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CALS supports legal recognition of assisted dying

- Lee-Anne Bruce

The Centre for Applied Legal Studies, Wits University, seeks leave to enter the landmark assisted dying case before the Supreme Court of Appeal as ‘friend of the court’  

In April 2015, Robin Stransham-Ford approached the North Gauteng High Court for urgent relief. At the time, he was suffering from terminal cancer and requested to end his own life with the help of a doctor.

On 30 April 2015, Judge Fabricius handed down judgment in Stransham-Ford’s favour, stating that laws prohibiting assisted dying “unjustifiably limit the Applicant’s constitutional rights to human dignity… and freedom of bodily and physiological integrity.” The Court further ruled that any doctor who agreed to assist Stransham-Ford to end his life could not face criminal charges or disciplinary action. Stransham-Ford died naturally hours before and did not live to hear the landmark judgment. The Department of Justice and Correctional Services is appealing the decision to the Supreme Court of Appeal and the matter is expected to be heard later this year.

With consent from all the parties, CALS has sought leave from the Supreme Court to enter the matter as amicus curiae, or ‘friend of the court’. CALS recognises that this case raises the important constitutional issues of the rights to equality, life, and human dignity; as well as the right not to be treated in a cruel, inhumane and degrading way and the right to bodily and physiological integrity. CALS seeks to assist the court by providing evidence from expert witnesses from the Netherlands and the state of Oregon in the United States, jurisdictions which have legalised euthanasia and assisted dying respectively.

Our submissions support the findings of Judge Fabricius, arguing that the absence of a right to assisted dying can amount to torture or cruel and unusual punishment. We recognise that euthanasia or assisted dying can never be a substitute for the availability of world class palliative care. Notwithstanding the best available palliative care, there is a small percentage of terminally ill patients whose pain and suffering cannot be adequately relieved through palliative care, without unconscious sedation. There is also a small percentage of terminally ill patients who determine that their quality of life towards the end of their illness is not worth continuing, who seek the option of this choice. Prior to the High Court decision, the only choice remaining to such individuals is to refuse further medical treatment, nutrition, or hydration. CALS argues from compassion and out of respect for individual choice, that there is a strong Constitutional argument in favour of legally recognised euthanasia or assisted dying, with all necessary procedural checks and balances in place.

“The right to live one’s life includes the right to end it,” said Prof Bonita Meyersfeld, Director of CALS. “This is the ultimate respect for the full autonomy of an individual. Denying this right is one of the last lawful vestiges of torture, where a person is compelled to exist in dire and unrelenting pain.”

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