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4.1 This chapter deals with those instances where the patient is in possession of all his or her faculties, and therefore legally and mentally competent to make certain requests of the medical practitioner which, if acceded to, would amount to the hastening of the death of the patient concerned. In Discussion Paper 71 the question was discussed whether agreement to such requests would be lawful or unlawful and if any legal reform was necessary.
4.2 However, before this problem was dealt with, clarity was sought with regard to the terms "legal competency" and "mental competency".
4.3 In general a person will be regarded as legally competent if he or she has the ability to enter into a legal transaction and therefore take part in commerce and law. The essence of the term "legal competency" lies in the fact that a person should be able to understand the nature and implications of the legal transaction concerned. He or she should understand its nature and implications and consent to the transaction while he or she is not being influenced by mental illness or any other factor that could seriously impair his or her capacity to understand the nature and consequences of the action.[76]
4.4 The situation sketched in 4.1 deals not only with the competence, in general, to conclude a legal transaction, but it deals specifically with the legal act which is known as consent to injury. A prerequisite for the validity of this consent is that the consenting person should be mentally competent. This means that persons under twenty-one years of age and who do not therefore have unlimited contractual capacity in the eyes of the law, may still be mentally competent to consent to injury. As it is the bodily integrity of a person that is at issue here, the writers agree that for this kind of consent the cooperation of a minor's parent or guardian is not a prerequisite, as long as it is certain that the minor is mentally competent.[77]
4.5 Whether the consenting person is mentally competent or not is a question of fact on which it is unnecessary now to dwell.
4.6 A prerequisite for valid consent to injury is that the consent has to be voluntary consent[78] and that the consenting person needs to have full knowledge of the extent of his or her rights and of the nature of the injury.[79]
4.7 A further requirement is that the consent to injury is considered valid only if it is not contra bonos mores. In our law it is for instance accepted that a person cannot consent to serious bodily mutilation.[80] This requirement should however be approached with caution as consent to serious bodily mutilation is not in all cases considered contra bonos mores. Say, for instance, that in light of medical considerations it is found that the amputation of a leg is inevitable. The patient's consent to the amputation, that is to say the serious bodily mutilation, would certainly not be seen as invalid.[81]
4.8 The need for informed consent was also stressed in submissions received.[82] Respondents felt that the onus was on the doctor to ensure that the patient is fully informed of the disease, the treatment, palliation and implications of refusing life-sustaining treatment. The importance of receiving the information from a person sharing the same first language as the patient was also stressed.[83]
4.9 The consent of a mentally competent patient can be relevant in the following situations:
4.10 The case under discussion here is that of a mentally competent patient who is suffering from a disorder and for whom no effective medical treatment may exist. One thinks here of a patient with terminal cancer, Aids sufferers and persons with chronic and untreatable diseases, for instance motor-neuron disease and others. Generally these patients' lives are prolonged, in comparison with the natural condition, by for example intravenous or nasogastric feeding, the administering of antibiotics to avoid or fight secondary infections and the administering of oxygen when necessary.
4.11 It can happen that such a patient may find the situation unbearable as a result of pain and suffering or because of the indignity of the situation. He or she then requests the cessation of the life-prolonging treatment but with the continuation of palliative care.
4.12 Palliative care can be described as medical intervention not intended to cure but to alleviate the suffering, including the emotional suffering, of the patient. It is concerned with the quality of life when, in the course of an illness, death becomes inevitable.[84] With palliative care some patients can be kept physically comfortable until the moment of death. However, such a state of affairs may not be emotionally or psychologically acceptable to such patients.
4.13 The question is therefore: suppose a patient who has the necessary mental capacity and who realises the nature, extent and consequences of a request for the cessation of life-sustaining treatment, still persists in his or her request: will compliance with that request be contra bonos mores or should effect be given to it?
4.14 In English law the rule is acknowledged that an adult patient who has the necessary mental capacity and who has been fully informed of the consequences of his or her decision, has the right to refuse any treatment, even if such refusal would hasten death.[85] The House of Lords' "Report of the Select Committee on medical ethics" [86] states that a patient who is mentally competent and fully informed of the consequences may refuse any form of medical treatment. Reference is made to two court judgments.[87]
4.15 The same report[88] recalls that the British Department of Health has positively acknowledged this right. Their contribution in this regard reads as follows:
A patient who has the necessary mental capacity and has been properly informed of the nature of his condition and the implications of the treatment proposed is entitled to accept or decline that treatment as he sees fit.... The patient's right to self-determination regarding the treatment he will accept is paramount. The BMA (British Medical Association) said 'ultimately the individual's right to self determination decides whether or not treatment can be given... the decisions of a competent patient regarding non-treatment must be respected.
4.16 The report further states that the medical practitioner has to tread carefully with regard to the question whether consent has been given in a specific case. The report states that the British Alzheimer's Disease Society led evidence to the effect that practitioners often assume that patients are behaving irrationally and are thus incapable of giving informed consent. The British Department of Health recommends that should a medical practitioner have any doubt as to whether valid consent has been given, a second medical opinion on that question should be sought and the matter should further be discussed with other members of the health care team and with the patient's relatives and friends who could cast light on whether the decision was in keeping with the patient's previous wishes.[89]
4.17 The report also states that a too-ready acceptance of the validity of the patient's wishes may cause a problem. The medical practitioner has to be very careful to make sure that the patient's request is not influenced by an undiagnosed depressive illness which, if successfully treated, might affect his or her attitude.[90]
4.18 The report also refers to the fact that a great deal of dissatisfaction exists with regard to the judgment of the High Court in the case of In re S (Adult: Refusal of treatment)[91] in which the court forced the woman in question, against her wishes, to have a Caesarean section performed. The woman refused the operation on religious grounds, although she had been advised that both she and the fetus would die without it. The court forced her to undergo the operation and she survived, but the child didn't. Apparently the case was heard as a matter of urgency and the judgment given on short notice. A number of witnesses expressed their dissatisfaction with this judgment.[92]
4.19 In the case of children, the position in English law is that parents or competent guardians can consent to the treatment of the child if it is in his or her best interest.[93] Under the Family Law Reform Act of 1969 minors aged sixteen and seventeen are presumed to be competent to consent to treatment unless there is a reason to suppose that they are not. Even children under the age of sixteen may consent to treatment if they have "sufficient understanding and intelligence.... to understand fully what is proposed".[94]
4.20 However, it is important to note that the right of minors to refuse consent has not been upheld by the courts. In two cases the courts have given consent for treatment of competent minors who had refused treatment.[95]
4.21 South African law does not differ substantially from English law in so far as consent to cessation of treatment is concerned. In our opinion it is clear that the right to refuse medical treatment where the patient has the necessary mental capacity is also acknowledged in our law. It would also be a prerequisite here for the patient to be informed fully with regard to the consequences of his or her refusal, to understand the nature of the consequences and to give the instructions for the life-prolonging treatment to be discontinued. It would seem that the legal position is that our courts would acknowledge the medical practitioner's obligation to comply with such a request and that, in doing so, he or she would not act unlawfully, either according to criminal law or in terms of private law, even if such an action would have the effect of hastening death.
4.22 In the case of Castell v De Greeff[96] the unambiguous recognition and acceptance of the right of the patient, who need not be terminal, to refuse a life-saving medical intervention was emphasised. This is an explicit rejection of medical paternalism and an endorsement of patient autonomy as a fundamental right.
4.23 In so far as minors are concerned the Child Care Act 74 of 1983 states that a child over the age of 14 years may consent to medical treatment, without the assistance of his or her guardian. [97] Whether a minor over the age of 14 years may also refuse consent to treatment has not been settled yet.[98]
4.24 Some South African medical practitioners, however, still seem to be under the misconception that it is their duty to prolong life at all cost, notwithstanding the quality thereof. They may influence the patient, his or her family and next of kin to continue with the life-prolonging treatment. [99] Every patient is of course free to discharge his or her medical practitioner and to appoint another practitioner in his or her place, but indications are that very few patients have the perseverance to follow this route.
4.25 With reference to the submissions received by the Commission and the discussions during the workshops held on 22 June 1994 and 18 October 1996, it seems that commentators support the view that a medical practitioner would in general be acting legally should he or she comply with the request of a mentally competent patient for the discontinuance of life-prolonging treatment and the provision of palliative care only.[100] It was argued that patients should have the right to protection of bodily and psychological integrity[101] and that a doctor who wilfully disregards this right to self-determination could be regarded as bridging professional conduct.[102] This would be the case notwithstanding the fact that such actions may hasten the death of the person.
4.26 There were however comments from respondents who qualified their approval to the extent that they felt:
i) Refusal of life-sustaining medical treatment should be restricted to cases of those who are terminally ill.[103]
ii) The treatment refused should be extra-ordinary or over-zealous treatment ie treatment that is very uncertain, painful or expensive,[104] also burdensome, dangerous, extraordinary or disproportionate to the expected outcome.[105] Ordinary treatment should be continued.
