|
|
[Home]
[Databases]
[WorldLII]
[Search]
[Feedback]
South African Law Commission |
[Database Search] [Name Search] [Previous] [Next] [Download] [Help]
2.1 In Discussion Paper 71 the following terms were defined in sec 1 of the proposed bill: "competent witness", "court", "life-sustaining medical treatment", "medical practitioner", "palliative care" and "terminal illness".[24]
2.2 Respondents were in general in agreement with the way in which the terminology used in the document was defined.[25] There were however a few instances where commentators disagreed in principle with the proposals made and there was also some criticism on points of detail. The following submissions were made:
"competent witness" (sec 1 (i))
2.3 It was suggested that the word "financial" as in "financial benefit" should be deleted in the definition of "competent witness".[26] The Commission agrees with this submission.
"life-sustaining medical treatment" (sec 1(iii))
2.4 Submissions received indicated that there are some respondents who disagree with the idea that artificial feeding and hydration[27] should be regarded as a form of medical treatment and should therefore be included in the definition of "life-sustaining medical treatment". Some respondents furthermore asked for greater recognition of the ethical distinction between ordinary and extraordinary means of sustaining human life. However, the opposite view was also argued convincingly. See the full discussion in Chapter 5. [28]
2.5 After due consideration of these proposals and also taking into account the judgment held in this regard in South Africa[29] as well as in other jurisdictions[30] the Commission's decision is not to amend sec 1(iii).
"Palliative care" (Sec 1 (v))
2.6 The Commission received a proposal to insert the words "physical, emotional and psycho-social" before the word "suffering" in section 1(v).[31]
2.7 Since this proposal is in accordance with the essence of palliative care as understood by the Commission, the section is amended accordingly.
"family members"
2.8 A definition of the term "family members" should be included [32] in sec 1 to avoid possible dispute concerning the precise meaning of this term.
2.9 The Commission agrees to the inclusion of a definition of "family members".
"terminal illness" (sec 1(vi))
2.10 The definition that drew most comment was that of "terminal illness". The following submissions were made:
(a) It was stated that the definition of terminal illness opens itself to indiscriminate interpretation. Words such as "mental condition",[33] "meaningful existence",[34] "extreme suffering"[35] and "irreversible state" [36] lend themselves to a stretched meaning and differences of opinion and needed to be clarified.[37]
(b) Objection was furthermore raised on ethical grounds to the notion of "meaningful existence" since it was argued that the mere fact of life is in itself sufficient to constitute meaningful existence. Anything beyond this is dependent on whose criteria one uses, and is thus arbitrary and open to abuse.[38]
(c) Given the fact that people sometimes recover from illness against all expectations, the view was rejected that the definition of "terminal illness" should include "a persistent and irreversible vegetative condition". Respondents felt that such patients may be aware of their surroundings, but unable to react to them. To withdraw nutrients from such patients could expose them to unimaginable mental anguish.[39]
(d) It was furthermore felt that the phrase "a relatively short time" is too vague. [40] To reduce uncertainty, it should be replaced by "within six months"[41] which is the more common meaning. [42] Respondents acknowledged that it could be argued that specifying a time period would not really be helpful because medicine is an imprecise science and, at best, prognosis is an educated guess. Nevertheless, it was felt that death within a relatively short time is a far more elastic, open-ended notion than death within six months, the latter being more likely to rule out extremes that are either too short (such as a week) or too long(such as a year), and thus harder to justify ethically.[43]
2.11 In considering these proposals the Commission holds that since the diagnosis of the patient's condition is a question of fact and lies within the discretion of the medical practitioner involved, the Commission does not seek to impose unnecessary restrictions in this regard. The principles embodied in this clause are furthermore that of respect for the personal autonomy and dignity of the patient balanced with accepted medical practice. The Commission is satisfied that the clause gives effect to those objectives.
"Intractable and unbearable illness"
2.12 The following definition was recommended in addition to the current definition of terminal illness:
"Intractable and unbearable illness " means a bodily disorder that -
(a) cannot be cured or successfully palliated; and
(b) causes such severe suffering that death is preferable to continued life.[44]
2.13 The reasoning behind this proposal is that there are many people whose lives are filled with unrelenting and unbearable suffering although they are not terminally ill. Those who may warrant euthanasia may therefore also include persons who are months or years away from dying and for whom palliative care does not provide adequate relief. [45] Given that the same rationale of respect for autonomy which supports such options for those suffering from terminal illnesses applies equally to these cases, it would be arbitrary to permit these options only to those whose death was relatively close and deny it to those suffering chronic and degenerative conditions including multiple sclerosis, amyotrophic lateral sclerosis, motor-neurone disease and quadriplegia.[46] This aspect was reiterated in many submissions, especially from individuals who recounted their personal suffering.[47]
2.14 The inclusion of this definition was supported by another commentator[48] who felt however that it would be better to do away with the qualification "bodily" in order to exclude an unduly narrow understanding of a disorder. Although all disorders have some bodily or physiological foundation, we tend to think of disorders as either physiological or psychological. Secondly, if suffering is conceived as an emotional response to more than minimal pain or distress, then suffering can be either physical or mental (or both). To furthermore ensure that the definition of "intractable and unbearable illness" would also cover dementing illnesses, such as Alzheimer's disease, which is neither terminal nor painful it was proposed that the term "physical or mental suffering" should be used.
2.15 In a contrary view it was however stated that terminally ill patients are the only patients that should qualify for active voluntary euthanasia.[49]
2.16 After carefully considering this very controversial aspect, the Commission comes to the conclusion that should active euthanasia be legalised there would be no reason to withhold this option from persons with intractable illness as opposed to those with terminal illness. On the contrary, it would be a better reflection of the situation as experienced by patients in practice. The Commission did however emphasise the fact that, in order to prevent abuse, active euthanasia would only be available to competent persons who suffer from intractable and unbearable illness. These and other requirements will however be discussed in Chapters 3 and 4.
