High Court permits the first ‘mercy killing’ in SA

[notice]NOTE: The author’s sole purpose with this article is to report on the facts of the application to, and the order made by, the High Court.  The article should in no way be read as reflecting the author’s personal views on the matter.[/notice]

In a first for South Africa, the High Court in Pretoria last week gave a terminally ill patient the green light to end his life with the help of a medical practitioner.

Up to now and in terms of our common law, assisted suicide and active euthanasia have been illegal and a doctor who provides a patient with a legal injection, or who him-/herself administers such injection to the patient, could be found guilty of murder.

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The question that the Court essentially had to consider in this case, was whether the above law which was established in a pre-constitutional era, could still stand in a post-constitutional era?

Having found that the South African Constitution implies “a fundamental human right to be able to die with dignity”, the Court found that the common law had to be developed (as contemplated by s 39 of the Constitution) so as to remove the absolute prohibition on assisted suicide. In other words, a doctor who agreed to help the patient take his own life, would no longer be liable to criminal prosecution (or discipline by the Health Professional Council of South Africa).

On the facts before him, Judge Fabricius found that there was no dignity in “having severe pain all over one’s body, being dulled with opioid medication, being unaware of your surrounding s and loved ones, being confused and disassociative, being unable to care for one’s own hygiene, dying in a hospital or hospice away from the familiarity of one’s own home, dying at any moment in a dissociative state unaware of one’s loved ones being there to say good bye.”

The Court Order

In the circumstances, the Judge granted an Order in the following terms:

“It is declared that:

• The Applicant is a mentally competent adult;
• The Applicant has freely and voluntarily, and without undue influence requested the Court to authorize that he be assisted in an act of suicide;
• The Applicant is terminally ill and suffering intractably and has a severely curtailed life expectancy of some weeks only;
• The Applicant is entitled to be assisted by a qualified medical doctor, who is willing to do so, to end his life, either by administration of a legal agent or by providing the Applicant with the necessary legal agent to administer himself;
• No medical doctor is obliged to accede to the request of the Applicant;
• The medical doctor who accedes to the request of the Applicant shall not be acting unlawfully and hence, shall not be subject to prosecution by the Fourth Respondent [the National Director of Public Prosecution] or subject to disciplinary proceedings by the Third Respondent [the Health Professional Council of South Africa] for assisting the Applicant;

2. This Order shall not be read as endorsing the proposals of the draft Bill on End of Life as contained in the Law Commission Report of November 1998 (Project 86) as laying down the necessary or only conditions for the entitlement to the assistance of a qualified medical doctor to commit suicide.
3. The common law crimes of murder or culpable homicide in the context of assisted suicide by medical practitioners, insofar as they provide for an absolute prohibition, unjustifiably limit the Applicant’s constitutional rights to human dignity (s. 10), and freedom to bodily and psychological integrity (s. 12(2)(b), read with s. 1 and 7), and to the extent are declared to be overbroad and in conflict with the said provisions of the Bill of Rights.
4. Except as stipulated above, the common law crimes of murder and culpable homicide in the context of assisted suicide by medical practitioners are not affected.”

Application for Rescission

Soon after the Court made the Order in the morning of 30 April 2015, it was reported that the Applicant, who had suffered from advanced prostrate cancer, had passed away of natural causes about two hours before the Court order was handed down. 

In the circumstances, the State (who had opposed the application) on Monday, 4 June 2015 argued that the case has become moot as a result of the Applicant’s death (i.e. no longer affecting the interests of the parties). According to the State, the Applicant could no longer benefit from the Order and the Order should for that reason be rescinded (i.e. set aside).

The request was however refused by Judge Fabricius, who commented that when the Order was made, neither he nor any of the Counsel knew that the Applicant had already passed away.  Further, although his Order specifically related to the Applicant, the subject of assisted suicide was in the public interest. The Judge accordingly upheld his Order of 30 April 2015 and delivered his reasons for the Order.

In his written reasons comprising 56 pages, the Judge (who decided the case as a single Judge, on an urgent basis) commented that “[h]aving regard to the topic it will be preferable and, no doubt this will occur in due course, that the Constitutional Court pronounce on the relevant principles.  At least eight Judges will have sufficient time to consider all relevant aspects …” 

Application for Leave to Appeal

It has been reported that both the Minister of Justice and Correctional Services (as the First Respondent) and the Minister of Health (as the Second Respondent) intend to apply for leave to appeal against Judge Fabricius’s judgment. 

The date for hearing of the application for leave to appeal, has been set for 2 June 2015.

Judge Fabricius will in all probability allow leave to appeal (to the Constitutional Court) – particularly in light of his comment, as part of his written judgment, that it would be preferable for the Constitutional Court to decide the matter.

• Meanwhile News 24 reports that three people who are terminally ill are working on court applications for permission to end their lives through assisted suicide.