Last year, terminally ill cancer patient, Robin Stransham-Ford, applied to court for permission to get a willing doctor to assist him to end his life. The court allowed this, ruling that the doctor enlisted to end Stransham-Fordâ€™s life would not be criminally liable. However, he died naturally some hours before the groundbreaking judgment was made. The state is appealing the judgment at the Supreme Court of Appeal, opening up the debate around assisted dying once again.
What is assisted dying?
The medical definition of assisted dying is the â€œvoluntary termination of one’s own life by administration of a lethal substance with the direct or indirect assistance of a physician.â€ Assisted dying allows a competent patient to be given a medical prescription that can be used to end their own life.
There is no legal definition of assisted dying, but Director of Wits Universityâ€™s Centre for Applied Legal Studies, Bonita Meyersfeld, defined it simply as â€œthe right to have a physician prescribe medication to allow you to end your life at the time you see fit.â€
Assisted dying is also referred to as euthanasia, assisted suicide and physician-assisted suicide, but â€œassisted dyingâ€ is considered the politically correct term to use as the other terms carry negative connotations.
Is it legal?
As it stands, assisted dying in South Africa is against the law. Medical professionals who are involved in assisting someone to end their life face disciplinary action through the Health Professions Council of South Africa (HPCSA), as well as criminal prosecution.
In 1998, the South African Law Commission (SALC) published a report titled Euthanasia and the Artificial Preservation of Life in 1998 and put forward three options concerning assisted dying:
- Firstly, the law could remain as it is. The SALC said there is no â€œsufficient reasonâ€ to legalise assisted dying as societyâ€™s ban on intentional killing is considered the cornerstone of the law and all social relationships.
- A second option is the legislative regulation of medical practitioners who may be requested to deal with the lethal dose. It states that the terminally ill patients must be mentally competent and the medical practitioner must adhere to â€œstrict safeguards to prevent abuse.â€
- The third option is a multi-disciplinary panel to consider each request for assisted dying according to specific criteria.
However, this report did not receive the necessary attention from the Minister of Health at the time, due to pressing HIV/Aids-related issues. So the criminalisation of assisted dying remains up for review.
Has anyone been allowed to end their life with a doctor’sÂ help before?
In his affidavit, Stransham-Ford said not allowing him the choice to end his life by assisted suicide is a gross violation of his fundamental constitutional right to dignity.
â€” CALS (@CALS_ZA) November 4, 2016
Judge Fabricius said that his ruling applied only to that specific case, but the appealing parties are concerned that it is setting a dangerous precedent for teminally ill patients to enlist a courtâ€™s help in future.
Why is the state appealing the court ruling?
On November 4, the Minister of Justice, the Director of Public Prosecutions, the Minister of Health and the HPCSA argued that the Constitution guarantees the right to life, not death.
They saidÂ that interpretations of the ruling can have extensive consequences and be abused by others without a legislative framework that regulates assisted dying.
â€” Karyn Maughan (@karynmaughan) November 4, 2016
These concerns have been echoed by other groups and individuals.
Hospice is concerned that legalising assisted dying would put vulnerable people at risk.
Dr Liz Gwyther, CEO of the Hospice Palliative Care Association wrote, â€œThis is because people who are healthy and able-bodied, including our law makers, have a perception that the people who are old, disabled or seriously ill do not or cannot have good quality of life.â€
Dying with Dignity South Africa (DignitySA) is a group â€œlobbying for changes that address the question of dignity and quality of life.â€ Founding member Professor Sean Davison says there is no need to be concerned about the laws being abused.
He proposed an independent panel to ensure that the vulnerable are protected. The panel would â€œassess each request for an assisted death to ensure several precise criteria are met: the person should be mentally competent and suffering unbearably with little hope of recovery. Their requests should be sustained and repeated over a defined period of time.â€
According to Dr Gwyther, people request assisted death because of hopelessness, despair and fear of burdening their loved ones, and not due to unbearable pain.
â€œResearch into the experience of dignity shows that if people are valued and shown respect they maintain their self-esteem and do not feel worthless or a burden on their carers; and maintain their dignity in spite of their decline,â€ she wrote.
