Some time ago, I saw an HBO documentary called How to Die in Oregon. It inspired my interest in the subject of assisted dying with dignity.
The case of Robert James Stransham-Ford has captured the minds of many of us recently and caused South Africans to pay more attention to assisted dying or euthanasia. These issues are of course not new to us but never before has a South African Court expressed itself in relation to the circumstances when a human being, in charge of all his faculties, may consciously end his own life and in particular, with the assistance of a medical doctor who may prescribe and administer some or other lethal agent that will terminate life. All of this, without the relevant doctor fearing prosecution following the death of the patient.
Many of us have witnessed the suffering, agony, humiliation and helplessness of loved ones on deaths door at some stage of our life. I can imagine that it is particularly tragic where one does not have access to medicines that seek to lighten the suffering whilst the inevitability of our mortality comes to its natural conclusion.
The case of Mr Stransham-Ford will, of course, also remind us of the suicide of the late IFP MP Mario Oriani-Ambrosini, who turned a firearm on himself and took his own life in the early hours of Saturday morning, 16 August 2014. The following is an extract from the News24 website about that very tragic event:
“His wife, sister, a friend and a nurse stayed up talking to him all night and, shortly before dawn, put on his favourite opera – Verdi’s Aida – when he asked to be left alone…
The birds had started singing outside, ready to welcome another fine day, when the report of a revolver shook the entire house, followed by deathly silence.
It was just before 06:00 on 16 August in Hout Bay, Cape Town, and Mario Oriani-Ambrosini was dead.
The shot came just 15 months after the fiery IFP MP was diagnosed with terminal lung cancer. He spent a large part of that time mounting a fierce campaign in Parliament to legalise the medical use of dagga oil.
In the living room of their beautiful home, Oriani-Ambrosini’s wife Carin (38) speaks publicly for the first time about his courageous fight against cancer.
“No one can quite imagine the trauma. That shot, and blood everywhere you looked. It shocked every bit of humanity in you. It’s something that will always haunt you,”…
“Mario tried everything. He could do no more. The cancer was everywhere – his lungs, his stomach, his legs, everywhere! Everything in him stopped working. It robbed him of his dignity, especially for his child [the couple’s seven-year-old son Luke] to see him like this. He was in emotional conflict, in unbearable pain … on the brink of death that would not come gently and quickly.
“It could have been so different. Imagine if we who loved him could hold his hand, hug him for a last time, while a doctor injected him and released him peacefully from all this suffering? That’s what we do for our animals when they suffer. Why not also for people?”
Turning now the to matter under discussion, in the court papers, Mr Stransham-Ford requested the court to make the following orders:
- Declaring that the Applicant my request a medical practitioner, registered as such in terms of the Health Professions Act 56 of 1974 (ä medical practitioner”), to end his life or to enable the Applicant to end his life by the administration or provision of some or other lethal agent;
- Declaring that the medical practitioner who administers or provides some or other lethal agent to the Applicant…, shall not be held accountable and shall be free from any civil, criminal or disciplinary liability that may otherwise have arisen from:
3.1 The administration of provision of some or other lethal agent to the Applicant;
3.2 The cessation of the Applicant’s life as a result of the administration or provision of some or other lethal agent to the Applicant;
- To the extent required developing the common law, by declaring the conduct in prayers 2 and 3 supra, lawful and constitutional in the circumstances of the matter.
Following the judgment of Justice Fabricius in the North Gauteng High Court, many South Africans will ask themselves: how will this judgment affect me and my loved ones? Please allow me to shed some light on your rights in this regard. Before we deal with the answer to the question, let us look at Mr Stransham-Ford’s circumstances.
Born in 1949, Mr Stransham-Ford was a highly educated man who was a practising advocate for 35 years, an accountant and tax practitioner in London and the Chief Executive of a syndicate of insurance brokers at Lloyds of London. In addition, he holds distinguished academic accomplishments. He had 4 children and had by all evidence led what one could safely call a full life.
In February 2013 Mr Stransham-Ford was diagnosed with Adema carcinoma (Gleason grade 9/10). In March 2015, he was admitted to hospital in great pain and it was discovered that the cancer had spread to his lower spine, kidneys and lymph nodes. From this point onwards, his health deteriorated markedly and rapidly. In his founding affidavit, he states that he suffers from severe pain, nausea, vomiting, stomach cramps, constipation, disorientation, weight loss, loss of appetite, high blood pressure, increased weakness and frailty related to kidney metastasis. He was unable to get out of bed, had injections and drips, endured anxiety, could not sleep without morphine or other pain killers and that the pain killers made him somnolent. Mr Stransham-Ford had undergone numerous forms of treatment and was under palliative care. It was the opinion of various medical experts who submitted affidavits on his behalf that his condition will become progressively worse and will in due course require an even stronger doses of opioid drugs and to be possibly hospitalized. He was becoming weaker by the day. As death becomes more imminent, he will become confused and afraid.
