspective. In as much as it is often argued that everyone has the right to life,³¹ the right to dignity³² cannot be separated from the right to life. These two rights ought to be intertwined and read as strengthening each other.

THE CRIMINALIZATION OF PAS AS A QUAGMIRE

We ponder to wonder how the natural law theory and humanist perspective would react to an instance where a person exercises their inherent autonomy to insist on achieving a dignified death as a way of ending intolerable suffering. The crime of murder is defined as ‘the unlawful and intentional causing of the death of another human being’.³³ PAS is regarded as murder since it is an act of a physician unlawfully (…due to the illegality of assisted suicide) and intentionally causes the patient to die by administering a lethal substance to the patient. All the elements of murder are present in PAS thus making it a crime that can be prosecuted. PAS ultimately leads to murder in many ways than one. For example, where an affected family member can prove that the death of the deceased was a result of a substance that he or she administered, upon investigation, the physician in question may be tried and ultimately prosecuted for murder. In severe cases, the physician may be charged with premeditated murder. The term ‘premeditated’ is not defined in the Criminal Law Amendment Act.³⁴ However, the definition has been grappled by the legislature in several cases.³⁵ The case of S v Raath³⁶ is one such case where the court had to rely on a dictionary definition of the word ‘premeditated’.³⁷ In paragraph 16C, the following was said about the term,

‘The concept of a planned or premeditated murder is not statutorily defined. We were not referred to, and nor was I able to find, any authoritative pronouncement in our case law concerning this concept. By and large it would seem that the question of whether a murder was planned or premeditated has been dealt with by the court on a casuistic basis. The Concise Oxford English Dictionary 10 ed, revised, gives the meaning of premeditated as “to think out or plan beforehand” whilst “to plan” is given as meaning “to decide on, arrange in advance, make preparations for an anticipated event or time”’.

The fact that there are talks between the patient and the physician before the ‘killing’ takes place with PAS makes it a premeditated murder. If it can be proven that the physician planned to end the life of the terminally ill patient, and in an unfortunate occurrence, the physician may even be convicted of premeditated murder instead of murder.

Based on the above legal context, PAS is criminalized because the death is caused by a direct act of killing a patient by a medical practitioner. Section 98 of the Criminal Procedure Act. (‘CPA’) reads as follows, “it shall be sufficient in a charge of murder to allege that the accused unlawfully and intentionally killed the deceased, and it shall be sufficient in a charge of culpable homicide to allege that the accused unlawfully killed the deceased.” The CPA lays out the position when one takes the life of another and this is, with or without consent. Any person who kills another person is charged with murder or culpable homicide.

Section 54 of the Criminal Law Amendment Act (CLAA) contains the Schedule of offences and provides that when murder is planned or premeditated, it forms part of Part 1 of Schedule 2 of offences. Assisted suicide contains elements of premeditated murder and thus, is subject to section 51(1) of the CLAA which states that notwithstanding any other law, but subject to subsections (3) and (6), a Regional Court or a High Court shall sentence a person it has convicted of an offence referred to in Part 1 of Schedule 2 to imprisonment for life. Presently, South African law states that when a person directly or indirectly takes the life of another person away, such a person should be charged with murder. The challenge with PAS ensues because the intention was not to ‘murder’ the patient but to alleviate the pain that the terminally ill person endures considering that the aim of legalizing PAS is not to grant the medical practitioners an advantage for them to neglect their duties to provide care and not harm.

According to the South African Law Commission, worldwide increased importance of euthanasia has been attached to the patient’s independence as a critical element of natural law theory. The necessity has consequently ascended to deliberate the defense of a psychologically capable patient’s right to refuse medical treatment or to be given support, in ending his life by using or providing a poisonous ingredient to the patient. It leaves those who are terminally ill in a state of doubt that can only cause more misery. Euthanasia is unlawful under the South African law. It is regarded as murder and exceptions are considered when dealing with it. South Africa still faces a strong challenge regarding the practice of PAS because of the lack of codified laws that directly prohibit assisted suicide. There currently exist issues with the framework of South African law regarding the PAS. The Netherlands for example, has statutory provisions in place that regulate PAS whereas South Africa still only relies on common law in very exceptional circumstances. The same common law tends to be unclear and quite misleading to most people who may need assisted suicide, or those who face criminal charges for the act.

