Assisted dying is in the headlines again after euthanasia advocate Sean Davison was arrested in September 2018 on a charge of murder, relating to helping a friend die.
Across the world, assisted dying, often crudely called “assisted suicide” is becoming part of the discourse. The matters is back in focus in South Africa following the arrest of euthanasia advocate Sean Davison on a charge of murder in September 2018. Davison was arrested for helping his terminally ill mother die in 2006.
In her book Ending Life. Ethics and the Way We Die (2005), philosopher Margaret P. Battin shares this story from the Netherlands.
“Two friends, old sailing buddies, are planning a sailing trip in the North Sea later in the year, and they are discussing possible dates. “How about July 21st?” says Willem. “The sea will be calm, the moon bright, and there’s a music festival on the coast of Denmark we could visit.” “Sounds great,” answers Joost, “I’d love to get to the music festival. But I can’t be away then; the 21st is the date of my father’s death.” “Oh, I’m so sorry, Joost,” Willem replies. “I knew your father was ill. Very ill, with cancer. But I didn’t realize he had died.” “He hasn’t,” Joost replies, “That’s the day he’s going to die. He’s made up his mind and picked a date, and we all want to be there with him.”
According to international convention, assisted dying comes in three different forms, euthanasia (E), physician-assisted suicide (PAS) and assisted suicide (AS). The Netherlands and Belgium were two of the first countries to legalise the procedure back in the early 2000s.
Opinions are often starkly divided on the subject.
But everyone agrees that the process needs to be monitored closely where it is legal. Indeed, in some cases where permission has been granted to choose the right to die, it is sometimes a requirement that the patient is terminally ill. If the patient is not, there should be a waiting period.
But even the definition of terminally ill is debated.
In 2015, The Economist shared the story of a 24-year old Belgian woman who was approved for assisted dying because of severe depression. Many who support assisted dying for those who suffer from mental illness say if they are not assisted by a doctor, they are likely to succumb to their illness regardless – ie, they are terminally ill.
Assisted dying in South Africa
The country has been grappling with this debate for a long time. In fact, the Mail & Guardian reported in 2016 that there is evidence of the matter being addressed in Cape Town’s high court as far back as 1975. The paper reported:
In the matter of S vs Hartmann, the high court was tasked with dealing with an appeal in respect of a doctor who had administered morphine to the deceased in circumstances where the deceased was suffering from a terminal carcinoma of the prostrate.
But in the last three years, the debate has entered the public discourse because of a high-profile case.
In 2015, the High Court in Pretoria granted Advocate Robin Stransham-Ford an order that would allow a doctor to assist him in taking his own life. That was later overturned by the Supreme Court of Appeal, but Stransham-Ford had already died – two hours before the initial order was granted.
The written judgment from the appeal court read:
“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 [physician-assisted euthanasia] and PAS [physician-assisted suicide].”
Dying with Dignity South Africa, which was founded in 2011 by Davison, is one organisation driving the conversation and pushing for the legalisation of assisted euthanasia for patients who are suffering from debilitating conditions.
The medical view
A study published in July 2018, which surveyed a large group medical students at the University of Stellenbosch, found that more than half believed that physician-assisted dying should be legalised in South Africa.
Many say it’s a choice between letting a patient suffer or easing their pain.
But those who oppose the practice say it goes against the ethical oath where a doctor commits to preserving life.
Desmond Tutu’s support
One of South Africa’s most famous sons, Desmond Tutu, was quoted by the Washington Post in 2016 as saying terminal patients should be allowed to choose when they want to die. He also rallied behind Davison following his arrest in 2018.
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“I believe in the sanctity of life. I know that we will all die and that death is a part of life. Terminally ill people have control over their lives, so why should they be refused control over their deaths? Why are so many instead forced to endure terrible pain and suffering against their wishes?
“Just as I have argued firmly for compassion and fairness in life, I believe that terminally ill people should be treated with the same compassion and fairness when it comes to their deaths. Dying people should have the right to choose how and when they leave Mother Earth. I believe that, alongside the wonderful palliative care that exists, their choices should include a dignified assisted death.
The South African law
This is where things get complicated. The following extract from a report by the Cancer Association of South Africa makes the following points, first it’s important to understand the definitions of the Criminal Procedure Act, 1977 (Act 51 of 1977).
* Murder consists in the unlawful and intentional killing of another human being.
* Attempted Murder consists in the commission of an unlawful act with the intention of killing another human being but which does not result in the death of that human
* Culpable Homicide consists of the unlawful, negligent causing of death of another
* Suicide however, is not considered a crime in South Africa. Does that make assisted suicide legal, too? Not quite.
Professor Pierre De Vos, Constitutional Lawyer, Faculty of Law, University of Cape Town (2015), previously wrote:
“As a general principle, a person who assists another to end his or her life, is guilty of murder and can be successfully charged and prosecuted. Where a doctor or family member knowingly administers a lethal dose of a painkiller to end the suffering of the terminally ill patient or a patient who is in a permanent vegetative state, he or she will potentially be guilty of murder and could be prosecuted”. (Mental Health Daily; Constitutionally Speaking).
But it gets more complicated
Assisted dying technically exists already – in the form of non-voluntary euthanasia – when a patient is not lucid and cannot make their own decisions. Turning off life support is an example of this.
Living wills can also cause complications.
In the UK, Kerrie Wooltorton is believed to have been the first person to use a living will as a means of assisted dying. The Guardian reported in 2009 that the 26-year-old wrote her will, and then three days later took poison and called an ambulance. The will said that no steps should be taken to prolong her life, she just wanted to be comfortable and didn’t want to die alone.
Congress of the People (COPE) MP Deidre Carter this year took the first steps to try and introduce a bill to allow living wills as being recognised in the same way in South Africa, specifically relating to a living will (drafted while somebody is lucid and alive) and the power of attorney which gives someone else power to make decisions on the patient’s behalf, in the event that patient is not capable of doing so themselves.
The National Health Amendment Bill will therefore provide for legal recognition, legal certainty and legal enforceability of advance health care directives such as the living will and the durable power of attorney for healthcare. The Bill will:
provide for and clarify the legal status of two types of advance health care directives: a “living will” and a “durable power of attorney for healthcare”;
set out the purpose, scope and format for these advance health care directives and provide for the resolution of disputes related to these directives;
clarify whether a “living will” or a substitute decision-maker’s decision may be overridden by a medical practitioner or family members in any circumstances; and
clarify whether someone acting upon these directives is immune from criminal and civil prosecutions.
The impact of legalising assisted dying
Beyond the moral debate, those who oppose assisted dying fear that it could lead to being misused, because of the cost associated with pallative care. Other arguments against the legalisation of assisted dying include that, in some cases, there is no accountability after the order has been granted. This could, if legislation isn’t watertight, lead to a situation where a third party could administer the lethal drug to a patient, even if they change their mind.
For more on the matter, watch Carte Blanche on Sunday night.
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