Pierre de Vos, Constitutionally Speaking – 4 October 2018
Two weeks ago, the police arrested University of Western Cape professor Sean Davison on a charge of murder. He was arrested for allegedly assisting Anrich Burger to die. Burger was left a quadriplegic after an accident in 2005. A 2016 Supreme Court of Appeal judgment raised questions about whether it will always be a criminal offence to assist another person to end his or her life. But the judgement is vague and unsatisfactory. It is therefore imperative that courts either develop the common law to allow for assisted dying, or that parliament pass legislation to do so.
I was sitting at a restaurant in Cape Town having lunch with friends on a warm December afternoon in 2004 when the phone rang. “It’s dad,” my sister said. “A stroke. They took 15 minutes to get his heart going again. It’s not looking good.”
In the coming days I spent many hours with my four sisters next to my father’s bed in the ICU of Unitas Hospital in Pretoria, often glancing at the machine monitoring his heartbeat just to make sure it was still going beep-beep-beep. The stress and anxiety forced us siblings closer together and (as some families sometimes do), we turned some of the traumatic stories of our childhood and early adult life into humorous anecdotes which we took turns in telling.
“Remember,” one of us would say, “that holiday when dad was drunk the entire time and walked around on the beach wearing a rubber mask, scaring the young children?” We would screech with hysterical laughter, and when we had calmed down, someone would tell another story that would send us into more hysterics. Only once – treacherously – did my laughter turn into sobs.
We made such a noise in the ICU that a nurse angrily came up to us to quieten us down. “People are dying here,” she said in a heavy Afrikaans accent, wagging her finger at us as if we were five-year-old children. Perhaps she had a point. In our panic-stricken grief, we were acting like the orphaned children we knew we would soon become.
At some point the doctor explained that my father would never wake up. We had a choice. We could either allow the doctors to switch off the machines that kept him alive, or we could wait until he eventually died of “natural causes”. “We are looking at two or three weeks,” the doctor explained. “Maybe a month or two.” Us children looked at each other and all nodded yes.
Switch off the machines.
My father died the next day, on 15 December 2004.
I have often wondered what I would have done if my father had woken up in a diminished state and had asked me to assist him to end his life. Would I have been brave enough to help my father to die with dignity according to his own wishes? Or would I, cruelly, have placed my own interests first, refusing to assist because of my fear of being prosecuted for murder?
This all happened before the Supreme Court of Appeal (SCA), surprisingly, held in 2016 in Minister of Justice and Correctional Services v Estate Stransham-Ford that – in terms of the common law – it may not always constitute a criminal offence to assist somebody to end their life.
The SCA judgment in Stransham-Ford overturned a High Court decision which ruled that Stransham-Ford (terminally ill and suffering intractably) was entitled to be assisted by a qualified medical doctor, who was willing to do so, to end his life, either by administration of a lethal agent or by providing Stransham-Ford with the necessary lethal agent to administer himself.
The SCA judgment is not a model of clarity. In fact, it is a legal mess. This means it is currently near impossible to know with certainty when a person who assists another to end his or her life could be prosecuted for murder or culpable homicide.
What we do know is that a patient may refuse treatment that would otherwise prolong his or her life. A doctor is also permitted to end treatment or other forms of medical intervention that serve neither a therapeutic nor a palliative purpose. A doctor is also permitted to prescribe drugs by way of palliative treatment for pain – even when the doctor knows administering this drug will have the effect of hastening the patient’s death. The SCA specifically linked this to a patients’ right to dignity protected in section 10 of the Constitution and the right to bodily integrity protected in section 12(2)(b) of the Constitution.
We also know that a person who ends the life of a suffering patient without that persons’ explicit consent, commits the crime of murder. This was confirmed in the 1975 case of S v Hartmann. Hartmann, a medical practitioner, ended the life of his suffering, terminally ill, 87-year old father and was convicted of murder. However, he was never sent to prison.
But the SCA judgment in Stransham-Ford sends mixed signals about what would happen in cases where patients obtain a prescription for lethal drugs that they use to terminate their own lives. This is commonly referred to as physician assisted suicide (PAS). The law is also not that clear in cases where the medical practitioner or other person administers a lethal drug to a patient at the request of the patient. This is referred to as voluntary euthanasia or physician administered euthanasia (PAE).
The SCA in Stransham-Ford held that a person who assists another to end their life could be convicted of murder if his or her actions were performed with criminal intent and there was no break in the chain of causation between their actions and the ultimate death of the person who desired to end their life, or culpable homicide if their actions were merely negligent. The fact that the patient gave consent is no defence. However, the SCA then proceeded to make the following statement:
But it is, to say the least, debatable how to apply these principles to a failed suicide pact or the case of a medical practitioner who reluctantly and at the insistence of a dying patient provides the means for them to commit suicide, while counselling them against doing so.
According to the SCA, every case is to be decided in accordance with the basic principles and on its own peculiar facts.
The SCA in Stratham-Ford did suggest that a court faced with a case of PAS or PAE “would also have to pay particular heed to the requirements of s 39(2) of the Constitution, which requires that in the development of the common law the court must strive to give effect to the nature purport and objects of the Bill of Rights” – although it held that the case before it was not an appropriate one to do so.
I would argue that the failure of our law to respect the rights of an adult person who wishes to end his or her life to obtain assistance to do so, conflicts with the Bill of Rights.
Section 10 of the Bill of Rights guarantees for everyone the right to have their dignity respected and protected. Although the conflation of the values of dignity and autonomy has sometimes been criticised in academic literature, South Africa’s Constitutional Court has embraced the notion that dignity is closely related to autonomy – the ability, even right, to make meaningful choices about your life and how to end it.
This idea is well captured by Justice O’Regan in het Constitutional Court judgment in the case of S v Makwanyane where she linked dignity to the right to lead a dignified life:
The right to life, thus understood, incorporates the right to dignity. So the rights to human dignity and life are entwined. The right to life is more than existence – it is the right to be treated as a human being with dignity: without dignity, human life is substantially diminished.
But there is a far more direct and less controversial route to get to the conclusion that the current law conflicts with the Constitution. Section 12(2)(b) of the Constitution guarantees for everyone the right to bodily and psychological integrity, including the right “to security and control over their body”. Currently, the law does not fully respect the phycological and bodily integrity of individuals who wish to end their lives and need assistance to do so.
The common law limits the rights of individuals to end their own lives, so the argument goes, because it is against the “moral convictions of the community” to permit assisted dying. This, it seems to me, is an argument that predates the adoption of the Constitution as the values contained in the Bill of Rights now guide the development of the common law. Before 1994, 200 or so white men who happen to have been selected to serve as judges decided what the so called “moral convictions of the community” ought to be. This was strongly influenced by the Christian nationalist ethos of the apartheid state and of the apartheid judiciary.
In the democratic era, the values of dignity, equality and freedom that underpin the Bill of Rights guide the development of the common law. It is no longer appropriate to rely on the moral attitudes of a segment of society (often influenced by specific religious views) to justify the denial of the rights of others. As the Constitutional Court stated in Minister of Home Affairs v Fourie:
It is one thing for the Court to acknowledge the important role that religion plays in our public life. It is quite another to use religious doctrine as a source for interpreting the Constitution. It would be out of order to employ the religious sentiments of some as a guide to the constitutional rights of others.
While the courts have a duty to develop the common law in accordance with constitutional values, it would be better if the legislature passed comprehensive legislation to regulate the circumstances under which individuals could lawfully be assisted to end their lives. I hope I am wrong, but I suspect that the vast majority of MPs are unfortunately too conservative and too lacking in respect for the dignity and bodily integrity of others to do so.