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08 May 2015 00:00
Constitutional court. (Madelene Cronje, M&G)
We agree wholeheartedly with Judge Hans Fabricius who, in his judgment on the case of assisted suicide brought by Robin Stransham-Ford, said that the overall matter of the right to die with dignity should go to the Constitutional Court for definitive and binding judgment. The case was brought to the high court in Pretoria.
Stransham-Ford, who was dying of terminal cancer (and in fact died a “natural” death on the very day judgment was delivered), demanded the right to be able to have a doctor assist in his choice of when and how to end his own life in the face of unbearable and ongoing pain.
The judge knew his judgment would hold only in his present jurisdiction, and would not set a national precedent, though it might be influential on future judgments.
Another reason the Constitutional Court must rule on the matter is the opposition to doctor-assisted dying from both the minister of health and the National Prosecuting Authority. The latter’s chief worry is that this judgment causes confusion about how to apply the law that, as it stands, makes it illegal for doctors to help patients to die. If they do, they face both a criminal charge from the NPA and an ethics charge from the Health Professions Council.
The objection from the health minister is that it is up to God, not a doctor or even the terminal patient, to decide when that person shall die. This view is both easier to deal with and harder to combat – easier because an argument based on God’s will is intellectually simple to refute (South Africa is not a theocracy but a constitutional democracy) and harder because faith-based views are almost impossible to undo. A Constitutional Court judgment on the matter would clear that up.
The issue is about a person’s democratic rights, not about whether God has a problem with mere humans usurping his prerogative to decide who dies when. It’s about the patient: a citizen guaranteed human dignity in our Bill of Rights. It’s not about extending the right of doctors or even family members to decide when a terminal patient should die. It’s about the individual who is dying being able to decide on their own wellbeing, which includes whether to endure more pointless, degrading pain and suffering, or to claim that right to dignity even in death.
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