Legalising the right to end a life

2011-05-10 00:00

ON March 1 this year, the right-to-die activist, Nan Maitland (84), who was suffering from arthritis, ended her life by seeking physician-assisted suicide in Switzerland, where euthanasia in this form is legal. She travelled from England to Switzerland for this.

So far, jurisdictions that have legalised physician-assisted suicide have done so with the particular stipulation that the person who is seeking to terminate his or her life be a sufferer of an illness which is terminal. What makes Maitland's euthanasia particularly controversial is that her illness, although painful and debilitating, was not terminal.

Preservation of life is perhaps humankind's most basic instinct. The hallmark of modern civilisation upholds this practice in acknowledging the right to life. In short, humankind is preoccupied with the sanctity of life. However, as civilisation has evolved, the goal of mere preservation of life has now become preservation of the quality of life. Euthanasia activists thus argue that what needs to be acknowledged is the right to die. At the heart of the debate lies the issue of an individual's autonomy and one's capacity to make decisions for one's self, in full appreciation of the consequences thereof, without fear of sanction from the state. In the euthanasia context, this would mean seeking out a humane and painless means to end one's suffering.

Some states in the United States have legislation which legalises physician-assisted suicide (PAS). This is the situation where someone who is terminally ill seeks assistance from a medical practitioner to end his or her life. There are several criteria that must be fulfilled before a person qualifies for such assistance, and even if he or she qualifies, the termination of his or her life ultimately rests in his or her hands — figuratively and literally. To qualify for PAS, the patient must be suffering from a terminal illness, must be in the last six months of his or her life, the diagnosis must be confirmed by a second opinion, and he or she must make the request both orally and in writing, and within certain time frames. Once these have been fulfilled and a committee deems that the patient is a candidate for PAS, the doctor writes out a prescription for medication which will bring the patient's life to an end. Once this is done, the doctor is no longer in the picture, and as long as he or she has followed the requirements set out in the law, he or she will not be guilty of committing any crime. At this point, the choice to take the medication and end his or her life ultimately rests with the patient.

In South Africa, this is not legal, and the doctor who assists in this fashion will be criminally charged with murder. Passive euthanasia is, however, practised here. This is the act of hastening the death of a terminally ill patient by altering some form of support and letting nature take its course. It can involve turning off respirators, halting medications or discontinuing food and water so the patient dies because of dehydration or starvation.

Strong arguments have been made for the legalisation of PAS, as it certainly is a more humane manner of ending suffering as opposed to dying of starvation. Our courts, however, still view assisted suicide as a criminal offence, and the person rendering such assistance will be found guilty of murder. However, the courts have sent conflicting messages when it comes to the sentencing of such individuals. The individuals are found guilty of murder, but receive suspended sentences. In the case of the State versus Hartmann, a son (a medical doctor) gave his father a lethal dose of morphine to end his life. He was found guilty of murder, but due to the extenuating circumstances, his sentence was entirely suspended. He also lost his medical licence, but this was later reinstated.

The lesson learnt here appears to be that although the courts uphold the letter of the law in finding the person guilty, they show and exercise mercy and compassion when it comes to sentencing. This should be a strong indicator to the legislature that there needs to be reform in the law when it comes to the question of euthanasia.

• Suhayfa Bhamjee is a senior lecturer in the faculty of law at the University of KwaZulu-Natal. She also lectures in the school of psychology.

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