‘Why I ruled in favour of assisted death’

A file photo of a poster of Cape Town advocate Robin Stransham-Ford outside the Pretoria High Court. Pretoria Judge Hans Fabricius on Tuesday granted the government leave to appeal his earlier ruling in which he gave Stransham-Ford permission to have a doctor assist him in dying.

A file photo of a poster of Cape Town advocate Robin Stransham-Ford outside the Pretoria High Court. Pretoria Judge Hans Fabricius on Tuesday granted the government leave to appeal his earlier ruling in which he gave Stransham-Ford permission to have a doctor assist him in dying.

Published May 5, 2015

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Pretoria - The Constitutional Court is expected to have the last word on the legal position of assisted death in the country.

This became clear as Pretoria High Court Judge Hans Fabricius on Monday refused an application by the government to rescind his order granting Cape Town advocate Robin Stransham-Ford his last wish – to be assisted in dying by a doctor.

This order came about two hours after Stransham-Ford died at about 8am on Thursday and the 65-year-old terminally ill cancer patient never got to know about his legal victory.

Counsel representing the State on Monday asked Judge Fabricius to withdraw his order, saying that the order was moot in light of Stransham-Ford’s death. It was said he no longer benefited from the order.

Turning down the request, Judge Fabricius said that neither he, nor any of the counsel knew that morning that the applicant had already died. He said although his order specifically related to Stransham-Ford, the topic of assisted death was in the public interest.

He said his order had established a cause of action by developing the common law.

It not only paved the way for others in the same position to approach a court on own merits, but it also paved the way for the legislature to look into this topic in future.

The judge said the Constitutional Court was best equipped to decide on whether the issue was moot or not. It will probably also look into the matter on appeal.

While the government is expected to apply for leave to appeal against the judgment on June 2, Judge Fabricius indicated that he would, in all probability, allow this.

In a 56-page judgment delivered on Monday, he made it clear that it was time that the topic of assisted death be canvassed by the Constitutional Court and the government.

He said at least eight judges would have the opportunity to fully consider all the aspects.

The ideal, he said, would be if the legislature considered the topic and then initiated a bill which could be subject to the scrutiny of the courts.

In 1998, the SA Law Commission compiled a report on euthanasia and the artificial preservation of life, but it did not receive the attention of the government as there were more pressing matters at hand. Judge Fabricius said it was now 16 years later and in his opinion, serious consideration should be given to this topic. “It certainly deserves broad discussion, especially in the context of the Bill of Rights,” he said. In his ground-breaking judgment which will serve as case law, Judge Fabricius said a person had a number of rights, such as the right to bodily integrity.

“Persons must be regarded as recipients of rights and not objects of statutory mechanisms without any say in the matter.”

The judge questioned that while a person may not be actively killed, life sustaining treatment may be withdrawn, even if this causes the patient to die of natural causes.

“Is this not a good example of dolus eventualis (where a person acts with intention and reconciled himself with the eventuality of death).

Injecting a strong dose of morphine to relieve pain, knowing death could result, had the same consequence, he said.

He quoted case law where it was said: “The right to life is more than existence, it is a right to be treated as a human being with dignity. Without dignity human life is substantially diminished. Without life, there cannot be dignity.”

The judge endorsed these views.

He also agreed with the argument advanced by the applicant that it was a fundamental human right to be able to die with dignity, which the courts are obliged in terms of the Constitution to advance and respect.

The judge said the State seemed to tolerate the thousands dying on the roads, dying of Aids, of hunger and of impure water.

It says it cannot fulfil all socio-economic demands, yet it assumes the power to tell an educated individual of sound mind who is gravely ill and about to die, that he must suffer the indignity of the severe pain and cannot die with the assistance of a doctor.

The judge said he was “almost shocked” by the contention of a minister that the manner of death as outlined by the applicant, was not dignified.

“I could not help wondering whether the deponent to this affidavit had ever visited a cancer patient who was in a terminal stage.”

Pretoria News

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