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Respect for human dignity requires that any human being's autonomy should be properly recognised, says the writer. (iStock)
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The significance attached to self-determination, in particular the protection of personal individuality, identity and integrity in decisions regarding one's own life, imposes strict limits on the legislature, writes Serjeant at the Bar.
A recent decision of the German Constitutional Court on the controversial question of euthanasia has thrown our more conservative jurisprudence into sharp relief.
In 2016, the Supreme Court of Appeal (SCA) considered the case of Mr Robert Stransham Ford.
Mr Stransham Ford was dying of cancer and approached the High Court in Gauteng for an order that a medical practitioner could either end his life by administering a lethal substance or provide him with the lethal substance to enable him to administer it himself.
In either event, the medical practitioner, it was argued, could not be subjected to prosecution or to disciplinary steps by the relevant professional body.
In effect, he argued that the common law in relation to the crime of murder and culpable homicide should be developed in terms of s 39 (2) of the Constitution to permit this result.
He procured the order which he sought from Mr Justice Hans Fabricious and the matter then proceeded on appeal to the SCA.
Sadly, Mr Stransham Ford died before Fabricious J handed down his order.
Writing for the SCA, Judge Malcolm Wallis found that the order of the High Court stood to be set aside because there was no cause of action at the time the court made the order in that Mr Stransham Ford predeceased the grant of the order.
However, Judge Wallis went on to say that as a reported judgment had been delivered by the High Court, the SCA was required, at least to some extent, to address the merits of the judgment.
Judge Wallis found, in terms of existing law, that a medical practitioner who administers a lethal agent to a patient at the latter's request commits the crime of murder, notwithstanding that the circumstances of her act would materially affect the extent of the sentence imposed.
The question arose as to whether the law pertaining to physician assisted suicide (PAS) should now be altered.
In an extremely learned and careful judgment, Judge Wallis referred extensively to a decision of the Appellate Division in 1970 in the case of Grotjohn; in particular where Chief Justice Steyn said that "the conclusion can hardly be avoided but he who provides the desired or necessary means for an intended suicide has played a causative role therein if suicide is committed; and if he does that willingly and knowingly with the requisite intention of putting an end to the life of the person who wishes to commit suicide, he is guilty of murder even though the final act is performed by a non-criminal hand of the deceased because he (the accused) has then unlawfully and intentionally been complicit in ending the life of another". (translated from the Afrikaans)
Judge Wallis noted that in Grotjohn, the court did not decide that a criminal offence was committed whenever a person encourages, helps or enables someone to commit suicide or attempts to do so.
That conclusion will depend on the particular context of the case and, in particular, the question of intention, unlawfulness and causation.
In the view of Judge Wallis, if the common law was to be developed to sanction physician assisted suicide (PAS), it would have to decide the form of the development; that is whether to adopt a different approach to causation, intention or unlawfulness.
A further possibility of a special defence for medical practitioners would also have to be considered.
The SCA held that the facts surrounding the Stransham Ford matter were so unsuited to a consideration of these complex legal issues.
Significantly, after an impressive examination of the position in other countries, Judge Wallis stated:
"All the foreign jurisprudence to which I referred makes it clear that the State has a legitimate interest in imposing constraints on the application of PAE, PAS and other forms of adding and abetting suicide."
Towards the end of the judgment Judge Wallis said the following:
"A court addressing these issues needs to be aware of different cultural values and attitudes within our diverse population. It needs to consider the impact of its decision beyond our affluent suburbs into our crowded townships, our informal settlements and in the vast rural areas that make up South Africa…
"The notion of a dignified death must be informed by a rounded view of society, not confined to a restricted section of it. This was not done in this case and could not have been done because of inadequacies of the evidence and haste with which it was decided."
The judge noted that Parliament may well be the appropriate forum to deal with this fraught issue which could then be properly debated in public and an adequate process of reflection could take place.
The approach adopted by Judge Wallis was justified on the facts; the haste in which the litigation was brought and the inadequacy of the record.
However, the recent decision of the German Constitutional Court should give us pause as to what an adequate constitutional response should be to this difficult question.
Declaring that the criminalisation of the assisted suicide was unconstitutional, the German Constitutional Court relied on a general right of personality read together with Article 1 (1) of the Basic Law which encompasses a right to a self-determined death.
This right, in the view of the Court, includes the freedom to take one's own life and, as the case may be, to resort to assistance provided voluntarily by third parties for this purpose.
In the exercise of this right, an individual decides to end his or her own life having reached a decision based on how he or she personally defines the quality of life and a meaningful existence.
In contrast to the SCA, the court held that every personal decision should be respected by the State and society as an act of an autonomous self-determination.
Respect for human dignity requires that any human being's autonomy should be properly recognised.
Significantly, the Court went on to hold that an individual’s decision to end her own life based on how she personally defines the quality of life and meaningful existence alludes any objective evaluation on the basis of general values, religious dogma, societal norms for dealing with life or death or other considerations for objective rationality.
It is not incumbent upon that individual to further explain or justify her decision.
Rather her decision must be respected by the State and society as her own act and own exercise of her personal autonomy.
Dealing with the question as to whether the exercise of that right should be limited by legislation, the Court held that a law restricting fundamental rights only satisfies a standard of proportionality, when the law has a legitimate purpose, is suitable and necessary for achieving that objective and strikes an appropriate balance between the defined purpose pursued and the restrictions of the right.
The Court held that, where the legislature’s decision involves serious interference with fundamental rights, it is subject to a strict standard of review.
The significance attached to self-determination, in particular the protection of personal individuality, identity and integrity in decisions regarding one's own life, imposes strict limits on the legislature.
In this case it exceeded its powers by passing a law criminalising assisted suicide.
While the court held that there could never be an obligation on any person to assist in another person’s suicide, the law which criminalised voluntary assistance could not stand constitutional scrutiny.
This judgment stands in stark contrast to the approach adopted by the SCA, notwithstanding the latter’s careful insistence that this was not an appropriate case.
It eschews the idea of the notion that the State is justified in interfering in such a personal choice.
It places the individual’s personal right of self-determination as central to the requisite analysis.
It is to be hoped that, if another case is brought on a more detailed factual matrix in this country, this decision will hold sway in the development of our own common law.
It is an approach which comports with the ideal of transformative jurisprudence.
- Serjeant at the Bar is a senior legal practitioner with a special interest in constitutional law.
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