The complication of assisted suicide
31 Jan 2020
“If I cannot give consent to my own death, whose body is this? Who owns my life“? Canadian ‘right to die activist’, Sue Rodriguez.
Assisted suicide is by far, one of the most controversial topics to be discussed. There are many contradicting viewpoints on whether this is something that should be legalised in our law. But, in its simplest form, is assisted suicide not murder?
THE CRIMINAL PROCEDURE ACT 51 OF 1977 (“THE ACT”)
- Section 98 of the Act regards murder as the unlawful and intentional killing of another person.
- Section 98 read with Section 256 of the Act regards attempted murder as an unlawful act carried out with the intention of killing another person, but the act does not bring about the person’s death.
- Section 98 of the Act regards culpable homicide as the unlawful death of a person through negligence. Here, the element of intent is not present.
THE CASE OF MINISTER OF JUSTICE AND CORRECTIONAL SERVICES V ESTATE STRANSHAM-FORD (531/2015) 2016 ZASCA 197
This case came before the Supreme Court of Appeal (the SCA) from the North Gauteng High Court (“the court a quo”). In this case, the Applicant was seeking a Court Order that would allow for the administration of a lethal agent into the Applicant’s body by a medical practitioner alternatively, that the medical practitioner supply the Applicant with a lethal agent whereby the Applicant could administer the agent himself. In both cases however, it was further requested that the medical practitioner in question would not be “subject to prosecution or disciplinary steps by the relevant professional body.” To enable such an outcome, the Applicant sought an order that would develop the Common Law in respect of the crimes of murder and culpable homicide in terms of Section 39(2) of the Constitution.
The Court a quo held that  “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 legal agent or by providing the Applicant with the necessary lethal agent to administer himself”;  “no medical doctor is obliged to accede to the request of the Applicant”;  “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”;  “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.”
Upon leave to appeal to the SCA, the Court a quo’s judgment was set aside.
The SCA distinguished between physician assisted suicide (PAS) and physician administered euthanasia (PAE). PAS is where the limit of intervention from a practitioner is up to the point of providing / prescribing the drug that the person can use to terminate their life. In the case of PAE, the practitioner’s role is more involved, in that their intervention will be up until the point of physically administering the drug themselves. The main difference between the two forms of intervention by the practitioner is that, in the former instance, the person will perform the act of termination themselves whereas in the latter case, the act of termination is performed by the practitioner. The SCA further averred that while the distinction is between medical practitioners, there is no reason to distinguish them from family or friends of the person who would commit the same act.
The SCA further questioned whether consent given by the person plays any role in the medical practitioner’s legal consequence. The current position is that, no, consent does not relieve any legal consequences as consent does not justify murder. The Court held that in respect of PAE and PAS, it is wrong to demand that the Common Law crimes of murder and culpable homicide be developed to accommodate this form of killing.
On the other side of assisted suicide is life support, and a person’s decision to choose to discontinue such support which results with the death of the person. In this instance, this act resulting in a person’s death is considered lawful. However, the writer is not entirely sure how this can be justified against the above situation regarding PAE and PAS. In the two latter instances, a person’s consent is given in ending their own life, and while not a justification, they for all intents and purposes are willing for the outcome that will result. In the former instance, a person is not always in a position to give consent (i.e. a person in
a vegetative state). Accordingly, in this case, the decision to terminate the person’s life is made for them by the relevant party holding the authority to do so.
Another aspect to consider is that of the ‘do not resuscitate’ clause. The person has given their consent not to be resuscitated in the event that this is required. In this circumstance there is the act of ‘letting’ the person die, i.e. acting in a manner that the termination of a person’s life is actively brought about. The fact that their consent is given could then be questioned what standing this has, as in the matter of assisted suicide, consent is not a justification.
In the case of Minister of Justice and Correctional Services V Estate Stransham-Ford (531/2015) 2016 Zasca 197, the Applicant used as his ground for the application in total, the fact that his fundamental, basic human rights should be upheld, specifically, his right to dignity.
The writer is of the opinion that there is a very fine, if not blurred line between the acceptance of removing someone from life support alternatively, adhering to the person’s wishes not to be resuscitated and the strong rejection and strong controversial viewpoint of assisted suicide.
Therefore, the question to be asked is, at what point does one consider the criminal consequences of assisted suicide over the basic human rights a person is entitled to? A matter such as this will, in the writer’s opinion, inevitably be on going in that the act of assisted suicide very much satisfies the act of murder and to try and find a way to differentiate between the act of unlawfully and intentionally killing another person constituting murder and the act of unlawfully and intentionally killing another person
constituted a killing in what is to be regarded as satisfying a person’s basic fundamental rights will be an incredible endeavor.
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