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[2016] ZASCA 197
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Minister of Justice and Correctional Services and Others v Estate Late James Stransham-Ford and Others (531/2015) [2016] ZASCA 197; [2017] 1 All SA 354 (SCA); 2017 (3) BCLR 364 (SCA); 2017 (3) SA 152 (SCA) (6 December 2016)
Links to summary
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case no: 531/2015
In the matter between:
THE MINISTER OF JUSTICE
AND
CORRECTIONAL
SERVICES
FIRST
APPELLANT
THE MINISTER OF
HEALTH
SECOND APPELLANT
THE NATIONAL DIRECTOR OF
PUBLIC
PROSECUTIONS
THIRD APPELLANT
THE HEALTH PROFESSIONS
COUNCIL
OF SOUTH
AFRICA
FOURTH APPELLANT
and
ESTATE LATE ROBERT JAMES
STRANSHAM-FORD
RESPONDENT
and
DOCTORS FOR LIFE
INTERNATIONAL
NPC
FIRST AMICUS CURIAE
DONRICH WILLEM JORDAAN
SECOND AMICUS CURIAE
CAUSE FOR
JUSTICE
THIRD AMICUS CURIAE
CENTRE FOR APPLIED
LEGAL
STUDIES
FOURTH AMICUS CURIAE
JUSTICE ALLIANCE OF
SOUTH AFRICA
FIFTH
AMICUS CURIAE
Neutral citation:
Minister of Justice and Correctional
Services v Estate Stransham-Ford
(531/2015)
2016 ZASCA 197
(6 December 2016)
Coram:
LEWIS, SERITI, WALLIS and DAMBUZA JJA and
SCHIPPERS AJA
Heard
:
4 November 2016
Delivered
:
6 December 2016
Summary:
Applicant suffering in terminal stages
of cancer – sought an order that medical practitioner could
administer a lethal agent
at his request or provide him with a lethal
agent that he could administer himself – applicant dying before
court granting
order – claim ceased to exist – court not
entitled to grant order – law in relation to physician
administered
euthanasia and physician assisted suicide –
not appropriate case in which to develop the common law of murder and
culpable
homicide.
ORDER
On
appeal from:
Gauteng Division,
Pretoria of High Court (Fabricius J sitting as court of first
instance)
Reported as
Stransham-Ford v Minister of Justice and Correctional Services and
Others
[2015] ZAGPPHC 230
;
2015 (4) SA 50
(GP):
1
The appeal is upheld and the order of the
court below is set aside.
2
The respondent is ordered to pay the costs
incurred by the fourth appellant in applying for the order granted by
this court on 30 May
2015 and in thereafter procuring and
lodging the evidence of Dr David Cameron in his affidavit sworn on
17 October 2016.
JUDGMENT
Wallis JA (Lewis, Seriti
and Dambuza JJA and Schippers AJA concurring)
[1]
‘
There’s nothing certain in a
man’s life except this: That he must lose it.’
[1]
Death draws the final curtain on all our lives. How that occurs, and
the manner in which we should approach death, has provided
grist to
the mill of philosophers, poets, politicians, social commentators and
comedians down the ages and it is doubtful that
any conclusion common
to all humankind will ever be reached. Whether we think Socrates was
correct to say that ‘death may
be the greatest of all human
blessings’,
[2]
or that Dylan Thomas was right to urge us, when faced with death, to
‘rage, rage against the dying of the light’,
[3]
is a matter of personal philosophy and morality on which views
diverge and always will. The law injects itself into this debate
largely as a result of the enormous strides modern medicine has made
in its ability to prolong life and postpone death. This has
changed
our understanding of death itself. It can no longer be viewed as
simply the cessation of the heart beating and the lungs
breathing,
because these can be maintained artificially, so the medical
profession now asks whether the brainstem is dead in the
sense of
showing no activity.
[4]
Welcome though these advances of medical science are in most
circumstances, in some they can lead to the process of dying being
protracted, painful and burdensome.
[2]
These developments have generated a debate
in various societies around the world, whether it is permissible for
persons so burdened
to be assisted to bring their lives to an end.
More narrowly,
it is whether they can invoke the assistance of
medical practitioners to this end. One possibility is that the
patient should be
permitted to
obtain a
prescription for lethal drugs that they may use to terminate their
own lives. This is commonly referred to as physician
assisted suicide
(PAS). The other possibility is that the medical practitioner should
be permitted at their request to administer
such lethal drugs to
them. This is referred to as voluntary euthanasia or physician
administered euthanasia (PAE). I use the expressions
PAS and PAE in
this judgment specifically to refer to the conduct described above
and nothing else. They are to be distinguished
from the refusal or
withdrawal of treatment or life support or other conduct that is
lawful in South Africa, but which in certain
jurisdictions is
regarded as passive euthanasia and may be illegal. In doing so I am
aware that there are those who regard these
distinctions as sophistry
and treat virtually any action, ranging from refusal of treatment by
the patient to the administration
of lethal drugs by a physician, as
different manifestations of euthanasia.
[3]
Legal issues arise because such actions by
medical practitioners have long been treated in various different
societies as criminal.
The intended purpose of this litigation was to
determine whether that should be the case in South Africa. Its
ostensible subject
was Mr Robert (commonly known and referred to as
Robin) Stransham-Ford, who was dying of cancer. He approached the
High Court of
South Africa, Gauteng Division, Pretoria claiming an
order that a medical practitioner could either end his life by
administering
a lethal substance, or provide him with the lethal
substance to enable him to administer it himself, and that in either
event such
medical practitioner would not be subject to prosecution
or disciplinary steps by the relevant professional body. To that end
he
sought an order that the common law in relation to the crimes of
murder and culpable homicide should be developed in terms of s 39(2)
of the Constitution. He claimed this relief as a matter of right,
sourced in the Bill of Rights under the Constitution.
[4]
In circumstances that will be explored
later in this judgment, Fabricius J heard the application as a
matter of urgency on
29 April 2015. On 30 April 2015 he
granted the following order:
‘‘
1.
IT IS DECLARED THAT:
1.1
The Applicant is a mentally competent adult;
1.2
The Applicant has freely and voluntarily, and without undue influence
requested the Court
to authorise that he be assisted in an act of
suicide;
1.3
The Applicant is terminally ill and suffering intractably and has a
severely curtailed life
expectancy of some weeks only;
1.4
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 lethal agent or by providing the Applicant with
the necessary lethal agent
to administer himself;
1.5
No medical doctor is obliged to accede to the request of the
Applicant;
1.6
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 or subject to disciplinary
proceedings by the Third Respondent
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 that 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.’
On 4 May 2015
Fabricius J handed down his reasons for making that order
[5]
and on 2 June 2015 he granted leave to appeal to this court. The
Estate of Mr Stransham-Ford (the Estate) has resisted the appeal
on
the basis that it was entitled to step into his shoes for that
purpose.
[5]
The appeal must succeed and the order
granted by Fabricius J must be set aside for three inter-related
reasons. Firstly, Mr Stransham-Ford
had died on the morning of 30
April 2015 two hours before an order was made.
[6]
As a result his cause of action ceased to exist and no order should
have been made thereon. His death did not result in a claim
passing
to his estate and the estate had no interest in further pursuing this
litigation or any locus standi to do so. Secondly,
there was no full
and proper examination of the present state of our law in this
difficult area, in the light of authority, both
local and
international, and the constitutional injunctions in relation to the
interpretation of the Bill of Rights and the development
of the
common law.
[7]
Thirdly, the order was made on an incorrect and restricted factual
basis, without complying with the Uniform Rules of Court and
without
affording all interested parties a proper opportunity to be heard.
Viewed overall, the circumstances of the case were such
that it was
inappropriate for the court below to engage in a reconsideration of
the common law in relation to the crimes of murder
and culpable
homicide.
Background and
litigation history
[6]
Robert Stransham-Ford was an advocate. On
19 February 2013 a prostate biopsy confirmed the presence of
adenocarcinoma. The cancer
was aggressive and by January 2015 had
spread to lymph glands elsewhere in his body. On 13 March 2015 an
ultrasound biopsy confirmed
the presence of lymphoma. On 15 March
2015 he was admitted to Victoria Hospital in Cape Town suffering from
severe abdominal pain.
On 18 March 2015 at Groote Schuur Hospital an
attempt was made to insert stents in the ureters leading from his
kidneys to his
bladder in an endeavour to relieve the obstruction. On
25 March 2015 Dr Cameron Bruce took over his care and was the
doctor
who cared for him until his death. Mr Stransham-Ford was at
this time resident in Cape Town with his former wife and daughter,
where he remained until his death. His former wife and his
administrative assistant from his legal practice provided his daily
care. From 25 March 2015 Dr Bruce attended upon Mr Stransham-Ford at
his former wife’s home on nine occasions. In addition
a
palliative care nurse, Sister Yvonne Jackman from St Luke’s
Hospice, visited Mr Stransham-Ford on a regular basis. As already
mentioned he died on 30 May 2015 at about 8.00 am.
[8]
[7]
The application was launched on 17 April
2015 (a Friday) as an urgent application with foreshortened periods,
requiring the respondents
to deliver answering affidavits by
Wednesday, 22 April 2015, and selecting 28 April 2015 as the date for
hearing.
[9]
The Minister of Justice and Correctional Services (the Minister), the
Minister of Health, the National Director of Public
Prosecutions and
the Health Professions Council of South Africa (HPCSA) were cited as
respondents. The Minister delivered an answering
affidavit deposed to
by the Acting Chief Director: Legal Services and the HPCSA delivered
an answering affidavit by the chairperson
of its Medical and Dental
Professional Board, Dr Letitia Moja. These were dated 24 April 2015
(a Friday). Mr Stransham-Ford replied
on Sunday, 26 April 2015.
[8]
The order sought by Mr Stransham-Ford read
as follows:
‘
2.
Declaring that the Applicant may request a medical practitioner
registered as such
in terms of the Health Professions Act 56 of 1974
(“the medical practitioner”), to end his life or to
enable the Applicant
to end his life by the administration or
provision of some or other lethal agent;
3.
Declaring that the medical practitioner who administers or provides
some or other
lethal agent to the Applicant, as contemplated in
prayer 2
supra,
shall not be held accountable and shall be
free from any civil, criminal or disciplinary liability that may
otherwise have arisen
from:
3.1
the administration or provision of some or other lethal agent to the
Applicant;
3.2
the cessation of the Applicant’s life as a result of the
administration or provision
of some or other lethal agent to the
Applicant;
4.
To the extent required, developing the common law, by declaring the
conduct in
prayers 2 and 3
supra
, lawful and Constitutional in
the circumstances of the above matter.’
This order was
significantly different from the one ultimately granted by Fabricius
J.
[9]
In launching these proceedings Mr
Stransham-Ford was assisted by attorneys and counsel on a pro bono
basis, having been referred
to them by an organisation called Dignity
SA, that campaigns for the law to be changed to recognise as lawful
both PAS and PAE.
[10]
It was plain both from the prayer for relief and from the grounds
advanced in the affidavit that the application raised substantial
constitutional issues in an area where public views would be divided
and where considerable controversy would attend upon a ruling
either
way. Mr Stransham-Ford’s legal advisers gave a notice in
compliance with the provisions of Uniform Rule 16A, which
requires a
litigant intending to raise a constitutional issue to give notice
thereof to the registrar at the time of filing the
relevant
affidavit.
[11]
In view of the manner in which the proceedings were brought there
was, however, no possibility that the notice would be displayed
for
the required twenty court days.
[10]
Two organisations, Doctors for Life
International NPC (Doctors for Life) and Cause for Justice, that
espouse a right to life and
oppose both euthanasia, whether voluntary
as in PAE or involuntary, and any form of PAS, learned of the
application, in the case
of Cause for Justice because Dignity SA
posted on its website a report headed:
‘
BREAKING
NEWS & URGENT APPEAL: WE ARE ON OUR WAY TO COURT’
in which it referred
to the application as one by it and Mr Stransham-Ford. This caused
Doctors for Life to write to the applicant’s
attorneys, and
Cause for Justice to write to Dignity SA, seeking consent to their
intervention as amici curiae and asking that
the papers be served on
them. They both received a reply from Mr Stransham-Ford’s
attorneys saying that they represented
him only and not Dignity SA,
claiming that both organisations lacked any direct and substantial
interest ‘in our client’s
human rights, his life or his
death’ and refusing to make available a copy of the application
papers. When in response both
organisations indicated that they would
seek the leave of the court to be admitted as amici curiae the reply
from the attorneys
was that they would not consent to this.
[11]
Nonetheless both organisations delivered
applications to be admitted as amici together with answering
affidavits setting out their
stance in regard to the litigation. They
were both represented before Fabricius J. In this court they again
applied to be admitted
as amici curiae. That was over the opposition
of the same attorneys, now representing the Estate. Three further
applications were
made to be admitted as amici in this court. They
were by Mr Donrich Willem Jordaan, an advocate and academic; the
Centre for Applied
Legal Studies (CALS) and another NGO, Justice
Alliance. Unsurprisingly, given their attitude throughout the case,
the attorneys
for the Estate resisted the admission of Justice
Alliance, which submitted that the order of Fabricius J breached the
doctrine
of the separation of powers and should be set aside. They
initially supported that of Mr Jordaan, before withdrawing their
consent,
and supported the application by CALS. In short they opposed
the admission of any amicus who contended that the court below should
not have made the order it did and supported the admission of the one
amicus that contended that the order was justified.
[12]
Notwithstanding the opposition in three
cases, the President of this court granted all five applications for
admission as amici
curiae and all of them submitted heads of
argument. After consideration of those heads of argument the court
indicated in advance
of the hearing that it would permit three of
them, Cause for Justice, Justice Alliance and CALS to present oral
argument in support
of their submissions and that argument was of
assistance. In addition, in the course of the hearing the court
permitted Doctors
for Life to make brief oral submissions for the
purpose of drawing attention to the fact that the locus standi of the
Estate had
been placed in issue by it.
Effect of Mr
Stransham-Ford’s death
[13]
Mr Stransham-Ford made it clear in his
founding affidavit that he was bringing the application in his
personal capacity. The prayers
for relief were couched in terms
personal to him and any medical practitioner who assisted him. He
explained that the purpose of
the application was to have judicial
oversight over the process by which he envisaged that his death would
be brought about. He
asked for a court order ‘giving effect to
my
fundamental
rights’ to human dignity; not to be treated in a cruel, inhuman
or degrading way; and bodily and psychological
integrity. He sought
orders entitling him to seek the assistance of a medical practitioner
to end his life or provide him with
the means to enable him to end
his life. He explained in some detail the onset and progress of his
cancer and set out information
directed at showing the court that he
was of sound mind, understood what he was trying to do and was
competent to participate in
the proceedings and seek the relief that
was set out in the notice of motion.
[14]
Having done this Mr Stransham-Ford went on
under the general heading ‘My current day-to-day life and
deterioration’
to describe his circumstances and under the
heading ‘The imminent future’ his prognosis of the future
course of his
cancer. He set out his view of ‘my fundamental,
basic, human rights’ and asked that the common law be developed
to
give effect to ‘my request for assisted dying to ensure my
right to dignity’. His aim was that there should be ‘juristic
oversight’ of his request, a theme to which he returned in his
replying affidavit. Throughout, the thrust of his affidavits
was that
he was bringing the application for the purpose of seeking relief
personal to him. While he obviously recognised as an
advocate that
any judgment he secured might have some precedential effect, he did
not purport to bring the application in the general
public interest
or as a member of a group or class of persons. Had he done so,
different allegations would have needed to be made
and it is
conceivable that he would have had to cite other potentially
interested parties, such as organisations representing the
aged,
persons suffering from disability, specialist branches of the medical
profession and medical aid schemes.
