Right-to-die judgment under siege

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Robin Stransham-Ford last week and In better days - Pics courtesy of Netwerk24

Robin Stransham-Ford last week and In better days – Pics courtesy of Netwerk24

South Africa’s health minister is determined to stop the decriminalisation of assisted suicide. City Press reports that reacting to a landmark court ruling in favour of a man who wanted his doctors to be granted permission to help him die, Health Minister Aaron Motsoaledi’s said giving doctors the right to end a life is dangerous and could lead to a situation in which unscrupulous families arrange the premature deaths of their terminally ill loved ones to cash in on insurance payments. Cape Town advocate Robin Stransham-Ford approached the court last Tuesday with an urgent application that he be allowed to die as he found wasting away from cancer and being in pain “undignified”. Judge Hans Fabricius ruled that the doctor who helped him die, or provided him with lethal drugs so he could help himself die, would not face criminal sanction or the threat of losing his medical licence from the Health Professions Council of SA.

“This judgment has the potential to give rise to fraud and unethical behaviour among doctors,” Motsoaledi said. “Very soon we will start hearing stories of families colluding with doctors to end the life of their loved ones because they wanted to cash in on insurance policies. Some people may even start planning their deaths because they know that their policies are maturing. We can’t have that situation in South Africa because it would be difficult to police and deal with. To prevent it, we must stop it before it goes any further,” he said. Motsoaledi said doctors should not be given the right to end a person’s life because they were not God.

The report notes that so determined is the health minister to stop the decriminalisation of assisted suicide that he is prepared to go to the Constitutional Court to fight the ruling. “Doctors are human and make mistakes too. They can say a person has a few weeks left to live, based on medical observation, but only God can decide when a person dies,” Motsoaledi said.

Assisted suicide or euthanasia is illegal in South Africa, and doctors who help patients to die face jail time of up to 14 years. The Health Department will now join hands with the Department of Justice and Constitutional Development to appeal the judgment.

Motsoaledi said they were appealing because death was a natural process, and “no person should be allowed to assist somebody to die without facing the law”. “It doesn’t matter that science tells you that you have two weeks to live. Doctors should not participate in that dying process. Theirs is to help with palliative care so that a patient dies with dignity,” Motsoaledi said.

In Stransham-Ford’s case, doctors had told him he had two weeks to live. But he died a few hours before the court ruled in his favour. In his plea to the court, he submitted that he wished to end his life with dignity at his home, surrounded by his family.

Although his wish was partly fulfilled because he died surrounded by loved ones in hospital, Motsoaledi is quoted as saying his court victory had created a mess. He explained that assisted suicide was a complex matter that even highly developed countries still battled with. Seven countries and a few states in the US have decriminalised euthanasia. The World Health Organisation does not support the decriminalisation of euthanasia.

 

Dignity SA has welcomed the North Gauteng High Court ruling, reports The Citizen. Willem Landman, the CEO of the Ethics Institute of South Africa and a member of Dignity SA, said the court order was only confined to the specific case of Stransham-Ford, but would make it much easier for others who wanted to follow in his footsteps.

Because Parliament has not yet decided to adopt draft legislation on euthanasia, other dying patients in similar circumstances would still have to approach the court for an order to allow them to commit assisted suicide.

Not knowing at the time that Stransham-Ford had died, Landman described the ruling as a huge victory for Stransham-Ford and for Dignity SA, a non-profit organisation which advocates the legalisation of assisted suicide.

“For us, his suffering and the distress which he found himself in was paramount. “the judge went beyond that and said that to be charged with murder or culpable homicide for assisting someone to die is inconsistent with our constitutional rights.”

 

Timothy Fish Hodgson, social justice activist and human rights lawyer writes in a Groundup report that up until Judge Fabricius handed down this order, it was clear that assisting a patient to take his or her own life was illegal in terms of South African law and could potentially open doctors up to civil claims, criminal prosecution and disciplinary action from within the medical profession.

In 1999 President Mandela had tasked the South African Law Commission with investigating assisted dying. The Commission, which was chaired by former Chief Justice Ismael Mahomed, published its findings which included two different options of positions which would allow a terminally ill person to be assisted in the process of dying. Hodgson notes that these findings, which included draft law, were not seen as a priority and have not since been debated in Parliament.

