A KZN academic, who is among a growing number of professionals calling for euthanasia to be legalised, has proposed a legal framework which empowers patients and doctors while respecting the right to life, dignity, autonomy and the rule of law.
Dr Suhayfa Bhamjee investigated the topic as part of her PHD thesis titled: “Death and dying in a constitutional democracy – an analysis of the South African criminal law and a call for law reform”, The Sunday Tribune reports.
In February this year, MedicalBrief reported that a number of respected South African medical experts, including professors, oncologists, ethicists and anaesthesiologists, had thrown their weight behind a pending court challenge to legalise assisted suicide, saying euthanasia does not offend the modern Oath of Hippocrates – a main argument of opponents to the practice.
Bhamjee added that while there was “a line between euthanasia and murder, it’s for legislation to draw that line and separate the two so patients have the right to choose”.
The senior lecturer at the UKZN School of Law, who teaches criminal law subjects as well as medical bioethics, said physician-administered euthanasia (PAE) and physician-assisted suicide (PAS) are considered murder in South Africa, but said medically-assisted dying should, like all other healthcare choices, be one that is available to patients so they can make an end-of-life decision that best suits their needs and desires.
“Through appropriate law reform, we can take PAS/PAE outside the ambit of the crime of murder by looking at consent in a more focused and situation-specific way.”
She said her thesis argued for the decriminalisation of PAS/PAE by examining the foundational principles of criminal law, medical-professional ethics and patients’ rights through the lens of the Constitution.
Although the Law Reform Commission investigated euthanasia in 1996, the law had still not developed to allow patients to make their own decisions regarding voluntary euthanasia, she added, “raising the question of whether the euthanasia question has been euthanised”.
“Why it a crime in our law? And what would need to happen if we wanted to reform the law to give patients the right to choose?”
Because she examined the issue from a criminal law perspective, her framework was case law from 1994 and the South African Law Reform Commission Report of 1996.
She said by the time she started writing her thesis there was a lot of commentary, “but no sort of forward movement from the legislature on reforming it”.
Bhamjee also examined the 2015 case of Advocate Robin Stransham-Ford who was terminally ill with cancer and approached the Gauteng High Court (Pretoria) for permission to allow a doctor to assist him in the act of euthanasia.
He died about two hours before the court ruled in his favour. This was later overruled by the Appeal Court.
“So it’s essentially from the Supreme Court of Appeal court case, which raised some very pertinent questions, which they said, if addressed, would very likely be the catalyst for law reform.”
There are two ways euthanasia could be legalised from a procedural perspective, she added.
Ideally, Parliament would pass the legislation, but that would require an MP to champion that law. Alternatively, the matter could go to court and the court order that it is unconstitutional, a non-constitutional violation, and then legislation should be put in place.
Sunday Tribune PressReader article – Euthanasia laws need reform (Open access)
See more from MedicalBrief archives:
Leading SA medical experts back euthanasia court challenge
Euthanasia activist says SA doctors support legalising assisted dying
Assisted death must be decriminalised – SA mental health practitioners