[15]
Mr Stransham-Ford’s death before any
order could be made materially affected the application, which was
concerned only with
his personal situation and sought relief directed
at enabling him to die. The need for the court to grant the relief he
had sought
was overtaken by his death. In blunt terms, no further
purpose could be served by granting that relief. That was apparent
from
the terms of the order granted by Fabricius J. Paragraphs
1.1, 1.3, 1.4 and 1.5 were only pertinent if he was still alive.
Indeed they assumed that he was alive. In view of his death,
paragraph 1.2 was academic because it related to his state of mind
whilst still alive and specifically his state of mind in bringing the
application. There was no longer any question of a medical
doctor
assisting him to die, so that there was no call for the court to hold
that a doctor, doing what could no longer be done,
would not be
subject to prosecution or disciplinary proceedings. In turn the
development of the common law crimes of murder and
culpable homicide,
inasmuch as that development was ordered specifically in relation to
a medical doctor assisting Mr Stransham-Ford
to die, was no longer
relevant or necessary. It is notable in this regard that para 4 of
the high court’s order stipulated
that the existing law in
relation to murder and culpable homicide ‘in the context of
assisted suicide by medical practitioners’
would not be
affected. There could be no clearer indication that the court’s
order was tailored to deal with Mr Stransham-Ford’s
claim and
that alone.
[16]
We do not know why Fabricius J was not
informed of Mr Stransham-Ford’s death before he handed down his
order. Dr Bruce’s
notes reveal his disquiet at the fact that,
although Mr Stransham-Ford died at about 8.00 am, he was only
informed of this
after 11.00am. When Dr Bruce arrived at the home, at
about 12.15pm, one of the first things he was told was that Mr
Stransham-Ford
had won his case. Dr Cameron, who gave expert evidence
on palliative care on behalf of the HPCSA, also regarded this as
strange.
It is difficult to avoid the inference that his death was
not reported because it was thought that it might affect the judge’s
decision.
[17]
Be that as it may, we were informed from
the bar that none of Mr Stransham-Ford’s legal team was aware
of the fact of his
death until after the order was granted. Had they
been aware, they would have been under a professional duty to bring
that fact
to the attention of the judge. In turn, he would have been
obliged to call for submissions from the parties as to the proper
course
to follow. Instead, on the following Tuesday, before he
delivered his reasons, his attention was drawn to what had occurred
and
he was requested by the HPCSA to recall his order. Junior counsel
who had appeared on behalf of Mr Stransham-Ford opposed this.
Although this is not mentioned in the written reasons, Fabricius J
refused to recall the order on the grounds that his judgment
had
broader societal implications.
[12]
It would have been preferable had he heeded the warning of Learned
Hand J when he said:
‘
Nor
is it desirable for a lower court to embrace the exhilarating
opportunity of anticipating a doctrine which may be in the womb
of
time, but whose birth is distant.’
[13]
[18]
In terms of rule 42(1) of the Uniform Rules
an order may be rescinded where it was erroneously sought or granted
in the absence
of a party and where it was made on the basis of a
mistake common to the parties. It may also be rescinded under the
common law
where it was made as a result of
justus
error. In this case those reasons for
rescinding the order were satisfied because it was granted on the
erroneous basis that Mr
Stransham-Ford was still alive. On the
information we have been given that was an error common to the
parties (or, in the case
of Mr Stransham-Ford, his legal
representatives) and the judge. It was
justus
,
but nonetheless an error. On those grounds alone the judge was wrong
not to rescind his order and thereafter to dispose of the
application
in the light of the fact that Mr Stransham-Ford was dead, after
hearing proper argument and possibly evidence. Had
he done that then,
for the following reasons, the proper conclusion would have been that
the proceedings had terminated on the
death of Mr Stransham-Ford and
that he no longer had the power to grant an order upholding his
claim.
[19]
Some causes of action are extinguished by
the death of a party to litigation and are not transmissible to the
estate of the deceased
person.
[14]
This is reflected in the provisions of rule 15(1) of the Uniform
Rules, which provides that ‘No proceedings shall terminate
solely by reason of the death . . . of any party unless the cause of
such proceedings is thereby extinguished’. Obvious examples
of
causes that are extinguished by the death of a party are an action
for divorce, or a custody dispute between the parents of
minor
children. A marriage is terminated by death and the contest over
custody ends when the one parent dies. While many claims,
especially
those of a pecuniary nature will be transmissible to the estate of a
deceased litigant that is not true of all such
claims. A claim for
damages for pain and suffering and loss of the amenities of life is
not transmitted to the deceased’s
estate unless the proceedings
have reached the stage of
litis
contestatio
.
[15]
A claim for damages for defamation is so personal to the person
defamed that the action dies with the claimant and does not pass
to
their heirs unless
litis contestatio
has
been reached.
[16]
The principle in these cases is summed up in the maxim
actio
personalis moritur cum persona
(a
personal action dies with the person).
[17]
[20]
The nature of the relief claimed by Mr
Stransham-Ford makes it clear that this was a personal action. The
purpose of the litigation
was to obtain a court order enabling him to
die in a manner of his own choosing. His death extinguished his claim
for relief. There
can be few starker examples of a cause being
extinguished by the death of the claimant. As the cause of action was
extinguished
that brought an end to the application.
[18]
There was no longer any claim capable of being adjudicated and no
claim to pass to his estate. As there was no longer a claim before
it, there was nothing left on which the court could pronounce.
[21]
I have given consideration to whether the
fact that the arguments advanced on behalf of Mr Stransham-Ford
engaged constitutional
issues detracts from these principles. In my
view they do not. Constitutional issues, as much as issues in any
other litigation,
only arise for decision where, on the facts of a
particular case, it is necessary to decide the constitutional issue.
Dealing with
the situation where events subsequent to the
commencement of litigation resulted in there no longer being an issue
for determination,
Ackermann J said
in
National Coalition for Gay and Lesbian
Equality & others v Minister of Home Affairs & others
:
[19]
‘
A
case is moot and therefore not justiciable if it no longer presents
an existing or live controversy which should exist if the
Court is to
avoid giving advisory opinions on abstract propositions of law.’
At the time that
Fabricius J delivered his judgment there was no longer an existing
controversy for him to pronounce upon. The case
was no longer
justiciable.
[22]
Since the advent of an enforceable
Bill of Rights, many test cases have been brought with a view to
establishing some broader principle.
But none have been brought in
circumstances where the cause of action advanced had been
extinguished before judgment at first instance.
There have been cases
in which, after judgment at first instance, circumstances have
altered so that the judgment has become moot.
There the
Constitutional Court has reserved to itself a discretion, if
it
is in the interests of justice to do so, to consider and determine
matters even though they have become moot.
[20]
It is a
prerequisite
for the exercise of the discretion that any order the court may
ultimately make will have some practical effect either
on the parties
or on others. Other factors that may be relevant will include the
nature and extent of the practical effect that
any possible order
might have, the importance of the issue, its complexity and the
fullness or otherwise of the argument.
[21]
[23]
The common feature of the cases, where the
Constitutional Court has heard matters notwithstanding the fact that
the case no longer
presented a live issue, was that the order had a
practical impact on the future conduct of one or both of the parties
to the litigation.
In
IEC v Langeberg
Municipality
, while the relevant
election had been held, the judgment would affect the manner in which
the IEC conducted elections in the future.
In
Pillay
the court granted a narrow declaratory
order that significantly reduced the impact on the school of the
order made in the court
below. In
Pheko
,
while the interdictory relief that had been sought had become
academic, a decision on the merits would affect its claim for
restitutionary
relief.
[24]
This case presents an entirely different
picture. Relief was sought specifically tailored to Mr
Stransham-Ford’s circumstances.
The order expressly applied
only to any doctor who provided him with assistance to terminate his
life. The caveat in para 4 of
the order left the common law crimes of
murder and culpable homicide unaltered. No public purpose was served
by the grant of the
order. In any event, I do not accept that it is
open to courts of first instance to make orders on causes of action
that have been
extinguished, merely because they think that their
decision will have broader societal implications. There must be many
areas of
the law of public interest where a judge may think that it
would be helpful to have clarification but, unless the occasion
arises
in litigation that is properly before the court, it is not
open to a judge to undertake that task. The courts have no plenary
power
to raise legal issues and make and shape the common law. They
must wait for litigants to bring appropriate cases before them that
warrant such development. Judge Richard S Arnold expressed this well
when he said:
‘
[Courts]
do not, or should not, sally forth each day looking for wrongs to
right. We wait for cases to come to us, and when they
do we normally
decide only questions presented by the parties. Counsel almost always
know a great deal more about their cases than
we do …’
[22]
[25]
The situation before Fabricius J was not
comparable to the position where this court or the Constitutional
Court decides to hear
a case notwithstanding that it has become moot.
When a court of appeal addresses issues that were properly determined
by a first
instance court, and determines them afresh because they
raise issues of public importance, it is always mindful that
otherwise
under our system of precedent the judgment at first
instance will affect the conduct of officials and influence other
courts when
confronting similar issues. A feature of all the cases
referred to in the footnotes to para 22 above is that the appeal
court either
overruled the judgment in the court below or
substantially modified it. The appeal court’s jurisdiction was
exercised because
‘
a discrete legal
issue of public importance arose that would affect matters in the
future and on which the adjudication of this
court was required’.
[23]
The High Court is not vested with similar powers.
Its function is to determine cases that present live issues for
determination.
[26]
The jurisprudence in appellate courts
speaks of the case having become moot so that it no longer presents a
live issue for determination.
I do not think that the extinguishing
of a claim by death before judgment is an instance of mootness in the
sense in which that
expression is used in these cases. If a cause of
action ceases to exist before judgment in the court of first
instance, there is
no longer a claim before the court for its
adjudication. Mootness is the term used to describe the situation
where events overtake
matters after judgment has been delivered, so
that further consideration of the case by way of appeal will not
produce a judgment
having any practical effect. Here we are dealing
with a logically anterior question, namely, whether there was any
cause of action
at all before the high court at the time it made its
order. Was there anything on which it was entitled to pronounce? The
principles
governing mootness have little or no purchase in that
situation.
[27]
For those reasons alone therefore the order
made by Fabricius J must be set aside. But that leaves the dilemma
that it is a reasoned
and reported judgment by the high court and if
this court does not at least to some extent, address the merits it
may be taken
as having some precedential effect. That is of
particular concern in the present case, as it has already been
treated as reflecting
the South African legal position by a court in
New Zealand.
[24]
This compels us to deal with the merits insofar as necessary in order
to dispel that view. In doing so I adopt the same course
as did the
Constitutional Court in
Director of
Public Prosecutions, Transvaal v Minister of Justice and Correctional
Services
,
[25]
a case where the high court had incorrectly entered upon the question
of the constitutional validity of certain provisions of the
Criminal
Procedure Act 51 of 1977
dealing with child witnesses. It did so and
made a declaration of constitutional invalidity in respect of those
provisions. Notwithstanding
that its orders fell to be set aside for
that reason alone, the Constitutional Court dealt with the issue of
constitutional invalidity
and held that the impugned provisions were
constitutionally compliant. Inasmuch as I have concluded that, on
both its exposition
of the law and on the facts, the high court
should not have made the order it did, I deal with the merits to the
extent necessary
to explain why that was so, both legally and
factually.
South African law
examined
[28]
The high court assumed that our law in this
delicate area is both clear and simple. It said the following in para
10 of the judgment:
‘The current legal
position is that assisted suicide or active voluntary euthanasia is
unlawful.
See:
S
v De Bellocq
1975
(3) SA 538
(T) at 539 d; and
S
v Marengo
1991 (2)
SACR 43
(W) 47 A – B; and
Ex
parte Minister van Justisie: In re S v Grotjohn
1970 (2) SA 355
A.’
[29]
That statement, which was assumed to be
correct in the arguments addressed to us on behalf of the various
parties and amici, was
not only not supported by the authorities
relied upon, but was a wholly inadequate analysis of the relevant law
in this area. Two
of the cited cases did not deal with either
voluntary euthanasia or assisted suicide and the third, which dealt
with encouraging
and facilitating suicide, was concerned with a
domestic situation far removed from the matters with which we are
concerned. A brief
exposition of the current state of our law in this
area is called for.
Suicide and the refusal
or termination of medical treatment
[30]
Suicide is commonly understood as being the
act of a person in intentionally bringing about their own death.
Neither suicide nor
attempted suicide is a crime in South Africa.
[26]
Accordingly the conduct that Mr Stransham-Ford contemplated would not
have involved him in any criminal activity So the focus of
the
enquiry was not on his entitlement to commit suicide, or what is
sometimes called the right to die, but on a right to select
a method
of doing so that was acceptable to him.
[31]
A person may refuse treatment that would
otherwise prolong life. This is an aspect of personal autonomy that
is constitutionally
protected and would not ordinarily be regarded as
suicide. Medical treatment without the patient’s consent is
regarded as
an assault so that the patient is always entitled to
refuse medical treatment.
[27]
In refusing treatment the patient is allowing the natural processes
of their disease to take their course. It was rightly said
in
Re
Conroy
[28]
that:
‘…
declining
life-sustaining medical treatment may not properly be viewed as an
attempt to commit suicide. Refusing medical intervention
merely
allows the disease to take its natural course; if death were
eventually to occur, it would be the result, primarily, of
the
underlying disease, and not the result of self-inflicted injury.’
This approach applies
to invasive surgery, the administration of drugs or therapies and the
use of machines such as respirators.
It also applies to artificial
feeding, so that a person who can only be kept alive by such means
may bring about their death by
refusing to accept nutrition and
hydration.
[29]
These principles of law are recognised in the right to dignity given
by section 10 of the Constitution and the right to bodily
integrity
given by s 12(2)
(b)
of
the Constitution.
[32]
The only qualification to what appears in
the preceding paragraph is that the patient must have the mental and
legal capacity to
make that decision. This gives rise to problems
where a person suffers a catastrophic injury without any prior
expression of their
views, or is afflicted with a mental handicap
that limits their legal capacity or where, as with a child, they lack
legal capacity.
[30]
It is in circumstances such as these that courts may be called upon,
usually by family members or the medical authorities, to make
decisions as to the legitimacy of the withdrawal of medical treatment
or artificial nutrition and hydration. That is what occurred
in South
Africa in
Clarke v Hurst NO
,
[31]
in the United Kingdom in
Bland
,
[32]
and in the United States in
Cruzan
[33]
and
Quinlan
.
[34]
In each of these cases the patient was in a persistent vegetative
state and the court authorised the cessation of artificial means
of
keeping them alive, including the removal of artificial nutrition and
hydration. In New Zealand, in
Auckland
Area Health Board
,
[35]
the patient, Mr L, suffered from an extreme form of Guillain-Barré
syndrome that left him with some brain function, but
no connection
between his brain and the rest of his body, so that he was wholly
dependent on an artificial respirator to breathe
and unaware of his
surroundings, although not clinically brain dead. The court issued a
declaratory order that the removal of artificial
ventilatory support
would not contravene the relevant provisions of the Crimes Act and
would not constitute culpable homicide.
The justifications advanced
by different courts for making such orders vary from jurisdiction to
jurisdiction and range from a
concept of substituted consent to the
best interests of the patient, but it is unnecessary to examine that
in greater detail now.