Mr Stransham-Ford, characteristically of the sort of man he was, educated himself as to this illness and his fate. In court papers, a clinical psychologist provided a report dated 10 April 2015 wherein she stated that Mr Stransham-Ford was well engaged in the interview and that she could find no cognitive impairments, no evidence of any psychiatric disorder and that he particularly impressed as being completely rational. She opined that that he displayed a good understanding and appreciation of the nature, cause and prognosis of his illness as well as the ethical and legal aspects of assisted suicide.
The application was opposed by the State (in the guises of the Ministers of Justice and Correctional Services and of Health as well as the National Prosecuting Authority) and the Health Professions Council of South Africa.
Why (or on what basis) did the State oppose the application?
By way of summary, the primary grounds of opposition were as follows:
- The Applicant is not entitled to the relief sought in that the Court cannot usurp the powers assigned to Parliament to legislate on issues assigned to it, due to the fact that he doctrine of separation of powers still find application;
- The State denied that the manner of death that the Applicant faced is not dignified, as this is the applicant’s own subjective view (paragraph 13 of the answering affidavit of the First Respondent).
- Assisted suicide or active voluntary euthanasia is unlawful and a criminal offence in terms of the law as it stands and is against entrenched ethical values of the medical profession.
- Sanctioning the Applicant’s request to end his own life with the assistance of a doctor will be tantamount to promoting inequalities and discrimination of the poor by way of limiting access to the courts to the rich only.
- The absence of any law of general application and regulatory framework to prevent abuse in cases such as these will be harmful to the public.
The third respondent, The Health Professions Council of South Africa (“HPCSA”), also opposed the application and a summary of the basis of opposition appears at paragraph 2.2 of its answering affidavit. The HPCSA contends that the relief sought by the Applicant:
- Is in conflict with accepted applicable legal principles;
- Is in conflict with the principles and ethics applicable to the medical profession in South Africa and the guidelines in respect thereof issued by the HPCSA;
- Involves issues of wider concern than a single individual, that requires legislative clarification and finality;
- Is contrary to public policy.
The HPCSA also adds, at paragraph 9 of its answering affidavit, the following reasons for opposing physician assisted dying:
- Undermining the integrity of the medical profession;
- The provision of euthanasia or physician assisted suicide (“PAS””) to patients prior to optimal palliative care interventions having been implemented and / or exhausted;
- The creation of psychological anxiety and distress in patients from the possibility of euthanasia or PAS;
- The coercion of patients, either subtly or more overtly, to use euthanasia or PAS against their wishes;
- The provision of euthanasia or PAS to patients without their fully informed consent (whether because of mental illness or mental incompetence or, in the South African context, misunderstandings or misconceptions about cultural differences);
- Psychological distress and harm to surviving family members of the patient.
The application was heard as a matter of urgency in the North Gauteng High Court on 29 April 2015. On 30 April 2015, the day Justice Fabricius made his order, Mr Stransham-Ford passed away as a consequence of his illness.
In his written judgment, Judge Fabricius states that, among other things that:
- Currently, assisted suicide or active voluntary euthanasia is unlawful in South African law;
- In discussing the role of the Constitutional imperative of human dignity he refers to what was said by Currie and De Waal, at page 23 of their book: “Human dignity is not only a justiciable and enforceable right that must be respected and protected, it is also a value that informs the interpretation of possible all other fundamental rights and it is further of central significance in the limitations enquiry.”
- Further, on page 16 of the judgment of Fabricius J, the following appears: It is also worthwhile quoting what O’Regan J had to say in the Makwanyane decision supra about the notion that the right to life must be a life that is worth living: “the right to life is, in one sense, antecedent to all other rights in the Constitution. Without life in the sense of existence, it would not be possible to exercise rights or be the bearer of them. But the right to life was included in the Constitution not only to enshrine the right to existence. It is not life as a mere organic matter that the Constitution cherishes, but the right to human life: the right to share in the experience of humanity. The concept of human life is at the centre of our constitutional values. The Constitution seeks to establish a society where the individual value of each member of the community is recognised and treasured. The right to life is central to such a society. The right to life, thus understood, incorporates the right to dignity. So the rights to dignity and to life are intertwined. The right to life is more than existence, it is a right to be treated as a human being with dignity: without dignity, human life is substantially diminished. Without life, there cannot be dignity.
