The Departments of Health and Justice appear to be on opposing sides of the ring over a constitutional challenge seeking to legalise medically assisted dying, with the Health Professions Council of South Africa (HPCSA) siding with Health and also saying it will oppose the application, reports News24.
Advocacy group DignitySA brought the case in the Gauteng High Court (Pretoria) in April, asking it to declare the common law ban on medically-assisted dying unconstitutional and to require Parliament to pass regulating legislation within 24 months.
While Health Minister Aaron Motsoaledi will oppose the case, Justice & Constitutional Development Minister Mmamoloko Kubayi has said she would not oppose the application and would abide by whatever decision was reached.
The litigation is one of the most significant legal challenges on end-of-life rights since the landmark 2015 Stransham-Ford judgment, which briefly opened the door to assisted dying before it was overturned on appeal after the applicant died before judgment was delivered.
Launching the application in April, DignitySA argued that South Africans suffering unbearably from terminal illnesses should have the constitutional right to choose a medically assisted death under carefully regulated circumstances, and that the current legal position forces many to endure unnecessary suffering.
The organisation said the blanket prohibition on medical assistance in dying is incompatible with the Constitution.
Health Department spokesperson Foster Mohale confirmed to News24 that the department had received DignitySA’s court papers and would oppose the application, while the HPCSA has also filed notice that it intends to oppose the constitutional challenge.
DignitySA described the decision as “a significant development”, which reflected “a growing recognition that the current … prohibition against medical assistance in dying cannot be reconciled with South Africa’s constitutional commitments to dignity and compassion”.
The fourth respondent, the National Prosecuting Authority (NPA), has yet to indicate whether it intends to oppose the application, despite its deadline having passed by more than two months.
DignitySA said that as of 10 July, it had heard from only three of the four respondents, and now plans to ask the Deputy Judge President of the High Court for a case management directive to compel the remaining procedural steps and impose timelines on the parties.
Should that request not succeed, the organisation already has a preliminary court date of 18 September, when it plans to ask the court to intervene and enforce a timetable for the litigation.
NPA spokesperson Kaizer Kganyago told News24 said he was still gathering information.
See more from MedicalBrief archives:
DignitySA launches legal challenge for assisted dying
Why SA needs both palliative care and assisted dying
ConCourt should shape legal position on right to die – DignitySA