[33]
In circumstances such as those described in
the previous paragraph a doctor in South Africa does not commit a
criminal offence by
ceasing treatment or other forms of medical
intervention that serve neither a therapeutic nor a palliative
purpose. The decision
in those situations is in the ordinary case a
decision to be made by the medical practitioner in conjunction with
family and any
other persons having a responsibility for the patient.
Where there is uncertainty, or a difference of views, it may be
desirable
for a declaratory order to be sought from a court as to the
consequences of a particular course of treatment as occurred in
Clarke v Hurst NO
.
[34]
Furthermore a medical practitioner commits
no offence by prescribing drugs by way of palliative treatment for
pain that the doctor
knows will have the effect of hastening the
patient’s death. This is referred to as the ‘double
effect’, where
the drugs serve the purpose for which they were
prescribed, but have potentially detrimental side effects. It was
accepted as the
correct position in our law in
Clarke v
Hurst NO
,
[36]
citing Devlin J’s charge to the jury in
R v Adams
:
[37]
‘
If the first purpose
of medicine, the restoration of health, can no longer be achieved,
there is still much for a doctor to do,
and
he
is entitled to do all that is proper and necessary to relieve pain
and suffering, even if measures he takes may incidentally
shorten
life
.’ (My emphasis.)
[35]
It is apparent from this necessarily brief summary that,
within the current relatively certain framework of the law, there are
many
steps available to both individuals facing the type of
intolerable situation described above and to the medical
practitioners responsible
for their care that will not result in
interminable, purposeless treatment or the preservation of life as a
purely mechanical process
artificially maintained. In addition the
evidence now before us, which was not before the high court, shows
that there have been
considerable advances in recent times in
palliative care, both in terms of training medical practitioners in
palliative treatment
and in the provision of care through the hospice
movement, that may serve to alleviate the suffering that would
otherwise attend
the final stages of terminal illnesses. This emerges
from the affidavits of Dr David Cameron and Dr Claire Blanchard, both
specialists
in this field, tendered by the HPCSA and from those of Dr
Gwyther and Baroness Finlay, also experts in palliative care,
tendered
by the Minister. None of this evidence was challenged.
It
appears from it that the spectre commonly conjured up of a helpless
patient confined to a hospital bed and attached to an array
of
machinery is, in the vast majority of end of life situations, not
what occurs, even with patients suffering from extremely grave
diseases. It did not apply to Mr Stransham-Ford.
Mercy killing and active
voluntary euthanasia (PAE)
[36]
On the other side of the coin a ‘mercy
killing’ undoubtedly constitutes the crime of murder. That
emerges clearly from
the cases of
Hartmann
[38]
and
De Bellocq
,
[39]
reported alongside one another in the law reports although six years
apart in point of time. In
Hartmann
,
the accused, a medical practitioner, inserted a lethal dose of
pentothal into an intravenous drip in his father’s arm. His
father was 87 years of age, bedridden, dying of cancer and in a
critical state of health and great pain. The son’s motive
in
doing this was entirely in what he conceived to be his father’s
best interests. He was nonetheless convicted of murder,
but sentenced
to a year’s imprisonment of which all but the period until the
rising of the court was suspended for one year.
[37]
Mrs de Bellocq’s situation was
equally tragic. She and her husband were in South Africa temporarily,
had been but recently
married and she was expecting their first
child. The baby was born prematurely and after a short period was
found to have toxoplasmosis,
which had left it severely disabled,
unable to receive nourishment, other than through a naso-gastric
tube, and grievously mentally
handicapped. Its prognosis was poor. A
few weeks after she took the child home, whilst herself suffering
from post-natal depression,
she decided on the spur of the moment to
drown her child while bathing it. As was the case in
Hartmann
the contention that this was culpable homicide was rejected and she
was convicted of murder. She was discharged on her own recognizance
that she would come up for sentence six months later, at which time
it was anticipated that she and her husband would be about
to return
home.
[38]
Neither of these cases, nor
Marengo
,
[40]
which was also cited by Fabricius J, had anything to do with either
assisted suicide (PAS) or active voluntary euthanasia (PAE).
They
were all cases of euthanasia of the kind usually referred to as
‘mercy killing’.
[41]
They did not involve suicide and in none of them had the person who
died asked to have their life ended. They are only relevant
in
identifying the issue arising from PAE, which is whether the consent
of the patient makes any difference to the legal consequences
of the
medical practitioner’s conduct. The answer, as the law stands,
is that it does not. Insofar as the crime of murder
is concerned,
consent is not a defence available to the person who brings about the
death of the deceased. Nor does the fact of
consent justify a
conviction on the lesser charge of culpable homicide.
[39]
That principle is graphically illustrated
by circumstances far removed from the present. They were aptly
described in a judgment
by Holmes JA
[42]
as involving:
‘…
a
grim and sombre drama of despair and mercenary death, uniquely
macabre because the deceased arranged his own murder, in
circumstances
of dire financial stress, for the purpose of insurance
gain to his widow and his avoidance of the prospects of imprisonment
for
fraud.’
As this
characteristically pithy summary reveals, the deceased, Mr Jackson,
had arranged with others, including his wife and a friend
to have
himself killed. Mr Robinson was hired for the purpose of undertaking
the killing. After driving with the deceased to a
suitably lonely
spot, where they consumed a considerable quantity of alcohol, he shot
and killed Mr Jackson. Relying on
Peverett
,
[43]
and certain of the early writers on criminal law, Holmes JA held that
consent is no defence to criminal responsibility for intentionally
killing another person.
[40]
PAE therefore constitutes the crime of
murder. A medical practitioner who administers a lethal agent to a
patient at the latter’s
request commits the crime of murder. No
doubt if they did so the circumstances would materially affect the
sentence imposed for
that crime, but nonetheless the conviction would
stand.
[44]
While I have dealt with the problem as if the only person who could
be in this situation would be a medical practitioner administering
the lethal dose, I can see no reason for distinguishing their
situation from that of a family member or friend who did the same.
[41]
The critical question posed by this aspect
of the relief sought by Mr Stransham-Ford, was therefore whether the
law in regard to
consent as a defence to a charge of murder should be
changed. It involved a challenge to the principle laid down in
Peverett
,
and repeated in
Robinson
,
but neither the principle, nor these cases, was addressed by the high
court. If the common law were to be developed, a topic to
which I
turn below, this needed to be confronted squarely and the scope and
ambit of the requisite exception to, or departure from,
existing
principle had to be defined. Regard needed to be had to the fact that
there are only four countries in the world that
permit PAE. All I
would say at this stage is that, as there was no attempt by either
the parties or the court below to identify
this as an issue calling
for consideration, it was not given full and proper consideration by
the court below. An order making
such a profound change to our law of
murder, without any consideration of applicable principles, should
not have been made and
it must now be set aside. Furthermore, on the
facts of the matter, the question did not arise. No doctors came
forward to say that
they were willing to administer a lethal
substance to Mr Stransham-Ford or to say that they thought that
appropriate in the circumstances
of his situation. The possibility of
PAE was accordingly academic. The high court was not in a position to
consider whether and
subject to what conditions the law in regard to
consent as a defence to a charge of murder needed to be altered. Even
had Mr Stransham-Ford
not died when he did, the court should have
refused to enter into this academic question.
Assisted suicide (PAS)
[42]
Mr Stransham-Ford sought in the alternative
an order that a medical practitioner be authorised to enable him to
terminate his own
life by providing him with an appropriate lethal
agent that he could administer himself in order to terminate his
life. Although
not mentioned in the affidavits, which speak only of
Mr Stransham-Ford wishing to avoid dying in circumstances he regarded
as infringing
on his right to dignity, the reality is that he said
that he wished to be able to commit suicide in a manner and at a time
of his
own choosing, no doubt because he believed that this would be
simpler, less painful and distressing and more certain of being
efficacious
than any other means open to him. As pointed out in para
30 above his act in committing, or attempting to commit, suicide
would
attract no criminal consequences for him. Any criminal
liability would attach to the medical practitioner who prescribed the
means
whereby he could commit suicide.
[43]
It is here that the case of
Grotjohn
[45]
referred to and relied on by Fabricius J is relevant to the issue of
PAS. Whether it has the effect he attributed to it requires
a
detailed consideration of what was in issue in the case and what it
decided.
[44]
Grotjohn
arose
from a distressing domestic situation. Mr and Mrs Grotjohn were
unhappily married. She was partially paralysed and bipolar,
and he
was having an affair with another woman. On the day in question they
had a heated argument in the course of which she claimed
that a rifle
he owned was not in working order. He produced the rifle, undertook
some makeshift repairs that involved the removal
of the trigger guard
and, when she suggested it would not work, found a bullet and
demonstrated it was in working order by firing
the bullet from their
flat into the ground outside. Thereafter the argument continued about
his affair. Eventually Mrs Grotjohn
became furiously angry and said
that she would shoot herself. The accused obtained another bullet
from elsewhere in their flat,
loaded the gun in her presence and
handed it to her saying ‘
Shoot yourself then if you will
because you are a burden’
.
[46]
Mrs Grotjohn placed the butt of the rifle on the floor, the muzzle
under her chin and fired it by pulling the trigger with her
foot,
thereby killing herself.
[45]
Mr Grotjohn was acquitted of his wife’s
murder on the ground that her death had been occasioned by her own
independent act
in committing suicide and that this broke the chain
of causation between any action on his part and her death. In
reaching that
conclusion the trial court relied on an earlier,
somewhat different case, involving a failed suicide pact.
[47]
There, the wife of a married man engaged in an affair confronted him
over the affair. After he broke the news to his girlfriend,
they
discussed the impossibility of their situation and decided to commit
suicide together. To that end he acquired sleeping pills
in addition
to some he already had in his possession and that evening they went
to a secluded spot near a beach, divided the pills
into two equal
portions and consumed them together. Some hours later he awoke and
found that his girlfriend was dead beside him
in the car. He then
tried to commit suicide by drowning but was rescued by fishermen. On
his trial for the murder of his girlfriend
he was acquitted on the
basis that her independent act in committing suicide was the cause of
her death.
[46]
Mr Grotjohn’s acquittal caused
the Minister of Justice to refer to this court the following
questions:
[48]
‘
(a) Whether
encouraging, providing the means for or helping a man or woman to
commit suicide was a crime? and
(b) If so, what
crime?’
[47]
The judgment dealt at length with the
question whether suicide or attempted suicide was a crime and
concluded that they were not.
It then said that this did not mean
that the first question posed to the court had to be answered in the
negative. A person who
encouraged, provided the means for or assisted
a suicide to commit suicide was concerned with the life of that
person and their
criminal liability had to be determined in
accordance with the ordinary principles of our criminal law. In both
Grotjohn
and
Gordon
the
actions of the accused had formed part of the factual complex leading
up to the death of the deceased. The trial courts had
proceeded on
the footing that the independent actions of the deceased had
interrupted the causal chain between the accused’s
actions and
the deceased’s death in each case. While the correctness of
those findings in each case was not questioned, as
it did not fall
within the compass of the questions and the records of the trials
were not before the court, Steyn CJ said that:
‘
I would not
subscribe to a general proposition that the final “voluntary
and independent” act of the suicide must always
result in the
acquittal of the accused, without reservation in regard to the
independence of that act.’ (My translation.)
[49]
[48]
Steyn CJ went on to explain that the fact
that the immediate cause of the suicide’s death is the act of
suicide, does not
necessarily interrupt the chain of causation
between the conduct of the accused person and that person’s
death, so as to
free the accused from criminal liability. In other
words, not every subsequent event that leads to a particular
consequence is
to be viewed as a
novus
actus interveniens
(an intervening
cause). To have that effect the intervening cause must be a
completely independent action (‘n volkome onafhanklike
handeling’) in the sense of being separate from and unconnected
to the earlier conduct.
[49]
In a lengthy passage that requires careful
consideration Steyn CJ went on to say that:
[50]
‘
Where
the [deceased’s] act formed a calculated part of the chain of
events that the [accused] set in train, an event that
he foresaw as a
possibility
and
desired to bring about in order to achieve his goal, or was something
on which he could rely to bring about the desired result
,
intention would also not be lacking, and it would be contrary to
accepted legal principles and every sense of justice to permit
[the
accused] to shelter behind the [deceased’s] act as a subsequent
intervening act. That it [suicide] is not a crime does
not make a
difference. So too, I consider that it is obvious that the suicide’s
final act, although it may be his own independent
act and the
immediate cause of his death, is not necessarily a completely
independent act in the abovementioned sense, and that
its
non-criminality is rarely relevant to the causative impact of the
actions or conduct of the person who encouraged, helped or
enabled
the deceased to commit suicide. It is reasonably conceivable that the
intended action or conduct [by the accused] may be
an immediate
contributory cause of the final deed. Someone, for example, who
provides another with the means whereby he wishes
to commit an act,
contributes to the act and its outcome, and the employment of the
means and its consequences would justifiably
be seen as the direct
result of the provision of the means.
The
conclusion can hardly be avoided that he who provides the desired or
necessary means for an intended suicide, has a causative
role therein
if suicide is committed; and if he does that willingly and knowingly,
with the requisite intention of putting an end
to the life of the
person who wishes to commit suicide, he is guilty of murder even
though the final act is performed by the non-criminal
hand of the
deceased, because he [the accused] has then unlawfully and
intentionally complicit in ending the life of another.
If the act is not completed then he is likewise guilty of attempted
murder.’ (My translation and emphasis. The insertions
are made
for the sake of clarity.)
[50]
Steyn CJ found support for this in
Peverett
.
This was another case of a failed suicide pact, but in that instance
neither party died. They sat in a car and the accused led
a pipe into
the interior and tried to seal it so that exhaust gases would fill
the car and kill them both. For reasons that are
unexplained, while
they both lost consciousness and the woman nearly died, they were
rescued and survived. He was convicted of
her attempted murder and
sentenced to pay a fine of £30. The conviction was upheld on
appeal. In that case, unlike
Gordon
where each participant consumed their
own pills, there was no intervening action by his lover. She simply
acquiesced in his actions
and made no attempt to get out of the car.
So it was his actions that constituted the
actus
reus
, there was no intervening cause or
event, and a clear intention to bring about her death. Some
commentators regard that as providing
a distinction, while others
regard the distinction as spurious.
[51]
However, both are different cases from that of a person who provides
the means to commit suicide, but neither encourages nor performs
any
direct role in the act of suicide, and may seek to discourage it.
[51]
Finally, Steyn CJ concluded:
‘
In connection with
encouragement and help corresponding considerations apply. Both the
encourager and the helper could,
in the light
of the circumstances of the particular case
,
be found guilty of murder or attempted murder.
In the situations under
consideration the possibility of culpable homicide cannot be
excluded. Naturally that would have to be determined
in accordance
with applicable legal principles.’
[52]
(My translation and emphasis.)
[52]
There is little difficulty in applying
these principles to a case such as
Grotjohn
.
If a man hands his wife a loaded gun and invites her to shoot
herself, adding that she is a burden to him, it would be legitimate
to draw the inference that he intended that she should kill herself
and that this was his intention in providing her with the means
to do
so. That is what the court held in very similar circumstances in
Hibbert
.
[53]
But it is, to say the least, debatable how to apply these principles
to a failed suicide pact or the case of a medical practitioner
who
reluctantly and at the insistence of a dying patient provides the
means for them to commit suicide, while counselling them
against
doing so.
