During the tragically long dying of Nelson Mandela, some of us questioned whether he was perhaps being kept alive (or, rather, whether his dying was being prolonged) for political and other reasons, rather than with due attention to his own best interests.
This was especially poignant as it was President Mandela himself who wisely instructed the South African Law Commission (SALC) to produce a report and draft a law on this matter, back in 1997. They worked hard and produced what would at least have stimulated necessary debate and could have led to necessary legal change.
Read: Mandela and the Old Man's Friend
However, Manto Tshabalala-Msimang, a dreadful Minister of Health prevented that by ignoring and burying the report for a decade and never referring the submissions to a parliamentary committee. She was quoted as considering the matter an irrelevant issue of the “wealthy’s medicine” rather like liver transplants, perhaps?
There’s an urgent need for open, widespread debate on many issues: how the law might usefully, with proper safeguards, provide for euthanasia; how proper pain and symptom control should be available for everyone, even if at times it might shorten life; withholding and withdrawing life-sustaining treatments; living wills; and the often ignored issue of non-voluntary euthanasia. With all of these questions in mind, the SALC report should be released for discussion with broad public participation.
Our Constitution includes the right to have control over our own body but there has been no proper consideration of what this actually means and how we are to be enabled to exercise that right, especially when disease and physical damage make it impossible for us to do so independently.
This week’s revelation that Health24’s own Cyberdoc, Dr Anrich Burger, may have died from a form of euthanasia has re-opened the discussion. The issue is usually assumed to be about terminal cancer, yet that is often not the most challenging situation.
Proper palliative care can to a large extent relieve cancer symptoms, awful though they can be (if the health care system bothers to make such care available) and the individual usually retains an ability to end their own life, should they choose to do so, for longer than in many other conditions.
As Dr Burger’s story reminds us, people with many serious neurological conditions may both suffer pain that is much harder to control and be physically unable to do whatever they wish for themselves. In dementia, the person may be suffering but unable to express this or to request help and their request would probably not be considered legally valid.
Read: Nightmares tied to suicide
It is not at all unusual that in such situations doctors take it upon themselves, having discussed it with their patient, to concentrate on relieving their pain and other symptoms regardless of whether the drugs and doses needed might actually shorten the life of the patient. This is done quietly, without fanfare and without the degree of self-publicity Prof. Davison seems to have sought and to which a patient might not have consented.
When life becomes subsumed by unrelieved suffering, physical, psychological and often spiritual, one needs to be clear whether one is usefully prolonging life rather than just postponing death. We need more humane policy and practice available to all, not a South African Dr. Kevorkian.
Watch Prof. Davison argue for people's right to die
Occasionally terribly tragic cases are reported such as that of Craig Schonegevel, 28 and suffering from severe neurofibromatosis, who wanted to end a life he found utterly miserable. Because he found no doctor willing to help him, Craig took sleeping pills and pulled plastic bags over his head to achieve the same end.
It seems very possible that charges may, in due course, be laid against someone in regard to the death of Dr Burger. Assisted Suicide, as well as Euthanasia, is not in any way legal at present. Even friends and colleagues of the good doctor were not aware that his death was in any way unnatural, and nothing more would have been heard about it had Prof. Davison not chosen to speak about it at an international meeting in Chicago.
This, presumably deliberately, makes it difficult for the authorities to ignore the matter without proper investigation and, if appropriate, a court case to clarify the legal issues. Not to do so could encourage others to hasten the death of people who might be unwilling or coerced into accepting it.
Prof. Davison is not a medical doctor and so could not himself write a prescription, but even a layman has legal responsibilities when present at a suicide.
There have been two previous landmark South African cases, and I’m surprised to realise that, as well as knowing Dr Burger as a colleague, I was slightly involved in both of them.
Fred Clarke and the Living Will
The first right to die case to reach a high court in SA was about another friend and colleague I knew when working in Durban. Dr Fred Clarke was a well-known and liked doctor and politician in Natal.
In July 1988, he underwent treatment including an epidural anaesthetic, his blood pressure dropped suddenly and he went into cardiac arrest. His breathing and heart stopped. By the time he was resuscitated there had been irreversible major brain damage due to oxygen deprivation and he was in a permanent coma.
Three years later, his wife applied to court to appoint her as curatrix of her husband, specifically with the power to authorise the withdrawal of any medical treatment including naso-gastric feeding. The Attorney-General opposed this, saying this would hasten Dr Clarke’s death and as she could expect death as a probable result, she would be liable for murdering him.
His doctors were sure his condition was irreversible and he had lost much of his brain. He had no ability to think or feel or move, or even to swallow. Essentially, everything that had made him Fred Clarke was already dead, but his autonomic system was barely damaged, and as a result his breathing, kidneys, heart and lungs were working fine. While socially and spiritually dead, he was still legally alive.