THE RIGHT TO LIFE AND RIGHT TO DIGNITY vs RIGHT TO DIE

Lukhaimane argues that everyone has the right to life, but one may need to ask what is meant by life. The mere existence of a heartbeat is not adequate to assess the existence of life. For patients who are terminally ill and those who are in a possible perpetual vegetative state, the quality of their lives in the future should also be set up for deliberation. Death is one of the most major events that every person must go through. Hence, choosing to die should be at ease. The Constitution provides for everyone’s right to life. On the other hand, it also provides that everyone has intrinsic dignity as well as the right to have his dignity appreciated and nurtured. People affected by a terminal illness may find that artificial preservation of the right to life may be degrading to their dignity as it may make them feel like they are being reduced to scientific experiments ‘subjected to treatment after treatment in the hopeless quest for a continued heartbeat’. A dying person does not lose their sense of life just because they are ill, subsequently, it will be found that dying without dignity may also have the effect of living without dignity.

On the other hand, Section 10 of the Constitution provides for inherent dignity and the duty to have dignity protected. According to Steinmann, dignity as a right can also conflict with other constitutional rights, such as with the right to life in cases of the death penalty, assisted suicide, and abortion. In affirming Section 10 of the Constitution and a humanist perspective, it is asserted that people who have an incurable condition should be allowed to die with dignity. A person’s dignity is invaded when a terminally ill patient is unable to choose whether his life should be ended because of the dishonour in his continued suffering.

In the Stransham-Ford case (2015) Mr. Stransham-Ford’s right to dignity formed the basis of and overlapped with the right to freedom and security of the person. This right underscored the common law principle, which endorses a patient’s autonomous decisions in the framework of informed consent to choose or refuse treatment. The court held that a person’s decision on when to end life is a manifestation of their sense of dignity and personal integrity. By legalizing euthanasia, terminally ill patients will also be able to enjoy their right to bodily and physical integrity in the same way as expectant mothers can make their own free decisions regarding the termination of pregnancy. It was highlighted in the Makwanyane case that, life and dignity are regarded as the two most important human rights that should be valued above all others, as a result thereof, this raised the prospect that the right to life should be interpreted to mean a life with dignity. A patient’s dignity is to be appreciated and secured by everyone, including the state, by allowing patients to choose assisted suicide. Dignity is infringed when a terminally ill patient cannot choose to have his life terminated because of legal prohibitions to do so. It is not life as a mere biological matter that the Constitution protects, but the right to life: the right to live as a human being, to be part of a broader community, and to share in the experience of humanity. The right to life, thus understood, incorporates the right to dignity. The right to human dignity and life are entwined. The right to life is more than existence; it is a right to be treated as a human being with dignity (National Coalition for Gay and Lesbian v Minister of Justice, 1999).

STRANSHAM-FORD V MINISTER OF JUSTICE AND CORRECTIONAL SERVICES AND OTHERS

The Applicant in this matter was a 65-year-old male. In February 2013, the Applicant was diagnosed with prostate cancer. Since March of that year, the applicant’s quality of life deteriorated even more. The applicant knew that he was approaching death and stated in his founding affidavit that he suffered from inter alia severe pain, increased blood pressure, and weakness and frailty which were related to the metastasis of his kidneys. He was bed-bound and relied heavily on morphine. He was reliant on others to perform normal daily activities such as brushing his teeth, and it was clear that his condition would only worsen with time. The disease was terminal, and relying on the medical diagnosis, the applicant had only a short time to live, as a result, he applied for permission to have his life terminated through PAS. In accordance with the Dutch perspective, this case would have fulfilled the two mandatory requirements where the patient is required to exercise autonomy and request PAS, and secondly, due to intolerable illness causing him unbearable suffering.

