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Medically Assisted Suicide

STRANSHAM-FORD v Minister of Justice and Correctional Services

Recently, Judge Hans Fabricius was tasked with deciding whether or not to allow Advocate Robin Stransham-Ford (the applicant) to commit medically assisted suicide. The application was successful.

Introduction

The application heard in the Pretoria High Court was brought on an urgent basis. Consequently, Fabricius J touches only briefly on the plethora of clinical, ethical and moral aspects of the surrounding debate, confining himself mostly to the legal issues. He analogises the diversity of opinion and plethora of debate, to that surrounding abortion.

He considered that there are alternative palliative medical treatments available. Opioid (morphine-like drugs) allow for less than 10% of patients to die in pain; hospice doctors are versed in symptom control and are able to treat patients from the comfort of their own homes; and most medical aid plans provide for certain benefits for terminally ill patients. However, the applicant was adamant that these mainstream medical practices would not satisfy his right to die in dignity.

Dignity and Life

The applicant highlighted his rights to human dignity, equality and freedom. Human dignity in particular, goes further than being just a value and a right, but a “categorical imperative.”

The respondents contended the applicant’s submissions pertained solely to his subjective view of dignity, whereas dignity needed to be viewed objectively. But Fabricius J dismissed this view with interpretative reference to the Constitutional Court in Carmichele v Minister of Safety and Security and the Minister of Justice and Constitutional Development 2001 (4) SA 938 CC wherein rights under the Bill of Rights are clearly categorised as subjective.

He makes reference to O’Ragen J in the ground-breaking case of S v Makwanyane: the right to life must be a life worth living. Without life, it would not be possible to exercise or bear rights. But without dignity, human life is substantially diminished.

Fabricius J concretises this information saying, it is the sacredness of the quality of life that should be accentuated, rather than life per se. Dying is a part of life; its completion rather than its opposite, and to this extent dignity in coming to terms with our morality should be welcomed. Without this relief, a sick person will be faced with taking his/her own life prematurely by often violent or dangerous means, or suffering until nature takes its proverbial course. The choice is cruel.

There is no duty to live.

Dolus eventualis?

Fabricius J likens the commission by a doctor in performing medical assistance for suicide to dolus eventualis and in doing so, for one of the few times, considers the philosophical distinction between: 1) assisted suicide by providing the sufferer with a lethal agent, or by 2) switching off life support, or by 3) administering a strong dose of morphine to the patient, knowing the respiratory system will fail resulting in death. On the other hand, he asks whether the applicant’s death will not be caused by the illness rather than the medicine which will simply hasten it with the sufferer’s consent.

Take the case of Soobramoney v Minister of Health, KZN 1998 (1) SA 765 (CC)in this case the court ordered that the patient was not entitled to dialysis insofar as he did not qualify for ‘emergency medical treatment’ and due to the state’s lack of resources. This directly led to the patient’s death. The ‘irony’ is that the “state sanctions death when it is bad for a person, but denies it when it is good.”

Fabricius J’s conclusion is that the main intention of the doctor in administering the medication is to ensure human dignity in life. The secondary result is death which is the same in each of the above variations of assisted suicide. The dismissal of the distinction is important in deconstructing the commission as murder – the State allows abortion, birth control, and cessation of treatment which hastens death, but it does not allow one the choice to choose to die in a dignified manner.

The 1998 SALRC Report

In 1998 Mandela asked the SALRC to draft a Paper on Euthanasia and the Artificial Preservation of Life. The Minister of Health at the time, Manto Tshabalala Msimang took the Paper no further. However, Fabricius J calls for reconsideration of the paper and in his judgment highlights some pertinent practical facets thereof.

Certain safeguards were suggested such as: the patient had to be terminally ill, subject to extreme suffering but remained mentally competent; a confirmatory diagnosis by a second doctor recorded in writing; and an informed and well considered decision by the patient. This is important for balancing protection of life and protection of a dignified death.

Other merits and considerations 

  • He considered the applicant’s health, quality of life, treatment, diagnosis and prognosis, medicine, procedures and traditional remedies, worsening condition, increased frailty, progression of the disease and imminent future – all specific to the applicant’s own case.
  • In response to one of the respondents’ points regarding litigious floodgates to similar but non spurious applications, Fabricius J ensured the judgment was looked at on individual facts, requiring a future court to consider similar applications based on independent facts.

Outcome

The application was, as you know, successful. But Adv Stransham-Ford unfortunately passed away hours before the order was handed down. The Health Professional Council of SA (HPCSA) applied to have the judgment rescinded for this reason, arguing that Stransham-Ford’s rights had fallen away and that the order was moot. Fabricius J denied this on the grounds that under the common law a cause of action had been created. He added that the matter needs to be decided by the Constitutional Court which would then decide whether the topic is moot.

The appeal takes place on the 2nd June 2015.

For assistance or more information please contact:

Basil de Sousa or Tasmin Marlin

Litigation Department, Abrahams & Gross Attorneys

T:     021 422 1323       E:    info@abgross.co.za

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