Mr Stransham-Ford, who was diagnosed with cancer in February 2013, contended that his quality of life had deteriorated markedly due to his illness. He asserted that he had been examined by both a specialist urologist and a general practitioner who had confirmed the diagnosis and prognosis – that he was terminally ill with no possibility of recovery and a very limited life expectancy. He further stated that he had undergone various treatments and used various medicines to no avail. Accordingly, Mr Stransham-Ford contended that assisted suicide was the only manner in which he could avoid his eventual unbearable excruciating suffering and prevent the pending unbearable undignified suffering that would certainly occur.
Mr Stransham-Ford hence approached the Court with several legal questions: First, if conceivable that the health of a person may deteriorate to a level where he would be justified in wishing to take his own life, ought the sufferer be permitted to take his own life? And, secondly, should another person be allowed to assist the sufferer to end his life, may this person be a medical practitioner, and what safeguards were in place? He relied primarily on sections 1, 7, 8, 10, and 12 of the Constitution in support of his application. These sections pertain to dignity as one of the founding values and fundamental rights enshrined in the Constitution; the State’s obligation to respect, protect, promote and fulfil the Bill of Rights; the imperative to develop the common law where necessary; and the right to freedom and security of the person.
In opposing his application, the Department of Justice and Correctional Services (the Department) stated that any medical doctor providing the assistance sought would be criminally liable, and that the applicant’s right to dignity was not at question. In turn, the Health Professionals Council of South Africa also opposed the application on the basis that the question before the Court was not a matter of dignity and that the applicant could consider other options in the context of palliative care. The National Prosecuting Authority (NPA), for its part in opposing the application, merely stated that assisted suicide was a criminal offence. Doctors for Life and Cause for Justice were both admitted to the case as amici curiae and argued that that the applicant had merely expressed his subjective views in relation to the right to dignity and his medical condition, whereas the Constitution had to be interpreted in an objective manner.
Considering that the legal position, as it was, provided that assisted suicide – or active voluntary euthanasia – was unlawful, the Court had to test the common law position against the Constitution. Relying on section 39 of the Constitution (which provides that when interpreting the Bill of Rights, courts, tribunals or other forums must, in order to give effect to a right in the Bill of Rights, if necessary, develop the common law to the extent that legislation does not give effect to that right), the Court hence carefully considered the existing legal position in context of the Constitution.
As such, the Court emphasised the principle of human dignity as a central value of the “objective normative value system” established by the Constitution. In this regard the Court relied on S v Makwanyane in which the Constitutional Court declared the death penalty to be an unconstitutional form of punishment. In the latter case, the Constitutional Court stated that “recognition and protection of human dignity is the touch stone of the new political order and is fundamental to the new Constitution”. As such, the Court’s approach to the legal questions before it was based on the premise that human dignity, by virtue of the Constitution, was both a value and a right.
The Court rejected the Department’s argument that the right to dignity was not at the heart of the application. Instead, the Court stated, that it would have been preferable for the Minister of Justice and Correctional Services, in this instance, to state his intentions about the proposals contained in the South African Law Commission’s (The Commission) 1998 report entitled “Euthanasia and the Artificial Preservation of Life”. In that regard, the Court remarked that the Commission’s report, according to the Court, struck a proper balance between the State’s duty to protect life and the individual’s right to end his life. The Court further rejected the Department’s contention that the development of the common law would leave a void which would lead to abuse, stating that in the absence of legislation, which was the legislature’s responsibility, any court would still need to determine on a case-by-case basis whether any safeguards against abuse are sufficient. The Department had also contended that the right to life is paramount and that life is sacrosanct as provided for in section 11 of the Constitution. The Court agreed with this contention, but clarified that this provision is meant to safeguard an individual’s right in relation to the State and society, rather than one’s own life.
The Court also rejected the arguments advanced by Doctors for Life and Cause for Justice stating that out of practical necessity, a court was obliged to look at the subjective views of a person whose complaint was that their constitutional rights have been affected. Another consideration for the Court in rejecting the argument advanced by the amici curiae was the consideration that the Applicant’s view of his condition within the context of human dignity was entirely justifiable. As such, the arguments raised by the amici in this regard lacked merit.