Judge Fabricius opined that there is no logic in refusing to help a person terminate his life if he or she feels that it is unbearable to live under such indignifying conditions. People should not be restricted from terminating their lives the moment they reach a stage where they feel that continued existence is demeaning to their dignity. The right to life is not absolute and may be limited in terms of Section 36. However, given the importance of the right and the total and irremediable negation of it caused by an infringement, the justification for a limitation would have to be exceptionally compelling. Although this case had strong prospects of developing the law in this regard, however, Mr Stransham-ford died before it could be carried through.

SOUTH AFRICAN LAW COMMISSION

In 1999, the then South African Law Commission (SALC) completed and submitted a report to the Minister of Health, which contained recommendations regarding end-of-life decisions, the treatment of terminally ill patients, and a Draft Bill on Euthanasia. The SALRC investigated to determine whether there was a need to legislate assisted suicide. The results indicated that most respondents recommended that formal legislation be adopted to remove legal uncertainty for medical practitioners, patients, and families.

The report by the South African Law Commission (now known as the South African Law Reform Council, ‘SALRC’) was scheduled before parliament on 2nd March 2000. Twenty-five years later, there has been acute indecisiveness because there has not been a proposed bill towards forming a clear legal framework. Perhaps the delay may be due to the sensitivity and delicate nature of the subject. In November 1998, the South African Law Commission drafted the report termed Project 86 proposing the legislation and legalisation of euthanasia and assisted suicide in South Africa. This report contains the recommendations that were made by the Commission on the enactment of legislation to give effect to the following principles:

• a) A medical practitioner may be authorized in exceptional circumstances to cease medical treatment of a patient whose life is continuously being preserved artificially while such a patient does not have the proper functioning respiratory ability or where the brain appears to be unable to perform its functions;

• b) A mentally capable person may be allowed to refuse any medical treatment that is intended to sustain his life about an illness that he or she may be suffering from even though such a person is aware that such refusal may cause him or her to die sooner than he or she would have had the medical treatment been continued;

• c) A medical practitioner or a nurse (in exceptional circumstances) may be authorized to assist in relieving the pain of a terminally ill person by supplying such a patient with pain-killing medication even though such a medical practitioner.

• d) or nurse is aware that the side effects of such painkillers may cause the death of such a patient;

• e) A medical practitioner may be authorized in exceptional circumstances to endure a power of attorney of a patient or to give effect to a directive regarding the ceasing or refusing of medical treatment or administration of palliative care only in situations wherein the patient has issued such instructions while still mentally fit to do so;

• f) A medical practitioner may be authorized in exceptional circumstances to suspend medical treatment for terminally ill patients who are at that time unable to make valid decisions regarding their medical treatment on condition that such conduct is in line with the desires of the terminally ill patient’s family members or otherwise under the authority of a court order.

According to the Report, should a medical practitioner be requested by a patient to make an end to the patient’s suffering, or to enable the patient to make an end to his suffering by way of administering or providing some or other lethal agent, the medical practitioner shall give effect to the request if he or she is satisfied that such a patient is terminally ill, that he or she is above the age of majority and mentally fit, that this terminally ill patient has been advised about his illness and its prediction thereof (whether it is treatable or not), the terminally ill patient has made the request based on a free and voluntary decision. Furthermore, this patient’s request should have been repeated consistently at least 7 days apart the last part being at least 72 hours before the medical practitioner gives effect to the request, the patient or any person acting on his behalf must have signed a certificate of request asking the medical practitioner to assist him or her in ending his life and the medical practitioner must have witnessed the patient’s or his representative’s signature on the certificate of request. There must be an interpreter, fluent in the language that the patient understands to facilitate communication between the patient and the medical practitioner, and ending such a patient’s life should be the only way of saving the patient from unbearable pain.

A medical practitioner giving effect to a patient’s request to be released from pain as contemplated in this section shall not suffer any civil, criminal, or disciplinary liability about such an act provided that all due procedural measures have been complied with. The Commission reasoned that the arguments in favour of legalizing the types of euthanasia are insufficient to weaken society’s prohibitions of intentional killing in a manner that would be impossible to establish sufficient safeguards to prevent abuse. The Report by the South African Law Commission reiterates the point that death is no longer a natural event, and most patients die in institutional settings. Nonetheless, the solution proposed by the South African Law Reform Commission is sound and relevant. The development of stringent, procedural safeguards and the involvement of the relevant stakeholders, for example, patients, family, medical experts, and policymakers, will enable reasonable legislation to be put in place to deal with the uncertainties that currently plague society.

