The Court’s reasons for permitting SA’s first “assisted suicide”

[notice]NOTE:  The author’s sole purpose with this article is to inform readers of the Judge’s reasons for the Order made, as set out in his written judgment of 4 May 2015.  The article should in no way be read as reflecting the author’s personal views on the matter.[/notice]

In Gateway News last week, it was reported that the Pretoria High Court recently gave permission to a terminally ill patient to commit physician-assisted suicide. 

This is the first time that a South African court has granted such an application – up to now, assisted suicide and active euthanasia have been unlawful. Assisted suicide is when the doctor prescribes the lethal drug and the patient self-administers it, sometimes with the help of others. Active euthanasia is when the lethal drug is administered by the doctor. In this particular case, the Court sanctioned both. 

The handful of other countries where assisted suicide is permitted, are Albania, Belgium, Canada, Luxembourg, Netherlands, Switzerland, and the US states of Washington, Oregon, Vermont, New Mexico and Montana.

Since the judgment on May 4, 2015, Dignity SA (who assisted the Applicant in bringing this application) reportedly said that they are preparing three new cases of assisted suicide that they intend to bring before the Pretoria High Court. The SA Medical Association (Sama) has since moved to discourage doctors from taking part in physician-assisted suicide.  Sama vice-chairman Mark Sonderup reportedly commented, “The central ethical tenet for physicians is quite clear:  doctors are there to preserve the sanctity of life”.  

This article deals with Judge Fabricius’s reasons for his controversial 56-page judgment in the Pretoria High Court. The government’s application for leave to appeal (to the Constitutional Court), will be heard on June 2, 2015.

The facts
The (now deceased) Applicant in this case was Robert James Stransham-Ford, a 66-year old male who had terminal stage 4 cancer and only a few weeks left to live. At the time of his application, the Applicant was under palliative care (i.e. specialised medical care focused on providing patients with relief from the symptoms, pain and stress of a serious illness, whatever the prognosis.) The Applicant had previously practiced as an Advocate of the High Court and displayed no cognitive impairments or psychiatric disorders.

According to the Applicant, he was “not afraid of dying, he [was] afraid of dying while suffering”. In the Court’s opinion, the Applicant knew “exactly what he require[d] and why”. 

The application was opposed by the Minister of Justice and Correctional Services; the Minister of Health; the Health Professional Council of South Africa; and the National Director of Public Prosecution. Doctors for Life and Cause for Justice were admitted as Amici Curiae (“Friends of the Court”).

The question of urgency
The judgment follows an urgent application to the Court on the basis that the Applicant could die any day. Although urgency was contested, Judge Fabricius found that the matter was indeed urgent, requiring an immediate decision.

At the outset of his judgment, Judge Fabricius noted 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 and they are also assisted by qualified law clerks who will do all the necessary research.  A single Judge in the Urgent Court is therefore somewhat at a disadvantage in this context.  Nevertheless one must proceed with courage and fortitude no matter what the topic at hand is.  The ideal of course would have been that legislature consider the whole topic and then produce a Bill which could be subject to the scrutiny of the Courts.”

Later on, the Judge stated that “[i]t was certainly not uncommon for the Courts to firstly rule on matters such as present prior to legislation being enacted”.  This occurred in Canada and in other jurisdictions such as the Netherlands, Belgium and Canada. “A Court must keep in mind [however] that the primary responsibility for law reform rests with the legislature.  A Court should develop the common law incrementally only.”

A constitutional matter
The Judge started by stating the current (common law) position in SA, namely that assisted suicide and active euthanasia are unlawful.  (Passive euthanasia, i.e. the withdrawal of life-sustaining treatment, is however considered lawful. More about this later.)  He explained that “the current legal position was of course established in a pre-constitutional era.  In a post-constitutional era, the law requires development to give effect to the Applicant’s constitutional rights.”

In this regard, Judge Fabricius pointed to s 39 of the Constitution, which obliges a court interpreting the Bill of Rights, to “promote the values that underlie an open and democratic society based on human dignity, equality and freedom”. In terms of s 39 further, courts, “in order to give effect to a right in the Bill, must apply, or if necessary develop, the common law to the extent that legislation does not give effect to that right”.