HPSCA arguing that terminally ill people may want to live, but will opt for suicide because they feel are a burden #RightToDie
â€” Karyn Maughan (@karynmaughan) November 4, 2016
Is assisted dying an expression or violation of human rights?
Experts are divided on whether or not assisted dying should be lawful in South Africa.
Dr Gwyther wrote that it is wrong to end anyoneâ€™s life prematurely, no matter their circumstances. She emphasised that palliative care, which is specialised treatment for terminally ill patients, affirms life and considers dying as a normal part of life.
For Professor Davison, assisted dying is a matter of human rights and dignity.
â€œThis is a human rights issue â€“ itâ€™s about human suffering. I donâ€™t understand why any humane person would deny a terminally ill person, who is suffering terribly towards the end of their life, the right to choose to have a dignified death,â€ he said.
Meyersfeld agrees that assisted dying lends dignity to patients suffering from terminal illness without forcing them to resort to the violence of committing suicide.
â€œI cannot understand how we can have the right to life and respect our physical autonomy if itâ€™s not up to us to make the final decision about how we end our lives, if we end our lives,â€ Meyersfeld told The Daily Vox.
But DrÂ Gwyther has a different understanding of human rights. â€œIt is a gross violation of human rights to offer death instead of offering good care to relieve pain and suffering,â€ she wrote.
What do religious leaders think?
Archbishop Emeritus Desmond Tutu supports assisted dying, writing in an opinion piece for the Guardian in 2014: â€œWhat constitutes quality of life and dignity when dying? I have come to realise that I do not want my life to be prolonged artificially. I think when you need machines to help you breathe, then you have to ask questions about the quality of life being experienced and about the way money is being spentâ€.
Most religious leaders are reluctant to agree with the principle of assisted dying.
According to Islamic scholar, Moulana Mohammad Ashhad Bin Said, Islam considers human life sacred and does not provide for killing someone in order to reduce their pain and suffering from sickness. HeÂ made a distinction between â€œactive euthanasiaâ€ (much like assisted death) which is â€œan act of commission, taking some action that leads to death like a fatal injectionâ€ and â€œpassive euthanasiaâ€, which is â€œletting a person die by taking no action to maintain life,â€ such as â€œwithholding or withdrawing water, food, drugs, medical or surgical procedures, resuscitation, and life support such as the respiratorâ€.
He said that in Islam, active euthanasia is not permitted as doctors, the patientâ€™s family and the state all have a duty to look after the sick and â€œdo their best to reduce their pain and sufferingâ€.
However, passive euthanasia is possible, â€œif a number of medical experts determine that a patient is in a terminal condition and there is no hope for his/her recovery.â€
Chairman of the South African Rabbinical Association, Rabbi Giddon Fox, also told the Daily Vox that in in Judaism all life is sacred and the life of healthy person is not worth more than that of a sick person. â€œLife is absolute and not dependent on â€˜quality of lifeâ€™ or mental or physical capacity. Despite any pain or trauma which a person may be experiencing, it does not render that life valueless and worthless.â€
Rabbi Fox added that all life belongs to G-d* and is not the possession of the individual.
Judaism does not sanction assisted dying. â€œJudaism requires that all patients be given pain treatment as well as hydration, nutrition and oxygenation, regardless of their prognosis for recovery or cure,â€ Rabbi Fox said, â€œonly He who gave life may take life, while our job is to preserve and protect it and cherish and maximise every moment of its existence.â€
Tutu said that he, too, reveres the sanctity of life, â€œbut not at any cost,â€ and that we need to revisit our constitution to espouse the human right to dignity.
So is the law going to change?
The SCA has reserved judgement on the Stransham-Ford appeal.
Davison is not happy with the postponement. â€œThe question has to be asked: what kind of government lets its people suffer so horrendously, despite their clear and informed wish to die, because it is too controversial,â€ he wrote on the DignitySA page.
The SCA is expected to make its decision next month.
*traditional Jewish law writes â€œGod” as â€œG-d” in English to give G-dâ€™s Hebrew name respect and reverence.
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