Your life, your decision? The Constitution and euthanasia

June 1st, 2017
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By Sipho Tumelo Mdhluli

The Constitution of South Africa (SA) is the supreme law of the Republic. All laws or conducts, which are inconsistent with it are invalid, and the obligations which are imposed by it must be fulfilled.

Currently assisted suicide has no legal ground to stand as codified legislation and is not protected by the Constitution. Euthanasia is a very scary and sensitive topic to comment on since it has a way of challenging our moral values, beliefs and religions. Hence why Parliament is also silent about it. (See Daniel Ncayiyana ‘Euthanasia – no dignity in death in the absence of an ethos of respect of human life’ (2012) SAMJ 102 no 6.)
Everyone has the right to life and this is a right that is deeply entrenched in our Constitution (see s 11 and ch 2 of the Bill of Rights). Yet, we have no right, nor option to decide whether we should die. Suicide is equally wrong as an individual takes their own life, yet it is legal. In other words the right to decide on our own death should follow from our right to life.

It is absurd that we can enjoy rights, but have no option to waive their application. Some rights co-exist with duties on the part of the right-holder in respect of the same subject matter. The right to life should also be treated as a waivable right just like other rights, which are waivable. Active euthanasia amounts to suicide and suicide is not illegal (John Milton South African Criminal Law and Procedure: Common-law crimes 3ed (Cape Town: Juta 1996) at pp 353 – 354).

It is illegal for a doctor or a health care professional to assist a patient in ending his or her life. A doctor who assists a patient to die can face the consequence of being imprisoned for a long period of time.

When the health of a patient can no longer be restored there is only one thing left for doctors to do. They have an ethical duty to alleviate the pain, which is experienced by their patients. In this process doctors often prescribe high doses of morphine, which hastens or speeds up the death of the patient. They do this well knowing the side effects. It is safe to conclude that although euthanasia is not legalised in our country, doctors may be practising it on a daily basis

The Constitution speaks of the right to life and not a duty to live, and this is evident in Soobramoney v Minister of Health, KwaZulu-Natal 1998 (1) SA 765 (CC). The facts of this case were as follows: The appellant was suffering from renal failure. To survive, he needed renal dialysis treatment. After exhausting his funds he turned to a public hospital for renal dialysis. They refused to give him treatment stating that his condition did not meet the grounds for eligibility; that he would be curable within a short space of time and that he was eligible for a kidney transplant. He claimed entitlement to emergency treatment given the constitutional right to life.

The Constitutional Court (CC) held that the right to life did not impose a positive obligation on the state to provide lifesaving treatment to a critically ill patient. Hence the right to life is not an unqualified obligation to continue living, and therefore, people can waive their right depending on circumstances.

The Choice of Termination of Pregnancy Act 92 of 1996 has provisions as to when a mother can terminate the unborn child’s life. This invokes the question, whether this procedure still protects the sanctity of life or not?

The debate of legalising active euthanasia is one which should not be viewed from a religious perspective, but it should be dealt with in terms of the Constitution. It is only then that a morally correct judgment will be reached.

Another disturbing factor is that it is considered humane to euthanise an animal, which is seriously ill or which is seriously injured. This is in terms of ss 2(1)(e), 5(1) and 8(1) of the Animals Protection Act 71 of 1962. On the otherhand it is considered inhumane to euthanise a patient who is severely ill and suffering from severe pain.

It is obvious from the aforementioned provisions that the owner of such an animal is entitled to euthanise an animal, which is seriously injured or ill, so as not to prolong its life, as it would be a life of pain and suffering. And this is a practice, which is universally accepted, to allow an injured animal to suffer is not only cruel but illegal. Why can the same dignity not be afforded to humans?

Is euthanasia morally justifiable? This is a question to which most of us fail to get an answer. Whether euthanasia is morally justifiable or not is a matter for an individual. Legal directives give effect to democracy and social policy, and this requires that people take responsibility for their actions. The anti-euthanasia lobby group will argue that those who request euthanasia are in the minority. We are in a democratic era, which also provides for acknowledgement of the minority’s views.