4.27 In so far as the question is concerned whether the position should be formally regulated in legislation the following submissions were received:
i) The minority view was that it is not necessary to formalise the position in legislation since the law is clear: a medical practitioner may not perform any procedure or treat any person without informed consent. Medical practitioners should be educated so that they are aware that they may not perform any procedure or treat any patients without informed consent.[106]
ii) The majority of commentators held views contrary to the opinion expressed above. They argued that it seems necessary, for the sake of caution, but also in order to remove any uncertainty, to confirm by way of legislation the right of the mentally competent patient to refuse life-sustaining treatment.[107] This would afford guidance to medical care providers, family members and society at large.[108]
4.28 Two major proposals were received regarding the content of the section concerned:
i) Firstly it was proposed that consideration should be given to lowering the age requirements with regard to consent to refuse medical treatment. [109] Since a child over the age of 14 years may consent to medical treatment without the assistance of his or her guardian, it stands to reason that he or she may also refuse treatment.[110] In today's world children are more mature and better informed than in the past. To deny children of, for example 16 years, the power to make their own decisions on health care could be seen as curtailing their human and constitutional rights.[111] The impact of HIV on the youth should furthermore be considered.[112] With older children and adolescents chronological age becomes a less accurate indicator of mental competence. South African abortion law, for example, recognises the mental competence of minors to make serious medical decisions by requiring consent for abortion only from the pregnant woman, who is defined as "any female person of any age".[113] Moreover, the issue of children's competence is currently under review in South Africa. The South African Law Commission in its review of the Child Care Act and addressing the issue of informed consent by children to medical treatment or surgical intervention, asks whether the arbitrary (legal) age limits set in this regard are morally appropriate. Informed consent would depend on an individual's level of mental development, or mental maturity, and this may be greatly influenced by prolonged experience of repeated hospitalisation, treatment for terminal illness, and suffering. Some argue persuasively that minors with, for example, end-stage renal disease or terminal cancer and who have the required cognitive and emotional wherewithal, should have the right to refuse life-sustaining treatment. Mercy, respect for personal autonomy, fairness and consistency should all play a role. Legislation would require additional procedural safeguards, addressing such issues as the competent minor's presumptive decision making capacity; respect of parents' or guardian's authority by involving them intimately in all deliberations throughout the decision-making process and requiring their consent; written certification by a psychiatrist, registered clinical psychologist or social worker, personally familiar with the circumstances of the particular patient; and the power of the courts to grant minors' wishes against those of their parents in highly exceptional and compelling circumstances.[114] Minors are of course under the decision-making authority of their parents and parents are presumed to do what is in the best interest of their children. Therefore, some balance needs to be maintained between the decision-making authority of the parents and the decision-making ability of minors by recognising some joint-decision making process, and taking account of the minor's particular vulnerability.[115]
ii) Secondly, it was proposed that a clause should be added dealing with ways of communicating with persons who are handicapped in communication[116] or where language is an obstacle.[117] Patients may try to communicate by means other than verbal. People with aphasia from a stroke may for instance be able to indicate that they do not wish further treatment including a feeding tube. It was noted that too often, especially in frail care units, people of advanced age are maintained on treatment which may be sustaining life but are causing extreme discomfort to the patient. Since no one attempts to communicate with the patient, he or she may be kept in an intolerable situation not of his or her own choosing for months or even years.[118] Care should furthermore be taken that a person is addressed by someone sharing his or her first language.[119]
4.29 After due consideration of the arguments set out above the Commission confirms the view set out in Discussion paper 71 and referred to above that although it might be possible in specific circumstances to encourage patients to continue with treatment, it would be impossible to compel a mentally competent patient to accept treatment against his or her wishes, especially where the patient is not terminally ill.
4.30 In Discussion Paper 71 the Commission acknowledged the fact that mental competency is a question of fact and that minors could therefore in principle give or refuse consent to treatment as long as it is certain that they are mentally competent.[120] However, it seemed prudent to restrict the right to refuse treatment in the proposed Bill to persons of 18 years and older[121] as a safety measure since refusal of treatment could be to the detriment of the patient. The Commission agreed with the view[122] that there is a rational distinction to be made between giving consent and withholding it. This is based on the assumption that a doctor will act in the best interests of his patient. Hence if the doctor believes that a particular treatment is necessary for a patient, it is perfectly rational for the law to facilitate this as easily as possible and allow the child to give a valid consent. It would also protect the child against unreasonable parents. In contrast, it is surely right for the law to be reluctant to allow a child to veto treatment designed for his or her benefit particularly if a refusal would lead to the child's death or permanent damage.
4.31 However, the arguments in favour of a lowering of the age limit have been convincing and the Commission has taken note of the fact that it has become accepted practice for minors to make all sorts of medical decisions that is acknowledged by the law.[123] The parent-child relationship has been shifting away from protecting parental rights as intrinsic rights towards protecting the best interests of the minor, including recognition, where appropriate, of the minor's autonomy.[124] However, the Commission is still of the opinion that unlike the position of an adult who is compos mentis, respect for self-determination is and should not be treated as an overriding value. This is because there are other competing values to be weighed, in particular the legitimate authority of the parent or guardian to decide for the minor and the protection of a conception of what is in the best interests[125] of the minor.[126] The Commission has therefore decided to lower the age limit to 14 years of age provided that such a minor is assisted in his or her decision making by his or her parents or guardian. It should also be remembered that the Supreme Court's authority as upper guardian, is wider than that of both the powers of the parent and the minor.[127]
4.32 The Commission has furthermore included two additional clauses (see clauses 3(3) and (4) hereunder) dealing with persons handicapped in communication or with persons who do not understand a specific language.
4.33 The Commission recommends the legislative enactment to read as follows:
Mentally competent person may refuse treatment
3. (1) Every person -
(a) above the age of 18 years and of sound mind, or
(b) above the age of 14 years, of sound mind and assisted by his or her parents or guardian,
is competent to refuse any life-sustaining medical treatment or the continuation of such treatment with regard to any specific illness from which he or she may be suffering.
(2) Should it be clear to the medical practitioner under whose treatment or care the person who is refusing treatment as contemplated in subsection (1) is, that such a person's refusal is based on the free and considered exercise of his or her own will, he or she shall give effect to such a person's refusal even though it may cause the death or the hastening of death of such a person.
(3) Care should be taken when taking a decision as to the competency of a person, that an individual who is not able to express him or herself verbally or adequately, should not be classified as incompetent unless expert attempts have been made to communicate with that person whose responses may be by means other than verbal.
(4) Where a medical practitioner as contemplated in subsection (2) does not share or understand the first language of the patient, an interpreter fluent in the language used by the patient must be present in order to facilitate discussion when decisions regarding the treatment of the patient are made.
4.34 A further complication that was brought to the attention of the Commission, and which was also discussed in the abovementioned Report of the British House of Lords[128] with regard to the cases now being discussed, is the so-called double effect. It is true that patients often request the discontinuance of life-prolonging treatment in circumstances as set out above and that medical practitioners comply with this request. The request is furthermore for the provision of palliative care only, which includes the administering of painkilling drugs.
4.35 A guideline for behaviour by a medical practitioner in respect of a terminally ill patient who is enduring pain is to be found in the World Medical Association's Declaration of Venice of October 1983. The declaration affirms the doctor's duty to heal and, if possible, to relieve suffering. Furthermore, the following rules are set out:[129]
The physician may relieve suffering of a terminally ill patient by withholding treatment with the consent of the patient or his immediate family if unable to express his will. Withholding of treatment does not free the physician from his obligation to assist the dying person and give him the necessary medicaments to mitigate the terminal phase of his illness.
4.36 The effect of large dosages of a painkiller is, however, that it may hasten death. It is apparently the position in our medical practice, as in England, that medical practitioners fail to supply sufficient painkillers to ensure effective relief of pain for the patient, as they are afraid that they may be criminally prosecuted on account of the fact that such large dosages of painkillers may hasten death and that they may therefore be held criminally liable.
4.37 Authority exists in our law to the effect that the hastening of a person's death, if it was done unlawfully and with the necessary intention, would constitute murder.[130] It can also be argued that the medical practitioner, even though he may have had a pure motive, had dolus eventualis under those circumstances.
4.38 Professor Strauss[131] nevertheless feels that administering drugs to a terminally ill patient would be lawful, even if it has the secondary effect of hastening death, if the doctor acted in good faith and used the normal drugs in reasonable quantities with the object of relieving pain and without the intention of causing death.
4.39 Professor Strauss refers to a paper by Professor H J J Leenen from Amsterdam in which, amongst other things, he said:[132]
The administration of the pain-alleviating method can be qualified as an act with double effect. It must not be defined according to its side-effect, the unavoidable shortening of life, but according to its aim, which is to combat the pain of which the patient is suffering. Many medical acts and drugs have side-effects, but nobody will define them from the viewpoint of these side-effects. The same is true for pain-killing.
