Physician-assisted suicide in South Africa : a constitutional perspective.
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Date
2016
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Abstract
Physician-assisted suicide is a form of active euthanasia where a physician, in response to a request from a terminally ill patient, assists such patient to commit suicide or provides the patient with means of committing suicide.1 Active euthanasia is illegal in South Africa. In a circumstance where physician-assisted suicide may be requested in a jurisdiction in which active euthanasia is still illegal, this therefore raises questions about balancing the realization of the rights to life and human dignity with the rights of the patient to self-determination or respect for patient autonomy. The right to life; to dignity; to freedom and security of a person; to privacy and to health care, food, water and social security, amongst others, are guaranteed in South Africa.2
The state has a duty to respect, protect, promote and fulfill these rights by ensuring their full and equal enjoyment as they are also founded on the values and principles of human dignity, equality and freedom. These rights are not unique to South Africa, they are also enshrined in various international instruments and declarations3that form part of the international customary law. In the South African context, the meaning of “right to life” has been pronounced upon by the constitutional court.4It is thus necessary to consider the question as to whether the equal realization of these rights particularly in the healthcare environment, should also include that the terminally ill are allowed, in certain circumstances, to decide when and how to end their lives with or without the assistance of a medical practitioner without attracting any adverse legal consequences. In South Africa, patient autonomy and the rights of patients to decide if they want a particular treatment, even if their choice will cause them to die, are protected rights. However, there is no clear legal framework or mechanism that guides those who seek to exercise these rights, for instance where a terminally ill patient opts for some form of euthanasia and the extent to which they could exercise this choice without violation of any laws of the Republic or risking punishment. There are various forms of euthanasia that a patient and/or the healthcare professional involved might choose to employ in order to hasten one‟s death, but euthanasia in any form is illegal in South Africa, unless the court orders otherwise. The debate on this subject is influenced by various factors, including the advancing medical technology that have the effect of prolonging one‟s life, the developments in jurisprudence on cases that are taken through the courts and the convictions of various interest groups. This dissertation considers euthanasia in general, and analyses local South African developments and international advances in the law and public opinion, with the intention of promoting the progressive evolutionof South African law on this subject.
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Master of Law in Medical Law. University of KwaZulu-Natal, Durban 2016.