Stirring the euthanasia pot

2016-12-06 15:50

Something more than a casual report in the papers needs to be said  on the PAS (physician assisted suicide) issue epitomised in the case where Robert Stransham-Ford, who was on his death bed at the end stage of cancer, sought a court order to order a doctor to inject him with lethal  drugs, so that he could die with human dignity and not in debilitating and excruciating pain associated with his irreversible medical condition.

If you missed the news on the radio or television you can read about the judgment  of the Supreme Court of Appeal that reversed the decision of the North Gauteng High Court granting  the appeal  against  what is phrased as "physician assisted suicide" aka euthanasia in common parlance. Read the judgment, hot off the bench, from It's cited as "Minister of Justice and Correctional Services and Others v Estate Late James Stransham-Ford and Others  [2016] ZASCA 197".

Please permit me to explain. There is a legal maxim "actio personalis moritur cum persona"  which means that a personal action dies with the person. So one of the reasons why the PAS appeal succeeded was because its originator  Advocate Robert Stransham-Ford had died an hour before the initial  order permitting euthanasia was granted.

It was a personal action. His estate had nothing  to benefit from  the outcome. The matter became moot.  As the Consitutional Court pointed out, almost a decade ago, in National Coalition for Gay and Lesbian Equality & Others v Minister of Home Affairs & Others that "a case is moot and therefore not justiciable if it no longer presents an existing or live controversy which should exist if the Court is to avoid giving advisory opinions on abstract propositions".

So at the time when the learned Judge Fabricius delivered the initial judgment  granting the order, there was no longer an existing controversy for him to pronounce upon. In short, the case was no longer justiciable. Another equally important reason why the SCA granted the appeal and reversing  the effects of the order was that,  given the scale and magnitude of the controversy and given the number of interested parties who applied to be and were joined in as amicus curiae (friends of the court) there was not enough  evidence and material  put before the court  to  make a decision that would  have impacted on the development of our common law which our courts are empowered to do so in terms of section 39 (2) of the Bill of Rights to our Constitution. My personal thoughts? Pity that Advocate Stransham-Ford  died killing the action with him. His  was an idea gestating in the womb of time but whose birth is going to happen. But not now or anytime soon unless we have someone who will see the controversy through.  We need to grasp the nettle especially at this path of our trajectory with so many magnificent and awesome developments in medicine that can prolong life and restore failing health. We cannot evade the issue of euthanasia any longer. Like in our fight against  HIV/Aids we need to engage all sectors of our society and crystallise a position. This is not about playing God or whatever but its about being able to openly debate and discuss on these issues.

That SCA judgment reads in my mind (and in my mind only) that the idea was still born and as exhilarating as it sounds  it would be a premature birth and it is mere empty speculation  to argue whether it will see the light of day fully formed. My point is that we need to know more  from enlightened and knowledgeable people from across the broad spectrum of the South African society. We have learned people whose input is imperative and who must be heard.

Did I hear you mutter under your breath that  the law  is an ass? Of course it is.

It is stubborn and it will only move if you use forceful energy, if you determined to see it move forward.

I learnt so much studying  and unpacking its 75 pages that I'm wiser and empowered enough to say, with confidence, now I know.

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AB praises selfless skipper

2010-11-21 18:15

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