Over the past decade, an often-emotional public debate on the possible legalisation of euthanasia has wracked South Africa. Professor Pieter Carstens of the University of Pretoria recounts his personal journey to making the ultimate personal choice.
Donald Dinnie a director of Norton Rose Fulbright, writes:
In January, Professor Pieter Carstens of the department of public law at the University of Pretoria gave a very thought provoking and moving presentation on legal aspects relating to euthanasia and the moment of death in South Africa at Norton Rose Fulbright. The seminar is part of the Norton Rose Fulbright’s Health Law Practice’s series of 2020 seminars.
The professor founded his discussion in the statement by the erstwhile US Chief Justice, Earl Warren that “In civilised society, law floats in a sea of ethics”. He remarked that controversial legal and often emotional public debates with regards to the possible legalisation of euthanasia in South Africa have increasingly gained momentum over the last decade since the advent of the Constitution.
Those arguments are based, amongst other things, in the right to equality, the right to dignity, the right to life, the right to freedom and security of person, the right to privacy and the right of access to healthcare. Pivotal to the euthanasia debate is the content to be afforded to the right to life in the context of what is to be regarded as the quality of life and to what extent patient autonomy and the right to self-determination may be influential in a request to a physician to end a life which is “not worth living” on account of terminal illness.
Professor Carstens discussed the meaning of terms, the moment of death, the legal perspective inclusive of constitutional common law and legislative and ethical considerations, and comparable foreign law. A copy of the presentation is available on request by contacting firstname.lastname@example.org.
The term “euthanasia” is derived from the Greek eu, meaning good and thanatos, meaning death and so means “a quiet and easy death”.
In the context of the discussion, “euthanasia” means the unlawful and intentional termination of the life of a patient by a physician, or someone acting under the direction of a physician, at the patient’s request, for compassionate reasons.
Currently, South African law is very restrictive in permitting a lawful intervention accelerating a patient’s death.
Professor Carstens couldn’t speak highly enough of what he considered to be a very brave and seminal judgment in the landmark Canadian case of Carter v Canada (Attorney-General)  SCC5. He considers it a blueprint which can be followed by the South African Constitutional Court.
It is the most important and comprehensive case in review yet in Western juris prudence on euthanasia and assisted suicide and includes an extensive and careful discussion of medical ethics and end-of-life practices.
In Carter, Madame Justice Smith ruled that the provisions in the Canadian criminal code, prohibiting assisted suicide, unjustifiably infringed on the rights to liberty and security of person and the right to equality in the Canadian Charter of Rights and Freedoms. Those provisions were declared to be of no force and effect to the extent that they prohibit physician-assisted suicide by a medial practitioner in the context of a physician-patient relationship, where the assistance is provided to a fully informed, non-ambivalent competent adult patient who is grievously and irremediably ill, or soon to become so.
On appeal, the lower court judgment was upheld. The lower court judgment can be found.
The last judgments to deal with euthanasia in South Africa were the Stransham-Ford cases. Currently there are three anticipated cases being prepared to challenge the Supreme Court of Appeal remarks in that matter ultimately in the Constitutional Court. Professor Carstens is of the view that by invoking the right to equality, dignity, bodily integrity, privacy and access to healthcare as in the persuasive judgment in Carter, a compelling case can be made for the decriminalisation of euthanasia and assisted suicide.
Argument is that the common law prohibition of assistance to suicide, in the context of a doctor-patient relationship, infringes on those rights and support the introduction of voluntary act of euthanasia in South Africa. Such a dispensation should of course be strictly regulated and monitored to ensure the autonomy of competent terminally ill patients while guarding against any possible abuse of the system.
Ultimately, euthanasia, said Professor Carstens, is a matter of patient autonomy and individual choice.
This reality was already voiced in the 14th century by the French philosopher, Michel de Montaigne: “Death is a remedy against all evils: it is a most assured haven, never to be feared, and often to be sought. It all comes to a period, whether man makes an end of himself, or whether he ensures it. Whether he runs before his day, or whether he expects it. Whencesoever it comes, it is ever his own, wherever the thread is broken, it is all there. It is in the end of the web. The voluntariest death is the fairest. Life depends on the will of others, death on ours”.
Professor Carstens very bravely and movingly then shared his miraculous journey with cancer. He had resigned himself that death was inevitable and started to prepare himself for that. That included contacting a Swiss organisation with emphasis on dignity and making arrangements to effect physician assisted suicide abroad during the last week of February 2018 which required careful planning and the following of a strict protocol.
Fortunately, in late January it came to the professor’s knowledge that a new drug had been developed in the US and registered by the Medicines Control Council in South Africa. It is a form of immuno-therapy indicated for the treatment of melanoma, squamous cell carcinoma (the professor’s illness) and small cell lung cancer. The drug works in conjunction with one’s own immune system and activates the T-cells to search, attack and obliterate the cancer cells. It is an extremely expensive treatment. The professor however located an oncologist who would administer the therapy. He submitted himself to treatment. There were no side effects and within a week there were marked, astonishing and miraculous results.
No surgery was required, no chemotherapy or radiation. A combination of the vigorous immuno-boosting treatment, meticulous wound care and the drug obliterated the tumour in its entirety. The professor escaped death and has fully recovered.
Professor Carstens concluded by expressing the view that physician assisted suicide should be legalised in South Africa in terms of a considered regulatory system whereby patient autonomy and human dignity is respected and that the common law should be developed accordingly. It is ultimately a question of informed and competent personal choice which is an integral part of a constitutional democracy.
The professor quoted from Professor Christiaan Barnard: “I have learned from my life in medicine that death is not always an enemy. Often it is good medical treatment. Often it achieves what medicine cannot achieve – it stops suffering”.
Professor Carstens concluded by observing that he had to take his journey, not because he was special or unique, but because he is human and like many others before him, and no doubt after him, he heard: “an owl calling my name … and I was destined to rise above myself even if this resulted in death” … It is in the “rising above myself” as a human that I now understand humility, dignity (the right that I can unlock all problems in medical law), humanness and empathy with mankind and the ‘human condition” – surely I am now an improvement on my former self. As Voltaire has stated “life is a shipwreck, but don’t forget to sing in the lifeboats”. I have found my song again …!”Review of the South African law as it currently stands Judgment