[53]
This court was extremely careful in
Grotjohn
to say no more than that it was not an automatic conclusion from the
fact that the final act in the chain of events was that of
the
suicide, that a person who encouraged, provided the means or assisted
the suicide in that act, would commit no crime. It recognised
the
possibility that they might be guilty of murder if their actions were
performed with criminal intent and there was no break
in the chain of
causation between their actions and the ultimate death of the
suicide, or culpable homicide if their actions were
merely negligent.
Every case was to be decided in accordance with basic principles and
on its own peculiar facts. That much is
apparent from the final
answers given to the questions posed to this court, which were:
[54]
‘
As
will appear from the aforegoing the answer to the questions posed is
to be found in the applicable principles of our criminal
law. The
first question cannot be answered with a simple “yes” or
“no”. Whether a person who encourages,
assists or enables
another to commit suicide commits an offence will depend on the facts
of the particular case. With an eye on
the cases that gave rise to
these questions it is necessary to place in the foreground that the
mere fact that the final act was
the suicide’s own,
independent, non-criminal act, will not without more result in that
person not being guilty of a crime.
The answer to the second question
depends entirely on the factual circumstances. After consideration
thereof the crime may be murder,
attempted murder or culpable
homicide.’
[54]
Steyn CJ was not dealing with the kind of
case that is before us. He said that the correctness of the findings
in
Gordon
and
Grotjohn
were not questions that he would enter upon. It is true that certain
academic commentators have viewed the judgment as incompatible
with
the results of those cases and suggested that they must be taken to
have been overruled. But that is not a reason for assuming
how the
judgment is to be applied in relation to circumstances that not only
were not before the court, but so far as can be discerned
from the
judgment were not within its contemplation. The first question posed
to the court was not answered with a simple yes or
no. That
demonstrates that the court did not decide that a criminal offence is
committed whenever a person encourages, helps or
enables someone to
commit suicide or to attempt to do so. Whether they will depends on
the facts of the case and issues of intention
(mens rea),
unlawfulness and causation. It follows that it cannot be said that in
the current state of our law PAS is in all circumstances
unlawful.
The judge’s statement to that effect went too far.
[55]
A court confronted with a case of PAS would
have to consider how the principles articulated in
Grotjohn
should be applied and adapted to the present day. The facts of the
particular case of PAS would have to be considered. The background
would be markedly different, given changes in medical circumstances
in the nearly fifty years that have passed since that judgment
was
delivered. The court would also have to pay particular heed to the
requirements of s 39(2) of the Constitution, which
requires that
in the development of the common law the court must strive to give
effect to the nature purport and objects of the
Bill of Rights.
Assistance could profitably be sought from the approach to causation
in this type of situation in other jurisdictions.
[55]
Whether and to what extent it would determine that PAS was unlawful
is unforeseeable. Only at that stage would the question arise
whether
the criminal law involved an infringement of a right in the Bill of
Rights.
[56]
Assuming that a matter reached the stage
where the court thought that a development of the common law was
required in relation to
PAS, it would then have to decide whether
that should take the form of a different view of causation, or of
intention (mens rea),
or of unlawfulness. The possibility of a
special defence for medical practitioners or carers would arise and
have to be explored.
All of this is absent from the judgment in the
court below and generally speaking from the arguments presented in
this court. There
is also a complete absence of evidence on these
issues.
Summary
[57]
The discussion in paras 36 to 56 above
demonstrates that the authorities did not support the simple
proposition on which the court
below based its judgment and on which
the arguments before it and in this court were based.
[56]
Instead the matter was dealt with and has been argued before us on a
hypothesis as to the existing state of the law that is unjustifiable.
It is on that basis that it was argued that the inability of persons
such as Mr Stransham-Ford to have access to PAS infringed
their
constitutional rights. On the law that question was not reached in
this case. On the facts the erroneous approach to the
law rendered it
impossible to consider whether any limitation of a constitutional
right was reasonable and justifiable in terms
of s 36 of the
Constitution. The approach adopted was unsuited to the
consideration of the complex legal issues that
arise in the context
of these debates about the manner and means of dying.
Foreign law
The evolution of
permissive jurisdictions
[58]
Whether PAE and PAS are, or should be,
lawful has confronted courts and legislatures in a number of
jurisdictions. An overview of
their responses, more fully set out in
the appendix to this judgment, further highlights the difficulties
that this complex situation
poses. One thing can be said immediately
and that is that the responses have differed widely from country to
country and even within
countries. While the expression ‘permissive
jurisdictions’ is used to encompass all of those countries
where either
PAE or PAS are permitted, that does not mean that they
share a common approach. In some jurisdictions one is dealing with
country-specific
legislation, while in others one is concerned with
decisions by the courts. Those in turn are sometimes developments of
the common
law or interpretations of local criminal codes, and
sometimes decisions under Bills of Rights or similar constitutional
instruments.
The variety of answers they give to the problems
under consideration is instructive in considering how our courts,
when faced with
a proper case, might address those problems within
the context of our own society and its needs. They also stand as a
cautionary
warning against any too ready assumption that the approach
in a foreign court can readily be transplanted to South African soil.
This is a warning that has already been sounded by the Constitutional
Court.
[57]
[59]
The position in the various permissive
jurisdictions appears from the summary in the Appendix to this
judgment. Apart from the Benelux
countries and Canada, PAE is
unlawful in every state for which I have been able to find
information.
[58]
Philosophically the approach in the exceptions appears to be that all
conduct, whether active or passive, that either fails to
prolong
life, such as refusing or removing treatment, or deliberately
accelerates death, such as PAE and PAS, is to be regarded
as
equivalent. They are treated as falling within the private realm of
the relationship between the medical practitioner and the
patient,
subject only to certain specific requirements, compliance with
regulatory controls and reporting requirements in order
to avoid
abuse. The three in Europe reflect a gradual extension of the right
to request PAE, with Belgium’s extension to
children of any age
and the proposed extension in the Netherlands to end of life
decisions not based on incurable disease or suffering,
the most
recent. There are variances between them in regard to the ambit of
the availability of PAE and PAS, with the Canadian
position the most
stringent, and variations in the requirements that must be satisfied
in order to request these. The process up
until the end is almost
always supervised by the medical practitioner, save that in Canada
there may be PAS without medical supervision
of the last act of
consuming the lethal drug.
[60]
In the American states of Oregon,
Washington, Vermont, California and soon to be Colorado, the right to
PAS has been the product
of a democratic process in terms of which
the citizens of these states have approved such legislation. It is
tightly restricted
to situations where a person is suffering from a
terminal illness and, as with Switzerland, it requires the patient to
be able
to administer the lethal drugs.
[59]
[61]
The states where court decisions played a
role in PAS being legitimised are the Netherlands, in the early days
prior to legislation,
Colombia, the state of Montana and Canada.
Jurisprudentially the approach, seen from the perspective of a South
African lawyer,
was different in each case. In the Netherlands it
involved a development of the defence of necessity. In Montana it
required a
development of the defence of consent on the basis that
the absence of criminal intent on the part of the physician meant
that
their actions were not contrary to public policy. In Colombia it
appears to involve a finding that the actions of the physician
are
not unlawful. In Canada the decision in
Carter
was based on the Charter and led
directly to the legislation.
PAS and constitutionally
protected rights
[62]
There is no international unanimity as to
the effect of guaranteed human rights on either PAE or PAS and the
task is rendered more
difficult by the lack of commonality in the
rights being guaranteed. No constitutional instrument embodies a
right to commit suicide
or to determine the time and manner of one’s
death or to have assistance in hastening the arrival of death. Any
such right
must then be distilled from other constitutionally
protected rights. Various rights have been invoked to that end.
[63]
A starting point is the right to life,
which is guaranteed in a number of bills of rights, including our
own. In
Pretty
[60]
the House of Lords held that the right to life was the antithesis of
a right to determine the manner and timing of one’s
death.
[61]
The European Court of Human Rights, in the appeal from that decision,
accepted this.
[62]
In the view of these two courts therefore there is no right to die,
or right to either PAS or PAE arising from a constitutionally
protected right to life. But in New Zealand, relying on a finding in
the lower court in
Carter
[63]
that the effect of the prohibition on physician assisted dying was to
force some individuals to terminate their lives earlier than
they
would otherwise have done, the court held that the prohibition on
aiding and abetting suicide in New Zealand engaged the right
to
life.
[64]
By contrast, the Irish Supreme Court
[65]
held that the State’s obligation to vindicate the life of its
citizens extended to the right to die a natural death or letting
nature take its course, but it did not extend to the right to have
life terminated or accelerated and was confined to the natural
process of dying.
[66]
In
Morris v Brandenburg
the
district court, but not the state supreme court, held that the
criminalising of PAD infringed the patient’s right to ‘life,
liberty and the enjoyment of life’.
[67]
[64]
Turning to other guaranteed rights the
European Court of Human Rights has held that the right to decide by
what means and at what
point life will end is an aspect of the right
to a private life.
[68]
The House of Lords by contrast had held that this right was not
engaged.
[69]
All of their Lordships held that the right was relevant to the way in
which a person lived their life, which included the manner
in which a
dying person was treated, but it did not relate to the manner in
which they wished to die or confer a right to end that
life by
assisted suicide. In Canada, in
Rodriguez
,
[70]
the prohibition on aiding and abetting suicide was held to infringe
the right to security of the person, which was regarded as
encompassing personal autonomy, control over the person’s
physical and psychological well-being and basic human dignity.
The
court went further in
Carter
[71]
where it was said that the decision to seek PAS ‘is rooted in
their control over their bodily integrity; it represents their
deeply
personal response to serious pain and suffering. By denying them the
opportunity to make that choice, the prohibition impinges
on their
liberty and security of the person’. In effect that seems to
construe the right to liberty and security of the person
to extend to
a right to determine the manner and timing of death.
[65]
The lower court decision in Montana in
Baxter
, as
well as the dissenting judgment on the constitutional argument on
appeal, was based on a constitutional guarantee of the right
to
dignity, which was construed as a right to a dignified death. By
contrast Lord Bingham in
Pretty
[72]
rejected the argument that the right to life guaranteed in article 2
of the European Convention of Human Rights has as a corollary
the
right to die. He pointed out that death is the very antithesis of
life and that if the right is construed as conferring a right
to
self-determination in relation not only to life, but also as to the
timing and manner of death, there is no reason to distinguish
between
PAE and PAS. He stressed the distinction between taking one’s
own life and taking the life of another and that between
the refusal
or cessation of life-saving or life-prolonging treatment and the
taking of action with no medical, therapeutic or palliative
purpose
directed solely at terminating life. Lord Hope
[73]
pointed out that article 8(1) relates to how a person lives and, as
‘the way in which she chooses to pass the closing moments
of
life is part of the act of living’ must also be respected. But
importantly, he added that ‘it is an entirely different
thing
to imply into theses words a positive obligation to give effect to
her wish to end her own life by means of an assisted suicide’.
[66]
Lastly, in this consideration of
constitutional rights that may be affected by a prohibition on PAE
and PAS in the Supreme Court
of British Columbia in
Carter
Lynn Smith J held that the equality
rights of one of the applicants, Ms Taylor, were infringed by the
absence of PAE because she
was unable, due to her illness, to commit
suicide, which she would otherwise have been free to do albeit
without the assistance
of a medical practitioner. Lynn Smith J held
that this breached her right to equality because she was unable to
commit suicide
when other people similarly situated, but not as
disabled, could do so. It is debatable whether this ground of
distinction can
find a place within the framework of the provisions
of s 9(3) of the Constitution.
[67]
Two other constitutional points bear
mention. The first is that even where courts have held that
constitutional rights were engaged
or infringed, in only three cases,
Carter
and
the lower courts in
Baxter
and
Morris v Brandenburg
,
have they held that this infringement was not justified. The reason
for this in
Carter
was
that the criminal prohibition on aiding and abetting suicide was held
to be overbroad.
[74]
It was held not to be justified, because the Supreme Court accepted a
factual finding by the trial court that, in the situation
prevailing
in Canada, it was practicable to put in place measures that would
have permitted PAD while safeguarding vulnerable people
against
coercion or any form of inducement to ask for PAD.
[75]
Against that the European Court of Human Rights has consistently held
that this is a matter within the margin of appreciation of
member
countries, and the Supreme Court in
Nicklinson
[76]
held that Parliament had considered the prohibition on assisted
suicide on a number of occasions and maintained the prohibition
and
that the matter was more appropriately one for regulation by
Parliament.
Development of the
common law in South Africa
[68]
The high court was expressly asked to
resolve the issue of PAE and PAS by developing the common law of
murder and culpable homicide.
Its order purported to do this, while
confining the development to Mr Stransham-Ford. That created an
internal incoherence in the
court’s order. The common law is
the law applicable to all in South Africa. There is no principle of
the common law, nor
any founded in the Constitution, that permits the
law to be developed for an individual, but not for the rest of
society. That
is to give someone – in this case Mr
Stransham-Ford and any doctor who assisted him – an exemption
from applicable
criminal law and from professional obligations. No
court may do that.
[69]
Even were we to accept the notional
possibility that the high court retained some power in the present
case, to grant an order notwithstanding
Mr Stransham-Ford’s
death, the question would remain whether it was appropriate for it to
do so. The focus of the case would
then have shifted from Mr
Stransham-Ford’s individual situation to the general
requirements of our law in relation to murder
and culpable homicide.
That required a clear and accurate understanding of the existing
state of our law, the scope of the development
being sought and the
terms upon which any development could have been sanctioned. All of
these were absent here. It would have
been necessary to address a
number of difficult questions about the meaning of certain guarantees
in the Bill of Rights. I mention
a few of these. Does the guarantee
of the right to life includes a right to die, or does it stand in
opposition to it and support
the criminalisation of PAE? Does the
right to dignity extend beyond dignity in the process leading up to
our inevitable death,
so as to encompass a right to die when and in
the manner we choose? When we are in reality concerned with the
implications of the
criminal law for the medical profession, do the
rights of patients warrant a change in existing criminal law as it
affects doctors?
Does the right to health care extend to the
provision and possible administration of lethal agents or does it by
necessary implication
exclude this? What are the implications of
palliative care for the question whether a person’s dignity is
infringed by their
inability to terminate their own life or have it
terminated?
[70]
At the outset the high court misstated the
present situation in South African law. It then failed to consider
precisely what development
was being sought. It treated PAE and PAS
as clear and simple concepts capable of easy application, when they
are nothing of the
sort. It did not recognise the distinction between
the two. It paid little regard to international jurisprudence or to
the answers
to the constitutional questions posed in the previous
paragraph. It claimed that the relief it was granting was ‘case
dependent
and certainly not a precedent for a general “free for
all”’, without any indication of how its effects could be
so limited.
[71]
The next question that was not considered
by the high court was the issue of justification in terms of s 36
of the Constitution.
All the foreign jurisprudence to which I have
referred makes it clear that the state has a legitimate interest in
imposing constraints
on the application of PAE, PAS and other forms
of aiding and abetting suicide. The facts of
Grotjohn,
Hibbert and Robinson
illuminate why that is also necessary in South Africa. Some
constraint is plainly reasonable and justifiable in an open and
democratic
society based on human dignity, equality and freedom. The
question is what? And that requires a court to consider the nature of
any right that is infringed by the present state of the law; the
importance and purpose of the limitation; its nature and extent;
the
relation between the limitation and its purpose and less restrictive
means to achieve that purpose.
