About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2015
>>
[2015] ZAGPPHC 230
|
|
Stransham-Ford v Minister of Justice And Correctional Services and Others (27401/15) [2015] ZAGPPHC 230; 2015 (4) SA 50 (GP); [2015] 3 All SA 109 (GP); 2015 (6) BCLR 737 (GP) (4 May 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG HIGH COURT)
Case
Number: 27401/15
DATE:
04 MAY 2015
In the matter
between:
ROBERT JAMES
STRANSHAM-FORD
........................................................................
APPLICANT
And
MINISTER OF
JUSTICE AND
CORRECTIONAL
SERVICES
........................................................................
FIRST
RESPONDENT
THE MINISTER OF
HEALTH
...................................................................
SECOND
RESPONDENT
THE HEALTH
PROFESSIONAL COUNCIL
OF SOUTH
AFRICA
........................................................................................
THIRD
RESPONDENT
THE NATIONAL
DIRECTOR
OF PUBLIC
PROSECUTION
.....................................................................
FOURTH
RESPONDENT
JUDGMENT
Fabricius J,
1. This is an urgent
application which in my view requires an immediate decision, and
accordingly in the limited time available
to me, I have done
everything I could to enable me to make an order and give written
reasons shortly thereafter. Having regard
to the topic it will be
preferable and, no doubt this will occur in due course, that the
Constitutional Court pronounce on the
relevant principles. At least
eight Judges will have sufficient time to consider all relevant
aspects and they are also assisted
by qualified law clerks who will
do all the necessary research. A single Judge in the Urgent Court is
therefore somewhat at a disadvantage
in this context. Nevertheless
one must proceed with courage and fortitude no matter what the topic
at hand is. The ideal of course
would have been that legislature
consider the whole topic and then produce a Bill which could be
subject to the scrutiny of the
Courts. The South African Law
Commission compiled a report on “Euthanasia and the artificial
preservation of life”
in November 1998, which was submitted to
the then Minister of Health. The Third Respondent said that the
report did not receive
the attention of the Minister and/or the
legislature at the time, because there were other urgent matters
which required attention
such as the AIDS epidemic. It is now 16
years hence and although I cannot proscribe this for the Second
Respondent, the topic is
in my view important enough, having regard
to the relevant principles contained in the Bill of Rights, that
serious consideration
be given to introducing a Bill on the basis of
the South African Law Commission’s Report, which suggested a
number of options,
but supported the development of the common law in
this context. It is certainly a topic that deserves broad discussion,
but in
the context of the Bill of Rights especially.
2. The Applicant is
an unmarried adult male practicing Advocate of the High Court of
South Africa. He resides in Cape Town. He was
born in 1949. He is the
holder of a number of law degrees, has an MBA from the University of
Cape Town and a number of other diplomas.
He has worked as an
Accountant and Tax Practitioner in London and was a Chief Executive
of a group of Insurance Brokers at Lloyds
in the City of London. He
has been an Advocate for about 35 years and was also admitted as an
Advocate of the High Court of South
Africa in 2001, and was a member
of the Johannesburg Bar. He has lived and worked all over the world.
He has four children, three
of whom are over the age of 25, and has a
daughter of 12 years old under the guardianship of her mother, who
also made a Confirmatory
Affidavit in these proceedings. I say this
to indicate that I am dealing with an Applicant who is highly
qualified, of vast experience
also in the legal profession, and who
knows exactly what he requires and why. A Clinical Psychologist also
provided a report in
this context, dated 10 April 2015. She stated
that Applicant was well engaged in the interview and she found no
cognitive impairments.
There was no evidence of any psychiatric
disorder and he particularly impressed as being totally rational.
Specifically, Applicant
displayed a good understanding and
appreciation of the nature, cause and prognosis of his illness and
clinical, ethical and legal
aspects of assisted suicide.
3. Applicant has
terminal stage 4 cancer and has only a few weeks left to live. This
was not an issue. [He died on the day I made
my order.]
In these urgent
proceedings Applicant seeks the following order:
2.“Declaring
that the Applicant may request a medical practitioner, registered as
such in terms of the Health Professions
Act 56 of 1974 (“a
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 this matter.”
5.Applicant’s
questions:
5.1 Is it
conceivable that the health of a person may deteriorate to a level,
where he would be justified in wishing to take his
own life (“the
sufferer”);
5.2 Ought the
sufferer be permitted to take his own life;
5.3 Should another
person be allowed to assist the sufferer to end his life (“the
Samaritan”);
5.4 May this person
be a medical practitioner;
5.5 Which safeguards
need to be in place?
6. The Applicant’s
health:
Applicant was
provisionally diagnosed with Adema carcinoma (Gleason grade 9/10) on
19 February 2013. During March 2015, Applicant
underwent an
ultrasound biopsy and it was established that the cancer had
metastasized in his lymph glands. Also during March 2015
he was
admitted to the Victoria Hospital as an emergency, and in great pain.
He has since had to have his lymph removed. It was
further discovered
that the Applicant’s cancer had spread to his lower spine,
kidneys and lymph nodes. The Third Respondent
obtained a report of
Dr. R. A. G. De Muelenaere, a radiation oncologist of 26 years
standing, and in private practice since July
1998. This report is not
under oath. He also did not examine the patient personally and his
opinion was based solely on the contents
of the documentation
contained in the Court application. In the context of the tests
relating to the diagnosis of prostate cancer,
he said that the
findings were suspicious of colo-rectal cancer including pancreas and
liver cancer, not prostate cancer. This
debate is not necessary
herein, inasmuch as it has not been put in issue that the cancer is
terminal and that the Applicant only
has a short time to live.
However he added the following and I will have brief comments to make
about this hereunder: “there
are palliative medical treatments
available which can improve the situation for a lengthy period of
time. I have sympathy for a
patient with widespread metastatic cancer
and in my work I have to deal with such situations on a regular
basis. I understand a
patient asking for “an easy way out”
but there are important factors to consider in a case like this.
