High Court decision 'wrong' in right-to-die order - SCA
6 December 2016
Cape Town – The Supreme Court of Appeal on Tuesday found it was wrong for a high court to issue an order allowing a terminally ill cancer patient to commit suicide with a doctor’s help.
"It was wrong to hold that the common law crimes of murder and culpable homicide needed to be or should be developed to accommodate PAE [physician-assisted euthanasia] and PAS [physician-assisted suicide]," the written judgment stated.
It found the court did not fully consider the principles and ambit of changing common law to encompass consent as a defence to a charge of murder.
The court believed it was desirable for issues that raised "profound moral questions" to be decided by representatives of the country’s citizens as a whole.
"It is of course possible that Parliament will, as has occurred in other countries, intervene and pass legislation on the topic."
The court would welcome such a move in the light of separation of powers.
Right to commit suicide
On April 30 last year, the High Court in Pretoria ruled that terminally-ill Cape Town advocate Robin Stransham-Ford, 65, had the right to commit suicide with a doctor’s help.
Judge Hans Fabricius said at the time: "The applicant is entitled to be assisted by a medical practitioner either by the administration of a lethal agent or by providing the applicant with the necessary lethal agent to administer himself."
He was of the view that the Constitutional Court and Parliament should reconsider the issue of legalising assisted suicide.
Stransham-Ford died two hours before the order was granted, as a result of his cancer.
The SCA upheld an appeal by the ministers of justice and health, the National Director of Public Prosecutions, and the Health Professions Council of SA.
It found that the lower court’s order was tailored to deal only with Stransham-Ford’s case. When he died, the relief was no longer necessary.
Proper regulatory framework
It said there was evidence to suggest he had changed his mind about wanting an assisted death.
The high court judge was not told about the change in his condition or his doubts.
According to the SCA, the high court’s notion of a dignified death was not informed by a rounded view of society.
"It [a court] 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."
Should assisted suicide ever be allowed in the country, there would need to be a proper regulatory framework.
Dignity SA, the organisation which helped Stransham-Ford bring his application to the high court, extended its love and thoughts to his family on Tuesday.
This article first appeared on News24, see here.