Hodgson says Stransham-Ford, a former advocate himself, had approached the Pretoria High Court urgently, assisted by Dignity SA, an organisation which campaigns for “the right of terminally ill, chronically suffering people to choose the time and place of their death”. This right, Dignity SA argues is grounded in the constitutional rights to life, dignity, bodily and psychological integrity and to be free from cruel, inhuman and degrading treatment. Parliament’s failure to pass a law to protect these rights is in Dignity SA’s view a violation of its obligation to respect and protect the rights in the Bill of Rights and therefore in conflict with the Constitution.

According to Hodgson, the case appears to centre on Stransham-Ford’s right to have his inherent human dignity respected and protected. Human dignity is also a foundational value upon which the entire Constitution is built. The right to live with dignity, according to Dignity SA, includes the right to choose to die with dignity.

Judge Fabricius’s order gives an indication that it is a combination of some of these rights and other provisions of the Constitution detailing the state’s obligations upon which his decision is based, he says. He finds that the crimes of 2murder or culpable homicide in (the) context of assisted suicide by medical practitioners, insofar as they provide for an absolute prohibition, unjustifiably limit (Stransham-Ford’s) constitutional rights” to dignity and bodily and psychological integrity. His judgment is therefore likely to acknowledge a right to choose to die with dignity and have professional medical assistance in doing so.

Hodgson says although Judge Fabricius, according to news reports, appears to be attempting to limit the scope of the influence of this decision, it is a decision which will have far-reaching implications. In the order itself the judge notes that this decision is not to be interpreted as endorsing the proposals contained in the Law Commission’s 1999 report or the draft law which accompanied it. The judge was also careful to include in his order a proviso that although, doctors may have in terms of the order, been legally permitted to either administer a “lethal agent” to Stransham-Ford’s or provide him with a lethal “to administer himself”, no doctor is “obliged to accede to accede to (Stransham-Ford’s) request”.

He says in making this order, Judge Fabricius is filling a gap which the law, in the absence of the finalisation of the Law Commission’s 1999 process, has left open. Whether or not the expected judgment is appealed to a higher court, which seems likely, a ruling that our legal rules are unconstitutional and require development in terms of the Constitution will ultimately require the confirmation of the Constitutional Court. Hodgson says the order, if confirmed, will provide some much needed clarity for both terminally ill patients about their options in ending their own lives and doctors in assisting them to do so.

 

The South African Medical Association (Sama) has warned that even if the law were to permit medical practitioners to help patients end their lives, the ethical rules of the Health Professions Council of SA (HPCSA) would not allow this, reports Business Day. This means that should a doctor help a terminally ill patient to die, he or she could face disciplinary action from the HPCSA, Sama chair Mzukisi Grootboom said.

“We don’t support doctors using their skills to kill a patient. That’s not what being a doctor is about,” said Grootboom, adding, “you must remember, ethics take precedence over the laws of the country. There are lots of countries that sent people to the gas chamber.”

Sama’s position was in line with that of the World Medical Association, Dr Grootboom said. It had last month reaffirmed its policy opposing euthanasia and physician-assisted suicide. The World Medical Association’s position, according to a statement on its website, is that while euthanasia and physician-assisted suicide are unethical, a patient had the right to decline medical treatment and if a doctor fulfilled these wishes they would not be deemed to be acting unethically.

Grootboom said a physician’s primary duty was to help a patient heal. “We take cognisance of the fact that dealing with end-of-life matters is not an easy matter.” “(But) there are enough drugs, and there is enough advice out there for people to deal with these issues. You need to make sure the patient has adequate support to deal with pain, so we avoid the stage where there is utter hopelessness and the doctor feels pressured and hopeless himself,” he said.

Pain should not be considered a persuasive enough reason to end a person’s life, and healthcare practitioners had an obligation to advocate for resources and access to palliative care for terminally ill patients, Grootboom said.

 

Business Day reports that Stransham-Ford had worked with the late Inkatha Freedom Party (IFP) MP Mario Oriani-Ambrosini on the Medical Innovation Bill, which seeks to allow for new treatment systems for the terminally ill. The two men did not live to see the results of their efforts. However, the report says, IFP MP Narend Singh said Parliament’s health portfolio committee was still due to interrogate the Bill.

The Medical Innovation Bill aims to create a special legal dispensation where medical practitioners are granted greater professional discretion to administer innovative and alternative medical treatment with patients’ informed consent. This includes “the use of cannabis, with respect to several life-threatening diseases, including cancer”, which current legislation does not allow. The Bill says legal barriers to treatment including the medical use of cannabis, resulted in “in unnecessary human suffering and death on a mass scale”.