4.40 This is also the position as set out in the Report of the British House of Lords where it was stated that it was common practice and unexceptional for doctors to prescribe sufficient drugs to control the pain of a patient adequately even though a probable consequence may be the shortening of the patient's life.[133] The report rejected the charge of medical hypocrisy in that the so-called double effect was being used as a cloak for what in effect amounted to widespread euthanasia. They did however acknowledge the fact that the doctor's intention, and the evaluation of the pain and distress suffered by the patient, are of crucial significance in judging the double effect. They referred to the fact that juries in England are however asked every day to assess intention in all sorts of cases and could also do so in respect of double effect if in a particular case there was any reason to suspect that the doctor 's prime intention was to kill the patient rather than to relieve suffering. [134]
4.41 From the submissions received it was clear that there is overwhelming support for the principle that doctors should be able to administer treatment to prevent pain even if the secondary effect of the painkillers may be the shortening of life. [135]
4.42 The Commission was inter alia referred to Paragraph 2279 of the Catechism of the Catholic Church, Rome 1992 that states:
Even if death is thought imminent, the ordinary care owed to a sick person cannot be legitimately interrupted. The use of painkillers to alleviate the sufferings of the dying, even at the risk of shortening their days, can be morally in conformity with human dignity if death is not willed as either an end or a means, but only foreseen and tolerated as inevitable. Palliative care is a special form of disinterested charity. As such, it should be encouraged.[136]
4.43 Reference was also made to the Department of Health's proposed guidelines on Pharmaceutical Pain Control for Terminal Ill patients which states that in accordance with the best practices in palliation it is accepted practice to increase pharmaceuticals for pain control to the limit of the pain being controlled, irrespective of the consequences or dosage. [137]
4.44 Reiterating the views expressed above, the explicit divorcing of palliative care from legal liability, even if it hastens death, but provided that it is given in accordance with responsible medical practice, was praised as making good sense from a practical perspective. This would be especially helpful given the current tendency to undermanage pain. It is also consistent with recent observations made by some Judges of the United States Supreme Court.[138]
4.45 One commentator remarked that medical evidence suggests that when individuals receive adequate emotional support and pain relief for their symptoms, the desire to terminate their lives greatly diminishes. [139] It is however important that the patient should be fully informed of possible consequences of the dosage.[140]
4.46 In a minority view it was contended that the principle of double-effect could open the door to all kinds of abuses which will be difficult to detect, prove or control.[141]
4.47 Commentators also referred to the fact that the linkage of pain management with the doctrine of double effect may be problematic from a philosophical perspective as reliance on such a mental construct calls into question the intrinsic moral validity of the distinction between pain management which relies on double effect, and euthanasia. [142]
4.48 In this respect the question of the doctor's intent drew much comment. It was stressed that the procedure must be safeguarded by the provision that there is no intention on the part of the physician to kill the patient.[143] While the effect is ultimately the same as euthanasia, the intention and way of dealing with people is vastly different. It was contended that palliative care fosters respect for life[144] and people are not treated as objects, whereas with euthanasia, people become obstacles to be "removed" as quickly and as quietly as possible.[145] Respondents agree that ethically the intention of the doctor administering the drugs is of prime importance, and that if the doctor's intention is to mitigate pain and suffering, he or she is acting rightly even though such action may hasten the patient's death. It was furthermore emphasised that a doctor should never be obliged to act in a certain way if such action is contrary to his or her religious or moral convictions.[146]
4.49 Three concerns were raised on points of detail. They came from commentators who are in favour of the acceptance of the principle of double-effect as part of responsible medical practice:
i) The first concern was the use of the words ordinary palliative treatment and responsible medical practice. It was submitted that palliative treatment or care for chronic pain in cancer cannot be described as ordinary palliative treatment and that the word "ordinary" should be deleted. Compared with other pain regimens, it requires a different approach to the administration of analgesia which few doctors have been taught, are prescribing or practising adequately.[147] The words" ordinary palliative treatment" may be interpreted by the doctor untrained in palliative care as the treatment he would ordinarily give, and would be what palliative care doctors would consider sub-optimal treatment. There is no such thing as "ordinary" palliative treatment. Palliative care is specific. [148] The second word that is likely to lead to problems is the word "responsible". Many doctors might regard responsible medical practice as minimal doses of analgesics and would feel that there is a limit to what they may give if they are to be regarded as "responsible medical practitioners". Thus they may not increase analgesia sufficiently as and when needed according to competent medical practice in palliative care.[149] It was felt that this clause as it is presently worded could lead to increased suffering rather than the reverse which is the intended effect of this clause.[150]
ii) The second concern raised was the practicability of the need for confirmation by a second medical practitioner of the patient's condition and level of pain before increasing or prescription of appropriate palliation. It was felt that clause 4(2) and 4(3)(b) should be deleted. [151] Reasons given were as follows:
aa) A provision that two medical practitioners should issue a certificate as is done in clause 4(2) may be impractical in certain rural areas.[152]
bb) Clause 4(2) may in certain circumstances lead to unnecessary caution on the part of medical practitioners, suffering of patients and delays. Virtually all, if not all, medication has side-effects. Any medication can potentially shorten the life of a patient. Say for example a doctor wishes to sedate a seriously ill person prior to transporting him from a farm to a hospital. However, because it is foreseeable that one of the secondary effects of the medication may be to shorten the life of the patient, the practitioner may feel obliged to obtain a second opinion. Although doctors may in certain circumstances use the doctrine of emergency to justify his or her decision, it places the doctor in the unenviable position where he may withhold treatment which would be humane in the circumstances, because he is uncertain about the legal position. [153]
ccc) The medical practitioner increasing the dosage of medication should be following the National Cancer Control Programme (NCCP) and WHO guidelines [154] in which case a second opinion is unnecessary.
iii) The third concern raised was that since the patient may find him or herself in a rural area or primary health care situation, the legislation of the role of the Primary Health Care Nurse in prescribing analgesia in the absence of the doctor needs clarification.[155] Support was expressed for the expansion of home-based care to develop the capacity of community health workers to provide hospice and palliative care.[156] It was further stated that these services must be provided at primary health care facilities with support from secondary and tertiary levels [157] Patients who rely on home based care should also be provided for. They may be in need of increased palliative care, but are not being attended to by a medical practitioner. Issues that need to be dealt with include the question as to what drugs may be prescribed in terms of the Essential Drugs List and who may prescribe the drugs.[158]
4.50 The Commission agrees with the view [159] that more emphasis is needed in South Africa on pain management, medical care, spiritual care and social services. Currently, too few health workers are oriented to view end of life care as important. All people who are terminally ill, irrespective of their financial situation, should have access to palliative care services. Since for many persons in this country palliative care will in all likelihood be the only available and affordable treatment, the Commission supports the idea that access to and availability of palliative care in South Africa should be improved. The Commission endorses the proposal that the availability of palliative care in South Africa be thoroughly examined with a view to expanding the provision of such care and support the suggestion made for the development of policies or regulations by the Minister of Health with regard to the increased provision of palliative care.
4.51 In this context the Commission agrees with the proposals made and views expressed regarding the deletion of the words "ordinary" and "responsible" in sec 4(1) as well as the deletion of sections 4(2) and 4(3)(b).
4.52 In so far as the issue of the primary health care nurse's responsibility in regard to palliative care in a primary health care situation is concerned the Commission notes that a new Bill[160] dealing inter alia with the control, selling and prescription of medicine, is presently (November 1998) being argued in Parliament. In terms of this proposed bill a nurse has been included in the definition of "authorised prescriber" in terms of the Act (sec 31 (17)(a)); he or she may possess any medicine or Scheduled substance for the purposes of administering it in accordance with his or her scope of practice( sec 31 (16) (c)) and no nurse may prescribe such medicine or substance unless that nurse has been authorised to do so within the scope of that nurse 's practice by that nurse's professional council(sec 31 (14)(b)).
4.53 In ordinary circumstances the nurse in a primary care setting will therefore work within the palliative care referral protocol[161] received from the hospital or institution from which the patient has been discharged. It is however envisaged that a specific nurse may be authorised by his or her professional body, in areas where there are no medical practitioners, to prescribe Scheduled substances in accordance with his or her scope of practice to patients in distress. The proposed National Cancer Control Programme furthermore provides that oral morphine should, in line with the Essential Drugs programme, be available at all primary care service sites.
4.54 Taking into account the recent developments referred to above and in order to make provision for the position of terminally ill patients in rural areas who do not have access to medical practitioners the Commission has decided to amend sec 4 to widen its scope to include registered nurses who have been authorised by their professional body as "authorised prescribers".
4.55 Legislative enactment of this principle should read as follows:
Conduct of a medical practitioner in relieving distress
4. (1) Should it be clear to a medical practitioner or a nurse responsible for the treatment of a patient who has been diagnosed by a medical practitioner as suffering from a terminal illness that the dosage of medication that the patient is currently receiving is not adequately alleviating the patient's pain or distress, he or she shall -
(a) with the object to provide relief of severe pain or distress; and
(b) with no intention to kill
increase the dosage of medication (whether analgesics or sedatives) to be given to the patient until relief is obtained, even if the secondary effect of this action may be to shorten the life of the patient.
(2) A medical practitioner or nurse who treats a patient as contemplated in subsection (1) shall record in writing his or her findings regarding the condition of the patient and his or her conduct in treating the patient, which record will be documented and filed in and become part of the medical record of the patient concerned.
4.56 The next two cases to be discussed relate to the relatively small percentage of mentally competent patients who are terminally ill or can be identified as having an intractable and unbearable illness ie no effective curative medical treatment is available and palliative medical skills are not adequate or acceptable.[162] These patients may be subject to unbearable pain or discomfort or emotional distress despite all the known techniques and not prepared to continue living under such circumstances.
4.57 In the case of assisted suicide the patient does not only require, as has been set out in paragraph (A), discussed above, that life-prolonging medical treatment should be discontinued. He or she wants something more: the patient may for example request that lethal drugs be made available to take him or herself; or the patient may request to be supplied with a hypodermic needle containing a lethal drug in order to give him or herself an injection.
4.58 In our law the position is that the person who knowingly supplies a drug to a patient for use in a suicide is guilty of aiding and abetting a suicide and can accordingly be found guilty of murder. An example in point is that of R v Peverett.[163] In this case the accused, Peverett, concluded a suicide pact with his mistress, one Saunders. Peverett connected the exhaust pipe of the car with the interior of the car and the two of them sat in the car with the doors and windows closed while the engine was running. They were both later found in an unconscious state but survived the attempted suicide. Peverett was found guilty of the attempted murder of Saunders. Watermeyer JA held as follows:[164]
In the present case it is clear that the accused contemplated and expected that as a consequence of his acts Mrs. Saunders would breathe the poisoned gas and die. In the eye of the law, therefore, he intended to kill her, however little he may have desired her death.
The Appeal Court confirmed the conviction of attempted murder.
4.59 In a decision by the then South Rhodesian court, R v Nbakwa,[165] the facts were that Nbakwa, a man who lived according to the traditions of his tribe, suspected and accused his mother of the death of his child. His mother then requested him to kill her. Nbakwa went to the hut where his mother was lying ill, tied a rope to a rafter in the hut and tied a noose in the other end. He then told her to hang herself. She asked him to lift her up and asked for something to stand on. He helped her to get up and then put a block of wood under the rope. He then looked on while she hanged herself by kicking away the block of wood. Nbakwa was acquitted on a charge of murder. The rationale of the judgment was that there was no chain of causation between Nbakwa's act and the subsequent death of the mother. She caused her own death. Beadle J stated as follows:[166]
The accused did not actually kill the deceased himself, but if his acts could be construed as an attempt to do so he could be legally convicted of attempted murder, since on an indictment for murder a verdict of attempted murder is a competent one. I will first consider, therefore, whether these particulars disclose on the part of the accused an attempt to murder the deceased. In my view the acts of the accused on this occasion do not go far enough to constitute an attempt; they go no further than what are commonly called acts of preparation. The accused provided a means for causing death and he persuaded the woman to kill herself, but the actual act which caused the death of the woman was the act of the woman herself. There was, to use a common legal expression, a novus actus interveniens between the actions of the accused and the death of the deceased which in my view broke the chain of causation between the act of the accused and the death of the deceased....... The direct cause of death was not the action of the accused. I come to the conclusion, therefore, that the accused's acts did not go far enough to constitute an attempt to murder; at most his acts went no further than acts of preparation.