[72]
In considering that last issue, it should
be borne in mind that it was only on the question of overbreadth that
the Supreme Court
of Canada held in
Carter
that the criminalisation of aiding and
abetting suicide unjustifiably infringed a protected right. Whether a
South African court
faced with the same issue would arrive at the
same conclusion would need to be determined in the light of the very
different circumstances
in this country; the availability of medical
care and especially palliative care; the wide diversity of our
society in its cultures
and belief systems; our sense of the need to
protect the poor, the weak and the vulnerable and the value attached
to providing
such protection. The high court’s too ready
adoption of the reasoning in
Carter
ignored the very different context in
which that case was decided.
[73]
Lastly, a consideration and determination
of these issues without any live dispute existing would raise the
issue of remedy. Would
the appropriate remedy be declaratory? Should
there be a development of the common law crimes of murder and
culpable homicide and
if so to what extent and how should that be
defined? Assuming the basis for any judgment was a finding that a
constitutionally
protected right had been infringed, would the more
appropriate remedy be that adopted by the Canadian Supreme Court of a
declaration
of incompatibility joined with a suspension of the order
to enable parliament to remedy the deficiency? That would be an
extremely
important possibility bearing in mind that on issues of
this nature, raising complex questions of the public interest, the
nature
of any regulations that should attach to permitted PAE or PAS
and the supervisory regime that should accompany any relaxation of
the law, the legislature is the proper engine for legal
development.
[77]
Had Mr Stransham-Ford still been alive the court could have joined
that with a limited constitutional exemption as was done in
the court
of first instance in
Carter
and in the minority judgments in
Rodriguez
.
[74]
None of these issues were fully canvassed
in the high court. Nor could they be, given the circumstances in
which the litigation
was conducted. They all point away from the
court engaging in a significant and substantial development of the
law when there was
no longer a justiciable issue before it. I may add
that, even had Mr Stransham-Ford survived, the fact that the issues
had not
been adequately canvassed should have given the judge pause
for thought. While litigation is sometimes urgent it should not
become
a race against time to defeat the grim reaper of death. When a
court is dealing with litigation brought to test the existing law
against constitutional norms and values, it is vitally important that
the court has the advantage of a full exposition of the facts
and the
law so that an appropriately considered judgment may result.
[78]
A balance must always be struck between the desire for haste of the
litigant and the requirement resting on all judges that they
do
justice in accordance with the law of South Africa and the
Constitution. In this case I am satisfied that the result of the
judge’s desire to deal urgently with the matter was that
insufficient opportunity was available for a fair public hearing
and
determination of the issues in the case.
[75]
There is another aspect that must be
commented on in this regard. While the litigation in this case
purported to be solely a matter
in relation to Mr Stransham-Ford, and
the attorneys representing him strongly asserted this in response to
applications in the
high court and again in this court for other
parties to be admitted as amici curiae, the replying affidavit of Mr
Stransham-Ford
discloses that Dignity SA had already commenced
preparation of an application for similar relief in November 2014
with a different
applicant. However, that person had committed
suicide in January 2015 and Mr Stransham-Ford stepped in as the
applicant in March
2015. Nonetheless the litigation was only
commenced on 17 April and conducted in such haste that the judge made
his order 13 days
later.
[76]
Dignity SA described the litigation on its
website as being litigation brought jointly by it and Mr
Stransham-Ford. In the course
of hearing this appeal counsel
representing the Estate of Mr Stransham-Ford had his attention drawn
to the fact that on its website
Dignity SA was seeking to raise funds
for ‘their legal disbursements in their upcoming Supreme Court
of Appeal case’.
Counsel did not refute this or the necessary
implication that while the litigation was ostensibly being conducted
on behalf of
the Estate the reality appears to be that this
organisation was the real and substantial litigant. There is of
course nothing amiss
in an organisation such as Dignity SA pursuing
litigation in the public interest in terms of s 38
(d)
of the Constitution, provided it does
so openly and on the record. But such litigation is rarely urgent and
certainly not of such
urgency as to warrant a court being hustled
into a decision on issues as complex and important as these on an
inadequate record
and without the benefit of full argument and time
to reflect on the issues.
[79]
Dilatoriness by judges in rendering decisions is to be condemned, but
judges must also resist efforts to compel them to make decisions
on
fundamentally important issues without an adequate record, full
argument and proper time for reflection and consideration.
[77]
Among all the cases that have been
considered by this court in the course of preparing this judgment,
the only one that was brought
with anything like a similar sense of
urgency was the New Zealand case of
Seales
.
But that case was launched on 20 March 2015, when Ms Seales was
expected to survive for between three and eighteen months. Even
though her condition deteriorated rapidly it was heard two months
later from 25 to 27 May 2015 and the judgment was delivered on
4 June
2015. Ms Seales died the following day, having been informed on
2 June 2015 of the judge’s conclusion. Notwithstanding
its
urgency, five parties were fully represented at the hearing, which
lasted three days, and the court had the benefit of evidence
from 36
witnesses, embodied in 51 affidavits, as well as a comprehensive
exposition of the law from a number of jurisdictions.
The
presentation of this case in the high court cannot compare with
that.
[80]
[78]
It might be contended that the deficiencies
in the preparation and presentation of the legal arguments in this
case could be overcome
by the fact that in this court the argument
has been somewhat more comprehensive, albeit proceeding on an
erroneous view of the
present state of South African law. At least we
have had our attention drawn to the leading judgments in various
jurisdictions,
if not to the massive body of literature surrounding
the topic, both here and overseas. But then there is the ultimate
stumbling
block of the state of the factual record. It is to this
that I now turn.
The factual record was
inadequate
[79]
I have already outlined the contents of Mr
Stransham-Ford’s affidavit insofar as it related to his
physical condition. There
was no opportunity before the hearing in
the high court for any medical practitioner to examine him on behalf
of the respondents
and the supporting medical evidence was sparse in
the extreme. It consisted of the original letter in 2013 that he had
commenced
treatment for prostate cancer; a few reports by
radiologists and pathologists, unaccompanied by any explanation of
their significance;
and three affidavits by Dr Cameron Bruce, who had
assumed responsibility for his care, Dr Eppel, a specialist urologist
and Ms
Melnick and clinical psychologist.
[80]
Dr Cameron’s affidavit described Mr
Stransham-Ford’s condition and said somewhat obscurely that
although none of the
symptoms of cancer and treatment towards the end
of his life could be confirmed they were probable. He said rather
more helpfully
that his symptoms would escalate and he would require
a greater dose of medication to control such symptoms. It was
possible that
he would ultimately die from renal failure or some
other complication. He estimated, accurately as it transpired, that
he had only
two to four weeks to live.
[81]
Dr Eppel said nothing more than that Mr
Stransham-Ford was suffering from terminal cancer and was likely to
die in the not too distant
future. It followed that there was no
expert medical opinion before the court confirming Mr
Stransham-Ford’s own description
of the likely progress of his
illness such as the need for hospitalisation or that he might breathe
his last breath with a machine.
Nor was there any confirmation of his
view that he would die dulled by opiates, unaware of his surroundings
and loved ones, confused
and dissociative or that his death would be
attended by unbearable suffering. Save that he was in a coma for the
last few days,
none of this in fact transpired.
[82]
Mr Stransham-Ford was at pains to assert
that he was of full mental capacity and competent to make the
decision to choose PAE or
PAS. Ms Melnick’s report was intended
to support this contention. Unfortunately it had no probative value.
First it was not
attested in an affidavit. Second it was a brief
report arising from a single interview and consideration of Mr
Stransham-Ford’s
mental state on 10 April 2016. The report
commences by saying – inaccurately – that he had
commenced proceedings to
seek sanction to engage in assisted suicide.
It concluded that he showed no sign of any psychiatric disorder and
had a good understanding
of his illness, the ‘clinical, ethical
and legal aspects of assisted suicide’ and the possible adverse
effects of the
procedure. Accordingly it concluded that he was
competent to participate in the application. There were no details of
how Mr Stransham-Ford
came to consult with Ms Melnick, where the
consultation took place, how long it lasted or whether Ms Melnick
sought to probe the
true depths of his desire to participate in PAE
or PAS. As she and he were living in the same street in Cape Town
there may have
been some prior connection. We do not know.
[83]
The high court nonetheless accepted all
this evidence as to Mr Stransham-Ford’s condition and
prognosis. It also accepted
that he sincerely wished to participate
in PAE and PAS. However, when as a result of an application by the
HPCSA to this court
– an application opposed by the attorneys
representing the estate – an order was made for the disclosure
of Dr Cameron
Bruce’s medical records to Dr David Cameron and
for the two to meet a very different picture emerged. The clinical
record
has been summarised in para 6 above. But new facts emerged.
Until at least 12 March 2015, that is six weeks before his
death,
Mr Stransham-Ford was able to continue his practice as an
advocate with a significant case load. He was only suffering mild
pelvic
pain controlled by a common analgesic. On that day, when his
oncologist (not Dr Eppel) referred him to Dr Bruce, who is a
palliative
care practitioner, he said that Mr Stransham-Ford ‘has
made it very clear that he understands these implications [of his
disease] and does not wish to have anything done about his
obstructive uropathy’.
[84]
Dr Bruce’s notes as explained to Dr
Cameron disclosed that as at 25 March 2015, Mr Stransham-Ford
was mentally alert
and mobile, but requiring some assistance with
activities such as showering and going to the toilet. He spent a good
deal of the
initial consultation explaining the application he
intended to bring to the high court. On 26 March Dr Bruce installed a
syringe
driver to provide medication and a saline infusion. Whilst
this was unusual, he did it at Mr Stransham-Ford’s request
because
he wished to maintain mental clarity for as long as possible.
On 8 April Mr Stransham-Ford saw Dr Bruce and reported that he
had good and bad days. On that day he had got up and had a shower as
well as using the toilet. On 10 April he was able to hold
a normal
conversation and on 16 April he signed his founding affidavit.
[85]
On 18 April Mr Stransham-Ford was delirious
and by 20 April he was sleeping much of the time. The events of that
day are important.
He was trying to say something to Dr Bruce that
the latter could not entirely understand. His former wife told Dr
Bruce that he
was asking whether he needed to go through with
assisted death or whether he could change his mind. Dr Bruce’s
note reads:
‘
Chatted
with Rob today – he is asking about whether he can change his
mind about assisted death. He was reassured that he
always has the
option to change his mind. He is also having nightmares relating to
death. He is more anxious than before –
worried about death and
whether he will be obliged to see his quest through.’
[86]
On 21 April Mr Stransham-Ford was again
delirious but able to get up to visit the toilet. Between that date
and 28 April his condition
deteriorated and by that date he was in a
coma. (There is no record of his condition on 26 April when his
replying affidavit was
signed. The signature and initials on the
affidavit fluctuate wildly and suggest that he was not at all well.)
[87]
The judge was not told of the change in Mr
Stransham-Ford’s condition. He was unaware of the fact that he
had indicated on
20 April that he had some doubts about the course he
had adopted. He was unaware that he had slipped into a coma before
the hearing
and that this might render the whole application
unnecessary. Had that information been available to him the proper
course would
have been to delay the hearing until he had further
information, not to press on.
[88]
According to Dr Bruce’s notes, Mr
Stransham-Ford’s death was not the undignified and frightening
experience he had anticipated.
It is described in these terms in the
supplementary report of Dr Cameron:
‘
Dr
Bruce commented that, together with the assistance of community
nurses from St Luke’s Hospice, he had been able to provide
palliative care to RSF in the setting of his ex-wife’s home.
This had enabled those who had been separated in the past to
be
brought together in a very meaningful way. His symptoms were managed
effectively enough for him to be able to die in a homely
atmosphere
surrounded by family and friends who cared for him. The impact of
palliative care surpassed his expectations and defied
his own
predictions of a frightening, impersonal and undignified death.’
[89]
This evidence revealed that the picture of
Mr Stransham-Ford’s final illness as depicted in the affidavits
bore little resemblance
to reality. More particularly it casts grave
doubts on his desire to embark upon PAE or PAS. That throws into high
relief the absence
of any indication in his affidavits that he had
been in contact with any medical practitioner who was willing to
assist him in
taking either of those steps. A feature of the cases in
this area is that there is evidence that a medical practitioner is
available
and willing to assist the patient but is only willing to do
so if they will not face criminal proceedings and possible sanctions
if they do so. That is absent from this case. So there is neither a
patient nor a doctor before the court seeking relief. Indeed
precisely who is before the court at this stage is something of a
mystery. The estate has no legal interest in the matter and as
the
affidavits in all the motions to secure access to evidence and to be
admitted as amici were deposed to by Ms Buitendag, the
attorney who
has been handling the matter at all times, we cannot penetrate behind
the ostensible litigant to identify the real
party pursuing the case.
[90]
The deficiencies in the evidence in this
case are highlighted by the numerous attempts in this court to place
fresh evidence before
us. I have already dealt with the evidence of
Dr Cameron, which is most valuable and which the estate sought to
prevent him obtaining
from Dr Bruce. But in addition to that, the
Minister presented an application to provide us with further evidence
running to some
500 pages and providing expert evidence on
legislative consideration of PAE and PAS in the United Kingdom, as
well as extensive
expert evidence on palliative care. This
evidence dealt with the experience in certain jurisdictions of the
ability
to maintain proper oversight of, and compliance with, the
statutory requirements for PAE and PAS. It was directed at showing
that
the legislative provisions were difficult to enforce and that
there were at the least doubts whether the requirements for PAE and
PAS were being strictly complied with.
[91]
The HPCSA also sought to tender evidence in
the form of over 600 pages of affidavits and annexed material. Apart
from addressing
some of the same issues as the evidence of the
Minister it tendered specific evidence concerning the impact in South
Africa of
PAE and PSA. This highlighted the disparities among
different communities in regard to the availability of palliative
care. It
also drew attention to the fact that poverty and economic
pressures could cause families to put pressure on elderly or sick
relatives
to employ PAE or PAS in order to relieve the financial
burden on the family of their continued existence. The differences in
cultural
approaches to family, life and death were highlighted and
the view expressed that accepting PAE or PAS could conflict with
important
cultural norms that should inform our understanding of
constitutional rights such as the right to life and the right to
dignity.
[92]
In response to some of this evidence CALS
asked for leave to admit a number of affidavits and accompanying
annexures dealing with
the situation in regard to PAD in Oregon and
the Netherlands. These ran to a little over 130 pages. Shorter
applications
to lead additional evidence on appeal were also
submitted by Doctors for Life and Cause for Justice. In addition the
heads of argument
presented us with a great deal of additional
material that might strictly speaking be regarded as additional
evidence.
[93]
This court adopted the expedient of
admitting all of the material on a provisional basis so as to
expedite the conduct of the appeal.
A careful perusal of it reveals
that it does not satisfy any of the ordinary requirements for
admitting fresh evidence on appeal.
In particular it is not
incontrovertible. This was also the experience of Collins J in
Seales
. He
commented (para 15) that:
‘
For
every proponent of Ms Seales’ case, there is an equally
forceful opponent.’
[94]
It is utterly unsatisfactory for any court
to be requested to determine issues of fundamental importance on this
basis. As the Constitutional
Court has pointed out in the context of
mootness what will sway the court in deciding whether to hear the
case is ‘
the
importance of the issue, its complexity and the fullness or otherwise
of the argument’.
[81]
I would add that a
material factor should be whether the record is appropriately
complete to enable the court to arrive at a properly
reasoned
conclusion.
This court made a
similar point in a case where the parties sought to argue fundamental
constitutional issues on a stated case that
failed adequately to
state the facts relevant to the point in issue.