Since Oriani-Ambrosini’s death, Singh had taken on championing the Bill. He said both Oriani-Ambrosini and Stransham-Ford were “crucial to developing the Bill when it came to the portfolio committee”. He also said the health portfolio committee was due to receive inputs from various organisations on the contents of the Bill. This consultation is expected to finish in September.

Meanwhile, The court order allowing Cape Town Advocate Robin Stransham-Ford to commit medically assisted suicide will stand, even though he died hours before the order was handed down, notes a report in The Citizen. Judge Hans Fabricius yesterday turned down an application by the Justice and Health Ministers, the NPA and the Health Professions Council to rescind the order he granted to Stransham-Ford last week. Counsel for the respondents argued that Stransham-Ford had died at 8am on Thursday morning, before Fabricius granted the order. This meant, it was argued, that Stransham-Ford’s rights had fallen away and that the order was moot. Counsel for the HPCSA, Harry van Bergen, argued that Stransham-Ford’s lawyers ‘were shifting the goal posts’ because they were now taking the application beyond the boundaries of the original application.

Fabricius said his ruling established a cause of action under the common law where no cause of action existed before. None of the parties was aware that Stransham-Ford had died at the time when the ruling was handed down. He said the order would have a practical effect on other parties, because they would now be entitled to approach the court. ‘It ought to be clear from my order and reasons that I could not have made the order if I had not established that there was a cause of action. The cause of action came into being by the development of the common law.’ He added, according to The Citizen: ‘…When one reads those two facts together, it is my view that the order I made is indeed forward looking, may have a practical effect on others and is certainly in the public interest and in the interest of justice. ‘I am of the view that this decision … ought to be decided by the Constitutional Court (which) would then decide whether the topic is moot,’ he said.

Fabricius also handed down written reasons for his order yesterday. And according to a News24 report, he said the prohibition on assisted suicide in common law did not accord with the right to human dignity, freedom and security protected by the Constitution. Although agreeing with the main argument (by the Justice Minister) that the right to life was paramount and that life was sacrosanct, he reasoned: ‘The provision safeguards a person’s right vis-a-vis the state and society. It cannot mean that an individual is obliged to live, no matter what the quality of his life is.’ He supported the view of counsel for Stransham-Ford that it was a fundamental human right to be able to die with dignity and the SA Law Commission’s 1998 view that the sacredness of the quality of life should be accentuated rather than the sacredness of life per se. ‘The state says that it cannot afford to fulfil all socio-economic demands, but it assumes the power to tell an educated individual of sound mind who is gravely ill and about to die, that he must suffer the indignity of the severe pain, and is not allowed to die in a dignified, quiet manner with the assistance of a medical practitioner.’ He said the commission stated that a dying person was still a living person, and Stransham-Ford was entitled to the rights of a living person. ‘The irony is, they say, that we are told from childhood to take responsibility for our lives, but when faced with death we are told we may not be responsible for our own passing. ‘… One can choose one’s education, one’s career, one can decide to get married, one can live according to a lifestyle of one’s choice, one can consent to medical treatment or one can refuse it, one can have children and one can abort children, one can practise birth control, and one can die on the battlefield of one’s country. But one cannot decide how to die. The irony… is that the state sanctions death when it is bad for a person, but denies it when it is good,’ he said.

The judge suggested Parliament should give ‘serious consideration’ to introducing a draft law legalising euthanasia, says a Business Day report. He suggested the Bill presented for debate be based on the Law Reform Commission report on assisted suicide and viewed through the lens of the Constitution’s Bill of Rights. In 1998, then President Nelson Mandela asked the Law Reform Commission to research ‘assisted suicide and the artificial preservation of life’. It did extensive work on the issue and found in favour of assisted suicide and wrote a draft Bill to legalise it. The Bill was submitted to then Health Minister Manto Tshabalala-Msimang in 1999, but nothing further happened. Fabricius said had Stransham-Ford’s application for assisted suicide not been so urgent due to his impending death, he would have expected the Department of Justice to explain ‘what its policy on the draft euthanasia law was and what it intended doing about the commission’s proposals’. In his 60-page judgment he pointed out that at the time the Department of Health had agreed that terminally ill people who wished to die could do so with the help of a doctor.

Full City Press report
Full report in The Citizen
Full Groundup report
SA Law Commission findings
Full Business Day report
Full Business Day report
See full report in The Citizen
Full New 24 report on the judgment
Interview with Robin Stransham-Ford on Netwerk24
Full North Gauteng High Court judgment


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