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On 30 April 2015 the Gauteng Division of the High Court in Pretoria handed down the landmark judgment that allowed for a person to be assisted by a qualified medical doctor – who is willing to do so – to end their life by either administering a lethal agent or by providing an applicant with such lethal agent to administer by themselves.

Unfortunately, the applicant, Mr Stransham-Ford, passed away a mere two hours prior to the judgment being handed down. The matter was ultimately appealed by Minister of Justice and Correctional Services and Others v Estate Late Stransham-Ford (Doctors for Life International NPC and Others as Amici Curiae) 2017 (3) BCLR 364 (SCA), which the Supreme Court of Appeal (SCA) upheld on 6 December 2016.

Now more than three years later, Parliament has failed to heed the call by the SCA to consider legislation on the issue. When the United States (US), and more particularly the state of Oregon, was faced with the above question, the right to assisted suicide was approved by means of a democratic process, wherein the citizens of the states in question legalised assisted suicide by approving legislation authorising the same.

The questions that arises are whether South Africans have to wait for Parliament to launch an investigation and consider legislation authorising assisted suicide, or are there current alternatives available to South Africans, which offer a swifter resolution for this situation for those seeking such assistance.

The South African position

The SCA confirmed that suicide was not classified to be a crime and that same view has been the stance in South African law since 1940 when the matter of R v Peverett 1940 AD 213 was decided. This leads to the logical inference that a person who refuses treatment, while having the mental capacity to make such a decision, does not commit any crime. Should a medical practitioner cease to treat a patient, on the patient’s behest, such doctor also does not commit a criminal offense.

Despite the above, there remains a fine line regarding what is illegal and what is legal regarding the hastening of the death of a patient through medical intervention and medication in South Africa. For example, the practise of hastening the death of a patient is not a criminal offence but for a medical practitioner to administer pain relieving medication – a side effect of which the doctor knows will likely shorten a patient’s life-span and may hasten their death – is indeed legal.

Clarke v Hurst NO and Others 1992 (4) SA 630 (D), confirms the aforementioned to be correct by declaring at para 34 that: ‘“If the first purpose of medicine, the restoration of health, can no longer be achieved, there is still much for the 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.)’

Assisted suicide or active voluntary euthanasia on the other-hand remains a crime. This stance was confirmed in the matter of S v De Bellocq 1975 (3) SA 538 (T) and S v Marengo 1991 (2) SACR 43 (W). The first-mentioned case involved a son, who was also a doctor, injecting his father, suffering from cancer, with a lethal amount of Pentothal. The court found him to be guilty of murder but sentenced him to a year’s imprisonment, in respect of which all but the period until the rising of the court was suspended for one year. The second matter dealt with a daughter shooting her father who was dying of cancer and being found guilty of murder without receiving a custodial sentence. So, while euthanasia remains a crime, it appears that the courts are currently not inclined to apply maximum or punitive sentences in respect of well-intended cases of euthanasia where the deceased was terminal. One may surmise that this sentiment mirrors the growing movement towards an elected dignified and assisted death.

The position on physician assisted suicide and physician administered euthanasia abroad

Internationally the following countries on the table below, have, by either legislation or case law, allowed physician assisted suicide or physician administered euthanasia:

In the case of Stransham-Ford at para 115, the court held that physician assisted suicide and physician administered euthanasia 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’.

New Zealand is the first country to put forward voluntary euthanasia legalisation in a binding referendum, which will be decided later on in the year. If supported by over half of the respondents, it will become binding one year after the vote count is announced and will apply in respect of persons diagnosed with a terminal illness, who have less than six months left to live if approved by two doctors.

Physician assisted suicide and physician administered euthanasia in SA

Two forms of assisted suicide need to be considered. The first is referred to as physician administered euthanasia. Despite a patient consenting to their death by physician administered euthanasia, the doctor who administers the drug, leading to the patient’s death, is still considered to be a committing murder, when same is done in SA. The rationale for same being that consent is no defence to criminal responsibility for the intentional killing of another person.