Read: CyberDoc asked professor to help him die
He was a member of SAVES (the SA Voluntary Euthanasia Society, later the Living Will Society, and had signed a Living Will, a procedure still not properly recognized by S.A. Law. We had both spoken at meetings of the Society, and he had said eloquently in 1983 that the public needed to know that should they “by a stroke of misfortune, become cabbages” or suffer intractable pain, the medical team would not prolong their misery.
The court found this statement confirmed that he held a firm and informed belief that should he end up in this situation he would want to be allowed to die without any artificial means being used to support life, but it refused to recognize the Living Will he had signed.
Before the brain damage he had the right to refuse any treatment offered, even if that would lead to his death but once brain dead his previously clear instruction that treatment should be withdrawn in precisely this situation, was to be ignored.
The court said a curator is obliged to act in the person’s best interests, not necessarily in line with the patient’s wishes. It added: “in our law a person who assists another to commit suicide may, depending on the circumstances of the particular case, be guilty of murder or culpable homicide….”
Then it focussed specifically on whether stopping naso-gastric feeding, which would indeed lead to his death, would be wrongful. It accepted that the quality of life should be a determining factor. Doctors and family should be consulted but cannot decide on the death of the individual. “The hastening of a person’s death is ordinarily not justified and is therefore wrongful even when the person is terminally ill and suffering from unbearable pain… This is, however, no absolute rule. It has come to be accepted that the doctor may give a terminally ill patient drugs with the object of relieving his pain, even if, to the doctor’s knowledge, the drugs will certainly shorten the patient’s life….”
Then, curiously, the court decided that “in the present case the artificial feeding does not have any such significance at all for the simple reason that the patient is quite unaware of it and would be equally unaware of it if it is withheld.“ So, the feeding of the patient did not serve the purpose of supporting human life as it is commonly known, and Mrs Clark would be reasonable and justified in stopping the artificial feeding, without wrongfulness.
So this treatment was stopped, Fred was taken home to be cared for, and died (or, actually, finished dying) not long afterwards.
His case valuably clarified some legal issues about ending treatments that are in no way curative, but help to sustain life of a sort, especially when a patient is in a persistent vegetative state, but refused to even consider a Living Will as valid or to allow any positive action that would directly lead to death.
The Hartmann case: compassion and vengeance.
Earlier, in a case I have written about separately the Courts and some doctors showed compassion almost as great as that of the good doctor, but he was persecuted with great cruelty by other doctors, and eventually ruined.
Briefly, in 1975, Dr Alby Desmond Hartmann was caring for his father who was dying in horrible pain of untreatable prostate cancer and his son believed he had asked for his suffering to be ended. He gave his father analgesics such as Morphine and a powerful sedative, Pentothal, and the old man died peacefully and free of pain. The son was then charged with murder.
Read: The tragic case of Dr. Hartmann
In law, the court was bound to find him guilty of murder, though it recognized that his motive was purely compassion and not specifically to end his father’s life. But he knew this would be the result of his actions, and thus (in one of those phrases the Pistorius case has taught us) he had dolus directus, and so the verdict was murder. Consent of the deceased is not a defence to murder, and the father had not been fit to consent anyway.
This was found to be a significant mitigating factor and so he was sentenced to 1 year in prison, but to be detained only until the court adjourned (in effect a couple of minutes) and the rest of the sentence was suspended. The judge said "this is a case, if ever there was one, in which, without having to be unfair to society, full measure can be given to the element of mercy."
Read: What happens when you die?
Dr Hartman moved from Ceres to Montagu and set up a popular practice there. The Disciplinary Committee of the Medical Council also showed admirable mercy, and sentenced him to be suspended from medical practice for a year but suspended that sentence for a year.
However, powerful and unpleasant senior doctors in the Medical Council were determined to exact vengeance and, uniquely, a secret meeting of the whole Council was called which threw out its own Disciplinary Committee’s decision, and, refusing to give any reasons, removed him from the Medical Register indefinitely. These are the same fine gentlemen who never ever found any ethical problem with apartheid medicine.
All appeals were rejected and Hartman was unable to get any other work, and had to become an insurance salesman. Not long afterwards I was principal speaker at the first African conference on Death & Dying at Wits, and took part in a discussion along with Marius Barnard (Chris’s brother) and Prof Snyman, the icy head of the Medical Council. This nasty man was furious when we severely criticized the action of his Council, to thunderous applause from the large audience of professionals and students, and stalked out in a huff.
I‘ve tried hard to find out what happened to the kindly and sad Dr Hartman afterwards, and can find hardly a trace through internet searching. There’s an obscure reference to him in the Namibian Government Gazette in 2001, apparently in Swakopmund, but I have no idea what it is about. Does anyone among our readers know what happened to him and how his story ended, or perhaps where he is now?
Religious support tied to intensive end-of-life care
Brain-dead woman gives birth
Should we allow euthansia?