4.60 In South Africa the school of thought in R v Nbakwa[167] was followed in S v Gordon.[168] Gordon and a girlfriend concluded a suicide pact. Gordon obtained some lethal drug and both took some of it. The girlfriend died, but Gordon lived. He was charged with murder. Henning J distinguished the said case from R v Peverett[169] as follows:[170]
Now it will be observed that in that case the accused completed every necessary act to bring about the death of himself and Mrs Saunders, the starting of the engine being the final act. In the present case it is an accepted fact that the deceased took the tablets herself and that was the final act which brought about her death.
4.61 Henning J found that Gordon was not guilty of the murder. He stated as follows:[171]
To my mind, the mere fact that he provided the tablets knowing that the deceased would take them and would probably die cannot be said to constitute, in law, the killing of the deceased. The cause of her death was her own voluntary and independent act in swallowing the tablets. He undoubtedly aided and abetted her to commit suicide, but that is not an offence. The fact that he intended her to die is indisputable, but his own acts calculated to bring that result about fall short of a killing or an attempted killing by him of the deceased. One might say that the accused, as it were, provided the deceased with a loaded pistol to enable her to shoot herself. She took the pistol, aimed it at herself and pulled the trigger. It is not a case of qui facit per alium facit per se.
4.62 When the matter came before the Appeal Court for the first time, in Ex parte Die Minister van Justisie: In re S v Grotjohn,[172] the court was of the opinion that the school of thought as stated in Rv Nbakwa[173] and S v Gordon[174] was not unqualifiedly correct. Chief Justice Steyn held as follows:[175]
Of 'n persoon wat 'n ander aanmoedig, help of in staat stel om selfmoord te pleeg, 'n misdaad begaan, sal afhang van die feite van die besondere geval. Met die oog op die gewysdes wat aanleiding tot die vrae gegee het, is dit egter nodig om op die voorgrond te stel dat die blote feit dat die laaste handeling die selfmoordenaar se eie, vrywillige, nie-misdadige handeling is, nie sonder meer meebring dat bedoelde persoon aan geen misdaad skuldig kan wees nie. Die antwoord op die tweede vraag hang eweseer van die feitelike omstandighede af. Na gelang daarvan kan die misdaad moord, poging tot moord of strafbare manslag wees.
4.63 The warning in Ex parte Minister van Justisie : In re S v Grotjohn[176] apparently brought new insight to the trial courts, as can be seen in S v Hibbert[177] where Hibbert handed his depressed wife a fire-arm after she had expressed the desire to commit suicide. He was convicted of murder after his wife used the fire-arm he had given her to commit suicide. Shearer J explained as follows:[178]
Now in the present case the accused set in motion a chain of events which ended in the deceased pressing the trigger of a fire-arm which she had been given by the accused and thus causing her death. The successive words and actions of the accused were designed to place her in possession of that fire-arm and were accompanied by the obvious hazard that the deceased might be persuaded to inflict upon herself an injury which could result in her death. The accused's conduct fell short only of the final act of pulling the trigger. It seems to me that the act of pulling the trigger to which all other conduct conduced, cannot in any sense be described as independent of the course of conduct. That being so, we conclude that there was, in the proper sense of that expression, no actus novus interveniens which broke the chain of causation set in motion and continued by the series of acts of the accused which I have mentioned. The accused must, as we have found, have appreciated that injury and possibly death could result from his actions. That being so there is present the necessary intention to bring home a charge of murder. We find therefore that the accused occasioned the death of the deceased by his conduct; that he had the necessary intention and is therefore guilty as charged of murder.
Hibbert was sentenced to four years' imprisonment all of which was conditionally suspended for five years.[179]
4.64 With the exception of certain states in the USA, [180] aiding, abetting and assisting suicide is generally punishable in the Western world.[181] According to section 2(a) of the British Suicide Act, 1961 aiding, abetting and assisting suicide is punishable with imprisonment of up to fourteen years.
4.65 Section 241 of the Canadian Penal Code reads as follows:
Everyone who
(a) counsels a person to commit suicide or
(b) aids or abets a person to commit suicide,
whether suicide ensues or not, is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years.
4.66 In June 1995, the Canadian Special Senate Select Committee on Euthanasia and Assisted Suicide presented its report entitled Of life and death. [182] In this report, a majority of the Committee recommended that the laws relating to assisted suicide and euthanasia remain intact. These members of the Committee considered that, in relation to voluntary euthanasia, adequate safeguards could never be established to ensure the consent of the patient is given freely and voluntarily. Some members felt that "the common good could be endangered" if the law was changed to accommodate the few cases where pain control is ineffective. These cases were not sufficient to justify legalising euthanasia because it could create serious risks for the most vulnerable and threaten the fundamental value of life in society.[183]
4.67 In the case Re Rodriguez and Attorney-General of British Columbia [184] a woman applied for a declaratory order to the effect that she could be assisted to die should her situation become unbearable. The appellant who was terminally ill was suffering from a progressive neuron disease which would have the effect that she would ultimately be unable to speak or move, although she would be mentally competent. The Canadian Supreme Court denied the application with a small majority of five against four.
4.68 In Australia the Criminal Code states that it is a crime to aid another in committing suicide. According to a report of the Law Reform Commission of Western Australia[185] it would, in that country, be a crime for a doctor to place poison in the hand of a patient knowing that it would cause his death. This would amount to aiding suicide.
4.69 Section 294 of the Dutch Criminal Code reads as follows:
[H]ij die opzetlijk een ander tot zelfmoord aanzet, hem daarbij behulpzaam is of hem de middelen daartoe verschaft, wordt, indien de zelfmoord volgt gestraft met gevangenisstraf van ten hoogste drie jaren of geld boete van de vierde kategorie.
4.70 This section should be read with section 293 of the Dutch Criminal Code that reads as follows:
Hij die een of ander op zijn uitdrukkelijk en erstig verlangen van het leven berooft, wordt gestraft met gevangenisstraf van hoogstens twaalf jaren.
4.71 Notwithstanding the express prohibitions found in sections 293 and 294 of the Dutch Criminal Code, the criminal courts in the Netherlands have since 1973 shown an inclination in suitable cases to accept necessity as a defence for contraventions of said sections.[186] The most notable recent example is that of the Chabot-case.[187]
4.72 In the November 1994 general election the voters in the US State of Oregon approved a ballot measure by a vote of 51 to 49 per cent that allows a restricted form of physician assisted suicide. The resulting act is called the Death With Dignity Act. This is the first time that a law has been enacted in the United States that permits physician-assisted suicide.[188]
4.73 The Act allows a terminally ill patient to obtain a doctor's prescription for a fatal drug dosage for the express purpose of ending his or her life. However, the Act does not allow the doctor to carry out the killing of the patient: the patient must self-administer the fatal drug. Specific requirements and safeguards are set out in the Bill.[189]
4.74 The validity of the Act has been challenged on various occasions. A preliminary injunction was granted by the Federal District Court in Oregon in 1994 that prevented the Act from being used. In 1995 the Court found that the Act was unconstitutional and a permanent injunction was granted. An appeal was lodged with the US Court of Appeals for the Ninth Circuit from the decision of the District Court in this case. In 1997 the Court of Appeals dismissed the challenge to the Oregon law saying that the plaintiffs lacked standing to challenge it. Those challenging the law have said that they will appeal the decision and the Oregon Deputy Attorney General was reported as saying that the law "is likely to remain on hold throughout the next phase of the litigation".[190] Oregon recently released data on the first deaths under the controversial assisted suicide law, in effect since November 1997.[191]
4.75 In order to have a sensible discussion with regard to the legal position in the case under discussion, it is necessary to look at the fourth possible category of the cases under discussion, namely where the patient desires active euthanasia.
4.76 The example that is usually used to illustrate what is referred to as "voluntary active euthanasia" is that of a terminally ill person who requests the termination of his or her life as he or she is experiencing unbearable pain or suffering and where the doctor then administers a lethal injection.
4.77 In South Africa such an act would undoubtedly be unlawful and the person giving the assistance could be convicted of murder. In Discussion Paper 71 the following cases of active euthanasia (both voluntary and involuntary) were discussed:
R v Davidow [192]
4.78 The accused was charged with the murder of his mother, who was suffering from a terminal illness accompanied by severe pain. The accused did everything in his power to obtain the best possible medical treatment for his mother. Her condition was, however, incurable and was deteriorating. She was very depressed and expressed the wish to be relieved of her suffering. The accused was extremely concerned about his mother's condition. Finally he asked a friend to give his mother a lethal injection. The friend refused. Eventually the accused, who was in a state of emotional turmoil, shot and killed his mother in her hospital bed. The accused was eventually found not guilty since he was not accountable for his actions as a result of his emotional state during the perpetration of the deed. There was, however, no question as to the unlawfulness of the act.
S v De Bellocq[193]
4.79 The accused, a young married woman, gave birth to a premature baby. After a few weeks it appeared that the baby was suffering from a disease known as toxoplasmosis, was an idiot and would never be able to live a normal life. The accused was a medical student and realised the extent of the problem. On the spur of the moment she drowned the baby in the bath. She was eventually found guilty of murder. On account of the overwhelming extenuating circumstances, she was however sentenced in terms of section 349 of the old Criminal Procedure Act.[194] This section provided that the accused could be discharged on her own recognisance provided that she would appear and be sentenced if called upon by the court.
S v Hartmann[195]
4.80 The elderly father of the accused, a medical practitioner, suffered from cancer. The accused had treated his father for a considerable period. The condition of the father deteriorated and he was on the point of death. Morphine was administered to ease the pain. Eventually the practitioner injected his father with a lethal dose of Pentothal, which immediately caused his death. The accused was convicted of murder. He was sentenced to one year's imprisonment. He was detained until the rising of the court and the balance of the sentence was suspended for one year. The Medical and Dental Council took disciplinary action by suspending him temporarily.
S v McBride[196]
4.81 The accused and his wife were under the impression that the wife suffered from cancer. Her health deteriorated. Their financial position, likewise, deteriorated. The accused decided to take his wife's life and then his own. He shot and killed his wife, but his own life was saved through the intervention of others. He was accused of murdering his wife but the charge was dismissed on the grounds of criminal incapacity.
S v Marengo[197]
4.82 The accused shot and killed her 81-year old father, who suffered from cancer. She pleaded guilty to a charge of murder and stated that she could no longer endure her father's suffering. She was convicted of murder and sentenced to three years' imprisonment suspended for five years.
