Assisted suicide court case planned for April 21

Lobby group, Dignity SA, is planning to bring an urgent application to allow doctor assisted suicide of cancer sufferer, Advocate Robin Stransham-Ford, before the Pretoria High Court, on or around April 21, 2015.

Dignity SA intend to serve papers this week and are currently fundraising for a protest outside the court planned to coincide with the hearing.

Whether they win or lose, it is expected the case will be appealed by one side or the other and go to the Constitutional Court. Dignity SA base their arguments on the rights to dignity and personal autonomy. You can follow their case via https://twitter.com/DignitySAfrica/ and https://www.facebook.com/dignity.sa.7

The previous time Dignity SA tried to bring a case to the Constitutional Court, the applicant died before the case was heard. They are now trying again with Stransham-Ford who, according to a Dignity SA blog post, is “sadly, weeks away from death”. They revealed their plans to take a case to the Concourt in October 2014.

The proposed very short time frame (just over one week) between filing papers and wishing the case to be heard would be difficult without strongly motivating an “urgent application”. They argue they cannot file papers yet because they have not yet received all the medical reports they need. The responding lawyers are likely to argue the need for time to prepare a defence.

Such a case will be one of national significance, with numerous interested parties wishing to make representations including the health professions, religious groups, traditional leaders, various public interest NGOs, and organisations for people with disabilities who may wish to join as “friends of the court”‘. All of these will want time to prepare a response. It thus appears opportunistic to hope to have the case heard with such urgency and it would be reckless for the court to agree to such short time frames.

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On the other hand, if Dignity SA do not press for urgency, the applicant may, like the previous one, not survive for the trial. There have been no public news releases on this yet and they may be trying to slip the issue through the courts “under the radar” in the hope the opposition will be unprepared to defend against it.

Professor Sean Davidson who founded Dignity SA in 2011 assisted with the suicide of his mother in New Zealand, where he served a five month detention after agreeing to a plea bargain to plead guilty of assisted suicide. He recently confessed to assisting with another suicide in 2013 in South Africa, for which he says he is not afraid of prosecution. Presumably he believes, if prosecuted, he could win a the case by appealing to the Constitutional Court. This nevertheless, creates a tension in which the law is in force but being flouted. Davidson is the acting Head of department of Biotechnology at University of the Western Cape and heads the forensic DNA laboratory. 

Precedent
In 1974, a doctor who administered a lethal dose of medication to his father, was found guilty of murder, but served no sentence other than the censure of the court and a criminal record. He was barred from practicing as a doctor by the SA Medical Council. The convicted doctor had asked a nurse for the medication, who thus became an unwitting accomplice to the murder and reported the matter to the police.

The precedent case highlights that assisted suicide is not an entirely private matter, as the nurse assisted without knowledge or consent. Similar has occurred with the abortion issue.

On February 6 this year, the Supreme Court of Canada ruled in favour of legalising doctor assisted suicide, finding “the Criminal Code unjustifiably infringe s. 7 of the Charter and are of no force or effect to the extent that they prohibit physician-assisted death for a competent adult person who (1) clearly consents to the termination of life and (2) has a grievous and irremediable medical condition (including an illness, disease or disability) that causes enduring suffering that is intolerable to the individual in the circumstances of his or her condition.” 

The South African Bill of Rights is probably more similar to the Canadian Charter of Rights and Freedoms than any other constitution and thus both countries often use each other’s rulings as precedent in making decisions. The South African Bill of Rights allows the use of foreign case law.

Dignity SA plan to base their argument on the right to dignity and autonomy of the person. The South African Bill of Rights includes the explicit Right to dignity (Section 10), although it has never been interpreted by a court as justifying assisted suicide. The Canadian Charter of Rights makes no reference to a right to dignity and the clause section 7 needs a big stretch of the imagination to be intepreted to favour the right to assisted suicide. Nevertheless, the extremely liberal court not only did so but also awarded costs against the state to the applicant.

Dignity SA hopes that the South African Constitutional Court will instruct Parliament to amend the law on assisted suicide (as they did with the same sex marriage issue).

Click to join movement

The issue of amending laws on assisted suicide and euthanasia has been debated a number of times, with proposals being abandoned in each case due to fierce opposition. It is unlikely to have success through the South African parliamentary legislative system. Nevertheless, in the past few years Europe has undergone an ethical revolution on the issue of assisted suicide and early this year Canada joined that revolution forced through undemocractically by the Supreme Court. Presuably they hope to do the same in South Africa.

A Christian response to the issue can be found at: “How do we answer calls to legalise euthanasia?”