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Judge’s ruling in assisted suicide case divides South Africa
Read an article, preceding the current events, which was published by Nomfundo Manyathi-Jele at De Rebus, the South African Attorneys’ Journal on June 1st, 2015.
Stransham-Ford v Minister of Justice and Correctional Services and Others (GP) (unreported case no 27401/15, 4-5-2015) (Fabricius J)
The court order allowing advocate Robin Stransham-Ford to ask a doctor to help him end his life, and also declaring that the doctor who did so would not be acting illegally, will not be rescinded, even though he died two hours before the order was granted. This is according to Judge Hans Fabricius who turned down an application by the Justice and Health Ministers, the National Director of Public Prosecution and the Health Professions Council of South Africa (HPCSA) to rescind the order he granted on 30 April.
Mr Stransham-Ford was a 65-year-old man who was dying of prostate cancer. He had asked the court to determine whether a doctor could legally assist him end his life.
Counsel for the respondents argued that Mr Stransham-Ford had died before the order was granted, which meant that his rights had fallen away and that the court order was moot. Counsel for the HPCSA, advocate Harry van Bergen, argued that the person was not alive when the order was granted, therefore, the rights on which he relied did not exist when the order was granted and the application was not brought as a class action or on behalf of an interested party. He argued that the applicant’s lawyers ‘were shifting the goal posts’ because they were now taking the application beyond the boundaries of the original application.
Judge Fabricius turned down the application saying his ruling established a cause of action under the common law where no cause of action existed before. He said that none of the parties were aware that the applicant had died at the time when the ruling was handed down adding that the order would have a practical effect on other parties, because they would now be entitled to approach the court.
Judge Fabricius said the Constitutional Court and Parliament should reconsider the issue of legalising assisted suicide.
The applicant, Mr Stransham-Ford was an unmarried 65-year-old male practicing advocate of the High Court and lived in Cape Town. He held a number of law degrees, had an MBA as well as a number of other diplomas. He had been an advocate for approximately 35 years and was admitted as an advocate of the High Court of South Africa in 2001.
Mr Stransham-Ford lived and worked all over the world. He leaves behind four children, two sons and two daughters, aged between 38 and 12 years who also made a confirmatory affidavit in the assisted suicide proceedings. Judge Fabricius said the applicant was highly qualified, had vast experience in the legal profession and knew exactly what he required and why.
A clinical psychologist also provided a report where she stated that the applicant was well engaged in the interview and that she found no cognitive impairments. She said there was no evidence of any psychiatric disorder and she was particularly impressed as he was totally rational. In her report, she specifically highlighted that the applicant displayed a good understanding and appreciation of the nature, cause and prognosis of his illness and the clinical, ethical and legal aspects of assisted suicide.
Purpose of court application
In his founding affidavit Mr Stransham-Ford said the purpose of the application was to have judicial oversight and to obtain a court order:
- Giving effect to his fundamental rights to
- human dignity;
- not to be treated in a cruel, inhuman or degrading way; and
- bodily and psychological integrity.
- Declaring that he may request a medical practitioner to end his life or to enable him to end his own life by the administration or provision of a lethal agent, if and when he chooses to do so.
- Declaring that the medical practitioner who administers or provides the lethal agent to him shall not be held accountable and shall be free from any civil, criminal or disciplinary liability that may have arisen from the administration or provision of the lethal agent to him or the cessation of his life.
- To the extent required developing the common law, by declaring the conduct lawful and constitutional in the circumstances of this matter.
The applicant said he was not afraid of dying, but was afraid of dying while suffering.
The current legal position is that assisted suicide or active voluntary euthanasia is unlawful. Judge Fabricius said a development of the law was required. He said the applicant and his counsel relied on section 39 of the Constitution which reads:
‘Interpretation of Bill of Rights
(1) When interpreting the Bill of Rights, a court, tribunal or forum –
(a) must promote the values that underlie an open and democratic society based on human dignity, equality and freedom;
(b) must consider international law; and
(c) may consider foreign law.
