Death and dying in a constitutional democracy – an analysis of the South African criminal law and a call for law reform.

Abstract

Murder is defined as the unlawful and intentional causing of the death of another human being. Suicide is not a crime. In South Africa, the act of assisting another person to commit suicide is prosecutable under the broad category of crimes classified as homicide – murder, attempted murder and culpable homicide; whether the assistance is the direct administration of a fatal drug or through the provision of the means by which to commit suicide. The current formulation of the common law is broad enough to include medically assisted yet consented-to deaths within the definition of the crime of murder. Some jurisdictions have decriminalised the acts of physician-assisted suicide and physician-administered euthanasia (collectively called voluntary active euthanasia -VAE) under specific conditions, notably the nature of the illness and the fact that a patient has requested and given informed consent for such assistance. In South African law, consent is not a defence to a charge of murder and, consequently, does not justify VAE, which is categorized as murder. When the elements of criminal liability are applied to VAE, they prove that the physician who assists a patient acts both causally and intentionally and cannot escape criminal liability because consent is not a defence in these circumstances. In contrast to VAE, deaths consented to, intended and caused through passive euthanasia practices (e.g. withdrawing treatment or withholding treatment and/or life-sustaining mechanisms and the administration of palliative care and palliative/terminal sedation) have been medicalised. In other words, this form of intentionally causing the death of a patient is seen as a legitimate form of medical treatment, even though it undeniably hastens and causes death. However, for policy reasons is not treated as nor categorised as the crime of murder, provided that the patient has consented to (either personally or through a proxy) such fatal medical treatment. The question of whether VAE should be de-criminalised was ventilated in 1998 when the South African Law Reform Commission considered arguments for and against decriminalisation of the practice, and a draft bill to that effect was prepared. To date, there has been no progress towards law reform by the Legislature. The case of Stransham-Ford re-ignited the issue. However, for various reasons, the court did not effect any change to the status quo. The Supreme Court of Appeal, however, did indicate that if a proper case was made, it might result in the development of the law to accommodate for a lawful form of medically-assisted dying. However, this would first require a thorough investigation into the reasons why the practice is unlawful and criminal in the light of the definitional elements of the crime of murder and the policy reasons for such criminalisation. Only once that has been thoroughly canvassed, can the question of the limit placed on autonomy and patient consent be gauged for whether consent could be a defence in the specific and limited circumstance of a VAE scenario. At its core, the focus turns to autonomy in decision making, policy reasons for disregarding autonomy, and whether arguments for and against decriminalisation can be sustained in light of the spirit, purport and objects of the Bill of Rights of the Constitution. Those in favour of the decriminalisation of VAE argue that the limit on autonomy and consent violates the constitutionally guaranteed rights to dignity, life and privacy. Those who are against it argue that the limit on autonomy is necessary to protect and preserve these very same rights. An analysis of these rights and the arguments can help determine whether reform or retention would be reasonable and justifiable under a Constitutional dispensation. This thesis considers the elements of criminal liability and the purpose for which the act of assisting another to die at their request has been criminalised to the extent that conduct on the part of an assisting physician is prosecutable as the common law crime of murder. The conclusion reached is that in the light of constitutional advancements, particularly in relation to the right to dignity as informed by autonomy, it is possible to decriminalise assisted dying when strictly confined to VAE in the medical context by moving from a position of criminalisation to medicalisation of the practice, as has been the case with passive euthanasia. This thesis advocates for neither a pro-life nor a pro-death policy but rather a pro-choice one, which would be in accordance with the cornerstone of constitutionalism in a state governed by constitutional democracy.