Durban — Euthanasia is not legal in South Africa but a Pietermaritzburg academic argues that it's time for someone to take up the cudgels for law reform on the issue.
Dr Suhayfa Bhamjee investigated the topic as part of her PhD thesis titled: “Death and dying in a constitutional democracy –‒ An analysis of the South African criminal law and a call for law reform”.
The senior lecturer at the UKZN School of Law who teaches criminal law subjects as well as medical bioethics is among 8000 of the institution’s students who will graduate in the next two weeks.
While physician-administered euthanasia (PAE) and physician-assisted suicide (PAS) are considered murder in South Africa, through her research Bhamjee proposes a legal framework which empowers patients and doctors, while respecting the right to life, dignity, autonomy and the rule of law.
“It’s an issue that ought to be dealt with through legislation because there is a line between euthanasia and murder, but it’s for legislation to draw that line and separate the two so that patients can have a right to choose.”
Medically-assisted dying should, like all other healthcare choices, be one that is available to patients so that they can make an end-of-life decision that best suits their needs and desires.
“Through appropriate law reform, we can take PAS/PAE outside of the ambit of the crime of murder by looking at consent in a more focused and situation-specific way,” she said.
She said her thesis argued for the decriminalisation of PAS/PAE by examining the foundational principles of criminal law, medical-professional ethics and patients’ rights through the lens of the Constitution.
Bhamjee told the Sunday Tribune that although the Law Reform Commission investigated euthanasia in 1996, the law had still not developed to allow patients to make their own decisions regarding voluntary euthanasia.
“This raises the question of whether the euthanasia question has been euthanised,” she said.
While she started reading about it from an academic perspective, she soon realised that many people wanted to be informed about euthanasia.
“When you're just talking to people around the table, wherever you’re sitting, you realise that more and more people are actually wanting to know. They’re thinking about end of life, they’re thinking about what’s coming next for them. And that’s pretty much what I wanted to know: what does the law say and why is euthanasia a crime in our law? And what would need to happen if we wanted to reform the law to give patients the right to choose,” she said.
While Bhamjee’s motivation was purely from a broad understanding of patients' rights to autonomy and the right to choose, she said she was convinced that many people would want the right to decide.
Because she examined the issue from a criminal law perspective, her framework was case law from 1994 and the South African Law Reform Commission Report of 1996. She said by the time she started writing her thesis there was a lot of commentary, “but no sort of forward movement from the legislature on reforming it”.
Bhamjee also examined the case of advocate Robin Stransham-Ford who was terminally ill with cancer and approached the North Gauteng High Court for permission to allow a doctor to assist him in the act of euthanasia. He died about two hours before the court ruled in his favour. This was later overruled by the Appeal Court.
“So it’s essentially from the Supreme Court of Appeal court case which raised some very pertinent questions that they said, if addressed, would very likely be the catalyst for law reform,” she said.
After years of dilly-dallying, Bhamjee says there are two ways that euthanasia could be legalised from a procedural perspective. Ideally, Parliament would pass the legislation, but that would require an MP to champion that law. Alternatively, the matter could go to court and the court order that it’s unconstitutional, a non-constitutional violation, and then legislation should be put in place, said Bhamjee.
Ultimately, she hopes that her work will persuade lawmakers and advocates to champion constitutionally guaranteed rights of patients who want the right to choose.
Through her thesis, Bhamjee came first and won the People’s Choice Award in UKZN’s Three-Minute Thesis Competition in 2022. She went on to represent the institution nationally where she won second place.
Sunday Tribune