‘Project 86 of the South African Law Commission Report, Euthanasia and the Artificial Preservation of Life’ (www.salawreform.justice.gov.za, accessed 4-5-
2017) at p 18 notes that legislation dealing with euthanasia – that is in line with the fundamental values entrenched in the Constitution – would bring about a certain measure of legal certainty. Medical personnel would be able to raise issues of advance directives, because they would be doing so in terms of the law as opposed to the fear of doing something illegal since there is no formal regulation by law.

The most supportive argument in favour of euthanasia is that of patient autonomy. In many democratic societies, an individual’s freedom to choose is considered a fundamental civil right. Patient autonomy includes the right to have a full disclosure of the patient’s illness and the extent of the illness, treatment recommended and its consequences.

In a case where a doctor concludes that treatment would be in vain and death inevitable, the patient must be allowed time to make an informed choice. This allows the patient and the family to have time for closure. Loss of a loved one is not an easy matter to handle but being prepared for it makes it more bearable.

Refusal by the legislature to provide for active euthanasia is based on the same reasoning as the criminalisation of suicide in the past years. If a patient would rather die than endure any pain as a result of an incurable illness, the request should be granted. Just as everyone has the right to live, we should also have the right to die. This would be promoting the rights enshrined in The Bill of Rights of our Constitution.

Sybrand Strauss in Doctor, Patient and the Law 2ed (Van Schaik 1984) at p 387 states that ‘in principle every person is legally entitled to refuse medical attention, even if it has the effect of expediting his death. In this sense the individual has a right to die. All that is required is that the declarant at the time in making his refusal known is compos mentis. The declaration remains valid even though the declarant may at a later stage become non compos mentis as a result of physical or mental illness or for any other reason.’

In the case of S v Makwanyane and Another 1995 (3) SA 391 (CC) at para 329 it was mentioned that ‘recognition and protection of human dignity is the touchstone of the new political order and is fundamental to the new Constitution.’

Justice delayed to the call of legalising euthanasia may be a Justice denied to the citizens of SA.

In Stransham-Ford v Minister Of Justice And Constitutional  Services and Others 2015 (4) SA 50 (GP), Frabricius J stated that the development of the law was required. Therefore, the CC and Parliament should reconsider the issue of legalising assisted suicide in support of the court application to give effect to the fundamental right to human dignity, not to be treated in a cruel inhuman or degrading way – bodily and physically.

Conclusion

South Africa only needs sustainable measures to safeguard the effect of practicing euthanasia not to be subjected to abuse, and the Constitution will also have to protect medical practitioners not to be held criminally liable for complying with the strict measures in assisting to alleviate all the unbearable pains of terminally ill patients with dignity. One can learn from other countries practicing euthanasia such as Belgium and the Netherlands were euthanasia is being practiced voluntarily.

Doctors have the responsibility to act in the best interest of their patients and that includes: Respecting their human dignity, privacy (confidentiality) and the (freedom) to make their choices and that is entrenched in the Bill of Rights. The question that some of us still fail to answer, is denying human rights, privacy and freedom to terminally ill patient wishing to resort to euthanasia not in contravention of the Constitution?

Clearly a development of the law is required to uphold the fundamental values of the Constitution. They say every right includes a choice. The right to speech does not remove the option to remain silent; the right to vote brings with it, the right to abstain. In the same way, the right to choose to die is implicit in the right to life. The Constitutional court and the Parliament should review and reconsider any loopholes in certain pieces of Acts which do not purport to promote, defend and recognise the freedom of making individual decisions.

Sipho Tumelo Mdhluli LLB (UL) is a candidate attorney at Lekhu Pilson Attorneys in Pretoria.

This article was first published in De Rebus in 2017 (June) DR 25.