TOWARDS A REALIZATION OF THE RIGHT TO DIE: SEEKING THE HUMANIST JUDICIARY

In May 2015, South Africa gave assisted suicide a positive recognition. For the first time, the High Court in Pretoria gave a terminally ill patient permission to end his life with the help of a medical practitioner. Until May 2015, a medical practitioner who provided a patient with fatal medication, or who himself administered such injection to the patient, could be convicted of murder. This position was shortly overturned. In December 2016, the Supreme Court of Appeal (SCA) rejected assisted suicide by overturning a lower court’s decision that approved the death of Robin Stransham-Ford via assisted suicide (Minister of Justice and Correctional Services and Others v Estate Late James Stransham-Ford and Others, 2017 para. 197) (hereinafter referred to as the Stransham-Ford case). The basis for overturning the decision was that the applicant died before the court could pronounce the matter.

In 1998, the South African Law Commission attempted to redress the ambiguity and lack of clarity regarding the criminal position relating to PAS in South Africa with their Project 86 which was drafted to legalize PAS and further afford medical practitioners the protection from the risk of criminal responsibility (South African Law Commission Law Report, 1998). Since its publication, over 25 years ago, South African authorities have been silent on the issue while medical practitioners endure the uncertainty. The medical practitioners, who assist their patients with ending their lives continue to run the risk of criminal liability where assisted suicide features.

Although the law seems to cover the question of refusal to consent to life-prolonging treatment by mentally competent patients, the South African Law Commission has suggested that any uncertainty could be removed by the introduction of legislation that should contain a clause stipulating that, “every person (a) above the age of 18 years and of sound mind, or (b) above the age of 14 years, sound mind and assisted by his parents or guardian, is competent to refuse any life-sustaining medical treatment or the continuation of such treatment about any specific illness from which he or she may be suffering.³⁸ Where it can be found to be clear to the medical practitioner under whose treatment or care the person who is being refused treatment as contemplated in subsection (1) is, that such a person’s rejection is based on the unrestricted and prudently considered exercising of his own will, he or she shall give effect to such person’s rejection even although it may cause the death or the hastening of the death of such a person.

LEGAL CAPACITY AS A DETERMINANT IN PAS CASES

There is a need to consider and understand the likely implications of the requirement of legal capacity when it comes to contracting and or decision-making concerning PAS. This is because while we advocate for its legalization, we also appreciate that there can be fundamental legal impediments needing substantive justification for it to pass. While the dominant focus is usually on the unbearability of physical pain, terminal illness can also have a serious effect on a person’s mental capacity. Often depending on the severity of the terminal illness, the patient may find that their mental capacity is altered, and they are unable to make sound decisions. It is now trite law that South Africa’s legal prescripts require all persons to have adequate legal capacity in order to enter into contracts. It is required that a person must be of sound mind, amongst others, in order to conclude valid legal transactions. Others describe this as a necessary legal agency,³⁹ which must be satisfied in order for a decision to be accepted as justifiable. An important legal question is whether a person who is in a state of unbearable pain possesses the legal agency or mental capacity to make such a crucial decision. Further, whether a decision that is made under the influence of pain and suffering is legally protected and enforceable. In this regard, Article 12 of the Convention on the Rights of Persons with Disabilities serves a fundamental purpose of protecting the decision-making capabilities of persons whose physical or mental capacity is challenged. It assists in ensuring that no person is deprived of the right to legal capacity, including their ability to exercise legal agency.⁴⁰

