Trailblazing judgment on assisted suicide

ON April 30, 2015, Judge Fabricius handed down judgment in the North Gauteng Division of the High Court in the matter of Stansham-Ford v the Minister of Justice and Correctional Services & Others, in terms of which the court found that the medical professional that was to assist in Stansham-Ford’s suicide would, contrary to common law position, not have acted unlawfully.

This is a groundbreaking judgment from an international perspective, and has changed both our criminal and medical law. Prior to this judgment, the common law crimes of murder and culpable homicide placed an absolute prohibition on medical professionals assisting a terminally ill patient to commit suicide.

Stransham-Ford, in our view, correctly argued that this absolute prohibition was inconsistent with the Constitution of the Republic of South Africa as it infringed on his right to human dignity, which includes the right to die in a dignified manner. Judge Fabricius acknowledged as a categorical imperative the court’s duty to recognise and protect the right to human dignity, by developing the common law.

Judge Fabricius referred in his judgment to one in the Supreme Court of Appeal in Canada, where the court argued that in terms of the Canadian common law (which also prohibited euthanasia), a terminally ill patient had two choices: they could attempt suicide, which is both violent and dangerous, or the patient could endure intolerable suffering until he/she dies from natural causes. The Canadian court described this as cruel and, in the circumstances, allowed a terminally ill patient to be euthanised. Judge Fabricius also convincingly referred in his judgment to Stransham-Ford’s request to the court to afford him the same dignity which our law affords animals by ending their suffering, and obligating an owner “to destroy such an animal which is seriously injured or diseased, or in such a physical condition that to prolong its life would be cruel”.

The high court has, therefore, developed the common law crimes of murder and culpable homicide to the extent that our law previously placed an absolute prohibition on physicianassisted suicide. We agree that legislative intervention is necessary to ensure all such suicides in South Africa are conducted correctly, safely and lawfully.

Van Loggerenberg is an associate at Bowman Gilfillan Africa Group