In the circumstances, the Judge considered the decision that he had to make “not a matter of discretion or personal ‘inclination’ … but rather a constitutional imperative.  [His] personal thoughts and feelings are irrelevant and do not enter the picture at all in the decision-making.” Elsewhere, the Judge said that the question was, “whether from a constitutional policy point of view, the [Applicant’s] complaint was justified.”

Recognising that the public may hold their own moral or religious convictions on the issue, the Judge stated, “I am of course aware that there are divergent views … the new Constitution with its Bill of Rights should inform me of what to decide and which appropriate order to issue. The norms of the Constitution should inform the public, and its values, not sectional, moral or religious convictions.”

 The same sentiment is expressed when the Judge (seemingly with approval) referred to the Applicant’s argument that, “In the context of conscientious objections, [the Applicant’s] rights are sacrosanct to him [and] should not be sacrificed on the altar of religious self-righteousness. He also submitted that ‘conscientious objections’ to homosexuality, same-sex marriages, mixed-race marriages and abortion did not detract from enshrined constitutional rights and should not do so now”.  

Next, the Judge considered the specific constitutional rights on which the Applicant relied in support of his application, namely:

• The Founding Values of the Constitution, in particularly human dignity (s 1);
• The State’s obligation to respect, protect, promote and fulfil the democratic values of dignity, equality and freedom of the people of SA (s 7);
• The Court’s obligation to apply, or if necessary to develop, the common law (s 8);
• The fundamental right to human dignity (s 10); and
• The fundamental right to freedom and security of the person, and to bodily and psychological integrity (s 12).

The right to dignity
The Judge spent quite a bit of time elaborating on the role of dignity in our constitutional dispensation, and the inter-relationship between human dignity and privacy as well as freedom. He found that the Applicant’s view of his condition in the context of human dignity, albeit a subjective one, was “wholly justifiable”.  According to the Court, the Constitutional Court has already recognised the rights that individuals have under the Bill of Rights, as “subjective rights”.  He further stated that “persons must be regarded as recipients of rights and not objects of statutory mechanisms without any say in the matter”.

Interestingly, in the context of dignity, the Applicant also argued that it has long been recognised as humane to euthanize a severely injured or diseased animal.  Why could the same dignity not be accorded to him?

Contrary to what was argued by the Minister of Justice and Correctional Services, the Court found that the manner of death as outlined by the Applicant was not dignified.  According to the Judge, 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.”

In his judgment, Judge Fabricius referred to a decision by the US Supreme Court in 1990 (which was also referred to by Judge Sachs in the Constitutional Court decision of Soobramoney), to the effect that “dying is part of life, it is completion rather than its opposite.  We can, however, influence the manner in which we come to terms with our mortality”.  He agreed that it is therefore a fundamental human right to be able to die with dignity, which our Courts are obliged in terms of the Constitution to advance, respect, protect, promote and fulfil.

In the Court opinion, the right to (die with) dignity also protected the Applicant from making known who the doctor would be, when he would die, and what legal agent he would require. 

The right to life
In considering the meaning of the right to life, the Judge agreed with Judge O’Reagan’s statement in the Constitutional Court case of Makwanyane, namely that “the right to life must be a life that is worth living”. Later on, Judge Fabricius made the same point by saying that “I agree also that sacredness of the quality of life should be accentuated rather than the sacredness of life per se”.

Ultimately, from a constitutional perspective, the challenge was one of striking “a proper balance between the State’s duty to protect life, and the person’s right (derived from the rights to physical and psychological integrity and to dignity) to end his/her life”. 