- For these reasons, the court found that, in a post-constitutional era, the law on this topic requires development to give effect to the Applicant’s constitutional rights.
- In the decision of the American Supreme Court in Cruzan v Director, Missouri Department of Health et al 497 US 261 (1990), that court stated that “dying is part of life, it is its completion rather than its opposite. We can, however, influence the manner in which we come to terms with our mortality.”
- The Judge went on to state, in reference to the existence of divergent views on the matter, the Constitution with its Bill of Rights should inform his decision making, that the norms of the Constitution should inform the public, and its values, not sectional, moral or religious convictions.
- On the role of the State, the Judge had the following to say on page 19 of his judgement: “The State says it cannot fulfil all socio-economic demands, but it assumes the power to tell and educated individual of sound mind who is gravely ill and about to die, that he must suffer the indignity of the severe pain, and is not allowed to die in a dignified, quiet manner with the assistance of a medical practitioner…The irony is, they say, that we are told from childhood to take reasonability for our lives but when faced with death we are told we may not be responsible for our own passing…One can choose ones education, one’s career, one can decide to get married, one can live according to a lifestyle of one’s choice, one can consent to medical treatment or one can refuse it, one can have children and one can abort children, one can practice birth control, one can die on the battlefield for ones country. But one cannot decide how to die. The choice of a patient such as the present, is consistent with an open and democratic society and its values and norms as expressed in the Bill of Rights. There is of course no duty to live, and a person can waive his right to life.
Following the hearing of the matter, the order made by Fabricius J read as follows:
- IT IS DECLARED THAT :
- The Applicant is a mentally competent adult;
- The Applicant has freely and voluntarily, and without undue influence requested the Court to authorize that he be assisted in an act of suicide;
- The Applicant is terminally ill and suffering intractably and has a severely curtailed life expectancy of some weeks only;
- The Applicant is entitled to be assisted by a qualified medical doctor, who is willing to do so, to end his life, either by administration of a lethal agent or by providing the Applicant with the necessary lethal agent to administer himself;
- No medical doctor is obliged to accede to the request of the Applicant;
- The medical doctor who accedes to the request of the Applicant shall not be acting unlawfully, and hence, shall not be subject to prosecution by the Fourth Respondent or subject to disciplinary proceedings by the Third Respondent for assisting the Applicant.
- This order shall not be read as endorsing the proposals of the draft Bill on End of Life as contained in the Law Commission Report of November 1998 (Project 86) as laying down the necessary or only conditions for the entitlement to the assistance of a qualified medical doctor to commit suicide.
- The common law crimes of murder or culpable homicide in the context of assisted suicide by medical practitioners, insofar as they provide for an absolute prohibition, unjustifiably limit the Applicant’s constitutional rights to human dignity (S.10), and freedom of bodily and psychological integrity (S.12 (2) (b), read with S.1 and 7), and to that extent are declared to overbroad and in conflict with the said provisions of the Bill of Rights.
- Except as stipulated above, the common law crimes of murder and culpable homicide in the context of assisted suicide by medical practitioners are not affected.
What does Judge Fabricius’ order mean for us?
This means that, as of 30 April 2015:
- If you are a mentally competent adult who is terminally ill ,suffering obstinately from this illness and have a severely curtailed life expectancy, you may ask a court to authorize that you be assisted by a doctor in committing suicide;
- The doctor will be entitled to either accede to or decline the request of assistance. If he/she does accede, he/she may either cause to administer the lethal agent or provide the agent and any other mechanism (such as a syringe or tablets containing the lethal agent) to the patient who may administer it him or herself.
- The doctor who accede to the request will not be subject to civil liability or criminal prosecution for murder or culpable homicide as a consequence of having assisted another person in ending their life and neither will the Health Professions Council (the professional body that regulates the conduct of medical personnel) be able to take disciplinary steps against such a doctor.
The government has indicated that it will appeal this judgment and ultimately the matter will be decided by the Constitutional Court in due course. This is, of course, a matter for the legislature to consider and to produce a Bill. In November 1998, the South African law Commission compiled a report titled “Euthanasia and the artificial preservation of life”. 16 years later, no serious consideration has been given to introduce a Bill, despite the subject matter being of great importance, particularly if one has regard to the Bill of Rights in the Constitution.