There is a popular belief that one may, when unfortunate health circumstances present, choose to end one’s life. In certain countries that process is recognised and supported by law. In South Africa, however, the choice is not as simple.
The withdrawal of treatment at a patient’s request is an instruction that is binding on healthcare providers pursuant to the provisions of the National Health Act. But any other instrument, in circumstances where a patient is unable to make a decision, is not binding on them.
Therefore, the concept of a living will is one that is without legal force in South African law.
A living will is traditionally a written document executed by a person while lucid, that indicates an individual’s choice or decision to end his or her life in circumstances where he or she is unable to make decisions for him or herself medically.
Living wills are useful instruments to assist a patient’s family to make decisions on the patient’s behalf where the patient is, for medical reasons, unable to do so for him or herself.
There is certain utility in having a living will but it remains legally inert.
Matters of assisted suicide were first addressed in the high court in Cape Town in 1975. In the matter of S vs Hartmann, the high court was tasked with dealing with an appeal in respect of a doctor who had administered morphine to the deceased in circumstances where the deceased was suffering from a terminal carcinoma of the prostrate.
The high court found that the accused had committed murder notwithstanding the particular circumstances in which the morphine was administered to the deceased. The administration of the sentence took into account the particular circumstances in which the accused had acted and the court came to the conclusion that “[t]his is a case, if ever there was one, in which, without having to be unfair to society, full measure can be given to the element of mercy”.
The next occasion on which the South African courts were required to deal with assisted suicide arose in the Durban and coast local division of the high court in 1992, in the matter of Clarke vs Hurst NO and Others 1992.
The matter concerned passive euthanasia; the patient was in a coma and unable to participate in any decision-making about his care or death. Interestingly, the patient did have a living will and the court relied on the existence of this document to assist it in coming to the conclusion to allow the passive euthanasia to proceed.
The court examined the deceased’s quality of life prior to the onset of his medical condition, and the positions and decisions he had communicated to those around him during his lifetime in respect of his views and thoughts on euthanasia and the application to his circumstances of the provisions of a living will. The court concluded that the patient’s wishes as expressed when he was in good health should be given effect to.
The next significant decision concerning assisted suicide was made by the Pretoria high court in Stransham-Ford vs Minister of Justice and Correctional Services. The applicant in this matter, suffering from advanced cancer, sought an order declaring that the medical practitioner who was to assist the applicant with a lethal agent in order for the applicant to take his life would not be held accountable and would be free from any civil, criminal or disciplinary liability.
The applicant achieved success in the application.
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The decision may provide useful precedent to another ailing individual who is incensed by the indignity of a suffering death, but euthanasia is by no means a legally endorsed procedure available to all.
The primary issue that emerges from the Stransham-Ford judgment is the lack of legal architecture to deal with euthanasia, even though the right to die is constitutionally endorsed by the rights to life and dignity.
Therefore, the question that the judgment leaves us with is not whether the Bill of Rights endorses euthanasia or the right to die but rather what we, as a society, must now consider as appropriate.
When is the right to die a right? Only in circumstances where the bearer is terminally ill, or may it be exercised by a healthy individual? Who will monitor the process, if anyone? May a third party object, and what will the status be of such an objection? How will it affect the payment of life insurance policies or potentially applicable medical scheme benefits?
The debate is complex but it must be carefully moderated as euthanasia, at least for purposes of South African law, is not about death and the right to die but rather the process of achieving that goal in the secure belief that one is exercising a constitutional right.
The existence of a living will does influence decisions when the patient is unable to make or participate in making decisions about his or her health and treatment.
Perhaps it is time to dust off the Law Commission report on euthanasia and the artificial preservation of life from 1998 and reinvigorate the discussion we need to have about euthanasia and the right to die.
Dying with dignity is as important as living in freedom.
Neil Kirby is director of healthcare and life sciences law at Werksmans Attorneys.