Right to die case heads to Supreme Court of Appeal

04 November 2016 - 09:49 By Katharine Child

Torture‚ pain‚ suicide‚ lies and compassionate doctors illegally ending suffering people's lives will be the subject of discussions at the Supreme Court of Appeal (SCA) on Friday as it examines whether euthanasia should be legal. For 17 years‚ Parliament ignored a 1998 Law Reform Commission report that explored whether or not terminally ill people‚ with intractable suffering‚ should be allowed to request a doctor's help to die.In his last six days of life‚ a dying man forced the issue to be heard by the High Court in Pretoria‚ in a case that could ultimately change South African law. On April 22 last year‚ Cape Town advocate Robin Stransham-Ford‚ suffering with cancer‚ filed an urgent application to allow a doctor to help him end his life .Six-days later‚ his case was heard by Judge Hans Fabricius‚ when Stransham Ford was already in a coma. He died the next day‚ just hours before judgment on April 29.The judge ruled specifically on his case‚ allowing him to ask a doctor for help.On Friday‚ at the SCA‚ the minsters of health and justice‚ the Deputy Director of the National Prosecuting Authority (NPA) and the Health Professions Council of SA (HPCSA) will appeal the judgment. The appeal is likely to go all the way to the Constitutional Court‚ and this could change the law.Here is a summary of arguments:It's my constitutional rightStransham-Ford‚ an advocate‚ said he wanted to end his life because forcing him to endure pain and nausea from cancer and kidney failure infringed his constitutional right to dignity.He used a psychologist's assessment to prove he understood what he was doing. His ex-wife and youngest son provided affidavits of support.The judge agreed that the Constitution allowed him to die with dignity with a doctor's help‚ that he was aware of what he wanted‚ but the judgment applied only to him and the doctor who would help him.Stransham-Ford's estate is continuing his fight.Its lawyers will tell the SCA that there is no difference between doctors stopping futile treatment for a dying person and a doctor helping a terminally ill person end their life.They note it is legal to a sedate a person who is suffering severely and keep them asleep or unconscious until they die and claim is this no different to ending such a person's life. Doctors also illegally participate in euthanasia and may out of compassion help a suffering ill person die‚ they claim.Doctors body says Stransham-Ford exaggerated his sufferingThe HPCSA‚ which does not want doctors participating in this action‚ has controversially subpoenaed Stransham- Ford's medical records.They have argued‚ the records show‚ that he was in low levels of pain‚ on small amounts of morphine and dying with dignity in his ex-wife's home - and that he “exaggerated his suffering” to mislead the court.They also claim he chose a specific method of pain medication administered by his doctor‚ that may have actually prolonged his life by a few days.They also suggest his death‚ just hours before the ruling‚ was kept quiet by his relatives‚ so the case could continue.This evidence is new and may not be accepted by the SCA on Friday as it applies only to him and the case is now a broader issue on what the Constitution allows.The state says no wayThe state (health department‚ justice department and NPA) argue that the Constitution allows the right to life and not death.They say the constitutional right to dignity does not mean having a right to end your life and there are dignified ways to die‚ such as in a hospice or at home with symptoms controlled by a doctor.It is concerned that‚ if people are allowed to have doctor-assisted suicide or medicine prescribed to take their own lives‚ this could lead to vulnerable people to be forced to request euthanasia.Doctors for Life say unscrupulous doctors could abuse the lawDoctors for Life‚ a friend of the court‚ cites the Indian court ruling against euthanasia that found unscrupulous doctors or unscrupulous relatives could abuse the law to get rid of sick‚ old unwanted people who are a burden to care for.The Hospice Palliative Care Association of SA‚ in a press releases‚ argues that evidence shows it is not pain that makes terminally people ask to die‚ but feeling like a burden. This ruling could encourage people who feel unwanted or lonely to die prematurely.Doctors also say cancer pain can be controlled in a person's dying days effectively with morphine.Keeping suffering people alive against their own will is tortureThe Wits Centre for Applied Legal Studies‚ involved as Friends of the court‚ submit that forcing a bed-ridden‚ weak person in terrible pain to remain alive is tantamount to torture by the state‚ citing the legal definition of torture to make their case.The centre has asked for new evidence to be admitted before the court which cites experts overseas involved in helping people die in countries where it is legal.The evidence shows that the practice not misused‚ that most people who request doctor-assisted suicide or medication for death do not go through with it. However‚ knowing they can end their suffering comforts them.Ultimately‚ the court must decide if the Constitutional right to dignity and bodily integrity overrides the law that makes helping a person die murder. Experts believe the case will go all the way to the Constitutional Court‚ which may then order Parliament to create laws on how terminally ill people can ask for assistance to end their lives...

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