After the North Gauteng High Court ruled that (in precisely defined circumstances) a dying person is entitled to be assisted by a qualified medical doctor to end his or her life, the South African Medical Association (SAMA) warned that even if the law were to permit medical practitioners to help terminally ill patients end their lives, the ethical rules of the Health Professions Council of SA (HPCSA) do not allow this. This raises questions about the constitutionality of the ethical rules of the HPCSA.

Several years ago my father had a massive stroke while recuperating in hospital from an operation. His heart stopped beating for 15 minutes before he was revived and placed on life support in the intensive care unit of the hospital.

He had previously said – only half jokingly – that the day it became impossible for him to read the newspapers us children “would have to make a plan”. For him, being able to read the newspapers was the minimum requirement for living a dignified life, one that was worth living.

After three days of anguish it became evident to us, his family, that my father would never wake up from his coma. After consultation with doctors and among ourselves, all five siblings agreed to have the life support machines switched off.

When the doctors switched off those machines they took a decisive step to end his life. But for this act, he might have remained biologically alive for several weeks or even months. The doctors who gave the order to switch off the machines in effect killed my father, but in terms of our law and the ethical rules of the HPCSA they were entitled to do so. I will be eternally grateful for that.

This example (also alluded to by judge Fabricius in his judgment in the case of Stransham-Ford v Minister of Justice And Correctional Services and Others) illustrates the absurdity of the ethical rules on assisted dying currently enforced by the HPCSA.

Judge Fabricius noted that logically, where a doctor ends treatment for a dying patient, he or she is committing murder in terms of the principle of dolus eventualis – except that this kind of assisted dying has been ruled lawful by our courts and is thus not considered to amount to a crime:

“Where life sustaining or life prolonging treatment has been administered and is subsequently withdrawn, the act of withdrawal is nonetheless a commission – it remains an active and positive step taken by the medical staff directly causing the death of the patient (on a factual basis). It is accepted that such medical treatment may be refused from the outset by a terminally ill patient, in which the failure to render treatment would constitute an omission only on the part of the medical practitioner… there can be no distinction between active euthanasia and passive euthanasia in the circumstances where such argument is based on so-called ethical considerations.”

The HPCSA ethical rules require that doctors ignore the best interest, as well as the sincere wishes, of the dying patient suffering emotional and physical pain. The cynic in me wonders whether these rules are in place to protect doctors from the bad publicity that they fear will result from allowing doctors to assist patients to die with dignity. (What seems to make the ethical rules even more irrational is that doctors are allowed to end the life of a patient like my father who, for all they know, had no say in the matter and may not have wanted treatment to stop, while they are not allowed to assist a patient, capable of making the choice, to die with a dignity.)

The High Court judgment may well be appealed to the Constitutional Court.

As it stands it has the effect of developing the common law in an important and profound manner to bring it in conformity with the right of everyone to have their inherent dignity protected and respected (contained in section 10 of the Constitution) and the right of everyone to bodily and psychological integrity, which includes the right “to security in and control over their body” (protected by section 12(2)(b) of the Constitution).

Before the judgment was handed down a doctor (or any other person) who assisted a patient to die because the patient was suffering from emotional or physical agony and wished to end his or her life, would always have been guilty of either the common law crimes of murder or culpable homicide. The judgment develops the common law in that, in certain limited circumstances, it will now be lawful for a person to assist a dying patient to end his or her life.

I wonder whether concern about the status, image and even the profits of doctors or (as judge Fabricius argues) the sincerely held moral or religious convictions of a section of society, may have influenced the HPCSA stance on assisted dying. Whatever the reasons may be, the norms embodied in the Constitution (and not moral or religious views nor other concerns) must guide the development of the common law.

The ethical rules of the HPCSA must also comply with these constitutional norms. In as far as the ethical rules do not comply with the provisions of the Constitution they are invalid and of no legal effect.

Neither public opinion nor the beliefs of the majority of doctors who belong to the HPCSA is decisive in determining whether the rights of individuals should be protected. Public opinion or the moral beliefs of the majority is not decisive in determining whether an infringement of the rights of individuals is justified. As the late Chief Justice Arthur Chaskalson wrote in S vs Makwanyane:

“Public opinion may have some relevance to the enquiry but, in itself, it is no substitute for the duty vested in the Courts to interpret the Constitution and to uphold its provisions without fear or favour. If public opinion were to be decisive there would be no need for constitutional adjudication.”

