An ‘important purpose of section 34 [of the Constitution] is to guarantee the protection of the judicial process to persons who have disputes that can be resolved by law’ and that the right of access to court is ‘foundational to the stability of an orderly society. It ensures the peaceful, regulated and institutionalised mechanisms to resolve disputes, without resorting to self-help. The right of access to court is a bulwark against vigilantism, and the chaos and anarchy which it causes. Construed in this context of the rule of law and the principle against self-help in particular, access to court is indeed of cardinal importance’.The right guaranteed s34 would be rendered meaningless if court orders could be ignored with impunity:the underlying purposes of the right — and particularly that of avoidance of self-help — would be undermined if litigants could decide which orders they wished to obey and which they wished to ignore.
News that Professor Sean Davison, 48, the head of the department of biotechnology’s forensics laboratory at the University of the Western Cape, was arrested in New Zealand for allegedly feeding his cancer-stricken mother a lethal dose of morphine, once again highlighted the often illogical and sometimes bizarre manner in which our society (and the law) deal with profoundly difficult ethical questions.
We have come a long way since the days when suicide was considered unlawful. Under the influence of Christian teachings, which assumed that God gave life and that only He could take it away (somewhat negating the free will of the person who had to decide whether to take God into his or her heart or whether to take their own life), successful suicide was punished by dishonouring the corpse and seizing the property of the deceased. And people who attempted to commit suicide but failed were prosecuted and punished. Attempted suicide was still prosecuted and punished during the regime of the Dutch East India Company at the Cape, but today this proposition seem rather absurd.
Our criminal law is clearly not very consistent in dealing with ethical issues. It prohibits cruelty towards certain animals and also bans sex with animals, but the poor chickens that end up in neatly packaged containers at Checkers and Pick and Pay and (so it is convincingly claimed) often suffer horribly before they are killed, chopped into neat little pieces and packed off to supermarkets to be bought, braaied and eaten by humans, are somehow not protected by this law.
It is therefore not surprising that there is some ambivalence in our law about how to deal with the broad concept of euthanasia. As a general principle, a person who assists another to end his or her life, is guilty of murder and can be successfully charged and prosecuted. Where a doctor or family member knowingly administers a lethal dose of a painkiller to end the suffering of the terminally ill patient or a patient who is in a permanent vegetative state, he or she will potentially be guilty of murder and could be prosecuted.
However, in 1992 in the High Court in Durban in the case of Clarke v Hurst the wife of a patient who was in a permanent vegetative state sought an order authorizing her to withhold the intravenous feeding from her husband so that he could starve to death. The Court found that while the patient was legally still alive, there was no possibility that the patient would emerge from his vegetative condition (the court not being in the business of miracles) and that his brain had “permanently lost the capacity to induce a physical and mental existence at a level which qualifies as human life”. This meant that “judged by society’s legal convictions, the feeding of the patient does not serve the purpose of supporting human life as it is commonly known”.
So. the person was legally alive, said the court, but he lacked the capacity for human life and could therefore be allowed to starve to death. As Prof Jonathan Burchell commented in his Criminal law textbook, “there is a certain ambivalence” in this judgement.
The distinction between ceasing treatment or withholding food from a patient that is never going to recover and is suffering on the one hand, and administering a high dose of some pain killer that would contribute to the death of the patient on the other is not easy to make. Surely doctors have an ethical duty to relieve the pain of patients?
But how much morphine can a doctor prescribe before the alleviation of suffering turns into euthanasia? Surely this line is rather difficult to draw and doctors struggle with this every day, often prescribing high doses of a drug to a patient in a vegetative state who is going to die anyway, knowing full well that this will hasten the death of the patient.
The South African Law Reform Commission seem to have realised this problem and proposed that a medical practitioner or, under specified circumstances, a nurse should be allowed to relieve the suffering of a terminally ill patient by prescribing sufficient drugs to control the pain of the patient adequately even though the secondary effect of this conduct may be the shortening of the patient’s life.
However, the Law Reform Commission Paper also seem not to have bitten the bullet on the issuee of whether Parliament should intervene to allow for the direct killing of patients who wish to die a dignified death. It did not propose that such a direct assistance to end the suffering of a terminally ill person should be made legal. In summary, it made the following proposals:
However, section 12(2) of the Bill of Rights state that everyone has the right to bodily and psychological integrity, which includes the right to security in and control over their body. Surely, if a patient believes that he or she would rather die than continuing to suffer pain, the person should be allowed to instruct a doctor or family member that when the time comes he or she should be relieved from their pain? In the case of Prof Davisons mother, if she had asked her son to end her life when it became unbearable, should the law not have provided some mechanism for him to fulfil his mother’s wishes to do with her body as she likes?
Is this absolute prohibition in our law on assisting anyone to kill themselves for any reason, not perhaps based on the same kind of absurd reasoning that allowed for the criminalisation of suicide in previous centuries? Surely, I have a right to decide whether I want to die or not. Should I then not also have the right to ask others to help me to die? Personally, I think every person has a right to ask others to legally help them end their lives.
The most difficult cases would of course be those where a patient had not expressly stated that he or she would wish to die if he or she was terminally ill or in a vegetative state, and was now incapable of giving such an instruction. Can the family now decide that the life of the wife or mother who is now in a vegetative state should be terminated? I am not sure section 12(2) of the Constitution can help us answer this question. It is perhaps an ethical question that Parliament needs to answer.
Personally, I believe Parliament should pass comprehensive legislation in this regard. Such legislation should allow for strictly regulated ways in which doctors could assist patients to end their lives if the patients so request. Such legislation should also allow doctors to actively end the life of a patient in cases where family members wish to end the life of a loved one who is in a vegetative state. What is the difference, after all, between starving a person to death and giving that same person a high dose of morphine? Is the second case not more humane than the first? Why would the first then be legal and the second not?
Sadly, because of society’s unease about such matters, Parliament will probably not deal with this matter. This is a tragedy. Every day doctors will continue to make very difficult decisions which technically might expose them to prosecution. Surely Parliament owes it at least to our doctors to clarify the legal position around euthanasia.BACK TO TOP