[82]
[95]
I have little doubt that much of the
material in the further evidence tendered to us on appeal would be
relevant to the constitutional
issue of the lawfulness of PAE and PAS
in South Africa, but we are simply not in a position to assess its
weight and to sift the
wheat of relevant facts from the chaff of
opinion, argument, hearsay and sensationalism that form part of it,
as well as part of
the material that is already in the record. Its
primary relevance is to show that it was and would be wholly
inappropriate to make
a determination of the constitutional issues on
this record. Matters this important require the careful presentation
of evidence
that we have noted occurred in
Carter
and
Seales
.
That is the proper approach to constitutional litigation in this
country as laid down by the Constitutional Court in
Prince
.
[83]
[96]
I am further fortified in the views I have
expressed about the inadequacy of the record and the evidence by the
fact that similar
complaints were expressed by the Supreme Court in
the United Kingdom in
Nicklinson.
Thus
Lord Mance
[84]
recorded that they had not had the wide-ranging examination of expert
and statistical material concerning suicide and the psychological
factors and risks bearing on its occurrence that the United States
Supreme Court had before it in
Washington
v Glucksberg
. He recorded that much of
the material before them in
Nicklinson
was second-hand adduced in other litigation or by other enquiries. He
recorded that before the Court of Appeal the approach had
been that
it was necessary to consider ‘a vast array of detailed
evidence, including sociological, philosophical and medical
material’
while before the Supreme Court it was suggested that a close study of
the evidence on the relative risks and advantages
of relaxing the
prohibition on assisted suicide was no longer necessary because it
had already been carried out by a number of
expert bodies.
[97]
Lord Mance’s description of this
approach as ‘an invitation to short-cut potentially sensitive
and difficult issues
of fact and expertise by relying on secondary
material’ is equally apposite in this case. Lord Sumption’s
understated
comment that ‘there are obvious difficulties about
reaching a concluded view on untested, incomplete and second-hand
material
of this kind’ strikes me as sensible. Speaking for
myself, before deciding this type of issue I would like to have some
assurance
that as far as humanly possible the material before me is
reasonably comprehensive and accurate.
[85]
That was not, and is not, the case here.
[98]
Finally under this head I mention one
further concern. South Africa is a very different country facing very
different challenges
from countries such as Canada, Switzerland, the
Netherlands, Belgium and Luxembourg, and states such as Oregon,
Washington, California,
Vermont and Colorado in the United States.
Those countries and states have sophisticated health care systems and
extensive palliative
care networks. Comparatively speaking they are
wealthy. South Africa is not. Our health care system faces
significant challenges
dealing with everyday cases. Voluntary
organisations and private medical practitioners largely provide
palliative care. It is not
widely available to the majority of
people. Regulatory enforcement in many fields is under pressure or
completely lacking. Our
population is diverse and there are
substantial disparities of wealth and resources. Before a court could
be satisfied that the
acknowledged risks attendant upon permitting
PAE or PAS could be guarded against by way of regulation, as is the
case in other
countries, it would need to be satisfied that a proper
regulatory framework was, or could be put, in place and that the
framework
would not be a pious hope designed in a bureaucrat or
idealist’s office, but one the functional operations of which
had been
tested and not found wanting.
[99]
The different challenges facing this
country emerge from the affidavit of Ms Mayeza, tendered by the
HPCSA. She is a palliative
care social worker employed at Chris Hani
Baragwanath Academic Hospital, Soweto and has specialised in the
treatment of people
with HIV/AIDS and TB. This constitutes about 40
to 45 per cent of her caseload, with a similar proportion suffering
from cancer
and cancer-related conditions. Ms Mayeza drew attention
to the fact that, among the communities that she serves, the life of
aged
and infirm members is valued and they are usually cared for
within the family and the broader community. The attitude towards
life
is communitarian and it is treated as a gift to be preserved.
Suicide is alien to this culture. She suggested that in these
communities
permitting PAE and PAS posed a real threat given their
socio-economic circumstances.
[100]
A court addressing these issues needs to be
aware of differing cultural values and attitudes within our diverse
population. It needs
to consider the impact of its decision beyond
our affluent suburbs into our crowded townships, our informal
settlements and in
the vast rural areas that make up South Africa. It
is in that context that it must determine whether its decision will
further
undercut the foundational value of the right to life or be
supportive of it. The notion of a dignified death must be informed by
a rounded view of society, not confined to a restricted section of
it. This was not done in this case and could not have been done
because of the inadequacies of the evidence and the haste with which
it was decided.
Conclusion
[101]
I said in para 5 above that the appeal had
to succeed for three inter-related reasons. Each taken separately
would in my view suffice
to reach that conclusion. When they are
taken cumulatively they demonstrate unequivocally in my view that the
high court was wrong
to make the order that it did. It was wrong to
hold that the common law crimes of murder and culpable homicide
needed to be or
should be developed to accommodate PAE and PAS. South
African law in that regard is as set out in paras 28 to 56 above.
When an
appropriate case comes before our courts the common law will
no doubt evolve in the light of the considerations outlined there and
the developments in other countries. It is of course possible that
Parliament will, as has occurred in other countries, intervene
and
pass legislation on the topic. That would be welcome if only because
it would give effect to the proper role of Parliament
in a society
where the doctrine of the separation of powers has application. Lobby
groups could then make their voices heard and
a proper debate and
process of reflection could occur. In general, whilst recognising the
role that the Constitution confers upon
the courts, it is desirable
in my opinion that issues engaging profound moral questions beyond
the remit of judges to determine,
should be decided by the
representatives of the people of the country as a whole.
[102]
In saying that, I agree with the views of
Lord Sumption in para 233 of
Nicklinson,
where he said the following in regard
to the proper role of Parliament in issues of this type:
‘
In
the course of argument, it was suggested that the case for the
Respondents in the Nicklinson appeal required the Appellants to
suffer a painful and degrading death for the sake of others.
This is a forensic point, but up to a point it is a legitimate
one.
It is fair to confront any judge, or indeed legislator, with the
moral consequences of his decision. The problem
about this
submission, however, is that there are many moral consequences of
this decision, not all of them pointing in the same
direction. For my
part, I would accept a less tendentious formulation. In my
view, if we were to hold that the pain and degradation
likely to be
suffered by Mr Lamb and actually suffered by Mr Nicklinson made
section 2 of the Suicide Act incompatible with the
Convention, then
we would have to accept the real possibility that might give
insufficient protection to the generality of vulnerable
people
approaching the end of their lives. I conclude that those
propositions should be rejected, and the question left to
the
legislature. In my opinion, the legislature could rationally
conclude that a blanket ban on assisted suicide was “necessary”
in Convention terms, i.e. that it responded to a pressing social
need. I express no final view of my own. I merely say that the
social
and moral dimensions of the issue, its inherent difficulty, and the
fact that there is much to be said on both sides make
Parliament the
proper organ to deciding it. If it were possible to say that
Parliament had abdicated the task of addressing
the question at all,
so that none of the constitutional organs of the state had determined
where the United Kingdom stood on the
question, other considerations
might at least arguably arise. As matter stand, I think it clear that
Parliament has determined
that for the time being the law should
remain as it is.’
[103]
We were not asked to make any order as to
costs save in regard to the costs incurred by the HPCSA in having to
make application
to this court in order to secure access to the
medical records in respect of Mr Stransham-Ford and to enable Dr
Cameron to discuss
those records and Mr Stransham-Ford’s
condition and treatment with Dr Bruce. I agree with counsel for the
HPCSA that the
attitude of the estate in refusing to provide access
to those records and for consultation purposes access to Dr Bruce
(who was
himself willing to discuss the matter with Dr Cameron) was
obstructive in the extreme. It precipitated an entirely unnecessary
opposed application to this court. The request that the estate pay
those costs is justified. If, as one suspects, there is another
organisation behind the litigation no doubt it will have to deal with
the estate over the consequences of its actions.
[104]
I accordingly make the following order:
1
The appeal is upheld and the order of the
court below is set aside.
2
The respondent is ordered to pay the costs
incurred by the fourth appellant in applying for the order granted by
this court on 30 May
2015 and in thereafter procuring and
lodging the evidence of Dr David Cameron in his affidavit sworn on
17 October 2016.
M J D WALLIS
JUDGE OF
APPEAL
Appearances
First to Third
Appellants:
L Nkosi-Thomas SC (with her S Poswa-Lerotholi and N Mgcina)
Instructed by:
The State Attorney, Pretoria and Bloemfontein
Fourth
Appellant:
C H van Bergen (with
him A J D’Oliviera)
Instructed by:
Moduka
Attorneys, Pretoria and
Matsepes Inc, Bloemfontein
Respondent:
H B Marais SC (with him H P van
Nieuwenhuizen and C A Du Plessis)
Instructed
by:
Nkosi Rogers Scriven Attorneys, Pretoria
Honey Attorneys, Bloemfontein.
First Amicus Curiae:
R S Willis (with him T Mafukidze and
A Schluep)
Instructed by:
Robin
Twaddle Attorneys,
Midrand and
Webbers Attorneys, Bloemfontein.
Second Amicus
Curiae: In person
Third Amicus Curiae:
M J Engelbrecht (with her A
Montzinger)
Instructed by:
Smit and Viljoen
Attorneys, Stellenbosch
McIntyre and Van der Post, Bloemfontein.
Fourth Amicus Curiae:
Hamilton Maenetje SC (with him Gina Snyman)
Instructed by:
Centre for Applied Legal Studies, Johannesburg
Blair Attorneys, Bloemfontein.
Fifth Amicus Curiae:
Darryl Cooke
Instructed
by:
Norman Wink & Stephens, Cape Town
Lovius Block, Bloemfontein.
APPENDIX
[105]
Articles 114 and 115 of the Swiss Criminal
Code of 1937 provide that:
[86]
‘
114
Homicide
at the request of the victim
Any person who for
commendable motives, and in particular out of compassion for the
victim, causes the death of a person at that
person's own genuine and
insistent request is liable to a custodial sentence not exceeding
three years or to a monetary penalty.
115
Homicide / Inciting and assisting suicide
Any
person who for selfish motives incites or assists another to commit
or attempt to commit suicide is, if that other person thereafter
commits or attempts to commit suicide, liable to a custodial sentence
not exceeding five years or to a monetary penalty.’
Article
114 renders PAE a criminal offence. Article 115 criminalises
incitement and assistance to commit suicide where that is done
for
selfish motives. That effectively legitimises PAS if performed for an
unselfish motive. Assistance to commit suicide is permissible,
for
example, by prescribing and providing the drugs to be taken by the
potential suicide, but active euthanasia is a crime. Switzerland
is
the only jurisdiction that permits foreigners to take advantage of
its laws on assisting suicide.
[87]
Article
115 was enacted in 1942 but only assumed substantial significance in
1998 with the establishment of the organisation DIGNITAS,
[88]
which
offers a service in assisting people to commit suicide.
[106]
The first jurisdiction to provide a
statutory framework for PAS was the state of Oregon in the United
States of America by way of
what is referred to as the Death with
Dignity Act.
[89]
The citizens of Oregon passed this as ballot measure 16 of 1994,
although the Act only came into effect in 1997. It provides a
complete framework for PAS, or as it is referred to in Oregon, where
the statute specifically provides that death through the means
provided in the statute is not suicide, PAD (physician assisted
dying). In summary the requirements of the statute are that the
person be over the age of 18 years; a resident of Oregon; capable of
making and communicating healthcare decisions and diagnosed
with a
terminal illness that will lead to death in six months. There are a
number of requirements that must be satisfied before
a prescription
for lethal medication will be issued for use by the patient. In
addition the statute creates a new crime and makes
provision in
relation to the existing crimes relating to mercy killing and
euthanasia. Under Liabilities s 127.890 s 4.02(2):
‘
A
person who coerces or exerts undue influence on a patient to request
medication for the purpose of ending the patient's life,
or to
destroy a rescission of such a request, shall be guilty of a Class A
felony.’
and
under Construction of Act s 127.880 s 3.14:
‘
Nothing
in ORS 127.800 to 127.897 shall be construed to authorize a physician
or any other person to end a patient's life by lethal
injection,
mercy killing or active euthanasia.’
In
the result PAE is unlawful in Oregon and attracts criminal penalties
as does conduct aimed at pressurising someone to obtain
medication
for the purpose of ending their life. But PSA is lawful subject to
compliance with the provisions of the statute, which
include
confirmation of diagnosis and prognosis and mental capacity; at least
two requests and a ‘cooling-off period’
of 15 days
between them; and information about alternatives to PAD.
[107]
Some other states in the USA have followed
Oregon’s lead. First was Washington, which in 2008 passed a law
virtually identical
to that in its neighbour Oregon. Vermont did the
same in 2013,
[90]
California in 2015,
[91]
and in the recent election in the USA voters in Colorado approved
Proposition 106, which will introduce similar legislation in
that
state. In each of Washington, Vermont and California the legislation
followed upon a citizens’ initiative and was supported
in a
ballot. The statutes are broadly similar and in all five states
provide for regulatory controls and reporting requirements
by the
medical practitioners involved. There is no obligation on medical
practitioners to participate in PAS and actions not in
compliance
with the statutory prescripts may, as was the position prior to these
statutes, attract criminal liability.
[108]
The state of Montana is usually cited as
one where PAS is permissible, but to the extent that this is correct
it arises not by statute
but by virtue of the construction given by
the state supreme court in
Baxter
[92]
to the provisions of its criminal code dealing with consent as a
defence to liability for criminal conduct. The criminal code provided
that ‘consent of the victim to conduct charged as an offence or
to the result thereof is a defense’. That was subject
to four
exceptions of which the only one that was relevant, where the consent
had been given by someone competent to consent, was
whether it was
against public policy to permit the conduct or the resulting harm,
even though consented to. The majority of the
court held that while
it was against public policy to consent to arbitrary violence, it was
not against public policy to permit
a physician in their private
interaction with their patient to accede to the request of a
terminally ill patient to provide a prescription
for medicine that
the patient could take subsequently. The decision effectively cleared
the path for PAS in Montana, but without
the statutory framework
existing in other states. The limits of the public policy exemption
are not yet clearly delineated but
must evolve on a case by case
basis. Issues such as the nature of the consent required, the need
for a confirmatory opinion from
another physician, the stage and
nature of the terminal illness will be dealt with in future.
[109]
Although
Baxter
succeeded in the lower court on the
basis that criminalising the conduct of the physician breached the
constitutional right to dignity
in Montana’s Constitution, and
one of the appellate judges agreed with the lower court, in general
it remains the case that
claims for PAS or aid in dying as a
constitutional right have not been accepted in the United States. The
Supreme Court in
Washington v
Glucksberg
[93]
held that statutes criminalising assisted suicide are
constitutional.
[94]
[110]
In the Netherlands Article 294 of the Dutch
Criminal Code made it a criminal offence for a person to
intentionally encourage another
to commit suicide or help them or
provide the means to do so and suicide followed.
[95]
Article 293 made it an offence to take the life of another person at
that person’s express and serious request. On its face
both PAE
and PAS were unlawful. Nonetheless by 1992 it was possible for a
researcher to write
[96]
that:
‘
Voluntary
euthanasia has, since the early 1970s, become an established part of
medical practice in the Netherlands.’
The way in which
courts in the Netherlands circumvented these apparently strict
criminal provisions in relation to medical practitioners
was to
recognise a defence of necessity in terms of which a medical
practitioner would escape liability if they acted according
to
responsible medical opinion measured by the standards of medical
ethics. Necessity could be shown if the request came from the
patient
and was entirely free and voluntary; the request was well considered
and durable; the patient was experiencing intolerable
suffering, not
necessarily physical, with no prospect of improvement; euthanasia was
a last resort; euthanasia was performed by
a physician and the
physician had consulted with another physician who was an expert in
the relevant field.