Wider societal
aspects need to be addressed, as in the debate
preceding abortion legislation. All moral, legal and ethical aspects
need to be
discussed. With modern medicine including high doses of
opioid (morphine-like) drugs less than 10 % of patients will die in
pain,
regardless of kidney function. (doses can be tri-trated to
patient needs and side effects).
Hospice doctors and
staff specialise in symptom control of terminal patients and this
service can be provided at home in the vast
majority of patients.
Most medical funds will allow home nursing as a benefit and terminal
care definitely does not need to be
provided in a hospital setting
for the majority of cases if that would be the patient’s wish.
All and all I
consider this request for “assisted suicide” to be
against the current medical practice.”
Applicant responded
by saying that this palliative care does not satisfy his need and
right to die in dignity whilst fully aware
of the moment of his
death.
7. Applicant’s
quality of life:
Applicant’s
quality of life has deteriorated markedly since the middle of March
2015 and he says that he:
7.1 Suffers from
severe pain, nausea, vomiting, stomach cramps, constipation,
disorientation, weight loss, loss of appetite, high
blood pressure,
increased weakness and frailty related to the kidney metastasis;
7.2 He is unable to
get out of bed and has injections and drips;
7.3 Endures anxiety;
7.4 Cannot sleep
without morphine or other painkillers;
7.5 Uses pain
medication, which makes him somnolent.
8. Applicant’s
treatment:
8.1 The doctors,
their diagnosis and prognosis:
Applicant was
examined by a specialist urologist and a general practitioner who
lectures and specialises in palliative care, both
of whom confirm the
Applicant’s diagnosis and prognosis.
8.2 Medicine,
procedures and traditional remedies:
Applicant has
undergone numerous treatments, medicines or traditional remedies,
including:
8.2.1 Dendritic cell
therapy;
8.2.2 Traditional
Chinese medicine;
8.2.3 Vedic
medicine;
8.2.4 Surgery;
8.2.5 Cannabis;
8.2.6 The insertion
of a renal stent for his kidneys from his kidneys to his bladder;
8.2.7 The insertion
of a catheter fitter;
8.2.8 Morphine,
Buscopan and other pain inhibitors.
He is currently
under palliative care.
9. Imminent future:
9.1Acceptance of
death:
Applicant is acutely
aware and has accepted that his death is imminent. This issue is not
in dispute.
9.2 Worsening
condition:
As time progresses
the Applicant’s condition will become progressively worse and
will later on require an even stronger doses
of opioid drugs such as
morphine and to possibly be hospitalized.
9.3 Increased
frailty:
He is becoming
weaker by the day and needs constant assistance in normal daily
activities such as getting up from bed, bathing,
brushing his teeth
and eating.
9.4 Progression of
the disease:
As the Applicant’s
disease progresses and until his last breath, he will become confused
and afraid. His last breath might
even be with the aid of a machine.
9.5 Applicant’s
fear:
Applicant says that
he is not afraid of dying, he is afraid of dying while suffering.
10. Current legal
position:
Current Law:
The current legal
position is that assisted suicide or active voluntary euthanasia is
unlawful.
See: S vs De Bellocq
1975 (3) SA 538
(T) at 539 d; and S vs Marengo
1991 (2) SACR 43
(W)
47 A – B; and Ex parte Minister van Justisie: In re S vs
Grotjohn
1970 (2) SA 355
A.
Development of the
Law required:
Applicant and his
Counsel relied on S. 39 of the Constitution which reads as follows:
“39 Interpretation of Bill of Rights
(1) When
interpreting the Bill of Rights, a Court, Tribunal or Forum –
a) Must promote the
values that underlie an open and democratic society based on human
dignity, equality and freedom;
b) Must consider
International Law; and
c) May consider
foreign law.
(2) When
interpreting any legislation, and when developing the common or
customary law, every Court, tribunal or forum must (I underline)
promote the spirit, purport the objects of the Bill of Rights”.
Further, s. 8 (3) of the Constitution states that “when
applying a provision of the Bill of Rights to a natural of juristic
person in terms of subsection (2), a Court –
a) In order to give
effect to a right in the Bill, must (I underline) apply, or if
necessary develop, the common law to the extent
that legislation does
not give effect to that right and
b) May develop rules
of the common law to limit the right, provided the limitation is in
accordance with S. 36 (1).”
In Bel Porto School
Governing Body vs Premier Western Cape
[2002] ZACC 2
;
2002 (3) SA 265
CC the Court
at 324 said that the provision of remedies is open-ended and therefor
inherently flexible in this context. The appropriateness
of the
remedy would be determined by the facts of the particular case.
It is therefore not
a matter of discretion or personal “inclination” as it
was put in Court, but rather a constitutional
imperative. My personal
thoughts and feelings are irrelevant and do not enter the picture at
all in the decision-making.
11. Basis of
Applicant’s relief:
The Constitution:
The Applicant relies
on the following provisions of the Constitution and in particular the
Bill of Rights:
11.1 Chapter 1:
Founding provisions:
Section 1:
The Republic of
South Africa is one, sovereign, democratic State founded on the
following values:
a) Human dignity,
the achievement of equality and the advancement of human rights and
freedoms.
11.2 Chapter 2:
Bill of Rights:
Section 7:
“1) This Bill
of Rights is a cornerstone of democracy in South Africa. It enshrines
the rights of all people in our country
and affirms the democratic
values of human dignity, equality and freedom.
2) the State must
respect, protect, promote and fulfil the rights in the Bill of
Rights.”
11.3 Application: S.
8:
“3) a) When
applying a provision of the Bill of Rights to a natural or juristic
person in terms of subsection (2), a Court
in order to effect to a
right in the Bill, must apply, or if necessary develop, the common
law to the extent that legislation does
not give effect to that
right.”
11.4 Human dignity:
Section 10:
“Everyone has
inherent dignity and the right to have their dignity respected and
protected.”
11.5 Freedom and
security of the person:
Section 12:
1) Everyone has a
right to freedom and security of the person which includes the right
–
e) “Not to be
treated or punished in a cruel, inhuman or degrading way.”