Unlike the ethical rules of the HPCSA, the judgment is deeply concerned about the values enshrined in the Constitution and the need to respect the inherent human dignity of every person. This is so because the “recognition and protection of human dignity is the touch stone of the new political order and is fundamental to the new Constitution”. As the judge noted, although dignity is not easy to capture in precise terms:

“the concept requires us to acknowledge the value and worth of all individuals as members of society. It is the source of a person’s innate rights to freedom and to physical integrity, from which a number of other rights flow, such as the right to bodily integrity. It is my view also that persons must be regarded as recipients of rights and not objects of statutory mechanisms without any say in the matter.”

Of course, every person also enjoys the right to life. However, neither the Constitution nor other laws generally impose on individuals a duty to live; a person can waive his or her right to life if he or she wishes to do so. It is thus not a criminal offence in South Africa to attempt to commit suicide. Moreover, as Justice O’Reagan had pointed out in the death penalty judgment the right to life and the right to dignity are interrelated:

“the right to life was included in the Constitution not simply to enshrine the right to existence. It is not life as mere organic matter that the Constitution cherishes, but the right to human life: the right to share in the experience of humanity…. The Constitution seeks to establish a society where the individual value of each member of the community is recognised and treasured. The right to life is central to such a society. The right to life, thus understood, incorporates the right to dignity. So the rights to dignity and to life are intertwined. The right to life is more than existence, it is a right to be treated as a human being with dignity: without dignity, human life is substantially diminished. Without life, there cannot be dignity.”

The notion of dignity is also closely associated with the protection of the personal autonomy of individuals. Individuals who cannot make personal life choices because such choices are circumscribed by criminal law or because their life circumstances makes it difficult or impossible for them to do so, do not have their dignity fully respected.

Where the law interferes with the ability of individuals to make decisions concerning their bodily integrity and medical care it infringes on their liberty and dignity, leaving them to endure intolerable suffering, it impinges on their security of the person.

“The irony is… that we are told from childhood to take responsibility for our lives but when faced with death we are told we may not be responsible for our own passing… One can choose one’s education, one’s career, one can decide to get married, one can live according to a lifestyle of one’s choice, one can consent to medical treatment or one can refuse it, one can have children and one can abort children, one can practice birth control, and one can die on the battlefield for one’s country. But one cannot decide how to die.”

In any case, as the judge found, for many people there will be no dignity in:

“Having severe pain all over one’s body; being dulled with opioid medication; being unaware of your surroundings and loved ones; being confused and dissociative; being unable to care for one’s own hygiene; dying in a hospital or hospice away from the familiarity of one’s own home; dying, at any moment, in a dissociative state unaware of one’s loved ones being there to say good bye.”

It is important to note that the ruling does not force any person to end his or her life or to assist anyone else to do so. It remains a personal choice. The judgment thus confirms that the criminal law (or, I would add, the ethical rules of the HPCSA) cannot be used to enforce the moral, religious or ethical beliefs of some on everyone. However, this does not force those who hold such moral, religious or ethical beliefs to act in breach of their beliefs.

Moreover, if the Constitutional Court confirms the judgment it would be desirable for Parliament to pass legislation to establish a system with minimum safeguards in order to protect patients. In the absence of such legislation a patient would have to approach a court for permission.

Judge Fabricius emphasised that in the absence of legislation a court will “scrupulously scrutinise the facts before it, and will determine on a case-by-case basis, whether any safeguards against abuse are sufficient”. The court will have to decide on the facts of each case whether the necessary safeguards are in place before allowing a doctor to assist a patient to die with dignity. The judgment would therefore not have an “uncontrolled ‘ripple effect’” as some people have argued.

The judgment is ground-breaking because it once again affirms that in a constitutional democracy in which the value of dignity is fundamental, the human dignity and autonomy of some may not be sacrificed in order to enforce the narrow moral or religious beliefs of a certain section of society on the population as a whole. DM