Notes on Euthanasia

In Stransham-Ford v Minister of Justice And Correctional Services and Others (4 May 2015) the High Court gave a terminally ill patient permission to be assisted in his suicide by a doctor who is willing to  do so, 'either by administration of a lethal agent or by providing the Applicant with the necessary lethal agent to administer himself.' 

A few days ago, however, leave was granted to appeal this ruling in order to develop South Africa's common law. 

101 Notes: 

There is currently no legislation/law enacted to regulate euthanasia and as pointed out by a senior State Advocate representing the National Director of Public Prosecution in the aforementioned case, to assist someone commit suicide is a crime. 

There are different variations of euthanasia: 

Doctor withholds treatment from a patient. This is a passive approach. A patient may refuse medication/ treatment in terms of one’s Constitutional right to bodily integrity. 

Where a patient is mentally capable and wants to die, the doctor may NOT pursue any treatment. The crime for doing so is assault. 

Where the patient is mentally incompetent, only a medical professional will be able to determine what would be in the best interests of the patient. Unless the patient has a living will advising that he/she does not consent to artificial life support. A living will is signed when the patient is mentally capable and only becomes relevant when the patient is mentally incompetent/ in a permanent vegetative state. At the moment a living will cannot order a medical practitioner to assist with the patient’s suicide. 

Mercy killing. This is when the doctor actively assists the dying. Regardless of whether or not there is a kind motive: mercy killing = murder. 

There is currently a bill (draft law) concerning assisted suicide. The draft law suggests three approaches: a) Leave the matter unregulated and allow the courts a discretion with regards to sentencing, etc.; b) The doctor and patient decide together; c) Set up an Ethics Committee to decide whether or not assisted suicide may be pursued. 

Note that a High Court does not have the power to make new laws and that decisions of the Supreme Court of Appeal are binding on all lower courts. An order of constitutional invalidity must, however, proceed to the Constitutional Court for confirmation. The Constitutional Court will then typically guide and order Parliament to cater for the specific instance by enacting legislation. Power is divided into three branches: legislative/ law-making (Parliament), executive (President and his Cabinet) and judicial (Courts who apply and review laws). To avoid the abuse of power, each branch functions independently with different functions.

Judge Fabricius in the Stransham case on the sacredness of life, para 14:

"People die of AIDS, from malaria by the hundreds of thousands, from hunger, from malnutrition and impure water and insufficient medical facilities. The State says that it cannot afford to fulfil all socio-economic demands, but it assumes the power to tell an 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.”

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