2) Everyone has the
right to bodily and psychological integrity, which includes the right
–
b) To security in
and control over their body.”
12. Freedom,
security and control to die with dignity:
Before I continue
with Applicant’s argument I deem it desirable to say something
about the role of dignity in our constitutional
dispensation (in
general and in the present context). The seminal work on this topic
is HUMAN DIGNITY: L- for Equality in South
Africa, L. Ackermann,
Juta. The principle of human dignity as a central value of the
“objective, normative value system”
established by the
Constitution has in my view a pre-imminent value. In S vs Makwanyane
[1995] ZACC 3
;
1995 (3) SA 391
(CC). At par. 329 it was said that “recognition
and protection of human dignity is the touch stone of the new
political order
and is fundamental to the new Constitution.” In
the context of s. 10 read with s. 1 and 7 (2), Ackermann says that
human
dignity, besides being a value and a right, is also a
categorical imperative. I have approached this application on that
basis.
In the context of the duty of the State regarding this
imperative, it is best to refer to the views of the Constitutional
Court
in Glenister vs President of the Republic of South Africa
2011
(3) SA 347
CC at par. 189 – 191.
Just prior to the
hearing of this case I admitted DOCTORS FOR LIFE INT. and CAUSE FOR
JUSTICE as amici curiae, and received their
affidavits. I cannot deal
with all their arguments propounded in the affidavits: some were
clearly inappropriate and others paid
scant attention to the
imperative contained in s. 8 (3) of the Bill of Rights. I did
consider them all though. One such argument
on behalf of the latter
was that Applicant had merely or solely expressed his subjective view
of dignity and his medical condition,
whereas the values of the
Constitution had to be looked at, and determined objectively. There
are two answers to this submission:
of course a Court must, as a
practical necessity look at the subjective views of – and the
condition of – a person
who complains that his constitutional
rights have been affected. In the present context one would then ask,
whether from a constitutional
policy point of view, the complaint is
justified. I have no doubt that any reasonable reader and physician,
would regard Applicant’s
view of his condition in the context
of human dignity as wholly justifiable. In fact, Dr. S. Fourie, on
behalf of the first mentioned
organisation said: “All those
patients who die every year from advanced prostate cancer have
similar symptoms and clinical
situations as the Applicant.”
Ackermann supra at 97 says that the Constitutional Court in
Carmichele vs The Minister of Safety
and Security and the Minister of
Justice and Constitutional Development
[2001] ZACC 22
;
2001 (4) SA 938
CC at par. 54
clearly categorized the rights that individuals had under the Bill of
Rights as ‘subjective rights’.
Contextually speaking
therefore there is no merit in this contention.
This topic is also
dealt with in some detail in the Bill of Rights Handbook, Currie and
Johan de Waal, 6th Edition, Juta and Co
at 250 chapter 10. It becomes
clear that it has been said on a number of occasions that the concept
of “human dignity”
has a wide meaning which covers a
number of different values. Dignity is a human worth and an
“inherent” human worth.
See Ackermann supra at p. 97 for
the valuable discussion on this topic.
See also Le Roux vs
Day
2011 (3) SA 274
(CC) at par. 138. Moreover there is a very close
link between human dignity and privacy and as well as a close
relationship with
freedom, and Applicant correctly relied on the
inter-relationship between these concepts. Ackermann supra at p. 99
and 102 is of
that view in the light of the relevant authorities and
legal writings and of course he is right.
I can also refer to
Bernstein and Others vs Bester and Others N.N.O.
[1996] ZACC 2
;
1996 (2) SA 751
CC
at par. 67 – 68.
Although it is
difficult to capture in precise terms, the concept requires us to
acknowledge the value and worth of all individuals
as members of
society. It is the source of a person’s innate rights to
freedom and to physical integrity, from which a number
of other
rights flow, such as the right to bodily integrity. It is my view
also that persons must be regarded as recipients of
rights and not
objects of statutory mechanisms without any say in the matter. I said
this 15 years ago but it is worth repeating.
See: Advance Mining
Hydraulics (Pty) Ltd and Others vs Botes N.O. and Others
2000 (1) SA
815
TPD at 823 e to g. Currie and De Waal say at p. 253 by way of
summary, that: “human dignity is not only a justiciable and
enforceable right that must be respected and protected, it is also a
value that informs the interpretation of possibly all other
fundamental rights and it is further of central significance in the
limitations enquiry.” As far as active euthanasia is
concerned,
the authors say at p. 267 that in terms of the current law, a person
may not be actively killed, but life-sustaining
treatment may be
withdrawn even if this would cause the patient to die from natural
causes. I will return to this topic hereunder
but I pose the question
whether this is not a good example of dolus eventualis? A person acts
with intention, in the form of dolus
eventualis, if the commission of
the unlawful act or the causing of the unlawful result may ensue, and
he reconciles himself with
this possibility.
See: S vs De Bruyn
en ‘n Ander
1968 (4) SA 498
(A) at 510 G – H, S vs
Makgotho
2013 (2) SACR 13
(SCA) and S vs Maarohanye
2015 (1) SACR
337.
Applicant’s
Counsel submitted that from a philosophical point of view there was
no difference between assisted suicide by
providing the sufferer with
a lethal agent or by switching off a life supporting device (see:
Clarke vs Hurst N. O. and Others
1992 (4) SA 630
D), or the injecting
of a strong dose of morphine with the intent to relieve pain and
knowing that the respiratory system will
probably close and death
will result. In his replying affidavit Applicant himself said that
there is no logical ethical distinction
between the withdrawing of
treatment to allow “the natural process of death” and
physician-assisted death. He also
called this distinction
“intellectually dishonest”. There is much to be said for
this view but I best leave it for
the philosophers, and confine
myself to the constitutional debate.
