Parliament must decide right-to-die issues says Supreme Court of Appeal

Judgment prevented ‘tragic social experiment’

The Supreme Court of Appeal in Bloemfontein yesterday (Tuesday December 6 2016) overturned a potentially far-reaching court order granting the medical profession permission to assist in the death of a terminal cancer patient, Robin Stransham-Ford.

The successful appeal by the state against the judgment of the Gauteng High Court handed down on May 4 last year has been welcome by among others the Minister of Justice, Justice Alliance of SA (JASA), Doctors for Life International (DFL), the ACDP, and Euthanasia Exposed. Euthanasia lobby group Dignity SA which has been closely associated with the case throughout expressed disappointment at the ruling and said it may take it to the Appeal Court.

DFL which testified as an amicus curiae for the state says the judgment was the culmination of decades of conferences, educating health professionals and the public, taking part in debates, and finally the legal battle to prevent legislation that would use the South African public as “guinea pigs in a tragic social experiment”.

Legal precedent
“Legalising physician assisted suicide would have created a legal precedent that would have led to floods of euthanasia contagion. The judgement will serve to protect the sick, the aged and the vulnerable in SA who are the ones who would be most harmed through such a law,”

The Supreme Court of Appeal pointed to several flaws in Judge Fabricius’ ruling [in the Gauteng High Court]: One being that Mr Stransham-Ford passed away prior to Fabricius making his judgement. Circumstantial evidence seems to indicate this information may have been deliberately withheld from the court, DFL says in a media release.

Reasons for judgment
JASA, which contributed to the successful appeal, as amicus curiae and working in partnership with the Roman Catholic Church of South Africa, reports that the SCA gave three separate reasons for its decision saying that any of the three would be sufficient grounds for allowing the appeal. The three reasons were:

1. The deceased Robert Stransham-Ford having died before the order of the court was handed down, the cause of action was extinguished and there was no live issue for the court to adjudicate upon.

2. The High Court’s examination of the present state of the law in South Africa was woefully inadequate.

3. The matter was dealt with in such haste that there was no opportunity for all interested parties to be heard.

Having allowed the appeal on those three grounds however, the judgment goes on to clarify the existing law relating to a person or persons assisting another to commit suicide, and map out the way forward for parliament when it comes to consider “issues engaging profound moral questions beyond the remit of judges to determine”.

JASA says in a media release that it is delighted that all the arguments advanced by Advocate Darryl Cooke were accepted by the SCA and obviously of assistance to it.

Main points in the judgment clarified
In order to assist the media and layman, JASA has provided a summary which can be read here by John Smyth, QC of the main points in the judgment.

“We are relieved that the SCA correctly stated the law, as this decision could have far reaching implications on the constitutionally entrenched right to life and our common law crimes of murder and culpable homicide,” Justice Minister Michael Masutha said yesterday.

ACDP MP Cheryllyn Dudley said yesterday: “The ACDP welcomes this decision and agrees that this is a matter for elected members of parliament and not judges to decide.

Callous attitude toward life
“We are however of the opinion that a decision permitting euthanasia, even one made by elected members of parliament would undermine the right to life and further devalue it. High levels of violence in South Africa reveal an increasingly non-caring society and this kind of decision feeds into this kind of callous attitude toward life in general.”

She said: “The ACDP has often expressed concerns that in a country where so many are afflicted with HIV AIDS and other terminal illnesses the idea that people should be subconsciously made to feel they should consider ending their lives is unconscionable. People living with physical and mental disabilities and elderly people will also be at greater risk of feeling unfair pressure to end their lives to make life easier for others.

“The ACDP commends the Minister of Health and all who have been diligent in their responsibility to protect life and care for the afflicted.”

Welcoming the SCA ruling, Philip Rosenthal Co-ordinator of Euthanasia Exposed said: “The court judgment used many of the same reasons which we wrote in our article ‘Why judge Fabricius was wrong’ 

Revelations from medical records
In a statement he says: “Further reasons emerged from the judgment, which we were not aware of:

• The picture of Mr Stransham-Ford’s final illness as depicted in the legal affidavits bore little resemblance to reality as found in his medical records.
• The psychologist who declared the applicant Robert Stransham-Ford to be psychologically fit and his desire to apply for suicide, did not provide reasoning on how the conclusion was reached and previously lived in the same street as him, which raises questions of independence.
• The applicant’s doctor’s medical records indicate he was wavering in his desire for suicide/euthanasia and asked his doctor if he could change his mind and that his real medical situation was very different to that described in the affidavits. The estate of Stransham-Ford had refused to release these medical records until a court order was issued for them. [Our comment on this is that it is very normal for people to waver in their desire for suicide, but suicide is irreversible, and this is a strong argument against legalising suicide.]

Legal concern
“One point in the judgement which we at Euthanasia Exposed are not happy about is a single sentence in the conclusion that can be interpreted to open the possibility of the court considering another case to legalise euthanasia/assisted suicide –something that logically conflicts with all its other arguments especially that the decision is really an issue for parliament and not judges,” says Rosenthal.

“If another case comes, then the battle will continue. The euthanasia lobby have no chance of success in the government or parliament, having been defeated before. With the body of evidence collected against euthanasia, ready for any future case, their chances of success are reduced,” he says.

He says Dignity Life SA’s media statements about a possible appeal to the Constitutional Court shows they are in denial as the  Stransham-Ford case is “dead and buried” with, inter alia, the unanimous judgment of five senior judges based on serious judgment errors in the original case, new evidence and the judges’ view that issues of legal change with major complex social impacts such as euthanasia should be dealt with by parliament rather than by
judges.

DFL reports that during the SCA case, the Centre for Applied Legal Studies at Wits submitted arguments suggesting that euthanasia and assisted suicide were working well overseas. But DFL and others submitted evidence that proves this is far from the truth.

Spreads like a contagious disease
DFL says: “Belgium and Netherlands for example (as with all countries that have legalised it) could not regulate or contain this form of suicide, once legalised it spreads similarly to a contagious disease.

“Euthanasia was only legalised in Belgium in 2002 and this is how far it has gone;

2002 – Euthanasia legalised.
2003 – Euthanasia of children proposed in Belgium.
2004 – Euthanasia kills one person per day.
2005 – Belgium pharmacies offer euthanasia kits.
2006 – Euthanasia rates double.
2010 – 30% of cases did not give consent.
2011 – Doctors harvest organs from disabled
euthanasia cases.
2012 – Prison euthanasia introduced.
2013 – Euthanasia deaths increase 25%.
2014 – Now legal to euthanise children over 12.
2016 – First child, 17 years, euthanised in Belgium.

“Some of the new developments in the Netherlands;

2016 – not only for sick or dying but also for those considering their lives to be complete.

2016 – euthanasia allowed for alcoholics.”

Disappointed
Founder and executive member of Dignity SA Prof Sean Davison said the SCA judgment was very disappointing.

“I do not understand how any humane person can deny an assisted death to a person who is terminally ill and suffering unbearably toward the end of their lives. It doesn’t make sense,” he says in a comment published by News24.

“The SCA has made its ruling but the fight for a law change is not over. When you are seeking a political change you must be prepared for the long haul, and not be put off by small defeats along the way. Above all we must never lose our idealism,” he says.

He says once Dignity SA has studied the SCA judgment and consulted with its lawyers it is possible that they will take the case to the Constitutional Court. Alternatively they may attempt to get the law changed through parliament but “the problem with this route is the government’s consistent reluctance to listen to the arguments around an assisted dying law, let alone proactively engage in the debate,” he says.