With respect to PAS, mental incapacity occurs when the patient lacks sufficient understanding and will to autonomously, fully, and effectively govern themselves, regardless of whether support measures for the exercise of their legal capacity exist or have been adopted.⁴¹ Because the exercise of PAS is one of the most crucial decisions a person may ever have to make, some requirements must always be satisfied. Amongst the main requirements is that the requesting patient must be mentally capable of making sound decisions. Even though there is currently no available data on mental capacity relating to the exercise of PAS, it cannot be denied that cases of assisted suicide for persons having a history of mental illness may pose a threat to the legitimacy of the action undertaken or about to be undertaken,⁴² which necessitates the need to have different practitioners working together to conclude that the requesting patient is indeed in the right state of mind when approving the request. For PAS to pass, qualified professionals with expertise in psychology, medical sciences, and human anatomy must be brought in to present varied perspectives that help with a sound conclusion. The law should make it peremptory that once it is determined that the requesting patient lacks the necessary mental capabilities to make such a call, then the request may be set aside.⁴³

DEVELOPMENTS SINCE THE STRANSHAMFORD CASE

In August 2023, an ongoing case on legalizing PAS was brought to light when Diethelm Harck and Suzanne Walters (Suzanne Walter and Others v Minister of Health and Others), who are both terminally ill approached the South Gauteng High Court for an order to be allowed access to the right to die. Harck who suffered from Motor Neuron Disease (MND) and Walters who suffered from multiple myeloma since 2017 made an application for PAS. One of the goals they had was to develop a common law in South Africa to legalize both PAS and physician-assisted euthanasia (PAE) where the medical practitioner administers any lethal medicine to end a life. The application was opposed by the Health Professions Council of South Africa (HPCSA) and the Ministers of Health, Justice, and the National Director of Public Prosecutions claiming that palliative care, which is available to most South Africans, alleviates suffering and a continued ban on assisted suicide was necessary to protect the right to life. The submission by the Applicants was that ‘their constitutional right to dignity, right to life, right to freedom and security of the person, and right not to be treated in a cruel, inhuman, or degrading way is infringed by the common law position that prohibits PAS’ They wished to see the common law prohibition of PAS declared unconstitutional. Furthermore, they sought an order for the HPCSA to amend their rules against PAS and for the Legislature to enact legislation to give effect to the Applicants’ right to self-determination. It is hoped that upon the finalization of this ongoing case, the HPCSA will make the necessary amendments, and new legislation will be enacted legalizing PAS.

CONCLUSION

In this article, it was shown that the practice of PAS and or euthanasia remains outlawed in South Africa. It is also shown that PAS, however, do find adequate theoretical support from the ancient practices that resonated with the natural law theory, Article 12 of the Convention on the Rights of Persons with Disabilities and the humanist perspective. It was further revealed that in other jurisdictions such as the Netherlands, PAS and or euthanasia have long been legalized because it is held that they assist in upholding the principles outlined in natural law theory and Article 12 of the CRPD with regard to a person’s autonomy in terms of decision-making and in ending people’s unbearable suffering in times of terminal illness. South Africa’s litigious context continues to attract interest from a variety of stakeholders. The Stranshamford case was the first attempt towards legalizing PAS, and towards strengthening the existing jurisprudence on a person’s legal capacity to opt for termination of their own life. In the ongoing matter between Suzanne Walter and Others v Minister of Health and Others, it is hoped that the judiciary will adopt an all-encompassing constitutional interpretation that appreciates the significance of prioritizing a person’s autonomy as propagated through the natural law theory. It is also hoped that the judiciary will favour a humanist perspective that is centered on balancing the right to life with the right to dignity. This is fundamental because life that lacks dignity is not sustainable. It is also recommended that the legislature should consider the longstanding proposed framework of the SALRC which remains relevant and is intended to assist the process of providing legislative clarity. Once the legislature completes a normative framework, it will be easier for medical practitioners and secular humanists to apply PAS and or euthanasia as practices that are ethically justified. Because legal capacity is an important determinant in a person’s capacity to contract, we propose a three-phased approach that involves, first, interpreting and applying the transcending legal norms espoused in Article 12 of CRDP; second, the application of natural law theory’s element of reason which empowers a person to make essential life choices, and third, a psychological assessment that must be conducted by qualified professionals with the relevant expertise. Such an assessment must emphasize the need to ascertain that the requesting patient is capable of fathoming with such a crucial decision.

Footnotes