Legislation regarding assisted suicide is urgently needed

On Thursday 30 April, the Pretoria Gauteng High Court in Pretoria passed a groundbreaking judgment allowing for the terminally ill Robin Stransham-Ford (65) to be aided by a doctor to commit suicide.

The decision by Judge Hans Fabricius permitting assisted suicide has resulted in both consternation and praise. Chantelle Feldhaus of the Faculty Law at the Potchefstroom Campus of the North-West University elucidates upon the judgment and how it fits into the constitution’s approach to the sanctity of life.

“The importance of this highly contentious but extremely important case is the balancing of the constitutional right to life against a person’s right to human dignity, their freedom and the security of the person. Law reform already started in 1998 regarding this human rights issue. However, nothing has happened after the tabling of the Draft Bill of End of Life in 2000,” she explains.

“The South-African Law Commission Report offered three legislative options in respect of assisted dying. Option one was that it remains unlawful, option two was to decriminalise it with the doctor and patient the decision makers and the third was to also decriminalise it, but to let a committee decide. Urgent legal clarification is needed about this.”

Stransham-Ford’s case has put the matter of assisted suicide as well as euthanasia back on the public’s radar. Feldhaus is perplexed that it has taken so long. “This issue has been long overdue. As mentioned earlier, law reform already started in 1998. I was surprised that this issue was not adjudicated earlier, especially with the increased importance that has been given to patient autonomy in recent years. Examples include legislation regarding abortion, HIV testing and medical procedures,” she says.

The court order will have numerous consequences, both foreseeable and not, she attests. “Although the judgment attempts to limit the scope of the decision, it can have far-reaching implications for both terminally ill patients and doctors. It could also have ramifications for the National Prosecuting Authority, as the court has found that the common law crimes of murder and culpable homicide are no longer unlawful when performing assisted suicide. It is difficult to predict what precedent it may set, as the formal legal process has not yet been exhausted. Specific legislation is needed.”

According to her, it is too early to say whether there will be a flood of similar applications: “It remains uncertain until the Appeal is heard, and the confirmation is given by the Constitutional Court. The court only gave an order. The reasons for the order have not been given. It is important to note that this case is limited to assisted suicide and not euthanasia. In this case, the court made an order that a mentally sound person is entitled to end his life with a qualified and willing doctor either administering or providing that person with, lethal drugs. There are still other forms of euthanasia that were not dealt with. Furthermore, no medical doctor is obliged to agree to such a request.

I will say this again, specific legislation is desperately needed.”