Pretoria - The Pretoria High Court is to hear how assisted death or euthanasia may be abused by “compelling vulnerable, ill patients”.
This is one of the arguments due to be presented in opposition to the highly contentious issue of assisted suicide. The matter will be heard on Tuesday in the high court.
Various organs of government - the ministers of Justice and Health, the National Prosecuting Authority as well as the Health Professions Council of South Africa (HPCSA) - will ask Judge Hans Fabricius for leave to appeal against his April judgment on assisted suicide.
In a case in April, which made headlines and opened widespread debate, Judge Fabricius granted the death wish of advocate Robin Stransham-Ford to have a doctor assist him in dying without fear of prosecution.
Stransham-Ford, 65, was terminally ill with cancer. However, he died about two hours before the judgment, never getting the chance to benefit from the order.
The judgment only pertained to him, but paved the way for others in a similar position to approach the courts.
Counsel for the government asked the judge to withdraw his order, saying the point had become moot as Stransham-Ford had died, but the judge turned this down, saying the matter was in the public interest. He said his order had established a cause of action by developing the common law and it was perhaps time the Constitutional Court had a closer look at the subject.
While Judge Fabricius will hear legal arguments on Tuesday regarding leave to appeal against his judgment, he earlier indicated he would in all probability allow it.
Stating reasons for wanting to appeal, the government said this matter should never have been heard as a matter of urgency, as the subject was far too important and vast, and all the factors should have been properly ventilated with all interested parties giving their input. It was not desirable that issues of such importance and complexity be decided on in haste.
All the applicants believe Judge Fabricius erred in several aspects of his judgment. They said he should not have found that a willing doctor was allowed to assist Stransham-Ford in committing suicide.
The judge found that it was Stransham-Ford’s constitutional right to die with dignity. But it will be argued that conditions such as dementia and immobility will become a reality for many people as it is an inevitable part of mental and bodily decay.
“The process of dying does not constitute an insult on human dignity,” it is stated in the application.
According to the argument, neither human dignity nor bodily integrity are enhanced by ending the life of the sufferer.
The applicants said the court erred in granting Stransham-Ford an order affording protection of his dignity and right to bodily integrity, while conditions in the country deny similar protection to the greater population, who cannot afford to turn to court. The argument forwarded is that if assisted suicide is a constitutional right, then every one in the country must be able to enjoy it.
Furthering the argument, the applicants said medical conditions such as HIV and the high incidence of trauma have reached epidemic proportions which have relegated end-of-life ethics to the back seat.
The parties said the court should have found that South Africa is not a safe and appropriate place for liberalised, voluntary euthanasia. Only as a last recourse could it be justified in a country with the best medical care and support system for all. With severe health care constraints in South Africa, there is the risk of euthanasia becoming a substitute for proper care for the terminally ill.
The HPCSA advanced the argument that a terminally ill patient can still have quality of life, as hospice doctors and staff know how to care for them and with modern medicine, pain could be managed.
Pretoria News