The authors also
refer to the mentioned Law Commission Paper on Euthanasia and the
Artificial Preservation of Life, and the proposed
legislation that
the Commission submitted to the Minister of Health. One of the
options was that a medical practitioner would be
allowed to carry out
a patient’s request to die. Certain safeguards were recommended
namely that the patients had to be terminally
ill, subject to extreme
suffering but mentally competent. A second independent medical
practitioner would have to confirm the diagnosis
and the findings
also had to be recorded in writing. The request must therefore be
based on an informed and well considered decision
and the patient had
to make this request repeatedly. In this context the authors say that
from a constitutional perspective, the
Law Commission proposal does
seem to strike a proper balance between the State’s duty to
protect life and the person’s
right (derived from the rights to
physical and psychological integrity and to dignity) to end his or
her life. It is also worthwhile
quoting what O’Reagan J had to
say in the Makwanyane decision supra about the notion that the right
to life must be a life
that is worth living: “the right to life
is, in one sense, antecedent to all other rights in the Constitution.
Without life
in the sense of existence, it would not be possible to
exercise rights or to be the bearer of them. But the right to life
was included
in the Constitution not simply to enshrine the right to
existence. It is not life as mere organic matter that the
Constitution
cherishes, nut the right to human life: the right to
share in the experience of humanity. This concept of human life is at
centre
of our constitutional values. The Constitution seeks to
establish a society where the individual value of each member of the
community
is recognised and treasured. The right to life is central
to such a society. The right to life, thus understood, incorporates
the
right to dignity. So the rights to dignity and to life are
intertwined. The right to life is more than existence, it is a right
to be treated as a human being with dignity: without dignity, human
life is substantially diminished. Without life, there cannot
be
dignity.” I respectfully agree with those views. I may also add
that I agree with the warning that any pious uncoupling
of moral
concern from the reality of human and animal suffering has caused
tremendous harm to mankind throughout the centuries.
See The Moral
Landscape, S. Harris, Bantam Press 2010, at p. 63.
It was also
submitted that the current legal position was of course established
in a pre-constitutional era. In a post-constitutional
era, the law
requires development to give effect to the Applicant’s
constitutional rights. I agree, and my decision and reasons
are based
on that premise.
13. I have also
consulted the chapter on euthanasia in its various forms in
Foundational Principles of Medical Law, Pieter Carstens
and Debbie
Pearmain, Lexis Nexis 2007 at p. 200. The authors discuss various
approaches to the topic, and deal with various authorities
from a
number of foreign jurisdictions, as well, and also case law of our
South African Courts, especially on the topic of the
cessation of
medical treatment. Having also discussed the recommendations of the
South African Law Commission and the present state
of the South
African law that I have already referred to they say the following at
p. 210: “the present writers finally submit,
that the
underlying values, spirit and purport of the applicable sections in
the Constitution, seem to be supportive of the introduction
of
voluntary active euthanasia in South Africa. Such a dispensation,
along the lines of the recommendation of the South African
Law
Commission, should be strictly regulated and monitored to ensure the
autonomy of competent terminally ill patients while guarding
against
any possible abuse of the system. Ultimately, they say, euthanasia is
a matter of patient autonomy and individual choice.
They also quote
from a European writer who was already in the 14th century
enlightened enough to have said the following: “Life
is
dependent on the will of others, death on ours.” I agree, and
the Constitution supports this view.
14. Dying as part of
living:
Applicant’s
Counsel submitted, if one needs judicial authority for that simple
but significant fact, that in 1990 it was said
by the American
Supreme Court in Cruzan vs Director, Missouri Department of Health,
et al
497 US 261
(1990) 343 that, “dying is part of life, it is
completion rather than its opposite. We can, however, influence the
manner
in which we come to terms with our mortality”. This was
referred to by Sachs J in Soobramoney vs Minister of Health, Kwa-Zulu
Natal
[1997] ZACC 17
;
1998 (1) SA 765
(CC). Applicant’s Counsel therefore
submitted that it follows that it is a fundamental human right to be
able to die with
dignity which our Courts are obliged in terms of
Sections 1 (a), 7 (2) and 8 (3) (a) of the Constitution, to advance,
respect,
protect, promote and fulfil.
I agree with that
contention.
I am of course aware
that there are divergent views, and very many of them have been dealt
with in the report of the South African
Law Commission that I have
mentioned. Those were considered and I have read a number of them,
though not all. I am in agreement
with the Commission’s view
that in a context such as the present, the new Constitution with its
Bill of Rights should inform
me of what to decide and which
appropriate order to issue. The norms of the Constitution should
inform the public, and its values,
not sectional, moral or religious
convictions. I agree also that sacredness of the quality of life
should be accentuated rather
than the sacredness of life per se,
contrary to what Counsel for the Respondents and the amici submitted.
It is noticeable, unfortunate
and disturbing that from a
philosophical point of view and jurisprudential point of view (often
they overlap, sometimes they do
not), societies in various parts of
the world acquiesce in thousands of deaths caused by weapons of mass
destruction. They seem
to even tolerate a horrendous murder rate in a
number of countries, including ours. They seem to tolerate the yearly
slaughter
on our roads because despite the statistics, thousands of
people drive like lunatics on our roads every single day. People die
of AIDS, from malaria by the hundreds of thousands, from hunger, from
malnutrition and impure water and insufficient medical facilities.
The State says that it cannot afford to fulfil all socio-economic
demands, but it assumes the power to tell an educated individual
of
sound mind who is gravely ill and about to die, that he must suffer
the indignity of the severe pain, and is not allowed to
die in a
dignified, quiet manner with the assistance of a medical
practitioner. The Commission’s report deals with these
examples
and asks of course the appropriate questions. The Commission said
that a dying person is still a living person, and one
must not forget
that and he is entitled to the rights of a living person. Their draft
proposals, in their view, balance the rights
of patients, providers
and the State. Another aspect is that of personal autonomy. The irony
is, they say, that we are told from
childhood to take responsibility
for our lives but when faced with death we are told we may not be
responsible for our own passing.