S v Smorenburg[198]
4.83 The accused was a nursing sister. She attempted on two occasions to end the lives of terminally ill patients by injecting them with insulin in order to end their suffering. She was found guilty of attempted murder on both counts and was sentenced to three months' imprisonment suspended in its entirety.
4.84 All of the above-mentioned cases deal with active euthanasia. In each case the accused actively contributed to the death of the deceased. In each case the motive for the act was to end the suffering or useless existence of the deceased. However, in no case could the act be regarded as lawful. The courts, at best, reflected the sense of justice of the community regarding the blameworthiness of the accused by imposing very light sentences.
4.85 The attitude of the South African judicature reflects the Anglo-American view. In Britain, Australia and Canada and in most of the states of the USA active assistance in terminating life is unlawful and is regarded as murder. In the previously mentioned Report of the Select Committee[199] the position in Britain was again revisited, but the commissioners recommended that the legal position should not be amended.
*The Netherlands
4.86 We have already referred to the fact that in the Netherlands the courts have in suitable cases accepted the defence of necessity as a ground for justification.
4.87 An example of this can be found in the well-known Alkmaar case[200] in which the Dutch Supreme Court held, on appeal, that a doctor, who had applied active euthanasia at the request of an elderly woman suffering from several painful diseases, had acted lawfully. The accused relied on the defence of force majeure as a result of medical necessity.
4.88 Section 40 of the Dutch Criminal Code states that when a person commits a crime as a result of "overmacht" he is not criminally liable. "Overmacht" takes two forms, namely psychological force majeure and necessity. Necessity is regarded here as a ground of justification (although, in the Netherlands, it can be used as a ground for the exclusion of culpability as well) and is found where two interests are weighed up against each other and the interest sacrificed weighs less than the interest protected. It is furthermore required that it should not be possible to attain the object aimed at in a less punishable manner.[201]
4.89 Necessity in this case therefore refers to the patient's unbearable situation which induces the doctor to disregard the law (for a so-called "higher good"). The question of whether necessity exists is answered according to responsible medical opinion measured against the existing standard of medical ethics.
4.90 In 1989 the criteria laid down by the criminal courts in the Netherlands to determine whether the defence of necessity applied in a given case were summarised as follows by Mrs Borst-Eilers,[202] Vice-President of the Health Council:
(a) the request for euthanasia must come only from the patient and must be entirely free and voluntary;
(b) it must be a well-considered, durable and persistent request;
(c) the patient must be experiencing intolerable suffering with no prospect of improvement;
(d) euthanasia must be a last resort;
(e) euthanasia must be performed by a physician;
(f) the physician must consult with a second independent physician who has experience in this field.
4.91 In medical circles the Royal Dutch Medical Association (KNMG), to which 60 per cent of Dutch doctors belong, has played a significant role since 1973. In 1984 a report was published that led in 1988 to a publication entitled Guidelines for Euthanasia, setting out guidelines that closely correspond to the above criteria as developed by the courts over the years.
4.92 In November 1990 the Minister of Justice and the KNMG agreed that a doctor, after practising euthanasia, would have to submit a report to the "gemeentelijke lijkschouwer" (coroner), who would in turn inform the public prosecutor. The prosecutor would ask the police to investigate the matter only if the Guidelines for Euthanasia had not been complied with. The final decision whether to prosecute would be taken by the "Procureurs-Generaal", but in practice they simply approve the decision of the prosecutor.[203] In 1992, one thousand three hundred such reports were received.[204]
4.93 Because medical practice and court decisions were no longer in accordance with the spirit of the legislation and different courts applied different criteria, the Dutch Government decided in 1982 to establish a State Committee to investigate euthanasia. In 1985 the Committee recommended that sections 293 and 294 be amended in order to allow a doctor to apply euthanasia in specific instances. Because of the opposition of the Christian Democrats, the Bill was not passed, but in December 1987 a compromise was reached by the opposing parties.[205]
4.94 The compromise provided that sections 293 and 294 would remain unchanged, but that the position in practice, as set out above, would be given legal foundation. In September 1991 the findings of an independent commission consisting of jurists and doctors led to the introduction of a proposed Bill[206] in this regard, which was accepted in the Second Chamber of Parliament but rejected in the First Chamber because provision was made for both voluntary and non-voluntary euthanasia (i.e. incompetent persons, for example comatose patients).[207]
4.95 The Bill was amended and stated that under no circumstances would the verifying of the doctor's actions be excluded. Even euthanasia at a patient's express request, practised according to the prescribed criteria, would therefore not automatically be exempted from punishment. It furthermore provided that as a rule non-voluntary euthanasia would be regarded as punishable.
4.96 In June 1994 the Dutch Supreme Court decided the Chabot case[208] in which acceptance was expressed of euthanasia for persons not suffering from any physical disease. The suffering of the 50- year old woman was psychological. She had a long history of suffering depression and when both her sons died she decided to commit suicide. She was referred to Dr Chabot by the Dutch Federation for Voluntary Euthanasia after she had contacted them for assistance. Dr Chabot diagnosed her as suffering from severe and intractable mental suffering and was of the opinion that her case satisfied the prescribed guidelines. He consulted a number of colleagues, but none of them examined her. He assisted her to commit suicide by prescribing a lethal dose of drugs and reported the case to the coroner. He was prosecuted under Art 294 of the Dutch Penal Code. The Supreme Court held that there was no reason in principle why the defence of necessity could not apply where a patient's suffering is purely psychological. However, for the defence to apply the patient must have been examined by an independent medical expert. Since this had not happened in this case, Dr Chabot was found guilty of an offence under Article 294.
4.97 In the Netherlands a nationwide survey [209] found that about one third of the persistent, explicit requests for euthanasia were agreed to. In the remaining two thirds, alternatives were found which made the patient's life bearable again, or the patient died naturally before any action was taken. Of all deaths in the Netherlands, 1,8 per cent (that is two thousand three hundred cases annually) were the result of voluntary euthanasia. There were a further four hundred cases (0,3 per cent of all deaths) of assisted suicide. According to the survey there was an increase in the number of cases of voluntary euthanasia. Of the doctors interviewed for the study, fifty-four per cent said that they had practised voluntary euthanasia or had assisted in a suicide; many said that they would be reluctant to do so again, and then only in the face of unbearable suffering and if there was no alternative.
4.98 In November 1997, the Dutch Cabinet introduced a proposal to Parliament that would change the procedure for dealing with end of life decisions in the Netherlands.[210] The principal changes would be to introduce separate procedures for dealing with euthanasia and assisted suicide on the one hand, and end of life decisions without specific request on the other. Euthanasia and assisted suicide will be dealt with by five regional committees, each composed of a doctor, a jurist and an ethicist. These committees will assess whether a doctor has acted with due medical care and would make a preliminary judgment in a given case. The committees will communicate their opnion to the general office of the Public Prosecutions Service. End of life decisions without a specific request will be handled by a separate national committee. The changes will not alter the formal status of euthanasia in Dutch Law.[211]
* Australia
4.99 The development in the field of 'physician-assisted termination of life' in the legislature of the Northern Territory of Australia should furthermore be noted. The Rights of the Terminally Ill Act came into force on 1 July 1996. The Act made provision for active euthanasia at the request of a terminally ill patient. This Act drew worldwide attention,[212] both critical and supportive. On 24 March 1997 the Act however became void as the Australian Federal Parliament voted by a narrow margin of thirty-eight votes to thirty-four to overturn it by passing the Euthanasia Laws Bill 1996 (the Andrews' Private Members Bill). Since the Bill removed the Territory's power to make laws permitting euthanasia, the vote set the scene for continuing controversy over the rights of states and territories to make their own laws and the constitutional powers of the Commonwealth to veto these laws.[213] Although the Australian Medical Association welcomed this new development, it is being suggested that Parliament's will on the matter runs counter to the current views of most Australians.[214] Doctors from both sides of the euthanasia lobby are however united in their calling for better funding for and access to palliative care services.[215] Although the act has been overturned, it is, for the sake of completeness, of more than passing interest to refer briefly to its provisions.
4.100 The Rights of the Terminally III Act provided that a patient who, in the course of terminal illness, is experiencing pain, suffering or distress to an unacceptable extent, may request his or her medical practitioner for assistance in terminating his or her life.[216]
4.101 A medical practitioner who receives such a request from a patient may, subject to section 8, assist the patient to terminate his or her life if the medical practitioner is satisfied that the conditions of section 7 have been met. The medical practitioner may also deny the request for such assistance.[217]
4.102 Before turning to sections 7 and 8, some of the terminology used in sections 4 and 5 needs clarification:
The Act defines "assist" to include the prescription of a substance and the giving of a substance to the patient for self-administration and the administration of the substance to the patient. The Act therefore covers both active voluntary euthanasia and assisted suicide.
"Terminal illness" is defined as an illness which, in reasonable medical judgment will, in the normal course and without the application of extraordinary measures or of treatment unacceptable to the patient, result in the death of the patient.