[97]
The effect of the requirement that the euthanasia be performed by a
physician was to legalise PAE.
[111]
In 2002 the Netherlands formalised the
position by way of legislation. The Termination of Life on Request
and Assisted Suicide (Review
Procedure) Act authorises both PAE and
PAS provided the requirements of the Act are observed. The physician
must be convinced that
the patient’s request is voluntary and
well-considered; that the patient’s suffering is lasting and
unbearable; must
have informed the patient about the situation and
their prospects; the patient must be convinced that this is the only
solution;
and at least one other independent physician must have been
consulted and given an opinion that these requirements are
satisfied.
[98]
A person aged 16 or over may invoke the Act and may do so by way of a
prior written statement made before they reached the situation
where
they seek PAE. The parents or guardian must be involved where the
child is between 16 and 18. A child between 12 and 16 may
also seek
PAE or PAS with the consent of their parents or guardian. The
physician must be present when PAS is chosen. Compliance
with the
requirements of the Act falls within an exemption to Article 293 of
the Criminal Code. According to a letter of the government
position
on ‘completed life’ addressed by the Minister of Health,
Welfare and Sport and the Minister of Justice and
Security to the
House of Representatives on 12 October 2016 the government intends to
introduce legislation to extend the scope
of this legislation to
people who are not undergoing intolerable suffering, but regard their
lives as complete.
[99]
[112]
Belgium passed the Belgian Act on
Euthanasia of 28 May 2002, which provides for PAE, but not PAS.
[100]
Article 2 provides that euthanasia is the intentional termination of
life by someone other than the person concerned at the latter’s
request. Under the original statute the patient had to be a major or
an emancipated minor and be legally competent and conscious
when
making the request; the request had to be voluntary, well-considered
and repeated and not the result of external pressure;
and the patient
has to be in a medically futile condition of constant and unbearable
physical or mental suffering that cannot be
alleviated resulting from
a serious and incurable illness or accident. Where the patient is no
longer able to express their will
the physician can proceed, if
authorised to do so under an advance directive in writing prepared by
the patient at a time they
were able to do so. In February 2014 the
law was amended to permit children of any age to request euthanasia,
with the agreement
of their parents, if they are terminally ill,
close to death and suffering beyond any medical help. In all
instances the medical
practitioner must be present when the fatal
dose is taken or administered.
[113]
The only other country in Europe that
permits both PAE and PAS is Luxembourg under the Law of 16 March 2009
on euthanasia and assisted
suicide. A patient may request either of
these if suffering from a grave and incurable condition and has asked
repeatedly for the
procedure. The only country outside Europe that
permits both PAE and PAS is Canada under the amendments to the
Criminal Code to
permit medical assistance in dying that came into
force on 17 June 2016.
[101]
These amendments were passed in response to the judgment of the
Supreme Court of Canada in
Carter
[102]
holding that the provisions of s 241 of the Criminal Code
rendering it a criminal offence to aid and abet a person to commit
suicide, and those of s 14 of the Code saying that no person may
consent to death being inflicted on them, unjustifiably infringed
section 7 of the Charter
[103]
insofar as they prohibited 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 cause enduring
suffering that is
intolerable to the individual in the circumstances of his or her
condition. The court issued a declaration to
that effect but
suspended its operation for twelve months to enable the legislature
to act, which it has now done.
[114]
The legislation in substance leaves intact
the offence of counselling a person to commit suicide or aiding or
abetting a person
to commit suicide and also leaves s 14
unaltered in any material respect. It introduces an exception if the
person concerned
is a medical practitioner or nurse practitioner
providing medical assistance in dying. This is defined in a manner
that encompasses
both PAE and PAS. People are eligible for that
assistance if the are eligible for health care in Canada; are at
least 18 years
of age and capable of making decisions in regard to
their health; have a grievous and irremediable medical condition and
have made
a voluntary request for such assistance and given informed
consent thereto. A person suffers from a grievous and irremediable
medical
condition if they have a serious and incurable illness,
disease or disability; they are in an advanced state of decline in
capability;
this causes them to endure physical or psychological
suffering that is intolerable to them and that cannot be relieved
under conditions
acceptable to them; and their natural death has
become reasonably foreseeable.
[104]
The legislation embodies various safeguards and reporting
requirements.
[115]
Looking elsewhere in the world, in
Finland PAS is not illegal because suicide is not illegal, but any
form of PAE is illegal. Germany
passed a law on 6 November 2015
permitting PSA on an ‘individual basis out of altruistic
motives’ but forbidding
commercial euthanasia or suicide
business.
[105]
Presumably therefore the operation of a clinic such as the DIGNITAS
clinic in Switzerland would be illegal in Germany. Apart from
that,
so far as my researches reveal, both PAE and PSA are illegal in
Denmark, France, Ireland, Italy, Norway, Russia, Spain, Sweden
and
the United Kingdom. Outside Europe both are illegal in Australia,
China, India, Israel, Mexico, New Zealand, the Philippines,
Turkey
and Uruguay, and probably Japan.
[106]
The European Court of Human Rights, while accepting that the manner
in which a person dies engages their right to privacy under
Article 8
of the European Convention on Human Rights,
[107]
has consistently held that it is within the margin of appreciation of
member states to regulate PAE and PAS. Challenges to legislation
criminalising assisted suicide on the grounds of an infringement of
Article 8 rights have been rejected in Ireland
[108]
and the United Kingdom.
[109]
A similar challenge failed in New Zealand.
[110]
[116]
Lastly in this survey of what are described
as permissive jurisdictions there is the judgment of the
Constitutional Court of Colombia,
[111]
which upheld the constitutional validity of section 326 of the
Criminal Law that provided that someone ‘who killed someone
else for mercy to end their acute suffering caused by bodily injury
or serious and/or incurable disease’ committed a criminal
offence. However, the court fashioned an exception to this rule in
relation to physicians who engaged in mercy killing at the informed
request of someone with full and reliable information about their
illness and prognosis and sufficient intellectual capacity to
make
decisions. Such persons must be exonerated from responsibility
because they have not acted unlawfully. This appeared to flow
from a
general concept of unlawfulness rather than from the application of a
right protected by way of an instrument akin to our
Bill of
Rights.
[112]
The Court went on to point out that there are a number of
requirements that should be fulfilled to give effect to this decision
and regulate it and that these could only be established by the
legislature. It therefore exhorted the legislature to regulate
the
issue of death with dignity in the shortest possible period of time.
However, nearly twenty years have passed and this exhortation
has not
been heeded.
[1]
The quotation is frequently attributed to
Aeschylus
Agamemnon
but it does not appear there. More
prosaically Benjamin Franklin wrote to Jean Baptiste Le Roy in 1789
and said: ‘But in
this world nothing can be said to be
certain, except death and taxes.’ There are similar earlier
statements.
[2]
As quoted in Plato’s
Apology
29a.
[3]
Dylan Thomas 1914 – 1953
Do
not go gentle into that good night
.
[4]
This is of course the language of the layman. In
S v Williams
1986 (4) SA 1188
(A) at 1194D-H this court expressly refrained
from deciding whether the traditional view that cessation of heart
beat and breathing
or the medical view of brain death was the
correct position in law.
[5]
They are reported as
Stransham-Ford v Minister
of Justice and Correctional Services and Others
[2015]
ZAGPPHC 230; 2015 (4) SA 50 (GP).
[6]
In para 3 of his reasons Fabricius J recorded, slightly
inaccurately, that Mr Stransham-Ford died on the day that he made
his
order. A more accurate statement would have been that he died
before any order was given.
[7]
Mighty Solutions t/a Orlando Service Station v Engen Petroleum
Ltd and Another
[2015] ZACC 34
;
2016 (1) SA 621
(CC)
(
Mighty Solutions
) para 39.
[8]
This summary of Mr Stransham-Ford’s
condition is taken from the founding affidavit read in the light of
Dr Bruce’s
clinical notes and explanations of those notes.
[9]
The practice in the High Court in Pretoria is that urgent
applications are dealt with in a separate court on a separate roll
commencing on Tuesday in each week.
[10]
Junior counsel, Mr van Nieuwenhuizen, was a member of the executive
committee of this organisation.
[11]
Rules 16A (1)
(a)
and
(b)
provide that:
‘(1)(
a)
Any person raising
a constitutional issue in an application or action shall give notice
thereof to the registrar at the time
of filing the relevant
affidavit or pleading.
(
b
) Such notice shall contain a
clear and succinct description of the constitutional issue
concerned.’
[12]
We were informed of this from the bar by counsel
who had made the application and counsel for the Estate did not
challenge his
statement.
[13]
Learned Hand J in
Spectator
Motor Service Inc v Walsh
139 F 2d 809
at 823 (1944).
[14]
The authorities show that there is a close correlation between the
non-transmissibility of those claims on death and an inability
to
cede them during life.
[15]
Executors of Meyer v Gericke
(1880) Foord 14
;
Hoffa NO v S
A Mutual Fire & General Insurance Co Ltd
1965 (2) SA 944
(C)
at 952F;
Government of the Republic of South Africa v Ngubane
1972 (2) SA 601
(A) (
Ngubane
) at 606G-H.
[16]
Pienaar and Marais v Pretoria Printing Works Ltd and Others
1906
TS 654
at 656, followed in
Jankowiak and Another v Parity
Insurance Co Ltd
1963 (2) SA 286
(W) at 289E-H and
Ngubane
at 607H. The appeals against orders dismissing exceptions
in
South African Associated Newspapers Ltd and Another v Estate
Pelser
1975 (4) SA 797
(A) and
Argus Printing and Publishing
Co Ltd and Others v Esselen’s Estate
1994 (2) SA 1
(A)
were presumably brought to free the appellants of the burden of
costs orders made against them that would have been transmitted
to
the estates.
[17]
Willenburg v Willenburg and Another
(1908) 25 SC 775
at 777.
[18]
Any questions of costs would, if necessary, be dealt with
separately.
[19]
National Coalition for Gay and Lesbian
Equality and Others v Minister of Home Affairs and Others
2000
(2) SA 1
(CC) at footnote 18.
[20]
See
Independent
Electoral Commission v Langeberg Municipality
[2001] ZACC 23
;
2001
(3) SA 925
(CC) (
IEC v Langeberg
)
para 11;
MEC for Education, KwaZulu
Natal & others v Pillay
[2007] ZACC 21
;
2008 (1)
SA 474
(CC) (
Pillay)
para
32;
Pheko & others v Ekurhuleni
Metropolitan Municipality
[2011] ZACC
34
;
2012 (2) SA 598
(CC) (
Pheko
)
para 32. This court has a similar jurisdiction in terms of
s 16(2)
(a)
of
the
Superior Courts Act 10 of 2013
.
[21]
IEC v Langeberg Municipality
ibid.
[22]
United States v Samuels
808
F. 2d.
1298, 1301 (8
th
Cir. 1987) cited by the Supreme Court in
Greenlaw
v United States
128 S Ct 2559
(2008).
See
Fischer and Another v
Ramahlele and Another
[2014] ZASCA 88
;
2014 (4) SA 614
(SCA) paras 13 and 14.
[23]
Qoboshiyane NO and Others v Avusa Publishing
Eastern Cape (Pty) Ltd and Others
[2012]
ZASCA 166
;
2013 (3) SA 315
(SCA) para 5.
[24]
Seales v Attorney-General
[2015]
NZHC 1239
para 66.
[25]
Director of Public Prosecutions, Transvaal v
Minister of Justice and Correctional Services and Others
[2009]
ZACC 8
;
2009 (4) SA 222
(CC) paras 63-66.
[26]
R v Peverett
1940
AD 213
(
Peverett
).
[27]
Stoffberg v Elliott
1923 CPD
148
at 149-150. For a clear instance from a foreign jurisdiction see
Nancy B v Hôtel-Dieu de Québec
(1992) 86 DLR (4
th
)
385, where a 25 year old young woman suffering from Guillain-Barré
syndrome and only able to breathe with a respirator
instructed the
hospital where she was being treated to remove the ventilator. For a
damages award, where a patient’s refusal
of treatment (a blood
transfusion on the grounds of her religious beliefs) was overridden
by a doctor, see
Malette v Shulman
(1990)
72 O.R. (2d) 417; 67 DLR (4
th
)
321 (CA).
In
Schloendorff
v Society of the New York Hospital
(1914)
105 NE 92
at 93, Cardozo J said:
‘
Every
human being of adult years and sound mind has a right to determine
what shall be done with his own body; and a surgeon who
performs an
operation without his patient’s consent commits an assault …’
See
generally A Hockton
The Law of Consent to Medical Treatment
(1999) Chapters 2 and 3.
[28]
Re Conroy
486 A.2d 1209
(N.J.S.C. 1985) at 1224. The
distinction is possibly a fine one, but it is hard to see why the
refusal of continued treatment
is distinguishable from the refusal
of treatment in the first place. It is a different matter whether
the disconnection of the
ventilator is a cause of death. From the
perspective of the criminal law it will be so, but the question then
will be whether
it was unlawful.
Auckland Area Health Board v
Attorney-General
[1993] 1 NZLR 235
(HC) (
Auckland Area Health
Board
) at 248 line 23 – 249 line 38. This court in
S v
Williams
supra fn 4 held that the act of switching off a
ventilator did not interrupt the chain of causation between the
criminal act of
shooting the deceased and her death.
[29]
This is what Mr Nicklinson, the initial claimant in
R (on the
application of Nicklinson and others) v Ministry of Justice
(
Nicklinson
)
[2014] UKSC 38
;
[2014] 3 All ER 843
(SC),
did. See para 6 of the judgment of Lord Neuberger P. Refusing
artificial food and hydration comes closer to suicide than
the
refusal of treatment.
[30]
I leave aside for consideration when it arises the case of a patient
who expresses their wishes while competent to do so and
perhaps in
advance of any need therefor by way of a living will or similar
document or expression of wishes, but is incapable
at the time the
need to consider treatment arises to express their decision. There
is however much to be said for the position
that any such prior
instructions clearly expressed should be heeded. It appears to be
accepted in the United Kingdom.
Airedale NHS
Trust v Bland
[1992] UKHL 5
;
1993 AC 789
(HL) (
Bland
)
at 857D-E per Lord Keith; at 864F per Lord Goff of Chieveley and in
a number of other jurisdictions, especially in the United
States of
America. See the discussion in the South African Law Commission
Report (Project 86) ‘Euthanasia and the Artificial
Preservation of Life’ Chapter 5, paras 5.4 to 5.96.
[31]
Clarke v Hurst NO and Others
1992 (4) SA 630 (D).
[32]
Bland
supra f
n
29.
[33]
Cruzan v Director, Missouri Department of
Health
497 U.S 261
;
(1990) 110 S Ct 2841.
[34]
In the Matter of Karen Quinlan
355 A 2d 647
70 N.J. 10
(1976)
[35]
Auckland Area Health Board v Attorney-General
supra, fn 27.
Although the judge described the patient as suffering from ‘locked
in’ syndrome his situation appears
to have been significantly
different from that of Mr Nicklinson, who was aware of his
surroundings.
[36]
Supra at 656H-I.
[37]
R v Adams
1957 Crim LR 365.
See
also
Nicklinson
supra fn 28, para 255(4) per Lord Sumption.
[38]
S v Hartman
1975
(3) SA 532 (C).
[39]
S v De Bellocq
1975
(3) SA 538
(T) at 539D.
