Pretoria - The controversial issue of physician-assisted suicide and euthanasia for terminally ill patients will once again come under the spotlight later this month in court.
This time around, a doctor as well as her patient will ask the court to develop the common law to allow for these processes. Suzanne Walter, 47, a palliative care specialist, and her 71-year-old patient, Diethelm Harck, both from Johannesburg, will turn to the high court in Johannesburg for an order directing the government to enact legislation which would allow for physician-assisted suicide and euthanasia.
In papers issued at court, it is stated that both Walter and Harck had been diagnosed with terminal diseases and that they wished to end their lives when the time came.
Walter was diagnosed in 2017 with multiple myeloma, while Harck was diagnosed in 2013 with motor neuron disease. They stated in court papers that due to their terminally ill status, both of them are suffering from a lot of pain and disability, including difficulty to swallow and paralysis.
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These, they said, were intolerable and debilitating, which hindered them from carrying out their daily lives in a dignified manner. They point out that in terms of the common law it was not a criminal act to commit suicide.
They said it was also not unlawful for a doctor to prescribe medicine to patients who so wish, which would end their lives, as long as the patient administered it themselves.
But, as the law stands, it is unlawful for a physician to administer any lethal medication to a patient themselves. Walter and Harck said this is in spite of both of them wanting this when the time comes, and they may not be able to swallow medication themselves due to their conditions.
As things now stand, any doctor who assists a patient him- or herself to commit suicide, faces being struck from the medical roll by the Health Professions Council of South Africa (HPCSA).
Walter said physicians, especially she, who would otherwise be willing to assist patients in assisted suicide, were barred from doing to in terms of the HPCSA rules and the law.
She said both she and Harck understand that there were treatments for their intolerable symptoms, but they want to decide for themselves whether they want to submit to these treatments or whether they want to undergo physician-assisted suicide and euthanasia.
They said their right to choose this was enshrined in the Constitution, but the common law forbids them at this stage from doing so. The difference in treatment to persons entitled to passive physician-assisted dying and persons not entitled to physician-assisted dying amounts to discrimination and is unfair.
They said people such as them will, due to their symptoms, be unable to administer medication themselves or to commit suicide. According to them their right to dignity, as enshrined in the Constitution, is being taken away from them as they cannot decide for themselves about the time and manner of death.
They said the right to life includes the right to die with dignity, which in turn included the right to choose to die by way of physician-assisted suicide and euthanasia.
Apart from asking that the common law be developed to allow for this, the pair are also asking permission that a willing physician may prescribe the necessary medication to both of them and administer it, if they wanted it.
The HPCSA, in its opposing papers, denied that assisted suicide was the only option open for Walters and Harck, and said their suffering could be alleviated by other means. It also denies that it was at this stage lawful for a doctor to prescribe lethal medication to a patient where it was foreseen that the patient wanted to commit suicide.
According to the HPCSA, doctors who take the oath and prescribe to the medical code of conduct should not be willing to kill their patients. They said it was a patient’s choice not to be further treated, but there is no choice in being actively assisted in dying.
The Centre for Applied Legal Studies will join the proceedings as a friend of the court. Sheena Swemmer, an attorney at the centre, said in an affidavit that they would present expert evidence to the court in order for it to make an informed decision. She said while they respected all life, they would argue that a right to a physician-assisted death did not diminish a person's life or dignity. The organisation will argue that respect for the autonomy of persons requires the law to give effect (within prescribed parameters) to a person’s informed choice in dying.