THE right to life is a foundation stone of our Constitution, but do we have a right to death?
According to last week’s ruling by Judge Hans Fabricius the answer to this question is also to be found in the Constitution, which in addition to the right to life guarantees our rights to dignity, bodily and psychological integrity, and to be free from cruel, inhuman and degrading treatment.
Handing down judgment in the case brought by Robin Stransham-Ford, who succumbed to cancer on the same day, Judge Fabricius reasoned that if we have the right to have our inherent human dignity respected, that must include the right to end our own lives or instruct a competent medical professional to do so when living a dignified life is no longer possible due to terminal illness. It therefore followed that doctors who helped patients commit suicide under these circumstances, or administered the lethal agent, should not be liable for prosecution.
This is a brave ruling, not least because SA is not alone in wrestling with the legal, moral and religious implications of assisted suicide. Only a handful of countries, as well as some US states, have decriminalised human euthanasia, indicating that the issues are not simple and it is not a matter to be taken lightly. It is therefore no bad thing that the departments of justice and health have indicated that they will appeal against the judgment, even if they are not necessarily doing so for the right reasons. It is important that a ruling of this magnitude be supported by the apex court, and it is now inevitable that the matter will end up before the Constitutional Court whichever way the Supreme Court of Appeal rules.
The justice minister’s counsel had argued against Mr Stransham-Ford’s application on the basis that SA has no legislative framework to deal with assisted suicide, and while this was clearly no match for the rights-based position of the applicants, it is a reality that will need to be remedied if the ruling stands.
Judge Fabricius made it clear that his order should not be interpreted as endorsing a "free-for-all" approach and no doctor should be obliged to end a patient’s life at their request.
But the ruling will set a precedent if allowed to stand, and it is vital that legislation be promulgated to deal with the implications.
As matters stand, anyone who helps a patient commit suicide by providing them with the means to do so, is liable to be prosecuted. And a doctor who administers a fatal dose to a terminally ill person could face murder charges, even if it was done at the patient’s request. In addition, the existing ethical standards of the Health Professions Council, which opposed the application by Mr Stransham-Ford, would oblige it to censure any doctor involved in euthanasia.
This mirrors Health Minister Aaron Motsoaledi’s position, which is that in taking the Hippocratic Oath doctors pledge to do all they can to preserve life, and that they can help terminally ill patients die with dignity by administering palliative care.
Unfortunately, both Dr Motsoaledi and Justice Minister Michael Masutha have muddied the waters by bringing in religious and personal morality issues.
They would serve SA better by preparing for the likelihood that the superior courts will uphold Judge Fabricius’s ruling.
The South African Law Commission investigated the legal aspects of assisted dying more than a decade ago, but its findings were left to gather dust. Meanwhile, Dignity SA, which has lobbied for euthanasia to be decriminalised and helped Mr Stransham-Ford bring his case, has prepared a draft bill to that end. The government should co-operate with all role players to ensure it is in a position to honour the Constitution.