There are many other ironic
considerations in this context. One can choose one’s education,
one’s career, one can decide
to get married, one can live
according to a lifestyle of one’s choice, one can consent to
medical treatment or one can refuse
it, one can have children and one
can abort children, one can practice birth control, and one can die
on the battlefield for one’s
country. But one cannot decide how
to die. In this context the Commission says, and I agree with it,
that belief or moral doubts
of third parties is not the main point in
this context at all. The choice of a patient such as the present, is
consistent with
an open and democratic society and its values and
norms as expressed in the Bill of Rights. There is of course no duty
to live,
and a person can waive his right to life. With reference to
the Soobramoney decision supra they say that the withholding of
dialyses
of the kidneys led directly to the Applicant’s death
in that case. The irony again is that the State sanctions death when
it is bad for a person, but denies it when it is good. (At least
according to Applicant’s Counsel). In S vs Makwanyane supra
the
following was said by the Chief Justice: “Public opinion may
have some relevance to the enquiry but, in itself, it is
no
substitute for the duty vested in the Courts to interpret the
Constitution and to uphold its provisions without fear or favour.
If
public opinion were to be decisive there would be no need for
constitutional adjudication.” (at 431 B – D) This
was
said in the context of the constitutionality of the death penalty. I
have however nevertheless considered many of the divergent views that
the Law Commission already
considered, and the lengthy affidavit of
DOCTORS FOR LIFE. The point remains: I must comply with the
constitutional imperative
and make an order according to it.
15. Applicant’s
undignified death:
Having regard to the
details put before me in the affidavits drawn by Applicant and the
submissions made by his Counsel I agree
that there is no dignity in:
15.1 Having severe
pain all over one’s body;
15.2 being dulled
with opioid medication;
15.3 being unaware
of your surroundings and loved ones;
15.4 being confused
and dissociative;
15.5 being unable to
care for one’s own hygiene;
15.6 dying in a
hospital or hospice away from the familiarity of one’s own
home;
15.7 dying, at any
moment, in a dissociative state unaware of one’s loved ones
being there to say good bye.
It was also
submitted, with reference to the mentioned decision of the American
Supreme Court, and in the context of forgoing life
sustaining
treatment, that “the timing of death – once solely a
matter of fate – is now increasingly becoming
a matter of human
choice” (per Brennan J at 783 F/G). Counsel submitted that by
allowing a person to choose how he or she
wishes to respond to a
terminal prognosis was also to respect, protect, promote, advance and
fulfil a person’s subjective
sense of dignity and personal
integrity, and thus their constitutional right to dignity. Applicant
said in his Founding Affidavit
that he seeks to end his life with
dignity surrounded by loved ones whilst he is able to breathe on his
own, speak to his loved
ones, see them, hear them, feel them and be
aware of their presence and in circumstances where he knows that he
ended his life
with sovereignty through active voluntary euthanasia
or assisted suicide by a medical professional who will be able to
ensure that
he is provided with and assisted in the administration of
the appropriate lethal agent and dose to ensure a dignified end to
his
life.
16. Humanity of
euthanasia to cease unbearable suffering:
Again, for the sake
of convenience, I take this heading from the Applicant’s Heads
of Argument. It was submitted, with reference
to the humane treatment
of animals, that it has long been recognised as humane to euthanize a
severely injured or diseased animal.
This is provided for in S. 2 (1)
(e) of the Animals Protection Act 71 of 1962 read with S. 5 (1) and 8
(1) (d) thereof. It is clear
from these provisions that the owner of
an animal is obliged to destroy such animal which is seriously
injured or diseased or in
such a physical condition that to prolong
its life would be cruel and would cause such animal unnecessary
suffering. Applicant
therefor says that it is universally accepted
that to permit an injured or sick animal to suffer is not only
merciless and cruel
but is also a crime. He asked why could the same
dignity not be accorded to him?
17. The sole true
concern re legalisation of euthanasia:
Applicant’s
Counsel submitted that it has been recognised that, but for the risk
posed to the weak and vulnerable, active
voluntary euthanasia should
be legalised. That was also the view of the South African Law
Commission, and it is clear from the
options that it proposed and the
discussions surrounding the various options that this is indeed a
major consideration. It is not
an issue in the present application. I
agree that there should be minimum safeguards in any given context,
but at the end of the
day each case must be decided on its own
merits, and I am sure that any envisaged legislation will provide for
sufficient safeguards
to be applied depending on the circumstances of
each individual sufferer. Any future Court will also determine the
necessary safeguards
on its own facts. There is therefore no
uncontrolled “ripple effect” as it was put to me.
Applicant also says that
it is in any event not in the best interests
of a patient remain alive where he would suffer unbearably and his or
her wishes should
be given effect. This was also said by Thirion J in
Clarke vs Hurst N.O.
1992 (4) SA 630
(d) at 660 E – G. That
case concerned the withholding of further treatment to a patient who
had been comatose for a number
of years. An application for the
cessation of life sustaining mechanisms was granted by the Court.
With reference to British Chemicals
and Biologicals SA (Pty) Ltd vs
SA Pharmacy Board 1955 (1) SA 184 A, the respected Judge, at 636,
said that a Court may in an appropriate
case and despite opposition
from the Attorney-General (in this instance the National Director of
Public Prosecution) exercise its
discretion in favour of declaring
whether the adoption by an applicant of a certain cause of conduct
would constitute a crime.
When treatment was withdrawn, the question
arose, in the context of causation, that the uncoupling of a
ventilator, which undoubtedly
would cause death, would not be the
legal cause of death where a patient had suffered severe brain damage
and was actually brain
dead. By way of analogy, although this is
often odious, I can ask here without deciding, whether Applicant’s
death will not
be caused by the cancer rather than the medication
which will hasten it with the sufferer’s consent? The learned
Judge (at
660) also stressed, in the context of taking the best
interests of a patient into account, that a Court would approach
those interests
with a strong predilection in favour of the
preservation of life, which did however not extend as far as
requiring that life should
be maintained at all costs, irrespective
of quality. The patient in that case, had previously made a so-called
Living Will in which
he, in no uncertain terms, stated that he be
allowed to die and not be kept alive by artificial means and heroic
measures if there
was no reasonable expectation of his recovery from
extreme mental or physical disability. The learned Judge said that
just as a
living person had an interest in the disposal of his body,
so a patient’s wishes as expressed when he was in good health
should be given effect to. I know of course that the context was
different in that case but, in my view the same reasoning applies
to
the present. I say this because of the human rights relied on that I
must give effect to where the common law does not provide
for the
given situation, and in effect, totally negates the rights that every
human being is entitled to.
