Assisted suicide case: State applies for leave to appeal

The Minister of Justice and Correctional Services, the Minister of Health, and the National Director of Public Prosecutions have applied for leave to appeal a recent landmark ruling in the high court in Pretoria allowing a terminally ill man to end his life with the help of his doctor.

The applicants are appealing against the whole of the judgement handed down by Judge Fabricius on May 4 ,2015, reports Doctors For Life International (DFL) which will be part of the appeal as a “Friend of the Court”

Judge Fabricius got it wrong in finding that the South African Law Reform Commission’s 1998 report on Euthanasia and the preservation of life recommended that voluntary active euthanasia be introduced into South Africa, subject to certain safeguards, says DFL.

It says the report in question actually recommends that;

“There be no change to the current law in SA prohibiting active voluntary euthanasia and physician assisted suicide and that such approach was predicated on the Law Commission’s acute awareness of the array of competing interests and the diverse social, moral and ethical values involved regarding law reform on the issue of active voluntary euthanasia and physician assisted suicide.”

“The arguments in favor of legalizing voluntary euthanasia as insufficient reason to weaken society’s prohibition of intentional killing as entrenched in section 11 of the Constitution which is considered to be the cornerstone of the law and of social relationships.”

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In a report on its website, DFL says: “In almost all cases palliative medical treatment is available and it improves the terminally ill patients’ condition for a prolonged period of time. With modern medicine, including high doses of opioid drugs, less than 10% of patients similarly placed as Mr Stansham-Ford die of pain.

“Hospice doctors and staff specializing in symptom control of terminal patients can be provided at the home in the vast majority of cases.

“The result is that a terminally ill patient’s quality of life can be vastly improved and as such, they could spend the last days of their life under quality medical care, surrounded by loved ones at home if they so choose.

“It is not ‘our right to die’. Dying is inevitable; it is the natural end of life. We are all born and we all die. No person or doctor should be given the power to decide when a person dies. It is our right and the doctor’s duty to make sure that terminally ill patients suffer as little as possible through using specialized pain treatment. And it is the family’s responsibility to support their kin with their love and care.”

Judge Fabricius’s May 4 ruling was the first in a South African court to allow assisted suicide and active euthanasia.  In a recent article in Gateway News, Advocate Nadene Badenhorst  notes that at the end of his judgment, Judge Fabricius specifically pointed out that the Order granted “was case dependant and certainly not a precedent for a general uncontrolled ‘free for all’”.

However she says that while the Judge is correct in saying that each case has to be considered on its own merits, the truth is that his decision is binding on other judges of the Pretoria High Court (but not on judges of other provincial divisions, e.g. Cape High Court). 

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Should the matter be referred to the Constitutional Court (as will in all probability happen) and the Court uphold Judge Fabricius’s judgment, all Courts in South Africa would then be bound by its decision as the highest court on constitutional matters in the country, she says.