4.103 We now return to the conditions laid down by section 7 under which a medical practitioner may render the aforesaid assistance. Section 7 reads as follows:
7. CONDITIONS UNDER WHICH MEDICAL PRACTITIONER MAY ASSIST
(1). A medical practitioner may assist a patient to end his or her life only if all of the following conditions are met:
(a) The patient has attained the age of 18 years;
(b) The medical practitioner is satisfied, on reasonable grounds, that -
(i) The patient is suffering from an illness that will, in the normal course and without the application of extraordinary measures, result in the death of the patient;
(ii) In reasonable medical judgment, there is no medical measure acceptable to the patient that can reasonably be undertaken in the hope of effecting a cure; and
(iii) Any medical treatment reasonably available to the patient is confined to the relief of pain, suffering and/or distress with the object of allowing the patient to die a comfortable death;
(c) Two other persons, neither of whom is a relative or employee of, or a member of the same medical practice as the first medical practitioner or each other -
(i) One of whom is a medical practitioner who holds prescribed qualifications, or has prescribed experience, in the treatment of the terminal illness from which the patient is suffering; and
(ii) The other, who is a qualified psychiatrist,
have examined the patient and have -
(iii) In the case of the medical practitioner referred to in subparagraph (i), -
confirmed -
(a) The first medical practitioner's opinion as to the existence and seriousness of the illness;
(b) That the patient is likely to die as a result of the illness; and
(c) The first medical practitioner's prognosis; and
(iv) In the case of the qualified psychiatrist referred to in subparagraph (ii) -
that the patient is not suffering from a treatable clinical depression in respect of the illness;
(d) The illness is causing the patient severe pain or suffering;
(e) The medical practitioner has informed the patient of the nature of the illness and its likely course, and the medical treatment, including palliative care, counselling and psychiatric support and extraordinary measures for keeping the patient alive, that might be available to the patient;
(f) After being informed as referred to in paragraph (e), the patient indicates to the medical practitioner that the patient has decided to end his or her life;
(g) The medical practitioner is satisfied that the patient has considered the possible implications of the patient's decision to his or her family;
(h) The medical practitioner is satisfied, on reasonable grounds, that the patient is of sound mind and that the patient's decision to end his or her life has been made freely, voluntarily and after due consideration;
(i) The patient, or a person acting on the patient's behalf in accordance with section 9, has, not earlier than 7 days after the patient has indicated to his or her medical practitioner as referred to in paragraph (f), signed that part of the certificate of request required to be completed by or on behalf of the patient;
(j) The medical practitioner has witnessed the patient's signature on the certificate of request or that of the person who signed on behalf of the patient, and has completed and signed the relevant declaration on the certificate;
(k) The certificate of request has been signed in the presence of the patient and the first medical practitioner by another medical practitioner (who may be the medical practitioner referred to in paragraph (c)(i) or any other medical practitioner) after that medical practitioner has discussed the case with the first medical practitioner and the patient and is satisfied, on reasonable grounds, that the certificate is in order, that the patient is of sound mind and the patient's decision to end his or her life has been made freely, voluntarily and after due consideration, and that the above conditions have been complied with;
(l) Where, in accordance with subsection (4), an interpreter is required to be present at the signing of the certificate of request, the certificate of request has been signed by the interpreter confirming the patient's understanding of the request for assistance;
(m) The medical practitioner has no reason to believe that he or she, the countersigning medical practitioner or a close relative or associate of either of them, will gain a financial or other advantage (other than a reasonable payment for medical services) directly or indirectly as a result of the death of the patient;
(n) Not less than 48 hours has elapsed since the signing of the completed certificate of request;
(o) At no time before assisting the patient to end his or her life had the patient given to the medical practitioner an indication that it was no longer the patient's wish to end his or her life;
(p) The medical practitioner himself or herself provides the assistance and/or is and remains present while the assistance is given and until the death of the patient.
(2) In assisting a patient under this Act a medical practitioner shall be guided by appropriate medical standards and such guidelines, if any, as are prescribed, and shall consider the appropriate pharmaceutical information about any substance reasonably available for use in the circumstances.
(3) Where a patient's medical practitioner has no special qualifications in the field of palliative care, the information to be provided to the patient on the availability of palliative care shall be given by a medical practitioner (who may be the medical practitioner referred to in subsection (1)(c)(i) or any other medical practitioner) who has such special qualifications in the field of palliative care as are prescribed.
(4) A medical practitioner shall not assist a patient under this Act where the medical practitioner or any other medical practitioner or qualified psychiatrist who is required under subsection (1) or (3) to communicate with the patient does not share the same first language as the patient, unless there is present at the time of that communication and at the time the certificate of request is signed by or on behalf of the patient, an interpreter who holds a prescribed professional qualification for interpreters in the first language of the patient.
4.104 Section 8 of the Act provides a further safeguard. It reads as follows:
8. PALLIATIVE CARE
(1) A medical practitioner shall not assist a patient under this Act if, in his or her opinion and after considering the advice of the medical practitioner referred to in section 7(1)(c)(i), there are palliative care options reasonably available to the patient to alleviate the patient's pain and suffering to levels acceptable to the patient.
(2) Where a patient has requested assistance under this Act and has subsequently been provided with palliative care that brings about the remission of the patient's pain or suffering, the medical practitioner shall not, in pursuance of the patient's original request for assistance, assist the patient under this Act. If subsequently the palliative care ceases to alleviate the patient's pain and suffering to levels acceptable to the patient, the medical practitioner may continue to assist the patient under this Act only if the patient indicates to the medical practitioner the patient's wish to proceed in pursuance of the request.
4.105 Section 10 of the Act further provides that a patient may rescind a request for assistance under this Act at any time and in any manner. In such an event the medical practitioner concerned shall destroy the original certificate of request.
4.106 During the brief period of the Act's existence, four people ended their lives by medically assisted suicide. The Senate rejected an amendment to the Bill that would have allowed a further two terminally ill suffering patients which had completed the required procedures, to die in the manner and at the time of their choosing. A voluntary euthanasia Bill is slowly being debated in the South Australian Legislative Council[218]
4.107 In our discussion so far, a distinction has been made between cases of assisted suicide (par. (C)), and cases where the patient requires active assistance in ending his or her life and where the final act is performed by the person granting the request. (par. (D))
4.108 It is however important to establish whether any real distinction, whether moral or legal, can be drawn between the two sets of cases. Is it not true that in both cases the person to whom the request was directed, performed the act, and was the intention in both cases not to cause death? Although commentators agreed that there is no general intrinsic moral difference between the two (given informed consent by the patient, assistance by another, and the same outcome), they felt that one could however still argue that there is an important evidentiary difference between the two and that the distinction could therefore have some value in practice.[219] Assisted suicide is a better test of the voluntariness of the choice to die or of the patient's resolve to end his or her life. [220]
4.109 The Commission however concludes that both cases presently under discussion are legally speaking versions of active euthanasia and should be dealt with accordingly.[221] Should legal reform be necessary, it would be imperative to state clearly that both instances should be determined in the way which will be decided upon. In the discussion hereunder these two cases will be referred to as active euthanasia. This distinguishes these cases from those discussed earlier in this report vis the cessation of medical treatment which is sometimes referred to as passive euthanasia. Care should be taken to keep in mind that we are still dealing with the question whether effect should be given to life-ending decisions by a mentally competent person.
4.110 The central question in the present case is therefore whether our community would consider a request for euthanasia as reasonable or unreasonable where the consent is given by a mentally competent person with full knowledge and understanding of the extent, nature and consequences of his or her consent.
4.111 Arguments for and against voluntary active euthanasia have often been debated and are generally known. In Discussion Paper 71 the Commission referred to the extensive summary of the argument against voluntary euthanasia found in the report of the British House of Lords of 1994 and quoted fully from the relevant section of the report as well as the justification for the decision taken by the committee.[222]
236. The right to refuse medical treatment is far removed from the right to request assistance in dying. We spent a long time considering the very strongly held and sincerely expressed views of those witnesses who advocated voluntary euthanasia. Many of us have had experience of relatives or friends whose dying days or weeks were less than peaceful or uplifting, or whose final stages of life were so disfigured that the loved one seemed already lost to us, or who were simply weary of life. Our thinking must inevitably be coloured by such experience. The accounts we received from individual members of the public about such experiences were particularly moving, as were the letters from those who themselves longed for the release of an early death. Our thinking must also be coloured by the wish of every individual for a peaceful and easy death, without prolonged suffering, and by a reluctance to contemplate the possibility of severe dementia or dependence. We gave much thought too to Professor Dworkin's opinion that, for those without religious belief, the individual is best able to decide what manner of death is fitting to the life which has been lived.
237. Ultimately, however, we do not believe that these arguments are sufficient reason to weaken society's prohibition of intentional killing. That prohibition is the cornerstone of law and of social relationships. It protects each one of us impartially, embodying the belief that all are equal. We do not wish that protection to be diminished and we therefore recommend that there should be no change in the law to permit euthanasia. We acknowledge that there are individual cases in which euthanasia may be seen by some to be appropriate. But individual cases cannot reasonably establish the foundation of a policy which would have such serious and widespread repercussions. Moreover, dying is not only a personal or individual affair. The death of a person affects the lives of others, often in ways and to an extent which cannot be foreseen. We believe that the issue of euthanasia is one in which the interest of the individual cannot be separated from the interest of society as a whole.
238. One reason for this conclusion is that we do not think it possible to set secure limits on voluntary euthanasia. Some witnesses told us that to legalise voluntary euthanasia was a discrete step which need have no other consequences. But as we said in our introduction, issues of life and death do not lend themselves to clear definition, and without that it would not be possible to frame adequate safeguards against non-voluntary euthanasia if voluntary euthanasia were to be legalised. It would be next to impossible to ensure that all acts of euthanasia were truly voluntary, and that any liberalisation of the law was not abused. Moreover to create an exception to the general prohibition of intentional killing would inevitably open the way to its further erosion whether by design, by inadvertence, or by the human tendency to test the limits of any regulation. These dangers are such that we believe that any decriminalisation of voluntary euthanasia would give rise to more, and more grave, problems than those it sought to address. Fear of what some witnesses referred to as a "slippery slope" could in itself be damaging.
239. We are also concerned that vulnerable people - the elderly, lonely, sick or distressed - would feel pressure, whether real or imagined, to request early death. We accept that, for the most part, a request resulting from such pressure or from remediable depressive illness would be identified as such by doctors and managed appropriately. Nevertheless we believe that the message which society sends to vulnerable and disadvantaged people should not, however obliquely, encourage them to seek death, but should assure them of our care and support in life.
240. Some of those who advocated voluntary euthanasia did so because they feared that lives were being prolonged by aggressive medical treatment beyond the point at which the individual felt that continued life was no longer a benefit but a burden. But, in the light of the consensus which is steadily emerging over the circumstances in which life-prolonging treatment may be withdrawn or not initiated, we consider that such fears may increasingly be allayed. We welcome moves by the medical professional bodies to ensure more senior oversight of practice in casualty departments, as a step towards discouraging inappropriately aggressive treatment by less experienced practitioners.
241. Furthermore, there is good evidence that, through the outstanding achievements of those who work in the field of palliative care, the pain and distress of terminal illness can be adequately relieved in the vast majority of cases. Such care is available not only within hospices: thanks to the increasing dissemination of best practice by means of home-care teams and training for general practitioners, palliative care is becoming more widely available in the health service, in hospitals and in the community, although much remains to be done. With the necessary political will such care could be made available to all who could benefit from it. We strongly commend the development and growth of palliative care services.
