Assisted death will lead to prosecution, court hears

2015-04-29 15:09
Dignity SA member Patsy Schonegevel stands outside the North Gauteng High Court holding a picture of her son Craig. (Thomas Hartleb, News24)

Dignity SA member Patsy Schonegevel stands outside the North Gauteng High Court holding a picture of her son Craig. (Thomas Hartleb, News24)

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Ambrosini's death highlights assisted dying debate

2014-08-21 08:21

After it was announced IFP MP Mario Oriani-Ambrosini took his own life, issues around assisted dying are being debated in South Africa. Dignity SA's Helena Dolny answered our questions. Watch.WATCH

Pretoria - If a bid by a dying man to have a doctor end his life is granted by a court, it will expose that person to prosecution, the High Court in Pretoria heard on Wednesday.

“He does have the right to end his life, but without bringing other persons into the picture. Those persons will have to be criminally liable,” Lesego Montsho, for the justice ministry, argued before Judge Hans Fabricius.

Robin Stransham-Ford, 65, a former advocate, is dying of prostate cancer and wants the court to declare it legal for a doctor to help him end his life. Dignity SA is supporting his application.

Fabricius rejected Montsho’s submission that Stransham-Ford was asking the court to assume the legislative functions of Parliament. He stressed that his role was to develop the common law on a case-by-case basis.

The justice ministry, Doctors for Life, Cause for Justice, and the Health Professions Council of SA (HPCSA) are opposing Stransham-Ford’s application, which Fabricius earlier ruled was urgent.

A ‘real issue for medical profession’

Harry van Bergen, for the HPCSA, argued that the matter remained a hypothetical, academic
exercise, as Stransham-Ford had not indicated in his papers how he wanted to die, and if it was going to be humane, or efficacious.

“While this is a moral and philosophical matter, for the medical profession it is a real issue, because they will be asked to perform a task,” Van Bergen said.

Fabricius, who frequently interjected in each of the applicants’ submissions, argued that each doctor could decide if they wanted to help someone die.

Before Adrian D’Oliveira, for Doctors for Life, began his submissions, Fabricius remarked that the organisation had made “some startling submissions”, regarding the incompetency of the court to deal with the matter. He did not explain.

One of D’Oliveira’s submissions centred on Stransham-Ford’s wanting to involve a doctor in his death.

“The applicant has not stated in papers that he is incapable of taking his life on his own and that he needs the assistance of a medical practitioner. It is not a crime to commit suicide.”

No clarity on manner of death

He referred to the case as a “constitutional nettle” which the court did not have to deal with.

“The right to die is beyond the scope of the right to dignity, read with the right to life, in the Constitution.”

Greta Engelbrecht, for Cause for Justice, said there was no clarity on how Stransham-Ford wanted to die.

“What if the process, in which this lethal aid is administered, is not dignified? Do we know anything about what will happen?”

She too expressed concern about a third party becoming involved.

“Mr Stransham-Ford is not the one that will face the consequences. He does not need the assistance of the court. It is the person who administers the lethal aid who will be the subject of prosecution,” she said.

‘Animals have better rights’

Fabricius asked her if the court could not declare certain conduct not unlawful.

"Your Lordship in a sense has to fetter the discretion of the NPA [to prosecute]," Engelbrecht countered.

Earlier HB Marais, for Stransham-Ford, argued that animals received better treatment than humans.

“We pride ourselves that we have this advanced Bill of Rights... but we want to remain in the dark ages,” he said.

Fabricius agreed, saying:  “Even a high-class racehorse worth millions of dollars is shot if it breaks a leg.”

Read more on:    pretoria  |  health and safety

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