The Court consequently affirmed the fact that the norms of the Constitution, rather than sectional, moral or religious convictions, should inform the public and its values. Furthermore, the sacredness of the quality of life should be accentuated rather than the sacredness of life as such. The Court also noted the irony of the State arguing that it could not afford to fulfil all socio-economic rights on the one hand, while on the other hand, assuming the power to tell an educated individual of sound mind who is gravely ill and about to die, that he must suffer the indignity of the severe pain and is not allowed to die in a dignified, quiet manner with the assistance of a medical practitioner.
The Court consequently agreed with Mr Stransham-Ford (and the Commission’s report) that it had been recognised, but for the risk posed to the weak and vulnerable, that active voluntary euthanasia should be legalised. In handing down judgment, the Court was decisive in making an order in favour of Mr Stransham-Ford’s application. It accordingly held:
- Mr Stransham-Ford as a mentally competent adult, with a terminal illness, without undue influence, had requested the Court to permit that he was assisted to commit suicide;
- That he is entitled to assistance by a willing, qualified medical doctor to end his life, and that any such medical doctor be exempt from any legal penalties and should not face any disciplinary proceedings;
- The common law crimes of murder or culpable homicide in the context of assisted suicide unjustifiably limit Mr Stransham-Ford’s constitutional rights;
- The Court’s order should not be read to as endorsing the draft Bill on End of Life Decisions as contained in the Law Commission’s Report.
Although this was not an issue in the case on hand given Mr Stransham-Ford’s lucidity and educational background, the Court nonetheless asserted that there should be minimum safeguards in place. Importantly, according to the Court, each case would be decided on its own merits, thus countering the “ripple effect” argument raised by the Department. The Court further considered that there were at least 11 other countries where assisted suicide or active voluntary euthanasia was not unlawful. Ultimately, the Court found the total prohibition of assisted suicide as overbroad considering that section 36 of the Constitution states that when considering the limitation of rights contained in the Bill of Rights, the Court must take into account, amongst others, less restrictive means to achieve the stated purpose. If proper safeguards were in place, there would be no need for a total prohibition of assistance. The Court, while not deeming the considerations as ‘safeguards’, accepted Mr Stransham-Ford’s evidence of terminal illness, being under extreme suffering as a result of the terminal illness and being mentally competent (accepting evidence to this effect from a Clinical Psychologist who examined him).
The importance of this decision cannot be over-emphasised. This is the first time that a South African court has ruled decisively in favour of assisted suicide in certain proscribed circumstances. In line with section 173 of the Constitution (which grants the Constitutional Court, the Supreme Court of Appeal and High Courts the inherent power to develop the common law) the Court found that the absolute prohibition on assisted suicide in common law was in conflict with Mr Stransham-Ford’s rights. Despite the right to life being enshrined in the Constitution, this should not be interpreted to mean that one is obliged to live, regardless of the quality of one’s life. The decision joins a long line of decisions emanating from South African courts that reflect the importance of dignity, not just as a right, but as a normative value fundamental to all other rights. It underscores the fact that dignity is a human worth and an inherent human worth. The decision also reflects the inter-connectedness of the concepts of human dignity, privacy, as well as freedom, and the manner in which the courts are forced to balance often-competing rights.
Although the Court stated that its order is not creating a precedent which would grant an automatic right to assisted suicide in every case, the ruling certainly sets a precedent in principle. News reports indicate that three other individuals have also filed applications before various High Courts for assisted suicide. In this regard, the legal questions regarding assisted suicide – including how to strike a balance between human dignity, the right to life and the right to freedom and security of the person – are likely to end up before the Constitutional Court (who will in all likelihood support the High Court’s views). Meanwhile, it is perhaps high time that the National Assembly revisits and considers the Commission’s report, with a view to enacting legislation governing assisted suicide, as proposed by the Commission and the Court.
By Phephelaphi Dube: Legal Officer; Centre for Constitutional Rights