Pretoria - Cape Town advocate Robin Stransham-Ford, who is terminally ill with prostate cancer, will know on Thursday whether doctors may assist him to die.
He asked Pretoria High Court Judge Hans Fabricius to declare that he may end his life by way of assisted death.
The 65-year-old, who is in the process of dying, but would like to do this with dignity, is asking for a ruling that he may ask a medical practitioner to end his life.
As the law now stands, assisted suicide is illegal and the doctor who assists a patient in this regard, can be criminally prosecuted.
Stransham-Ford, however, is asking Judge Fabricius to declare that the medical practitioner who assists him, not be held accountable in any way – either criminally or civilly.
The ministers of Health and Justice, the Health Professions Council of South Africa and the national director of public prosecutions opposed the application, as did Doctors for Life and NGO, Cause for Justice, whose members were admitted as friends of the court.
But following a day of debating the legal as well as the moral issues surrounding assisted death, most of the parties, by late Wednesday conceded to a possible draft order which may allow Stransham-Ford to be assisted in dying.
This proposed draft is expected to be streamlined on Thursday, after the input from counsel of Justice Minister Michael Masutha, who first has to take instructions overnight.
Judge Fabricius will only then make his final order.
The terms of a possible order which were debated, but are expected to be streamlined, included that a doctor who is willing to assist may do so by either administering a “lethal agent” to Stransham-Ford, or provide him with this to administer himself.
It was further proposed the order read that any doctor who acceded to this request, shall not act unlawfully and thus not be subjected to criminal prosecution or disciplinary proceedings.
It was also debated that if granted, this order will only be applicable to this case, as each case in future will have to be dealt with on its own merits.
At the start of Wednesday’s proceedings, the judge ruled the matter was urgent, saying it would take about six months if the matter was heard on the ordinary court roll, which would be too late. The respondents said the matters under debate were too vast to be heard on an urgent basis, as various stake holders should first give their input.
But the judge questioned “what other remedy is open to the applicant?” He said it was his duty to develop the common law when necessary.
In this case Stransham-Ford motivated his application, saying he is dying and he wanted to do so with dignity. “It is not correct to say from now on it will be a free for all,” the judge commented.
He further said while doctors made a “song and a dance” about ethics in this case, it was not a new topic, but one which had been debated for thousands of years.
He questioned what would happen if a doctor injected a terminally ill patient with an overdose of morphine, knowing it could lead to heart failure. “Is that not a classic case of dolus eventualis?” (knowing death is going to occur and reconciling yourself with it).
It was argued on behalf of the applicant that he had a right to die with dignity, but the law didn’t allow it. “We are inclined to treat our animals better,” the advocate said, adding that people connected to life support, were in a better position. They could simply ask for it to be switched off.
While the respondents said they had sympathy with the applicant, he had no right to involve a third party – a doctor – to assist him. It was argued that he could commit suicide, as it was not against the law.
One of the biggest concerns was that if the order was granted, it would open the floodgates for others to follow.
It was said while this applicant had the means to turn to court, the poor did not, while the Constitution said all were equal before the law.
Other arguments included that it was a criminal offence to assist someone in dying, and the court could never order it to be legal.
Stransham-Ford was accused by some as being selfish, as he would not have to face the consequences after his death.
Judge Fabricius was told that this case couldn’t be compared to a life support machine being switched off, as in that case “nature would take its course.”
While the legal and moral aspects were debated for the bulk of the day, the judge time and again referred to the plight of Stransham-Ford and the immense pain he was suffering, asking whether this should simply be ignored.
Members of lobby group Dignity SA, meanwhile, protested outside court, showing their support for Stransham-Ford.