(2) When interpreting any legislation, and when developing the common or customary law, every court, tribunal or forum must promote the spirit, purport the objects of the Bill of Rights.’
Section 8(3) of the Constitution states that:
‘When applying a provision of the Bill of Rights to a natural or juristic person in terms of subsection (2), a court –
(a) in order to give effect to a right in the Bill, must apply, or if necessary develop, the common law to the extent that legislation does not give effect to that right; and
(b) may develop rules of the common law to limit the right, provided the limitation is in accordance with section 36(1).’
The applicant also relied on a couple of provisions of the Constitution and in particular the Bill of Rights, which speaks on human dignity, equality and freedom. Section 10 states that:
‘Everyone has inherent dignity and the right to have their dignity respected and protected.’
The applicant’s counsel submitted that from a philosophical point of view there was no difference between assisted suicide by providing the sufferer with a lethal agent or by switching off a life supporting device, or the injecting of a strong dose of morphine with the intent to relieve pain and knowing that the respiratory system will probably close and death will result. In his affidavit the applicant said there was no logical ethical distinction between the withdrawing of treatment to allow ‘the natural process of death’ and physician-assisted death. He also called this distinction ‘intellectually dishonest’.
The South African Law Commission – Project 86
Also in his affidavit, Mr Stransham-Ford referred to the South African Law Commission’s (SALC) discussion paper 71 (Project 86) on Euthanasia and the Artificial Preservation of Life, and the proposed legislation that the Commission submitted to the Minister of Health. One of the options on the paper was that a medical practitioner would be allowed to carry out a patient’s request to die. Certain safeguards were recommended, namely, that the patient had to be terminally ill, subjected to extreme suffering but mentally competent. A second independent medical practitioner would have to confirm the diagnosis and the findings also had to be recorded in writing. The request must, therefore, be based on an informed and well considered decision and the patient had to make this request repeatedly. In this context, the authors of the paper say that from a constitutional perspective, the SALC’s proposal does seem to strike a proper balance between the state’s duty to protect life and the person’s right (derived from the rights to physical and psychological integrity and to dignity) to end his or her life.
Judge Fabricius also pointed out that the Commission said that the Department of Health had in principle agreed with its proposed legislation legalising euthanasia. ‘In the absence of legislation, which is the government’s prerogative, any other court will scrupulously scrutinise the facts before it, and will determine on a case-by-case basis, whether any safeguards against abuse are sufficient,’ he said.
Judge Fabricius said he did not think it was necessary for the applicant to say who the doctor would be, when he would die, and what lethal agent he would acquire, adding that that is private and a facet of his own dignity.
It was also submitted that the current legal position was of course established in a pre-constitutional era. In a post-constitutional era, the law requires development to give effect to the applicant’s constitutional rights. Judge Fabricius said he agreed with this and added that his decision and reasons were based on that premise.
Judge Fabricius said having regard to the details put before him in the affidavits and the submissions made by his counsel, he agreed that there was no dignity in:
- having severe pain all over one’s body;
- being dulled with opioid medication;
- being unaware of your surroundings and loved ones;
- being confused and dissociative;
- being unable to care for one’s own hygiene;
- dying in a hospital or hospice away from the familiarity of one’s own home;
- dying, at any moment, in a dissociative state unaware of one’s loved ones being there to say good bye.
Humanity of euthanasia to cease unbearable suffering
Speaking on this topic following the applicant’s head of argument, Judge Fabricius said it was submitted, with reference to the humane treatment of animals, that it has long been recognised as humane to euthanise a severely injured or diseased animal. This is provided for in section 2(1)(e) of the Animals Protection Act 71 of 1962 read with sections 5(1) and 8(1)(d). ‘It is clear from these provisions that the owner of an animal is obliged to destroy such animal which is seriously injured or diseased or in such a physical condition that to prolong its life would be cruel and would cause such animal unnecessary suffering. The applicant therefore says that it is universally accepted that to permit an injured or sick animal to suffer is not only merciless and cruel but is also a crime. He asked why the same dignity could not be accorded to him.’