18. Developments in
respect of euthanasia:
Applicant’s
Counsel point out that there are at least 11 foreign countries or
States in which assisted suicide or active voluntary
euthanasia is
not unlawful namely Albania, Belgium, Canada, Columbia, Luxembourg,
The Netherlands, Switzerland, and Oregon, Vermont,
Washington, New
Mexico and Montana. I deem it convenient and important at this stage
to refer to a decision of the Supreme Court
of Canada given on 6
February 2015 in Carter vs Canada (Attorney-General) 2015 SCC5. The
introductory paragraph to this judgment
reads as follows: “[1]
It is a crime in Canada to assist another person in ending her own
life. As a result, people who are
grievously and irremediably ill
cannot seek a physician’s assistance in dying and may be
condemned to a life of severe and
intolerable suffering. A person
facing this prospect has two options: she can take her own life
prematurely, often by violent and
dangerous means, or she can suffer
until she dies from natural causes. The choice is cruel.”
The question in that
appeal was whether the criminal prohibition that put a person to this
choice violated her Charter rights to
life, liberty and security of
the person and to equal treatment by or under the law. That was the
question that asked the Court
to balance competing values of great
importance. On the one hand stood the autonomy and dignity of a
competent adult who sought
death as a response to a grievous and
irremediable medical condition. On the other stands the sanctity of
life and the need to
protect the vulnerable.
The trial Judge
found that the prohibition violated the s. 7 rights of competent
adults who are suffering intolerably as a result
of grievous and
irremediable medical condition. She concluded that this infringement
was not justified under s. 1 of the Charter.
The Supreme Court
agreed. The trial Judge had found that the evidence before her
concluded that the violation of the right to life,
liberty and
security of a person granted by s. 7 of the Charter was severe. It
also supported the finding that a properly administered
regulatory
system is capable of protecting the vulnerable from abuse or error.
The Supreme Court overruled the Provincial Court
of Appeal, and
agreed with the trial Judge, and found that the prohibition on
physician-assisted dying was void insofar as it deprived
a competent
adult of such assistance where:
1) The person
affected clearly consented to the termination of life; and
2) The person had a
grievous and irremediable medical condition (including an illness,
disease or disability) that caused enduring
suffering that was
intolerable to the individual in the circumstances of his or her
condition.
The Canadian Charter
of Rights is very similar to the South African Bill of Rights. I find
the reasoning of the Canadian Supreme
Court not only enlightening but
very persuasive. The Court dealt with the situation in many of the
countries that I have already
mentioned, and the various arguments
both pro and against the assisting of dying. It found that the total
prohibition was overbroad.
This of course is also what s. 36, the
limitation clause in the Bill of Rights, refers to where it says that
Court, when considering
the limitations of rights contained in the
Bill of Rights, must take into account, amongst others, less
restrictive means to achieve
the stated purpose. (s. 36 (1) (e)) If
proper safeguards were in place in any given instance, there would be
no need for a total
prohibition of assistance. It is clear from the
judgment of the Supreme Court, and the trial Judge, that great
emphasis was placed
on the concept of dignity and autonomy in this
particular context. I wish to quote from par. 66 of this judgment:
“…an
individual’s response to a grievous and
irremediable medical condition is a matter critical to their dignity
and autonomy.
The law allows people in this situation to request
palliative sedation, refuse artificial nutrition and hydration, or
request the
removal of life sustaining medical equipment, but denies
them to request their physicians’ assistance in dying. This
interferes
with their ability to make decisions concerning their
bodily integrity and medical care and thus trenches on liberty. And,
by leaving
people like Ms Taylor to endure intolerable suffering, it
impinges on their security of the person.”
It is my opinion
that this dictum applies to the present case as well for the reasons
already stated. I agree therefore with Applicant’s
Counsel that
it should not be for the State to say as the Third Respondent did,
that it was not a matter of dignity at all, and
that the Applicant
had other options at his disposal in the context of well-managed
palliative care. The author of the Opposing
Affidavit of the Third
Respondent obviously did not keep in mind that a decision of a person
on how to cease to live was in many
instances a decision very
important to their own sense of dignity and personal integrity, and
that was consistent with their lifelong
values and that reflected
their life’s experience. This topic was dealt with by the
Canadian Supreme Court in par. 68 of
its judgment. I also agree with
the finding of the Supreme Court, although in the present instance
there is no legislation relevant,
that laws that impinge on life,
liberty or security of the person must not be arbitrary, overbroad,
or have consequences that are
grossly disproportionate to their
object. The trial Judge had found, and the Supreme Court had agreed
with her, that the object
of the prohibition was to protect
vulnerable persons from being induced to commit suicide at a time of
weakness. The Prosecutor
in that case had asked the Supreme Court to
posit that the object of the prohibition was to preserve life
whatever the circumstances.
The same argument was raised by the
Respondents herein. The Court found that this formulation went beyond
the ambit of the provision
itself. The direct target of the measure
was the narrow goal of preventing vulnerable persons from being
induced to commit suicide
at a time of weakness, and that this could
be ensured by necessary safeguards in any given case. The total ban
on assisted suicide
would clearly not help to achieve the object of
the Canadian Statute, so it was found. It is of course obvious, and
it is so in
the present instance, that many cases would not be
connected to the objective of protecting vulnerable persons at all.
The Court
also found that total prohibition of assisted suicide had a
severe impact: it imposed unnecessary suffering on effected
individuals,
deprived them of the ability to determine what to do
with their bodies and how those bodies would be treated, and could
cause those
affected to take their own life sooner than they would
were they able to obtain a physician’s assistance in dying.
19. The South
African Law Commission – Project 86:
I have already
referred to this report, part of its reasoning and the
recommendations made. I may just add that the Commission pointed
out
that the Department of Health had in principle agreed with the
Commission’s proposed legislation legalising euthanasia.