[40]
S v Marengo
1991
(2) SACR 43
(W) at 47A-B, where the accused shot her father who was
dying of cancer and declining mentally. As with the other cases she
was
convicted of murder, but no custodial sentence was imposed. See
also
S v Smorenburg
1992
(2) SACR 389
(C), which involved the attempt by a nursing sister on
compassionate grounds to end the lives of two patients by the
injection
of insulin.
[41]
Poignantly depicted in the recent film ‘
Amour’
.
[42]
S v Robinson and Others
1968 (1) SA 666
(A) at 674F-G.
See also
S v Nkwanyana
2003 (1) SA 303
(W).
[43]
Peverett
supra
fn
25.
[44]
The fact that the act was one of compassion by the medical
practitioner undertaken at the specific request of the patient with
a view to putting an end to a situation the patient regarded as
intolerable, would undoubtedly amount to substantial and compelling
circumstances warranting a departure from the minimum sentence for
murder prescribed by law. See
s 51(2)
(a)
(i) of the
Criminal Law Amendment Act 105 of 1997
. In
Robinson
supra fn
41 the fact that the deceased had arranged and consented to his own
death was held to constitute extenuating circumstances
justifying
the imposition of a sentence other than death. Where a medical
practitioner acted at the patient’s request by
administering a
lethal agent the circumstances justifying a far lesser sentence
would be substantial.
[45]
Ex parte Die Minister van Justisie: In re S v
Grotjohn
1970 (2) SA 355
(A)
(
Grotjohn
).
[46]
The original words were spoken in Afrikaans and
were
‘
Skiet jouself dan as jy wil
want jy is ‘n las
.’. (
At
359A.)
[47]
S v Gordon
1962
(4) SA 727
(N).
[48]
In
Grotjohn
at 359D. He had been
urged to do so in a note by J H Hugo ‘To Kill a Mocking Bird –
Murder or Suicide?’ (1969)
86 SALJ at 148.
[49]
Grotjohn
at
363H. The original passage reads:
‘Ek sou egter nie 'n algemene
stelling dat die laaste “vrywillige en selfstandige”
handeling van die selfmoordenaar
altyd op vryspraak van die
beskuldigde moet uitloop, sonder voorbehoud ten aansien van die
selfstandigheid van die handeling
wil onderskryf nie.’
[50]
Grotjohn
at 364B-H. The original passage reads:
‘
Waar die
ander se handeling … ‘n berekende deel is van die
oorsaaklikheidsreeks wat die dader aan die gang gesit
het, 'n
gebeurlikheid wat hy voorsien as 'n moontlikheid en
wil
aanwend om sy doel te bereik, of as iets waarop hy staat kan maak om
die beoogde gevolg teweeg te bring,
sou opset ook nie ontbreek nie, en sou dit strydig met erkende
regsbeginsels en met alle regsgevoel wees om hom agter die ander
se
handeling as later toetredende oorsaak te laat skuil. Dat dit
nie 'n misdadige handeling is nie, kan hieraan geen verskil
maak
nie. So ook, meen ek, lê dit by selfmoord voor die hand dat
die oorledene se laaste handeling, hoewel dit 'n eie,
selfstandige
handeling mag wees en die onmiddellike oorsaak van die dood, nie
noodwendig 'n volkome onafhanklike handeling in
bogenoemde sin hoef
te wees nie, en dat die nie-misdadigheid daarvan weinig ter sake is
by die vraag na die oorsaaklikheid van
die optrede of gedrag van die
persoon wat die selfmoordenaar aanmoedig, help of in staat stel om
selfmoord te pleeg. Dit is geredelik
denkbaar dat bedoelde optrede
of gedrag 'n onmiddellik aanleidende oorsaak vir die laaste daad kan
wees. Iemand, bv. wat 'n ander
die middel in die hand gee waarmee hy
‘n daad wil pleeg, dra by tot die daad en sy gevolg, en die
aanwending van die middels
met die gevolg daarvan sou tereg as die
direkte uitvloeisel van die oorhandiging beskou kan word.
Die
gevolgtrekking kan kwalik vermy word dat hy wat die gesogte of
nodige middel vir ‘n voorgenome selfmoord verskaf, 'n
oorsaaklike deel daaraan het as dit uitgevoer word; en as hy dit
willens en wetens doen met die vereiste opset dat 'n end gemaak
word
aan die lewe van die persoon wat selfmoord wil pleeg, dan is hy
skuldig aan moord, al geskied die laaste daad deur die nie-misdadige
hand van die selfmoordenaar, want dan is hy wederregtelik en
opsetlik aandadig daaraan dat ń ander se lewe beëindig
is.
Word die daad nie voltooi nie, kan hy insgelyks skuldig wees aan
poging tot moord.’ (My translation and emphasis.)
[51]
J R L Milton
South African Criminal Law and Procedure
Vol 2,
3ed (1996) at 355. For the contrary view see the passage from
In
Re Joseph G,
667 P. 2d 1176
(SC California 1983) at 1183
cited by J M T Labuschagne ‘Strafregtelike Aanspreeklikheid
van die Oorlewende van ‘n
Selfdodingspakt’
(1995) 112
SALJ
16
at 20.
[52]
The original passage at 365F-G
reads:
‘
Met
betrekking tot aanmoediging en hulp, geld ooreenstemmende
oorwegings. Ook die aanmoediger of helper sou,
na
gelang van die omstandighede van die besondere geval
,
aan moord of poging tot moord skuldig kan wees.
By die gevalle onder
oorweging kan ook die moontlikheid van strafbare manslag nie
uitgesluit word nie. Ook dit sal natuurlik volgens
die toepaslike
regsbeginsels beoordeel moet word.’ (Emphasis mine.)
[53]
S v Hibbert
1979 (4) SA 717
(D). The sentence was four years
imprisonment suspended for five years.
[54]
Grotjohn
p
365G-H. The original passage reads as follows:
‘
Soos sal blyk
uit die voorgaande, is die antwoorde op die gestelde vrae in die
toepaslike beginsels van ons strafreg te vind.
Die eerste vraag kan
nie met ‘n eenvoudige “ja” of “nee”
beantwoord word nie. Of ‘n persoon
wat ‘n ander
aanmoedig, help of in staat stel om selfmoord te pleeg, ‘n
misdaad begaan, sal afhang van die feite
van die besondere geval.
Met die oog op die gewysdes wat aanleiding tot die vrae gegee het,
is dit egter nodig om op die voorgrond
te stel dat die blote feit
dat die laaste handeling die selfmoordenaar se eie, vrywillige,
nie-misdadige handeling is, nie sonder
meer meebring dat bedoelde
persoon aan geen misdaad skuldig kan wees nie. Die antwoord op die
tweede vraag hang eweseer van die
feitlike omstandighede af. Na
gelang daarvan kan die misdaad moord, poging tot moord of strafbare
manslag wees.’
[55]
R v Kennedy
[2007] UKHL 38; [2008] 1 AC 269; [2007] 4 All ER
1083 (HL).
[56]
Nor does it have the unequivocal support of academic writers. C R
Snyman
Criminal Law
5ed (2008) at 125 fn 122 says that
‘somebody who assists another in committing suicide, or who
brings it about, may render
herself guilty of murder.’ J
Burchell
Principles of Criminal Law 5
ed (2016) at 213
says in regard to
Grotjohn
that: ‘The Appellate
Division did not decide that the conduct of the facilitator in the
suicide
always
be unlawful. It is still open for a court in
South Africa to hold that, in certain limited circumstances, the
legal convictions
of the community do not require that the conduct
of the person facilitating another’s suicide be labeled
“unlawful”.’
[57]
Bernstein and Others v Bester NO and Others
[1996] ZACC 2
;
1996 (2) SA 751
(CC) paras 132 and
133.
[58]
There is no information available to me about the position in
African countries other than South Africa. It is reasonably safe
to
assume that in the absence of information to the contrary they are
unlikely to be ‘permissive’ jurisdictions in
this area
of the law.
[59]
It would not therefore accommodate people such as Mr Nicklinson, who
was suffering from ‘locked in’ syndrome.
[60]
Pretty v Director of Public Prosecutions and Secretary of State
for the Home Department
[2001] UKHL 61
;
[2002] 1 All ER 1
(HL)
(
Pretty-HL
).
[61]
Paras 3-9 per Lord Bingham of Cornhill.
[62]
Pretty v United Kingdom
[2002] ECHR 427
;
[2002] 35 EHRR 1
(
Pretty-EC
)
paras 37-42.
[63]
Recorded in
Carter v Canada (Attorney General)
2015 SCC 5
;
[2015] 1 SCR 331
(
Carter
) para 57. The first instance
judgment is reported as
Carter v Canada (Attorney General)
2012 BCSC 886 (CanLII).
[64]
Seales
supra fn 23 para 166. There was an allegation in Ms
Seales’ affidavit that she might fall into this category but
the occasion
did not arise because she died the day after the
judgment was delivered.
[65]
Fleming v Ireland
[2013] IESC 19
(
Fleming
)
paras104-105.
[66]
Fleming
supra paras 104-105.
[67]
Morris
v Brandenburg
Supreme Court of New Mexico, No S-1-SC-35478 dated
30 June 2016 (
Morris v Brandenburg
).
[68]
Pretty-EC
supra fn 61, paras 61-67;
Haas v
Switzerland
[2011] 53 EHRR 33
para 51. The statement is repeated
in
Koch v Germany
(2014) 58 EHRR 6
and
Gross v Switzerland
(2014) 58 EHRR 7.
[69]
Pretty-EC
paras 23-26 (Lord Bingham), para 61 (Lord Steyn),
para 100 (Lord Hope).
[70]
Rodriguez v Attorney-General of Canada
[1993] SCR 519
at
587-8.
[71]
Carter
supra fn 62 para 68.
[72]
PrettyHL
supra fn 59 paras 4-9.
[73]
Pretty-HL
para 100.
[74]
Carter
supra fn 62, paras 85-88.
[75]
Carter
supra fn 69, paras 102-121.
[76]
Nicklinson
supra fn 28.
[77]
Carmichele v Minister of Safety and Security
and Another (Centre for Applied Legal Studies intervening)
[2001] ZACC 22
;
2001 (4) SA 938
(CC) para 36.
[78]
Bruce and Another v Fleecytex Johannesburg CC
and Others
1998 (2) SA 1143
(CC) para
8;
Minister of Safety and Security and
Another v Carmichele
2004 (3) SA 305
(SCA);
Everfresh Market Virginia (Pty)
Ltd v Shoprite Checkers (Pty) Ltd
[2011]
ZACC 30
;
2012
(1) SA 256
(CC) paras 51 and 52;
Government
of the Republic of Zimbabwe v Fick and Others
[2013]
ZACC 22
;
2013
(5) SA 325
(CC) para 104.
[79]
In
Nicklinson
the Supreme Court took six months to prepare
the judgment. The Supreme Court of Canada took five months to
prepare the judgment
in
Carter
.
[80]
In
Fleming
supra fn 64, the proceedings were commenced on 23
October 2012 and a hearing held over six days before the Divisional
Court which
delivered judgment on 10 January 2013. The judgment in
the appeal was delivered on 29 April 2013. The medical evidence was
agreed.
In Canada the trial court in
Carter
heard evidence
and argument over 23 days before delivering judgment.
[81]
IEC v Langeberg supra fn 19 at 926.
[82]
Minister of Police v Mboweni and Another
[2014] ZASCA 107; 2014 (6) SA 256 (SCA); [2014] 4
All SA 452 (SCA).
[83]
Prince v President, Cape Law Society, and Others
[2000] ZACC 28
;
2001 (2) SA
388
(CC) paras 12-16 and 22.
[84]
Nicklinson
supra fn 28 paras 175-177. See also per Lord
Sumption paras 224 -229.
[85]
In this regard, see the careful approach of
Thirion J in
Clarke v Hurst
NO fn 30.
[86]
The translation is taken from the Swiss Federal Council website
where it is explained that, as English is not an official language
of the Swiss Confederation, the translation is provided for
information purposes only. See
https://www.admin.ch/opc/en/classified-compilation/19370083/index.html.
[87]
This summary is derived from Samia A Hurst and Alex Mauron ‘
Assisted
suicide and euthanasia in Switzerland: allowing a role for
non-physicians’
2003 BMJ 326 (7383) at 271-273. I have not
found a specific prohibition on foreigners invoking PAE or PAS in
the legislation in
the Netherlands, Belgium or Luxembourg, but an
exclusion may arise under the provisions governing the national
health systems
of those countries. In the American state legislation
there is always a requirement that the person be a resident of the
state
in question.
[88]
Another organization called EXIT, established in 1982, is the
largest provider of assisted suicide services in Switzerland, but
it
apparently does not act on behalf of non-Swiss residents. The
publicity attached to the activities of DIGNITAS, which are
sometimes described as constituting ‘suicide tourism’ is
what has placed Switzerland in the forefront of public debates
over
PAS.
[89]
Chapter 127 of the Oregon Revised Statutes.
[90]
Patient Choice and Control at End of Life, Title 18: Health Chapter
113 of the Vermont Statutes available at
http://legislature.vermont.gov/statutes/chapter/18/113.
[91]
End of Life Option Act AB 15 available at
https://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=201520162AB15
.
See also
Linda Ganzini ‘Legalised Physician - Assisted
Death in Oregon’ QUT Law Review, Vol 16 (1), 76
[92]
Baxter v State of Montana
2009 Mt 449
(
Baxter
).
[93]
Washington v Glucksberg
[1997] USSC 75
;
521
US 702
(1997).
[94]
This has been reaffirmed by the Supreme Court of New Mexico in
Morris v Brandenburg
supra, fn 66.
[95]
The text of the section is in Labuschagne, supra, fn 50 at 19.
[96]
John Keown ‘The Law and Practice of Euthanasia in the
Netherlands’ (1992) 108
LQR
51.
[97]
Keown, supra, 52-56.
[98]
Article 2.1 of the
Termination of Life on Request
and Assisted Suicide (Review Procedures) Act 01 April 2002.
[99]
See
https://www.government.nl/topics/euthanasia/news/2016/10/21/government-scope-for-assisted-suicide-for-people-who-regard-their-life-as-completed
.
According to the Health Minister the proposal is to address the
needs of
older
people who do not have the opportunity continue life in a meaningful
way, who are struggling with the loss of independence
and reduced
mobility, and who have a sense of loneliness, partly because of the
loss of loved ones, and who are burdened by general
fatigue,
deterioration and loss of personal dignity.
[100]
It seems however that the distinction is regarded as only of
semantic relevance.
[101]
Bill C-14 (Royal Assent) 17 June 2016.
[102]
Carter
supra fn 62
.
[103]
Section 7 states that ‘Everyone has the right to life, liberty
and security of the person and the right not to be deprived
thereof
except in accordance with the principles of fundamental justice.’
[104]
In order to make sense of this requirement this must mean
foreseeable in the immediate future albeit that there is no
prognosis
as to the specific length of time they have remaining.
[105]
The precise terms of the law are not available to me.
[106]
Information on
http://euthanasia.procon.org/view.resource.php?resourceID=000136
accessed on 24 November 2016.
[107]
Pretty-EC
supra fn 61.
[108]
Fleming
).
[109]
Nicklinson
supra fn 28.
[110]
Seale
supra fn
23.
[111]
Constitutional Court Sentence # C-239/97.
[112]
The only translation of this judgment available to me is imperfect,
It is difficult therefore to be certain as to the legal principles
that the court applied, as opposed to its conclusion, so my comments
in that regard are necessarily tentative.