As the country’s landmark euthanasia case heads to the appeal court, lawyers argue that keeping the practice illegal could violate the Bill of Rights.
Refusing a terminally ill patient the right to die should be considered state-sanctioned torture, says the head of the University of the Witwatersrand’s Centre for Applied Legal Studies.
Centre director Bonita Meyersfeld explains: “To be tortured by a state official, there must be an action. But there are other forms of torture, including locking up someone in a room and keeping the completely isolated. The same happens when we deny people a right to die.”
Meyersfeld says that denying people the right to die may be a violation of Bill of Rights provisions that protect people from being subjected to torture or cruel and inhumane treatment. The centre will argue this in front of the Supreme Court of Appeal in Bloemfontein on Friday.
The centre will provide additional evidence as a friend of the court as the government appeals a previous Johannesburg high court judgment in favour of the right to die.
“One of the arguments that we have put forward to the court is the similarity in being tortured by a state official and being tortured because you cannot end your life,” Meyersfeld says.
In April 2015, terminally ill cancer patient Robert Stransham-Ford applied to the Johannesburg high court for permission to enlist a willing doctor to help him end his life. The court ruled in Stransham-Ford’s favour and said that such a doctor would not face criminal prosecution. But Stransham-Ford died just hours before the landmark judgment was made.
The ministers of justice and correctional services, as well as the director of public prosecutions and the Health Professions Council of South Africa, have appealed the high court ruling. At the moment, assisted suicide is criminalised in South Africa. Medical professionals who help someone to end their life face prosecution and disciplinary hearings.
But Liz Gwyther, chief executive of the Hospice Palliative Care Association, says legalising euthanasia could put many vulnerable people at risk. She says it may be abused by people who are legal guardians of elderly, disabled or seriously ill patients and who may take it upon themselves to decide what kind of life is a life worth living.
“The elderly, people living with disabilities and people who have serious illnesses are vulnerable because other people [may] look at their lives and think [they have] a poor quality of life,” she says.
Gwyther says recently disabled people may rush to seek assisted suicide as they adjust to a new way of life.
“Many people who have recently become disabled will initially not want to live with their disability and may choose assisted suicide instead. It takes them a long time to come to terms with their disability and discover that they do have a good quality of life, even with their disability.”
She argues that instead of legalising the right to die, the country should look at expanding access to palliative care that may relieve the physical, spiritual or emotional suffering that can fuel people’s desire to die.
“Less than 20% of people in South Africa have access to palliative care, so it is important that the health department is developing a policy framework for palliative care that will make it accessible to everybody,” she says.
But Meyersfeld argues that terminally ill patients ultimately deserve the right to choose life or death: “We are saying that palliative care should work together with assisted suicide, and that terminally ill patients must be afforded this right to choose.”