VOLUNTARY EUTHANASIA AND ASSISTED SUICIDE IN SOUTH AFRICA By Kevin van Huyssteen

VOLUNTARY EUTHANASIA AND ASSISTED SUICIDE IN SOUTH AFRICA By Kevin van Huyssteen

In its judgment upholding the appeal in the matter of Minister of Justice v Estate Stransham Ford the Supreme Court of Appeal (SCA) has provided a thoroughly informative overview of the law governing physician assisted suicide (PAS) and physician assisted euthanasia (PAE).

In a unanimous judgment, the SCA (per Wallis JA) overturned and heavily criticised the decision of Fabricius J in the Pretoria High Court where an order had been granted permitting the PAE of Robin Stransham Ford who had been suffering from terminal prostate cancer.

Ford had actually died at about 8am on the morning of 30 April 2015. Judgment was due to be given at 10.00am but the Court was not told of Ford’s death. The SCA held that the order could have had no practical effect and that Fabricius J should have recalled his order under Rule 42 on the basis that it was erroneously sought and erroneously granted, but he did not do so, instead proceeding to give written reasons on 4 May 2015 and then granting leave to appeal on 2 June 2015.

Three broad grounds were identified that rendered the order of Fabricius incorrect: (1) the cause of action was of a personal nature and died with Ford (2) there was no full examination of the law, local and international, against the Constitution and (3) the order of Fabricius was made on an incorrect and restricted factual basis without complying with the Rules and without affording interested parties a proper opportunity to be heard.

Nevertheless, the SCA proceeded to analyse the applicable legal principles. Most interestingly, the SCA pointed out three already existing mechanisms available to accelerate the process of death that are part of local South African law and which attract no criminal sanction.

Firstly, the patient can refuse to accept medical treatment that would otherwise prolong life. This can be expressed by the patient him or herself at the time treatment is offered, or can apparent from a ‘prior expression of their views’ which is presumably a reference to the significance of a living will.

Secondly, where the patient does not have the mental and legal capacity to make a decision and there is no ‘prior expression of their views’ but the patient is in a ‘persistent vegetative state’ the Courts may be approached to permit life support to be terminated. The SCA referred to authority in South Africa, the United Kingdom, the United States of America and New Zealand to support this statement. The availability and significance of this mechanism is perhaps not adequately appreciated by patients, relatives, loved ones and doctors.

Thirdly says the SCA, the medical profession is at liberty to administer medicines to alleviate suffering even where the doctor knows that they will have the effect of hastening the patient’s death.

The conduct of the doctors must however fall short of being regarded as ‘mercy killing’ or PAE. In a 1975 case (Hartmann) the accused, a doctor himself, administered a lethal dose of pentothal into the arm of his 87 year old father who was bed-ridden, in a critical state and suffering from great pain. Hartmann was convicted of murder. A suspended sentence was imposed. The SCA added that even were the patient to give consent, this would not alter the criminal nature of the conduct of the doctors. Consent is therefore not available as a defence to a charge of murder and PAE is regarded in law as murder.

The issue of PAS requires careful consideration. Here the question arises whether the decisive physical act of suicide is an intervening event sufficiently separate from the conduct of the accused in providing the means for the act to be carried out. In the 1970 case of Grotjohn, during a domestic argument the accused’s wife threatened to shoot herself. The accused gave her a loaded rifle and she pulled the trigger. The accused was acquitted of murder as the act of suicide broke the chain of causation that started when the loaded rifle was handed to the deceased.

A similar decision was made in the case of Gordon (1962) where a couple made a suicide pact. Both consumed an overdose of pills that he procured and divided between them. He survived, she did not but he was acquitted of murder.

The facts in Grotjohn and Gordon are to be distinguished from those in Peverett where the couple tried to gas themselves in a car. The accused had led the pipe into the car and made attempts to seal it so as to fill the car with exhaust fumes. Both lost consciousness but were rescued and survived. The accused was found guilty of attempted murder as his actions and course of conduct were not interrupted by any intervening action of his partner.

In its review of foreign law, the SCA noted that PAE is currently unlawful in every country except Canada and the Benelux. The USA states of Oregon, Washington, Vermont, California and Colorado have or are in the process of passing legislation to legalise PAS.

Turning to the Constitution, the SCA referred to Pretty, a 2001 decision of the House of Lords where the Court noted that there is no ‘right to die’ and that the constitutional right to life is the very antithesis of the claimed right to die. But the European Court of Human Rights has held that the right to decide by what means and at what point life will end is an aspect of the right to life.

In closing remarks, the SCA highlighted the differences between the ‘permissive countries’ and South Africa’s limited ability as a poorer country, to provide adequate palliative care which is not available to the majority of people. Before a Court could entertain the risks associated with PAE or PAS, it would have to be satisfied that an ‘adequate regulatory framework’ was in place.

The SCA therefore declined the invitation to develop the common law.

Thus for the foreseeable future, the terminally ill will have to rely upon one or more of the three available options of refusing treatment, having life support terminated or receiving palliative treatment which may accelerate death. In the case of the second option, in circumstances of doubt, the assistance of the Courts can be called upon to legitimise the termination of life support.

KJ VAN HUYSSTEEN

JULY 2017

[1] Minister of Justice v Estate Stransham Ford 2017 (3) SA 152 (SCA)