The non-profit organisation DignitySA filed an application in the Gauteng High Court (Pretoria) last week seeking to have the laws that criminalise medically assisted dying declared unconstitutional and invalid, reports Business Day.
It also wants the court to direct Parliament to enact appropriate legislation legalising assisted dying within two years, and to suspend the declaration of invalidity during this period. The NPO argues that the prohibition contradicts the rights enshrined in the constitution, including those protecting human dignity and bodily autonomy.
“We are asking the court to recognise that a person’s human dignity is severely diminished when they lose control over the manner of their dying,” said DignitySA founder and chair Willem Landman.
It is illegal for health practitioners to help terminally ill patients wanting to end their own lives, and is also at odds with the Health Professions Council of SA’s (HPCSA) guidelines.
DignitySA says many terminally ill patients face a torturous last chapter because legislation regards the act of stepping in to help someone who wishes to end their own life as murder.
Its case comes a decade after Advocate Robert Stransham-Ford’s failed attempt to legalise medically assisted dying. In 2015, Stransham-Ford applied for a High Court order to allow a doctor to administer a lethal agent to end his life. He died two hours before the court ruled in his favour, and the order was subsequently overturned by the Supreme Court of Appeal (SCA) on technical grounds.
The SCA did not make a finding on the legal status of medically assisted dying.
The prohibition on medically assisted dying forced patients to endure unnecessary pain and indignity, Landman said in court papers, detailing 11 cases, including that of the late IFP MP Mario Oriani-Ambrosini, who was diagnosed with terminal lung cancer and shot himself.
The prohibition on assisted dying had an arbitrary effect, added Landman, as the ability to end suffering depended on the nature of the patient’s condition or their financial status. While some patients could end their own lives, others were physically unable to do so without assistance and faced the danger of placing another person at risk of criminal charges if they sought help.
Only the wealthiest patients could travel to countries such as Switzerland, where medical assistance in dying is legal, he said.
Drawing on expert reports on countries that have already introduced laws permitting assisted dying, Landman said there was no evidence that vulnerable or marginalised people were coerced into assisted dying, or that the thresholds for access had been lowered over time.
Many people opposed to assisted dying argued that it was “unAfrican”, but helping a person who wished to die was fully in line with African values, said DignitySA director Vuya Ilengou. “We grow up with compassion, with love, with empathy and with ubuntu,” she said.
Fellow director Joseph Raimondo said legalising assisted dying would require strict eligibility criteria and safeguards to protect vulnerable people from potential abuse. “We will need very well thought-through legislation to ensure medical assistance in dying is never thought of as a substitute for providing healthcare or palliative care,” he said.
DignitySA cited the Minister of Justice & Constitutional Development, the National Director of Public Prosecutions, the Minister of Health, and the HPCSA as respondents.
See more from MedicalBrief archives:
Why SA needs both palliative care and assisted dying
Euthanasia activist says SA doctors support legalising assisted dying
Assisted death must be decriminalised – SA mental health practitioners