(See
the report p. 146 footnote 486) Third respondent in its Answering
Affidavit did not refer me to this and I do not know whether
the
other Respondents are aware of this. By way of summary, and in the
context of the Commission’s report, Applicant’s
Counsel
submitted that the Commission’s approach and the community’s
opinion was of limited value only and the ultimate
question for
determination was not what the public opined, but rather, what the
Constitution provided. I agree with this contention.
I do not deem it
necessary in this judgment to deal with the proposed safeguards
proposed by the Commission but I have considered
them and I agree
that they are valuable and appropriate in most cases, but certainly
not all. I must say it again: in the absence
of legislation, which is
the Government’s prerogative, any other Court will scrupulously
scrutinize the facts before it,
and will determine on a case-by-case
basis, whether any safeguards against abuse are sufficient. I do not
agree with the Respondents
contention that my facts-based development
of the common law will leave a void which inevitably lead to abuse.
20. Applicant’s
safety measures employed:
Applicant states
that the doctors confirm that he was suffering from terminal cancer.
He confirms that he has more than adequately
been informed of his
terminal illness, the prognosis of his condition and the treatments
and care that are available to him. Extensive
information was
provided to him by all the doctors who have treated him, he has made
his own extensive research into his condition
and his request for
assisted dying and has considered all that thoroughly. He was still
in command of his faculties and he confirmed
that he persisted in his
decision to end his life with dignity and thus his request as per the
Notice of motion. In his view, assisted
dying was the only way that
he would be released from his eventual unbearable suffering and for
him to prevent the imminent intolerable
and undignified suffering
that was to occur in the future. I regard this as sufficient in the
present case. Contrary to what Counsel
for CAUSE FOR JUSTICE
required, I do not think it was necessary for the Applicant to say
who the doctor would be, when he would
die, and what lethal agent he
would acquire. That is private and a facet of his own dignity.
21. Respondents’
arguments:
I have considered
the Opposing affidavits and the Heads of Argument handed to me. I
have read them carefully and where I do not
deal with them in this
judgment in this Urgent Court, it must not be understood to mean that
I have not considered each proposal
and submission. Before I deal
with the main points of opposition, if I can call it that, I need to
make some preliminary observations
about the affidavits of the
Respondents. The affidavit on behalf of the First Respondent was made
by an Acting Chief Director:
Legal Services. He referred to the
Commission Report. Apart from saying that this Report was handed to
the Minister of Health in
1999, and was not attended to because other
issues of national importance which required prioritisation such as
HIV and the AIDS
epidemic, he did not say why the Report was not
given legislative attention since then. He said that the conduct of a
medical doctor
who provided the assistance sought, would amount to a
criminal offence. He denied that Applicant’s right to dignity
was involved
in the present context. He also said that the
application ought to be dismissed because if it were granted, it
would be tantamount
to promoting inequalities and discrimination of
the poor by way of limiting access to the Courts to the rich only,
which would
be in violation of the constitutional guarantee of the
poor to access the Courts. I do not understand this argument in the
present
context. It is not relevant, but may be relevant in other
future cases if no objective safeguards are put in place either by a
Court in any particular instance or by way of legislation. For
present purposes, this argument is irrelevant. I would have preferred
the view of the Minister of Justice in the present application and
what he intended doing about the proposals contained in the
Commission’s Report or, at the very least what the Government’s
present policy was in this particular context. I understand
however
that because of the urgency of this matter his considered view was
probably not able to be obtained timeously. The Fourth
Respondent,
the National Director of Public Prosecution was represented herein by
a Senior State Advocate who said that she was
authorised by the
Fourth Respondent to depose to this affidavit. Nothing further of
note was said accept that assisted suicide
was a crime. Third
Respondent disputed that the Applicant’s condition constituted
a violation of his human right to dignity,
or that he was at present
being treated in an inhumane or degrading way. The sad reality was,
so it was put, that the Applicant
suffers from a condition which may
impact on his dignity, as it may on numerous persons who die of
causes both natural and otherwise.
It is clear that Applicant’s
dignity was not infringed, because his view was merely subjective. In
the First Respondent’s
Answering Affidavit it was denied that
the manner of death as outlined by the Applicant was not dignified.
It was also said that
this was the Applicant’s own subjective
view. I was almost shocked when I read this although I am not easily
shocked anymore
having regard to my 40 years’ experience in
litigation. The undignified suffering that the Applicant was
experiencing was
also natural, and thus his constitutional right to
dignity was not being infringed. I could not help wondering whether
the deponent
to this affidavit had ever visited a cancer patient who
was in a terminal stage. In my view the comment is not justified on
any
factual basis. Applicant’s view in this context is that it
is undoubtedly justifiable and considered medically ethical to
withdraw life sustaining or life extending medical treatment to a
patient, in order to recognise and give effect to a terminally
ill
patient’s dignity. In this context I was referred to L. B.
Grové’s thesis for the degree of Magister Legum
titled
“Framework for the implementation of euthanasia in South
Africa” prepared under the supervision of Prof. P. A. Carstens
at the Faculty of Law University
of Pretoria in 2007 at pages 30 –
31. Applicant said in this context that there could be no logical or
justifiable distinction
between:
21.1 The withdrawal
of life sustaining or prolonging medical treatment; and
21.2 Active
voluntary euthanasia or assisted suicide.
He said that the
main intention for the medical practitioner remains to ensure the
patient’s quality of life and dignity.
The secondary result,
namely death or the hastening of death is exactly the same in both
instances. I agree that that is so. On
behalf of Applicant it was
therefore submitted that where a doctor withdraws life sustaining or
life prolonging treatment, he or
she knows that the result would be a
hastening of the patient’s death, which a doctor could have
avoided, yet reconciled
himself or herself with the result and still
acted accordingly. Is this not a good example of dolus eventualis?