In this regard, the Court stated that “it is noticeable, unfortunate and disturbing that from a philosophical point of view and jurisprudential point of view …, societies in various parts of the world acquiesce in thousands of deaths caused by weapons of mass destruction. They seem to tolerate a horrendous murder rate in a number of countries, including ours. They seem to tolerate the yearly slaughter on our roads because despite the statistics, thousands of people drive like lunatics on our roads every single day. People die of AIDS, from malaria by the hundreds of thousands, from hunger, from malnutrition and impure water and insufficient medical facilities. The State says that it cannot afford to fulfil all socio-economic demands, but it assumes the power to tell an educated individual of sound mind who is gravely ill and about to die, that he must suffer the indignity of the severe pain, and is not allowed to die in a dignified, quiet manner with the assistance of a medical practitioner.  …. [A] dying person is still a living person, and one must not forget that and he is entitled to the rights of a living person. … Another aspect is that of personal autonomy. The irony is … that we are told from childhood to take responsibility for our lives but when faced with death, we are told we may not be responsible for our own passing.  … One can choose one’s education, one’s career, one can decide to get married, one can live according to a lifestyle of one’s choice, one can consent to medical treatment or one can refuse it, one can have children and one can abort children, one can practice birth control, and one can die on the battlefield for one’s country. But one cannot decide how to die. … [B]elief or moral doubts of third parties is not the main point in this context at all.” 

Rather, the point is that “[t]he choice of a patient such as the present is consistent with an open and democratic society and its values and norms as expressed in the Bill of Rights. There is of course no duty to live, and a person can waive his right to life.”

 Active versus passive euthanasia
The Applicant argued that from a philosophical point of view, there was no difference between assisted suicide (by providing the sufferer with a lethal agent or by switching off a life-supporting device), or the injection of a strong dose of morphine with the intent to relieve pain and knowing that the respiratory system will probably close and death will result.

Early on in his judgment, Judge Fabricius said “there is much to be said for this view [that there is no logical ethical distinction between the withdrawing of treatment to ‘allow the natural process of death’ and physician-assisted death], but I best leave it for the philosophers and confine myself to the constitutional debate”. 

Later in his judgment however, he goes on to say that there is no logical or justifiable distinction between active euthanasia or assisted suicide (which has hitherto been unlawful) and passive euthanasia (i.e. the withdrawal of life-sustaining or prolonging medical treatment, which is not unlawful) – in both instances, “the main intention for the medical practitioner remains to ensure the patient’s quality of life and dignity. The secondary result, namely death or the hastening of death is exactly the same.”  

The risk of abuse
According to the Judge, the sole true concern regarding the legalisation of euthanasia was “the risk posed to the weak and vulnerable”. This, the Court found, was not however an issue in the present application. 

While the Court agreed “that there should be minimum safeguards in any given context” and that “they are valuable and appropriate in most cases”, he was firm that “at the end of the day each case must be decided on its own merits, and [he was] sure that any envisaged legislation will provide for sufficient safeguards to be applied depending on the circumstances of each individual sufferer. Any future Court will also determine the necessary safeguards on its own facts. There is therefore no uncontrolled ‘ripple effect’ as it was put to [the Court].”

Other countries
The Court next discussed the developments in respect of euthanasia in other countries, and in particular referred to the Canadian Charter of Rights which is very similar to our Bill of Rights. In February this year, the Supreme Court of Canada found that the prohibition on assisted suicide was a violation of the Charter.  In Judge Fabricius’s opinion, the findings of the Canadian Supreme Court applied to the present case. The Judge agreed that “the total prohibition of assisted suicide had a severe impact: it imposed unnecessary suffering on affected individuals, deprived them of the ability to determine what to do with their bodies and how those bodies would be treated, and could cause those affected to take their own life sooner than they would were they able to obtain a physician’s assistance in dying”.

The Judge’s conclusion
In all the circumstances, Judge Fabricius found that the common law’s absolute prohibition on assisted suicide does not accord with the constitutional rights that the Applicant relied on. 

He agreed that the right to life was paramount and that life was sacrosanct. Referring to section 11 of the Constitution (the right to life), he stated that “[t]his provision safeguards a person’s right vis-à-vis the State and society. It cannot mean that an individual is obliged to live, no matter what the quality of his life is.”

In the circumstances, the Court made the following Order:

“1. 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.” [para 26]

A legal precedent?
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’”.

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). In terms of the doctrine of precedent, where the material facts are the same, a judge in one division should follow a past ruling made in the same division, unless he/she is of the opinion that the ruling is clearly wrong. This doctrine aims to ensure sameness of treatment for litigants and thus legal certainty.

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.