Physician assisted suicide relates to the patient taking the drug themselves, which in turn will cause them to die. The medication still needs to be prescribed by a medical practitioner and such action may lead to the doctor being prosecuted for murder.

The Appeal Court, interestingly, notes in footnote 44, by referring to S v Robinson and Others 1968 (1) SA 666 (A), that a doctor acting at the patient’s request by administering a lethal agent justifies a far lesser sentence but such doctor is still committing a crime.

When one then considers that –

• suicide is not a crime;
• the refusal of treatment by a patient is not a crime;
• administering pain management medicine with the indirect effect of hastening death is not a crime;
• being provided with a lethal agent to terminate one’s own life by a doctor on such patient’s request is a crime but will result in a ‘far lesser sentence being imposed’, then the question that springs to mind is: Why not allow physician assisted suicide in South Africa?

Is DIGNITAS an answer for South Africans seeking physician assisted suicide?

Switzerland is the only country that allows non-residents to apply for and be approved for assisted suicide, referred to as accompanied suicide and done by an organisation known as DIGNITAS.

As part of the process, firstly, the person needs to become a member of DIGNITAS and receive the proverbial ‘green light’ from the organisation. Thereafter, the parties agree on a date and place. DIGNITAS does have apartments in Switzerland and can make the same available to a member.

A Swiss medical doctor will have to be convinced that the disease the patient is suffering from is an illness that will lead to death and/or unendurable incapacitating disability and/or unbearable and uncontrollable pain. The request for accompanied suicide must be preceded by a written request, directed to DIGNITAS, by the member requesting accompanied suicide.

DIGNITAS reiterates that the member always determines the course of action and that same is customised to that specific person’s needs. The patient is given an anti-emetic and a fatal dose, approximately 15 g, of pentobarbital sodium.

The patient must undertake the final act. This, usually, and in the event of the member being able to swallow, consists of the ingesting of the drug. Should a patient not be able to swallow, the dose is administered, by the patient themselves via a gastric tube. In the event of the member not being able to either swallow or administer the agent via gastric tube the pentobarbital sodium can be administered intravenously. The so-called final act in this regard would be the patient opening the intravenous valve themselves.

Unfortunately, should the patient not be able to do any of the above actions DIGNITAS would be unable to assist such patient with accompanied suicide.

The estimated cost, without airfare, accommodation, cremation or official procedures following death, currently amounts to 7 500 Swiss Francs or R 136 000. Should DIGNITAS also arrange for cremation and deal with the official procedures after death the amount increases to in excess of R 160 000.

From the above, it is evident that the average South African will not be in a position to afford to make use of the organisation.

Conclusion

As South African courts have not again been approached with a similar application and Parliament has not yet proposed any legislation to the effect of legalising either physician assisted suicide and physician administered euthanasia, the status quo remains. Persons dying and suffering severely and who simply cannot afford to mandate DIGNITAS are, therefore, left at the mercy of their illness.

I submit that either an approach similar to that of Oregon, in 1997, or the binding referendum being implemented by New Zealand, may be a solution to the problem as posed herein, however, the same is unlikely to arise or bear any fruits in the near future.

Ultimately an application in line with the description of the SCA contained in the judgment of Stransham-Ford must be heard. An application with the structure and amount of evidence presented to the New Zealand Court in Seales v Attorney-General [2015] NZHC 1239 matter needs to be presented to the South African courts in order for the Bench to consider same and make an order it deems appropriate. Should the outcome of the same, sanction physician assisted suicide and physician administered euthanasia, that would be the end of the debate, but there will still be some time before implementation, as the matter would likely be referred to the CC for confirmation as the matter falls within the ambit of the Constitution. If affirmed by the CC it would then be referred the legislature for the further determination and implementation. In the event of the court not allowing for same, at the very least, the legal position would become crystallised until legislative intervention, should such intervention ever arise.

Herbert James David Robertson LLB (cum laude) (UP) is a legal practitioner at Dykes van Heerden Inc in Johannesburg.

This article was first published in De Rebus in 2020 (Aug) DR 14.