A palliative care specialist and her patient, both diagnosed with terminal diseases, are hoping to convince the High Court to develop the law to allow both physician-assisted suicide and physician-assisted euthanasia.
A crucial challenge to determine whether or not euthanasia should be legalised is back in court. The last time the issue was raised was in 2015 when lawyer Robert Stransham-Ford launched an urgent application in the Gauteng High Court (Pretoria) for an order that a doctor be legally entitled to give him a lethal dose to end his life. Judge Hans Fabricius ruled in his favour, but unbeknown to the judge, Stansham-Ford died, naturally, two hours before the judgment.
The case went to the SCA, which ruled that this was not the right matter to develop the common law and that Fabricius’ ruling was moot and had no effect since Stansham-Ford had died already.
Now, says a GroundUp report by legal writer Tania Broughton, medical doctor Suzanne Walter, a palliative care specialist, and her patient Diethelm Harck, who have both been diagnosed with terminal diseases, are hoping to persuade Gauteng High Court (Johannesburg) Judge Raylene Keightly to develop the law to allow both physician-assisted suicide (PAS) (where the doctor prescribes and the patient self-administers) and physician-assisted euthanasia (PAE) (where the doctor administers any medicine to end life).
The matter is set down for 22 February, and is expected to start with the evidence of Walter, who was diagnosed in February 2017 with multiple myeloma, and Harck, who was diagnosed in 2013 with motor neuron disease. In pleadings they both say they are suffering “torturing symptoms”.
While it is not unlawful for them to commit suicide, they fear when the time is right, they will not be capable of swallowing pills or self-administering medication. If a willing doctor were to help them, he or she would face criminal charges and would also face being struck off the roll by the Health Professionals Council (HPCSA) for unprofessional conduct. The two say that the law as it stands, and the attitude of the HPCSA, impinge on their right to dignity and right to choose the way they want to die.
They want Parliament to enact legislation to give effect to their rights to self-determination. In the meantime, they say, the court should rule that any mentally competent terminally ill person may approach the High Court for an order allowing them to undergo either PAS or PAE.
Joining their cause as friends of the court are Advocate Bruce Leech and Dr Paul Rowe, both atheists, says the GroundUp report. In an affidavit filed with the court, Leech says public policy is rooted in the Christian ethic inherited via South Africa’s colonialist legal systems first of Roman-Dutch Law and then of English Law.
So, too, is the HPCSA’s rule against PAS and PAE. “Christian values are imposed directly and indirectly on people who do not necessarily share those values. I do not share these beliefs and neither does Dr Rowe.”
According to the GroundUp report, the HPCSA and the Ministers of Health, Justice, and the NDPP are all opposing the application. The HPCSA says doctors should be willing to obey its code of conduct “which protects the public and is in the best interests of patients”.
It says the ban on euthanasia and assisted suicide does not offend the Constitution, and if it does, it is justified because it is necessary to protect the right to life and protect and preserve trust in the doctor-patient relationship. “Medicine and medical treatment ameliorates the pain and suffering of those who have or are in the terminal phase of a serious disease. Such treatments are available (to Walter and Harck) and are progressively being made available to all persons in South Africa.”
Full GroundUp report (Open access)