242. In the small and diminishing number of cases in which pain and distress cannot be satisfactorily controlled, we are satisfied that the professional judgment of the health-care team can be exercised to enable increasing doses of medication (whether of analgesics or sedatives) to be given in order to provide relief, even if this shortens life. The adequate relief of pain and suffering in terminally ill patients depends on doctors being able to do all that is necessary and possible. In many cases this will mean the use of opiates or sedative drugs in increasing doses. In some cases patients may in consequence die sooner than they would otherwise have done but this is not in our view a reason for withholding treatment that would give relief, as long as the doctor acts in accordance with responsible medical practice with the objective of relieving pain or distress, and with no intention to kill.
243. Some witnesses suggested that the double effect of some therapeutic drugs when given in large doses was being used as a cloak for what in effect amounted to widespread euthanasia, and suggested that this implied medical hypocrisy. We reject that charge while acknowledging that the doctor's intention, and evaluation of the pain and distress suffered by the patient, are of crucial significance in judging double effect. If the intention is the relief of severe pain or distress, and the treatment given is appropriate to that end, then the possible double effect should be no obstacle to such treatment being given. Some may suggest that intention is not readily ascertainable. But juries are asked every day to assess intention in all sorts of cases, and could do so in respect of double effect if in a particular instance there was any reason to suspect that the doctor's primary intention was to kill the patient rather than to relieve pain and suffering. They would no doubt consider the actions of the doctor, how they compared with usual medical practice directed towards the relief of pain and distress, and all the circumstances of the case. We have confidence in the ability of the medical profession to discern when the administration of drugs has been inappropriate or excessive. An additional safeguard is that increased emphasis on team work makes it improbable that doctors could deliberately and recklessly shorten the lives of their patients without their actions arousing suspicion.
244. We could add that the effects of opiates (the drugs most commonly involved in double effect) and of some other pain-relieving and sedative drugs are so uncertain that the outcome of a particular dose can never be predicted with total confidence. The body weight, metabolism, habituation and general condition of the individual patient all affect the response. There have been cases where an error in dispensing resulted in the administration of a dose which seemed likely to be lethal, yet the patient flourished. A doctor called to testify in the case of Dr Bodkin Adams asserted that a particular dose must certainly kill, only to be told that the patient had previously been given that dose and had survived. The primary effect (relief of pain and distress) can be predicted with reasonable confidence but there can be no certainty that the secondary effect (shortening of life) will result. Decisions about dosage are not easy, but the practice of medicine is all about the weighing of risks and benefits.
4.112 The British Government responded to the report of the House of Lords Select Committee in May 1994[223] supporting most of its recommendations. In the instances where it did not agree, the Government held more conservative views. The British Government has subsequently reiterated its opposition to changing the law in relation to euthanasia in written answers in Parliament in April 1995[224] and January 1996.[225]
4.113 In Discussion Paper 71 the arguments set out in the Select Committee Report were juxtaposed with those of Professor JMT Labuschagne of the University of Pretoria, an outspoken champion of the decriminalisation of voluntary euthanasia.[226] His arguments in favour of euthanasia were discussed as follows under the following headings:
1. Religious-moral arguments.
Labuschagne points out that the religious and moral objections to euthanasia are based on diverse religious and moral convictions. He identifies with the writer Williams who argues that religious arguments against euthanasia are in themselves not enough. People who do not share particular convictions should not be bound by them. A rule should therefore be necessary for the "worldly welfare of society generally" before it can lay claim to judicial status. He also holds that a deregulating process on a wide front is taking place in the criminal law.
Labuschagne discusses the religious-moral arguments in more depth under the following headings:
(a) God has allocated a specific time of death to every person
He says that it is sometimes argued that God in his Providence has allocated a specific time of death to every person and that man is not supposed to interfere with that. Labuschagne however holds that if this argument is to be taken seriously, the question can then be asked why lives are prolonged artificially by medicine. Medical science is inherently an interference with the processes of nature. He associates himself with the writer Fletcher[227] who indicated that things like sterilisation, artificial insemination and birth control "...are all medically discovered ways of fulfilling and protecting human values and hopes in spite of nature's failures and foolishnesses. Death control, like birth control, is a matter of human dignity."
(b) The prohibition against killing
Labuschagne mentions the fact that it is sometimes argued that euthanasia is incompatible with the sixth commandment which forbids killing. He however points out that the killing of a person may be lawful in certain circumstances, for example when acting in self-defence. The question is therefore not simply whether a fellow human being has been killed, but rather whether the killing was justified. That is the question that has to be answered.
(c) Suffering has a purpose
The argument is sometimes used, according to Labuschagne, that man should suffer, as suffering has a divine purpose. According to him the opposite principle would be love for one's neighbour, which has as its purpose the lessening or the elimination of human suffering. He associates himself[228] with the writer Mathews where he says:
Nothing could be more distressing than to observe the general degeneration of a fine and firm character into something which we hardly recognize as our friend, as the result of physical causes and of the means adopted to assuage intolerable pain. It is contended that the endurance of suffering may be a means of grace and no Christian would deny this, but I would urge that, in the case of man whose existence is a continuous drugged dream, this cannot be alleged.
2. Diagnostic and prognostic mistakes.
According to Labuschagne a further argument against euthanasia is that doctors are bound to make diagnostic or prognostic mistakes and that people sometimes recover from illness against all expectation. However, Labuschagne notes that in the proposals for the decriminalisation of euthanasia it is almost without exception accepted that the opinion of only one expert medical practitioner will not suffice. It should be the unanimous decision of more than one medical practitioner, in other words a panel. The fact that mistakes will nevertheless still occur, cannot be denied. Mistakes are typical of the human phenomenon and are found everywhere. Only if man should succeed in obliterating himself, would human mistakes cease to happen. In such a case the need for euthanasia would however also cease. According to him the said argument therefore contributes nothing to the euthanasia debate.
3. No illness is incurable.
Labuschagne notes that it is sometimes argued that no illness is inherently incurable: as long as there is life, there is hope. It is argued that medical science may find a cure for a certain illness in future. Against this Labuschagne holds that a person should judge a situation as it stands. He associates himself with Mathews where he says:
We cannot regulate our conduct at all unless we assume that we must be guided by the knowledge we have. We take for granted that known causes will be followed by known effects in the overwhelming majority of cases. Any other assumption would strike at the roots of sanity.
4. The thin-end-of-the-wedge argument.
It is sometimes argued, according to Labuschagne, that voluntary euthanasia is only the thin end of the wedge and that it could diminish the value attached to life. Legalisation of voluntary euthanasia could open the door to abuse and even foul play. Labuschagne however refutes this argument by saying that it could also be applicable to any other human action. To use an analogy: freedom of speech should be forbidden as it could lead to slander. Nobody can take such an argument seriously.
5. Medical-ethical arguments.
According to Labuschagne the following subdivisions of this argument can be distinguished:
(a) The Oath of Hippocrates is violated
It is sometimes submitted that euthanasia is in conflict with the Oath of Hippocrates that doctors have to take before practising medicine. Labuschage, however, asks the question whether it is meaningful to be bound to an oath that is more than two thousand years old. If so, the oath should be adapted. In any case, the Oath of Hippocrates should be interpreted progressively, as the duty of the medical practitioner is not only to cure illness, but also to eliminate suffering.
(b) Trust in medical science is violated
According to Labuschagne, it is sometimes submitted that legalising euthanasia (especially active euthanasia) would violate the trust of the population in the medical practitioner and in medical science. It is alleged that patients would see medical practitioners as executioners and not as doctors. In answer to this argument Labuschagne notes that the patient's consent is a requirement in all cases and that mechanisms have been built into the euthanasia process to prevent abuse.
(c) Euthanasia assists organ transplants
The argument is sometimes raised that the legitimisation of euthanasia will enable doctors to obtain prime human organs on order, so to speak. Although Labuschagné concedes that organ transplants might benefit should euthanasia be legitimised, he nevertheless argues that this should never be used as justification for euthanasia.[229]
(d) The problem of consent
Labuschagne explains that the problem in this case is that the consent to euthanasia given by the patient while he is in pain, suffering and facing death, and accordingly in a state of anxiety and depression, may be questionable. Can it really be regarded as voluntary? There is a difference between the expression of a desire to die and a request to be killed. A British study showed that requests to be killed should not always be taken seriously as they are often intended as cries for help and attention. Although Labuschagne concedes that since factors such as pain, illness, drugs and a range of other circumstances may have an effect on a person's mental state, the patient should be evaluated throughout. There should be compulsory consultation between and supervision by experts. The doctor should inform his or her patient as to the diagnosis and prognosis of the illness. This should however only be done should the patient request the information. The information needn't be given all at once. Consent given after having obtained sufficient information is known as informed consent. According to Labuschagne, the concept of informed consent is based on the principles of human individuality, dignity and autonomy and forms one of the fundamental tenets of euthanasia.
4.114 Labuschagne[230] is of the opinion that voluntary euthanasia should be legalised. He proposes legislation that would legalise cessation of treatment as well as active euthanasia and suggests the following criteria:
(a) The patient must be suffering from a terminal illness;
(b) the suffering must be subjectively unbearable;
(c) the patient must consent to the cessation of treatment or administering of euthanasia;
(d) the above-mentioned condition and facts must be certified by at least two medical practitioners.
4.115 Labuschagne is also of the opinion that it would be preferable, in order to eliminate any question of criminal liability, to approach the Supreme Court, if possible before performing the act of euthanasia, in order to obtain a declaratory order that all conditions have been met.
4.116 It is therefore clear that Labuschagne wants to control euthanasia and wants to make it permissible only in cases where the necessary certificate has been issued by at least two medical practitioners. It can be assumed that he also intends the act of euthanasia to be performed by a medical practitioner only. This does not however mean that non-medical euthanasia would always be inadmissible. The common law principles with regard to necessity would be applicable in appropriate cases to justify non-medical euthanasia. Labuschagne refers to two hypothetical examples in this regard:
(a) The driver A of a motor vehicle is trapped in his burning car. He requests B to kill him as he does not want to burn to death. B takes his revolver and kills A.