2.17 It is therefore recommended that the section on definitions in the proposed Bill should read as follows:[50]
Definitions
1. (1) In this Act, unless the context otherwise indicates-
'competent witness' means a person of the age of 18 years or over who at the time he witnesses the directive or power of attorney is not incompetent to give evidence in a court of law and for whom the death of the maker of the directive or power of attorney holds no benefit;
'court' means a provincial or local division of the High Court of South Africa within whose jurisdiction the matter falls;
'family member' in relation to any person, means that person's spouse, parent, child, brother or sister;
'intractable and unbearable illness' means an illness, injury or other physical or mental condition, but excluding a terminal illness, that-
(a) offers no reasonable prospect of being cured; and
(b) causes severe physical or mental suffering of a nature and degree not reasonable to be endured.
'lawyer' means an attorney as defined in section 1 of the Attorney's Act, 1979 (Act 53 of 1979) and an advocate as defined in section 1 of the Admission of Advocates Act, 1964 (Act 74 of 1964);
'life-sustaining medical treatment' includes the maintenance of artificial feeding;
'medical practitioner' means a medical practitioner registered as such in terms of the Medical, Dental and Supplementary Health Service Professions Act, 1974 (Act 56 of 1974);
'nurse' means a nurse registered as such in terms of the Nursing Act 50 of 1978 and authorised as a prescriber in terms of section 31(14)(b) of the proposed [South African Medicines and Medical Devices Regulatory Authority Bill][51];
'palliative care' means treatment and care of a terminally ill patient with the object of relieving physical, emotional and psycho-social suffering and of maintaining personal hygiene;
'spouse' includes a person with whom one lives as if they were married or with whom one habitually cohabits;
'terminal illness' means an illness, injury or other physical or mental condition that-
(a) in reasonable medical judgment, will inevitably cause the untimely death
of the patient concerned and which is causing the patient extreme suffering;
or
(b) causes a persistent and irreversible vegetative condition with the result that no meaningful existence is possible for the patient.
[24]See para 1.16 on 5 above.
[25]See eg Prof KRL Huddle, Head of the Department of Medicine, Chris Hani Baragwanath Hospital and University of Witwatersrand.
[26]Mr HJ Barker, an attorney.
[27]The Commission did not include hydration in its definition.
[28]For a discussion of the various views see Chapter 5 para 5.97 and further below: Cessation of treatment of the incompetent patient.
[29]Clarke v Hurst NO ao 1992 4 SA 630 (D).
[30]Airedale NHS Trust v Bland [1993] 1 All ER 821; Cruzan v Director Missouri Department of Health (1990) 497 US 261; 111 L Ed 2d 224;110 S Ct 2841.
Ethics Committee, Medical School, University of the Witwatersrand (hereinafter referred to as "Ethics Committee"; SAVES The Living Will Society (hereinafter referred to as "Living Will Society").
[32]Judge JJ Kriek, Judge President, Northern Cape Division.
[33]Doctors for Life.
[34]Doctors for Life.
[35]Anglican Church; African Christian Church.
[36]The Critical Care Society of Southern Africa argued that critically ill patients, who have reached a stage of medical futility may neither be in extreme suffering nor in an irreversible vegetative state, but that their mental state may range from confusion to coma.
[37]Cancer Association (National Office).
[38]South African Catholic Bishops Conference Parliamentary Liaison Office (hereinafter referred to as "SACBC"); (Fr) Hyacinth Ennis; African Christian Action; The Christian Lawyers Association.
[39]United Christian Action.
[40]Doctors for Life; Anglican Church; Dr Willem Landman; South Australian Voluntary Euthanasia Society; Office of the Chief Rabbi.
[41]Dr Willem Landman.
[42]South Australian Voluntary Euthanasia Society.
[43]Dr Willem Landman.
[44]Submission from Prof Solly Benatar and various members of the UCT Bio-ethics Centre: David Benatar, Raymond Abratt, Lesley Henly, Mark Mason, Lance Michell, Eleanor Nash, Augustine Shutte and JP de V vn Niekerk (hereinafter referred to as "Professor S Benatar et al").
[45]Dr Selma Browde; See also Peter Buckland, Executive Director, Hospice Witwatersrand as reported in The Star 18 April 1997 who said it was a misconception that terminally ill people wanted euthanasia. "Good palliative medicine as Hospice provides, obviates the need for euthanasia. It is victims of diseases for which there are no cure and no likelihood of immediate death who ask for active intervention" he said.
[46]See eg. Solly Benatar et al.
[47]Rhona Foyn; Ruth Schmid; See also Leenen HJJ & Legemaate J "Sterwensfase geen vereiste voor eutanasia" (1993) 68 Nederlandse Juriste-Med 755 as referred to in Labuschagne JMT "Aktiewe eutanasie en professionele hulpverlening by selfdoding van n psigiatriese pasient" SALJ 1995 229(hereafter referred to as Labuschagne SALJ 1995) where it is stated that active euthanasia is available where the patient is not terminally ill. See however submission of the Office of the Chief Rabbi for a contrary view.
[48]Dr Willem Landman.
[49]Prof Geoffrey Falkson.
[50]For a discussion of the inclusion of a definition of "nurse" see para 4.50 below.
[51]Editorial note: Now Act 132 of 1998 assented to 11 December 1998, date of commencement to be proclaimed.
SAFLII:
|
|
Terms of Use
|
Feedback
URL: http://www.saflii.org/za/other/zalc/report/1998/7/1998_7-CHAPTER-2.html