According to the judgment, the applicant’s counsel pointed out that there are at least 11 foreign countries or states in which assisted suicide or active voluntary euthanasia is not unlawful, namely, Albania, Belgium, Canada, Columbia, Luxembourg, the Netherlands, Switzerland, Oregon, Vermont, Washington, New Mexico and Montana.
According to the judgment, the affidavit on behalf of the first respondent was made by an Acting Chief Director: Legal Services. He referred to the SALC’s report. Apart from saying that the report was handed to the Minister of Health in 1999, and was not attended to because other issues of national importance, which required prioritisation such as HIV and the AIDS epidemic, he did not say why the report was not given legislative attention since then. He said the conduct of a medical doctor who provided the assistance sought, would amount to a criminal offence. He denied that the applicant’s right to dignity was involved in the present context. He also said the application ought to be dismissed because if it were granted, it would be tantamount to promoting inequalities and discrimination of the poor by way of limiting access to the courts to the rich only, which would be in violation of the constitutional guarantee of the poor to access the courts.
‘I do not understand this argument in the present context. It is not relevant, but may be relevant in other future cases if no objective safeguards are put in place either by a court in any particular instance or by way of legislation. For present purposes, this argument is irrelevant. I would have preferred the view of the Minister of Justice in the present application and what he intended doing about the proposals contained in the commission’s report or, at the very least what the government’s present policy was in this particular context. I understand however, that because of the urgency of this matter, his considered view was probably not able to be obtained timeously,’ said Judge Fabricius.
Representative of the fourth respondent, the National Director of Public Prosecution, said assisted suicide was a crime. The third respondent disputed that the applicant’s condition constituted a violation of his human right to dignity, or that he was at present being treated in an inhumane or degrading way. ‘The sad reality was, so it was put, that the applicant suffers from a condition which may impact on his dignity, as it may on numerous persons who die of causes both natural and otherwise. It is clear that the applicant’s dignity was not infringed, because his view was merely subjective. In the first respondent’s answering affidavit it was denied that the manner of death as outlined by the applicant was not dignified. It was also said that this was the applicant’s own subjective view. I was almost shocked when I read this although I am not easily shocked anymore having regard to my 40 years’ experience in litigation,’ said Judge Fabricius.
The applicant highlighted the fact that there could be no logical or justifiable distinction between the withdrawal of life sustaining or prolonging medical treatment and active voluntary euthanasia or assisted suicide. He said the main intention for the medical practitioner remains to ensure the patient’s quality of life and dignity. The secondary result, namely death or the hastening of death, is exactly the same in both instances.
‘I agree that that is so. On behalf of the applicant it was therefore submitted that where a doctor withdraws life sustaining or life prolonging treatment, he or she knows that the result would be a hastening of the patient’s death, which a doctor could have avoided, yet reconciled himself or herself with the result and still acted accordingly. Is this not a good example of dolus eventualis? Where life sustaining or life prolonging treatment has been administered and is subsequently withdrawn, the act of withdrawal is nonetheless a commission – it remains an active and positive step taken by the medical staff directly causing the death of the patient. It is accepted that such medical treatment may be refused from the outset by a terminally ill patient, in which the failure to render treatment, would constitute an omission only on the part of the medical practitioner. It was therefore submitted that there can be no distinction between active euthanasia and passive euthanasia in the circumstances where such argument is based on so-called ethical considerations. Once it is recognised, so it was put, as was indeed conceded at least by implication, that a medical practitioner has a duty to recognise and ensure that a terminally ill patient’s dignity is protected by an omission or passive euthanasia, then, the same duty remains on a medical practitioner through a commission or active euthanasia. From a philosophical point of view and a jurisprudential point of view, I do believe that this argument is sound. One must also remember that suicide and attempted suicide are not criminal offences,’ stated Judge Fabricius.
