'Not up to judges to say when people could die'

07 December 2016 - 09:20 By KATHARINE CHILD

Issues about choosing when to die were "engaging profound moral questions beyond the remit of judges to determine [and] should be decided by the representatives of the people of the country as a whole".

This was the view of the Supreme Court of Appeal when it upheld the government's appeal against a High Court judgment that gave euthanasia advocate Robert "Robin" Stransham-Ford the right to have a doctor-assisted suicide in April last year.

Stransham-Ford, who had terminal cancer, argued that his constitutional rights to dignity and bodily integrity were impaired because he was in pain and unable to look after himself.

Pretoria High Court Judge Hans Fabricius ordered that he had the right to die with a doctor's help and that the doctor would not face sanction.

The departments of Health and Justice and the Health Professions Council of SA appealed the ruling.

Yesterday the SCA upheld the state's appeal, saying it was not the High Court's job to make new laws, due to the separation of powers doctrine.

It said that duty rested with parliament, adding it would "welcome" a parliamentary hearing on the issue.

The court conceded that doctor-assisted suicide was an issue of constitutional importance.

If parliament got involved, "lobby groups could then make their voices heard and a proper debate and .reflection could occur".

In a majority judgment, penned by Judge Malcolm Wallis, the SCA found that:

There were insufficient facts in the case to make a judgment;

Stransham-Ford's affidavit "bore little resemblance to reality" - as his medical records showed he was not in much pain, on very low doses of morphine and he had expressed concern to his doctor about even going through with the assisted suicide; and

That the Supreme Court of Appeal application was actually brought by NGO Dignity SA, which used Stransham-Ford to fight for the right to have doctor-assisted suicide.

Wallis slammed Dignity SA saying it was the real "litigant" but it had not been transparent about this.

The judges accused the NGO of using the legal argument prepared in November 2014 for a person who committed suicide in January 2015 and applied it to the Stransham-Ford application, rushing it through the courts.

"Such litigation is rarely urgent or warrants a court being hustled into a decision with inadequate time to .reflect on issues," Wallis said.

Stransham-Ford died two hours before the April court ruling allowing him doctor-assisted suicide.

The state won the appeal because the ruling was meaningless because he was already dead.

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