JUDGE Hans Fabricius’s recent High Court ruling allowing a terminally ill cancer patient to have medically assisted suicide, has opened a debate that is as fractious as it is emotive, with one of the country’s top bioethicists questioning whether South African society is ready for such a sweeping change.
"My concern is that, at the moment, we do not have adequate control in this country on much of what we do," says Prof Ames Dhai, director of the Steve Biko Centre for Bioethics at the University of the Witwatersrand.
"And for as long as the country does not have adequate access to palliative care, and … (does) not have adequate checks and balances in place, we are not ready for euthanasia or physician-assisted suicide."
She echoes one of the biggest concerns expressed by Health Minister Aaron Motsoaledi, who with the South African Medical Association and minister of justice is deeply opposed to any form of medically assisted death.
Confronting them is Dignity SA, a lobby group campaigning for terminally ill patients’ right to obtain medical help to end their lives without fear of prosecution for those who help them.
The recent court case was launched by prostate cancer patient Robin Stransham-Ford and supported by Dignity SA.
Judge Fabricius ruled that Stransham-Ford could request a doctor to end his life or enable him to do it himself, and that a doctor who agreed to do so would be protected from prosecution.
Stransham-Ford died of natural causes hours before Judge Fabricius handed down his ruling last Friday, but his case has set in motion a chain of events that will certainly see the matter debated in the Constitutional Court, and possibly in Parliament too.
At the heart of Judge Fabricius’s ruling was his conclusion that the common law’s absolute prohibition on assisted suicide was at odds with Stransham-Ford’s constitutional rights to dignity and freedom of bodily and psychological integrity.
If the Constitutional Court agrees, it will ask Parliament to develop appropriate legislation. Dr Motsoaledi says he is opposed to any changes to the law that would enable euthanasia or assisted suicide. "The ruling that has been made is active murder," he says, arguing that it hands doctors and judges the power to "remove" patients who have lost all hope.
"We want the process of death to be beyond the control of any human being so that it is free of any form of manipulation, prejudice, or agenda and is just a natural (process), which none of us on this planet can control. We cannot start behaving like (German dictator Adolf) Hitler, who decided that the weaker members of society must be bumped off."
A law that enabled euthanasia or assisted suicide would be open to abuse and manipulation, and leave patients vulnerable to coercion or mistaken diagnosis, he argues.
Dignity SA founder Sean Davison says doctors have helped patients to die for thousands of years, driven by a compassionate desire to end suffering. "But patients don’t have the security of knowing if their doctor will do so," he says.
A law enabling assisted dying could be crafted with very strict safeguards to prevent abuse.
But the minister says when treatment becomes futile, the trajectory should shift to palliative care.
Prof Dhai cautions that even if the law were to permit assisted dying, the ethical rules of the Health Professions Council of SA do not. Breaking this code could get a doctor’s registration withdrawn.
Palliative care is highly specialised care for terminally ill patients, focused on providing relief of their symptoms, and is not widely available in SA.
Only about 10 public hospitals offer palliative care services and there are just more than 150 hospices — funding constraints have forced about 50 to close since 2011. The net result is only about 5% of the children and 4% of the adults who need palliative care are getting it, according to Hospice Palliative Care Association CEO Liz Gwyther.
Like the minister, she worries that legalising assisted dying would put many people at risk of having their lives ended prematurely. "There is real risk of euthanasia becoming a substitute for proper care for the terminally ill and other patients in dire medical straits."
But Dignity SA board member Willem Landman sees it differently: "Palliative care is enormously important, but it is mischievous to see what we stand for as an alternative. The two should coexist.
"It is alarmist scare-mongering to suggest doctors and nurses will turn into killers and family members will try to hasten death to inherit. This is not a principled argument," he says.
"I am really worried that the constitutional argument is not featuring in the response from government."