Where life sustaining
or life prolonging treatment has been
administered and is subsequently withdrawn, the act of withdrawal is
nonetheless a commission
– it remains an active and positive
step taken by the medical staff directly causing the death of the
patient (on a factual
basis). It is accepted that such medical
treatment may be refused from the outset by a terminally ill patient,
in which the failure
to render treatment would constitute an omission
only on the part of the medical practitioner. It was therefore
submitted that
there can be no distinction between active euthanasia
and passive euthanasia in the circumstances where such argument is
based
on so-called ethical considerations. Once it is recognised, so
it was put, as was indeed conceded at least by implication, that
a
medical practitioner has a duty to recognise and ensure that a
terminally ill patient’s dignity is protected by an omissio
or
passive euthanasia, then, the same duty remains on a medical
practitioner through a commissio or active euthanasia. From a
philosophical point of view and a jurisprudential point of view, I do
believe that this argument is sound. One must also remember
that
suicide and attempted suicide are not criminal offences. The State
allows abortion and so does the medical profession. Birth
control
measures are implemented universally. Cessation of treatment which
hastens or causes death happens on a daily basis no
doubt. Academics
by and large appear in favour of voluntary active euthanasia or
assisted suicide as is clear from chapter 7 of
the Grové
thesis. In the context of conscientious objections, the Applicant
said that his rights are sacrosanct to him,
which should not be
sacrificed on the altar of religious self-righteousness. He also
submitted that “conscientious objections”
to
homo-sexuality, same-sex marriages, mixed-race marriages and abortion
did not detract from enshrined constitutional rights and
it should
not do so now.
22. In the context
of the specific relief sought Applicant submitted that until such
time as the legislature provided statutory
safeguards, this Court
could grant the relief claimed with the safeguards employed in this
particular application. It was certainly
not uncommon for the Courts
to firstly rule on matters such as present prior to legislation being
enacted. This occurred in Canada
and in other jurisdictions such as
Netherlands and Belgium, the practice was conducted prior to
legislative sanction and regulation.
A Court was also empowered to
rule that the legislature should make the necessary regulations as
was the case in Carter before
the Canadian Supreme Court. I may just
add the following in the context of prayer 4: s. 39 (2) of the
Constitution requires the
careful consideration to determine whether
the common law needs to be developed in any particular case. A Court
must keep in mind
that the primary responsibility for law reform
rests with the legislature. A Court should develop the common law
incrementally
only.
See: Masiya vs DPP
Pretoria and Another
2007 (5) SA 30
CC at par. 31 – 33. It was
said that the judiciary should confine itself to those incremental
changes which are necessary
to keep the common law in step with the
dynamic and evolving fabric of our society. A Court however must
remain vigilant and should
not hesitate to ensure that the common law
is developed to reflect the spirit, purport and objects of the Bill
of Rights. Where
there is such a deviation, Courts are obliged (my
emphasis) to develop the common law by removing the deviation. This
is abundantly
clear from the dicta that appear in the mentioned
paragraphs, and I propose doing so. It must be remembered that S. 39
of the Constitution
does not give the Court discretionary powers. It
imposes an obligation on the Court.
The topic of the
obligation to develop the common law was also discussed in Carmichele
vs Minister of Safety and Security
[2001] ZACC 22
;
2001 (4) SA 938
CC. (At 953 par.
33 and further). In the context of s. 39 (2) of the Constitution a
Court is obliged to undertake a two stage enquiry
which cannot be
hermetically separated from one another. The first stage would be to
consider whether the existing common law,
having regard to the s. 39
(2) objectives, requires development in accordance with these
objectives. This enquiry requires a reconsideration
of the common law
in the light of s. 39 (2). If this enquiry leads to a positive
answer, the second stage concerns itself with
how such development is
to take place in order to meet the s. 39 (2) objectives.
23. I have done so
and am of the view that the absolute prohibition on assisted suicide
in common law does not accord with the rights
that the Applicant
relies on. First Respondent’s Counsel’s main argument was
that the right to life was paramount and
that life was sacrosanct. I
agree with this general submission and s. 11 of the Constitution
provides for this. This provision
safeguards a person’s right
vis-à-vis the State and society. It cannot mean that an
individual is obliged to live,
no matter what the quality of his life
is.
24. A further
argument was that a Court is in law incompetent to declare that the
Fourth Respondent is prohibited from prosecuting
the particular
medical practitioner because of the provisions of s. 179 of the
Constitution which grants it the sole power to decide
in any
particular case. That is so of course, but it does logically not
follow that when a Court develops the common law, and holds
on the
facts of a particular case that a particular act by a person is not
unlawful, the prosecuting authority has been unlawfully
deprived of
its discretionary power as a result. The authority given to the Court
to develop the common law in a specific case,
may have by necessary
implication this consequence, such as in the present instance.
25. The prayers
sought by Applicant were addressed by me in Court and Counsel for
Applicant and Third Respondent also provided me
with a suggested
amendment, were I to grant an order. I reflected upon this, and
amended it to ensure that the relief was case
dependant and certainly
not a precedent for a general uncontrolled ‘free for all’
as it was suggested.
26. Accordingly, on
30 April 2015, I made 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 authorize 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.
JUDGE H.J
FABRICIUS
JUDGE OF THE
GAUTENG HIGH COURT, PRETORIA DIVISION
Case no.:
27401/15
Counsel for the
Applicant: Adv H. B. Marais SC
Adv H. P. van
Nieuwenhuizen
Adv C. A. du
Plessis
Instructed by:
Nkosi Rogers Attorneys & Conveyancers
Counsel for the
1st, 2nd and 4th Respondents: Adv L. Moloisane SC
Instructed by:
State Attorney
Counsel for the
3rd Respondent: Adv H. van Bergen
Instructed by:
Moduka Attorneys
Counsel for
DOCTORS FOR LIFE: Adv R. Willis
Adv A. D’Oliveira
Instructed by:
Robin Twaddle Attorneys
Counsel for CAUSE
FOR JUSTICE:Adv M. J. Engelbrecht
Instructed by:
Smit & Viljoen Attorneys
Heard on:
29/04/2015
Order granted on:
30/04/2015
Reasons given on:
04/05/15 at 14:00