The right to assisted dying

In recent years the subject of dying with dignity has come to light more than once in the South African media. The subject of switching off life support machines, advanced directives and the request for assisted dying has been a heated topic of debate.

People have been advised to draw up advance directives setting out their wishes with regard to their personal care and medical treatment or non-treatment in the event that they fall in the unfortunate position where they lack capacity to make personal decisions.

Recent Developments

In a recent urgent application to the North Gauteng High Court Robert Stansham-Ford requested the Court for an order enabling him to end his life with the assistance of a medical doctor in a controlled, painless and dignified manner and to declare that the said medical practitioner shall not be held accountable in any manner. He also requested the Court to declare this to be deemed as lawful and constitutional taking into account his specific circumstances.

Mr Stransham-Ford practiced as an Advocate in the High Court of South Africa and held a number of law degrees as well as an MBA degree. He was diagnosed with cancer. It was not in issue that his condition was terminal and that he only had a short time to live. He was unable to get out of bed, had injections and drips, endured anxiety, could not sleep without morphine or other painkillers, had undergone numerous forms of treatments and was also under palliative care.

The facts stated above was emphasized by the Honourable Justice Fabricius in granting the order. Ironically Mr Stansham-Ford passed away from natural causes the same time the order was granted.

Mr Justice Fabricius order read as follows:

  • The Applicant is a mentally competent adult;
  • The Applicant has freely and voluntarily, and without undue influence requested the Court to authorize that he be assisted in an act of suicide;
  • The Applicant is terminally ill and suffering intractably and has a severely curtailed life expectancy of some weeks only;
  • 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 lethal 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.
  1. This order shall not be read as endorsing the proposals of the draft Bill on End of Life as contained in the Law Commission Report of November 1998 (Project 86) as laying down the necessary or only conditions for the entitlement to the assistance of a qualified medical doctor to commit suicide.
  2. 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.
  3. Except as stipulated above, the common law crimes of murder and culpable homicide in the context of assisted suicide by medical practitioners are not affected.

Current legal position

The current legal position in South Africa is that active voluntary euthanasia is unlawful. The order of the High Court has not changed this position, but a mentally competent adult who is terminally ill and who is suffering severely from an illness with a short life expectancy may approach the High Court for authorization that he may be assisted by a doctor to end his life.

Where to now?

The Government has indicated that it will appeal against the judgment. No doubt the position will ultimately have to be decided by the Constitutional Court. Until this has happened the position is as set out above.

Franko Truter