Judge Fabricius said the state allows abortion and so does the medical profession. He said that birth control measures are implemented universally and cessation of treatment, which hastens or causes death happens on a daily basis. In the context of conscientious objections, the applicant said his rights are sacrosanct to him, which should not be sacrificed on the altar of religious self-righteousness. He also submitted that ‘conscientious objections’ to homosexuality, same-sex marriages, mixed-race marriages and abortion did not detract from enshrined constitutional rights and it should not do so now.
In the context of the specific relief sought the applicant submitted that until the legislature provided statutory safeguards, this court could grant the relief claimed with the safeguards employed in this particular application as it was not uncommon for the courts to first rule on matters such as these prior to legislation being enacted but must keep in mind that the primary responsibility for law reform rests with the legislature. A court should develop the common law incrementally only.
‘A further argument was that a court is in law incompetent to declare that the fourth respondent is prohibited from prosecuting the particular medical practitioner because of the provisions of section 179 of the Constitution which grants it the sole power to decide in any particular case. That is so of course, but it does logically not follow that when a court develops the common law, and holds on the facts of a particular case that a particular act by a person is not unlawful, the prosecuting authority has been unlawfully deprived of its discretionary power as a result. The authority given to the court to develop the common law in a specific case, may have by necessary implication this consequence, such as in the present instance,’ the judgment read.
On 30 April 2015 Judge Fabricius made the following order. He declared that:
- ‘the applicant is entitled to be assisted by a qualified medical doctor, who is willing to do so, to end his life, either by administration of a lethal agent or by providing the applicant with the necessary lethal agent to administer himself;
- no medical doctor is obliged to accede to the request of the applicant;
- 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 Prosecuting Authority or subject to disciplinary proceedings by the HPCSA.’
Judge Fabricius noted that:
- this order shall not be read as endorsing the proposals of the draft Bill on End of Life as contained in the Law Commission Report of November 1998 (Project 86) as laying down the necessary or only conditions for the entitlement to the assistance of a qualified medical doctor to commit suicide.
- The common law crimes of murder or culpable homicide in the context of assisted suicide by medical practitioners, insofar as they provide for an absolute prohibition, unjustifiably limit the applicant’s constitutional rights to human dignity, (section 10) and freedom to bodily and psychological integrity (section 12(2)(b), read with sections 1 and 7), and to that extent are declared to be overbroad and in conflict with the said provisions of the Bill of Rights.
- Except as stipulated above, the common law crimes of murder and culpable homicide in the context of assisted suicide by medical practitioners are not affected.
Justice Department spokesperson, Mthunzi Mhaga, said the ruling had far-reaching implications because of how it was going to be interpreted. He said there was a possibility that it might be abused and it could lead to a floodgate of applications if it was allowed to stand.
A notice to appeal (by any of the respondents) must be filed within 14 days of the judgment. As it stands and if any of the respondents actually file the notice to appeal, leave to appeal will be argued before Judge Fabricius on 2 June 2015. The parties may, however, by agreement, decide to argue it on another date. If leave to appeal is granted by Judge Fabricius the case will proceed on appeal to a superior court.
Meanwhile, in an interview with the South African Broadcasting Corporation, Justice Minister Michael Masutha said his department is opposing assisted suicide simply because no one under the Constitution has a right to kill another person. He was adamant that by assisting any person to kill themselves – one becomes party to murder.
Mr Stransham-Ford’s lawyer, Sally Buitendag told De Rebus that she is pleased that the case has South Africa talking and is raising awareness about the topic. She said that she feels confident about an appeal and that it was beyond rewarding to have the order granted.
Nomfundo Manyathi-Jele (firstname.lastname@example.org)