(b) C, a soldier, lies on the battlefield, seriously wounded. As the enemy draws nearer he asks his friend D to kill him in order to escape a torturous death at the hands of the enemy. D kills him.
Labuschagne is of the opinion that neither B nor D is criminally liable. Both have acted in what is legally known as necessity.
4.117 Labuschagne finally states that his recommendations are based on respect for human dignity and compassion for fellow human beings who have been exposed to great suffering and affliction. The accent therefore falls on the sacredness of the quality of life rather than the sacredness of life per se. He associates himself with Fletcher:[231]
[I]t is harder morally to justify letting somebody die a slow and ugly death dehumanised than it is to justify helping to avoid it.
4.118 He also quotes from Dowling, evidently with approval:[232]
By the bed of an actual sufferer the proportions of the problem are seen quite differently. It becomes no longer a question of the sanctity of 'life' and the need to prolong suffering existing just as long as it is technically possible, but a case in which the compelling demands of compassion and dignity combine to impose merciful death as the only natural solution.
4.119 The Commission tried to state the argument for and against euthanasia with the necessary thoroughness. However, since the decision as to whether active voluntary euthanasia and assisted suicide should be allowed is one of policy the Commission requested guidance from its readers on this question.
4.120 The Commission received a tremendous amount of feedback on this question. Submissions received came from a broad spectrum of the public including individuals and organisations from the medical, religious and legal fraternities as well as from ordinary members of the public. Respondents were divided almost equally in their response to this question. There were respondents who totally rejected the idea of active euthanasia.[233] Others gave their unequivocal or sometimes conditional support to this option. [234] It was also found that there were instances where persons in a specific organisation could not reach a unanimous decision and either sent in a majority report[235] or sent in submissions arguing both sides of the issue. [236] There were submissions that included published material and the Commission also received two petitions.[237]
4.121 The rationales to be discussed below formed the basis upon which most commentators expressed their views regarding the question whether a mentally competent patient suffering from a terminal or intractable and unbearable disease should be allowed to receive assistance in ending his or her life. The Commission received submissions stating both sides of each rationale and it is therefore related in the same way here. The rationales will first be discussed in principle and then tested against the rights enshrined in the Constitution. Finally attention will be given to the practical question whether it would be possible to have sufficient safeguards to prevent abuse if euthanasia could be accepted in principle.
aa) Arguments of commentators against active euthanasia
4.122 Many religious denominations and organisations as well as individual persons in South Africa recorded their opposition to euthanasia on religious grounds.[238] It was stated that according to the Bible God is the creator of life and therefore the only One who may give or take the life of a human being.[239] Similar passages are found in the Noble Qur'an affirming the fact that both life and death are in the control of Allah: "Say (O Muhammad): It is Allah Who gives you life, then causes you to die...".[240]
4.123 The Commission was specifically referred to the views of the Roman Catholic Church on the preservation of life (which also summarises the views expressed by many other denominations) as set out in the Catechism of the Catholic Church[241] and explained in six principles.[242] It was furthermore pointed out that Islamic Law equates active inducement of death to an act of murder[243] and that according to the South African Hindu Maha Sabha[244] Hindus would not opt for a voluntary death. Judaism espouses the principle that the Almighty gave each person a body and a soul for a given time and it is one's duty when the time comes to return both to the maker.[245] Bishop Lekganjane [246] stated that God, the Almighty, is the creator of everything that is in this world. He is also the creator of the intelligentsia. Medical practitioners will not be able to prolong or end life if it is not His will that it would happen.
4.124 The Commission was also referred to various scriptures in support of the opposition to active euthanasia[247] Respondents furthermore referred the Commission to two instances in the Bible where a form of euthanasia was practised.[248]
4.125 Concern was furthermore expressed that a person may be punished in the afterlife if he or she commits suicide or murder. Such a price would be too high to pay simply to end someone else's strictly temporary suffering (however acute it may be) either by killing them or assisting in their suicide.[249]
bb) Arguments of commentators in favour of active euthanasia
4.126 It was clear from the submissions received that the question regarding the role that religious belief should play in this issue could be addressed in various ways.
4.127 The first identifiable response was that religion should play no role at all since religion is just another way of making a living and controlling people's lives [250] and that it amounts to emotional arguments which serve only to confuse issues in what is already a complex debate.[251]
4.128 The second view was that religiously inspired views opposing voluntary euthanasia had to be respected but that religious views held by some should not be allowed to compel others not holding such views to be bound by them. Tolerance was requested to provide rights to those persons who wish to avail themselves of those rights since it would have no effect on religious and other people who prefer not to utilise them.[252]
4.129 A third consideration referred to the growing sense that the new Constitution[253] with its justiciable Bill of Rights, and not sectional moral or religious convictions, should inform public debate and legal reform.[254] Although religious convictions should be respected, they should not be used as a yardstick for making decisions in this regard. The question whether assisted suicide and euthanasia are ethically or morally justifiable practices is separate from the question whether they should be legalised. The answer to the latter can be explored whatever the answer to the former.[255] The distinction between the morality of a practice and the morality of legalising it was emphasised. It was argued that the question of assisted suicide for example, is not one question, but two: (1) Is assisted suicide morally permissible? and (2) Ought assisted suicide to be legal? It is the second question that is the concern of the Law Commission and of those who wish to comment on the draft bill. An affirmative answer to the first question is not required in order to answer the second one affirmatively. In other words, even those who think assisted suicide is wrong, are not committed to thinking that it ought to be illegal. [256]
4.130 In the final instance there were respondents who argued the point from within the Christian perspective. It should be noted that the fact that they were Christians did not preclude many respondents from stating their support for active euthanasia under specific circumstances.[257]
4.131 In a comprehensive submission received for the Anglican Archbishop of Cape Town specific principles were suggested as guidelines in this question.[258] It was further stated that an action designed to bring to an end life which comes as a gift from God entails serious moral problems. It is therefore impossible to provide hard and fast rules which will be universally valid. It was felt that even the distinction between passive and active euthanasia is ethically dubious. It was contended that Christians, both patients and carers, must be guided by principles which express the values of the gospel and the teaching of the church. Specific recommendations regarding the Christian Attitude to Euthanasia were set out.[259]
4.132 Finally it was argued that the guidelines and recommendations should be taken into account in coming to a conclusion. It was stated that the giving of a lethal injection to a terminally ill patient is prima facie ethically culpable and legally murder. Specific note was taken of the report of the British House of Lords Select Committee in stating that the prohibition of intentional killing "is the cornerstone of law and social relationships" and that "the issue of euthanasia is one in which the interest of the individual cannot be separated from the interest of society as a whole". It was nevertheless contended that situations may exist in which the patient's suffering is so severe and the patient's desire for an early release so sincere that it would be right to accede to the patient's request for an early ending of his or her life. The sixth commandment does not prohibit killing. It prohibits murder and culpable homicide. Reference to it therefore begs the question in a discussion on the ethics of euthanasia.[260]
4.133 Although this term may seem specifically religious, it is discussed separately since it is held to transcend religion. It encompasses but is not restricted to religious conviction. It holds that human life is created in the image of God and is, therefore, possessed of an intrinsic dignity which entitles it to protection from unjust attacks.[261] The principle can however also be articulated in non-religious terms in which "inviolability" might be more apt than "sanctity". Indeed a prohibition on killing is central to the pre-Christian fount of Western medical ethics - the Hippocratic Oath - and many non-believers recognise the right of human beings not to be intentionally killed. It can also be phrased as "inviolability of human life" or respect for human life.[262]
aa) Arguments of commentators against active euthanasia
4.134 Opponents of euthanasia rely strongly on the principle of the "sanctity of life". Euthanasia is regarded as being incompatible with the reverence for the sacredness of life.[263]
4.135 Respondents argue that legalising euthanasia would require a complete change in the whole common law understanding of the prohibition of murder[264] since the principle of the sanctity of human life has been the bulwark in every civilisation against the arbitrary destruction of the weak and helpless.[265] In South Africa there is a desperate need of inculcating a reverence for life in our citizens.[266] It was said that our society is struggling to recover from social engineering. We shouldn't now fall into life-and death engineering. [267]
4.136 Human life would no longer be precious if its value is relative to its usefulness to society and to the convenience of those around it. By moving to legalise the killing of humans if their quality of life is deemed to be poor, South Africa would be eroding the value of human life. Arbitrary questions that will have to be answered would be how the quality of life will be defined and who will determine the quality of life of a specific individual.[268]
4.137 It was stated that the only acceptable exceptions to the prohibition against killing are self-defence, both of the individual and the community (armed conflict) and the judicial execution of murderers.[269] These exceptions all have as their aim a positive good, either of one's own bodily well-being or the well-being of others, as in self-defence. The good gained or preserved must at least be equal to the good lost - the life of the assailant. [270]
bb) Arguments of commentators in favour of active euthanasia
4.138 Respondents noted that there appears to be no genuinely comprehensive concept of the "sanctity of life". Even those who invoke it as if it pre-empted further discussion, usually in the context of an avowed religious belief, do not in fact present a consistent front. The phrase "respect for life" may reflect the present day consensus on the matter more accurately than the absolutism of "sanctity of life" [271]
4.139 It has always proved hard to construct any absolute philosophical argument against a person's right to waive the right to his own life, except by reference to a personal God against whom one would be offending. [272] It is however the sacredness of the quality of life that should be accentuated, rather than the sacredness of life per se.[273] Life is sacred by virtue of its quality and not its quantity. As the philosopher, James Rachels observed, it is possible to be alive but have no life.
4.140 All the major religions find certain categories of killing justifiable (war, capital punishment etc.). If sanctity of life was the concern of world leaders, weapons of mass destruction should have been abolished long ago. [274]
4.141 Much of the argument about the sanctity of human life appears to be based on sentimentality where we acquiesce in a social system where people die daily from starvation, malnutrition or a lack of basic medical resources; a system that allows, for example, advertisements enticing people to smoke to appear, where totally inadequate measures are applied to reduce the slaughter from road accidents, and where no account is taken of the economic cost of maintaining meaningless or unbearably tortured human life. [275]