South Africa

Euthanasia back in courts as doctor fights for right to die

By Rebecca Davis 20 September 2017

The right of terminally ill individuals to end their life when, and how, they choose has been a battle fought before South Africa’s courts in recent years. An application launched at the South Gauteng High Court has now brought the issue into the spotlight once more. At the heart of the matter: a Johannesburg doctor and patient duo arguing for the right to undergo physician-assisted euthanasia lawfully. By REBECCA DAVIS.

For years, Johannesburg doctor Sue Walter helped to ease the pain of terminally ill patients nearing the end of their lives. Walter, a palliative specialist who previously served as a director of Hospice Houghton, founded the 11 Angels Foundation to assist terminally ill patients to explore every possible treatment.

And then Walter was diagnosed with a terminal illness herself.

Court papers lodged at the South Gauteng High Court in late August record that Walter, 43, was diagnosed with multiple myeloma – a form of blood cancer – in February 2017. Now she is approaching the courts to ask for legal permission to end not just her own life, but also that of patient Diethelm Harck.

Harck, 68, who is retired, was diagnosed with motor neuron disease – the condition which killed rugby star Joost van der Westhuizen – in June 2013. The two are appealing to the courts to permit them to undergo “physician-assisted euthanasia” at a time of their choosing.

As it stands, if a doctor assists a patient in ending his or her life, the doctor is considered to have undertaken “unprofessional conduct” and is subject to penalties which might involve anything from a fine, to being struck off the health professions register, to jail time.

Dr Walter argues that she should not be liable for these penalties if she assists Harck to end his life.

Both Walter and Harck contend that they suffer “torturous symptoms” as a result of their medical conditions, and that it is impossible for Harck to end his own life without assistance due to additional symptoms like paralysis and difficulty swallowing.

They say it is unconstitutional to deny them the right to choose when to die with the aid of a doctor. The two are approaching the courts not just in their own interests but out of concern for future terminally ill patients in the same situation.

Walter and Harck want the courts to declare the current prohibition on physician-assisted euthanasia unconstitutional, and to rule that physician-assisted euthanasia does not constitute unprofessional conduct for doctors.

They want Parliament to enact legislation to give any “mentally competent adult terminally ill person” the right to end their life with the assistance of a doctor. Until that happens, they say that such individuals should be able to approach the High Court for permission to undergo physician-assisted euthanasia.

Euthanasia remains a hot-button issue in South Africa. Philip Rosenthal, who founded lobby group Euthanasia Exposed, pointed out to Daily Maverick that Health Minister Aaron Motsoaledi has previously come out strongly against euthanasia, pronouncing: “Only God can decide when a person dies.”

South African Medical Association chairperson Mzukisi Grootboom has also expressed concern about euthanasia, saying in June 2015: “With our severe constraints on healthcare facilities and the totally inadequate allocation of resources for effective medical treatments, there is a real risk of euthanasia becoming a substitute for proper care for the terminally ill and other patients in dire medical straits.”

On the other side of the argument, Archbishop Desmond Tutu has said he believes that “dying people should have the right to choose how and when they leave Mother Earth”, and that South Africa’s legislation should evolve to respect this right.

The defendants in Walter and Harck’s current case include the Minister of Health and the Minister of Justice and Parliament – the latter because the body is being entreated to pass the relevant laws to allow for physician-assisted euthanasia.

South Africa’s euthanasia advocates received a boost in May 2015, when the Gauteng High Court granted Cape Town advocate Robin Stransham-Ford the right to end his life with the assistance of his doctor. The ruling, by Judge Hans-Joachim Fabricius, came just hours after Stransham-Ford died of cancer.

Judge Fabricius said at the time that he considered the issue to be of “overriding public importance” and that South African legislation was urgently in need of development in this area.

In December 2016, however, the Supreme Court of Appeals overturned Fabricius’s ruling and upheld the laws forbidding assisted suicide.

Rosenthal, a passionate euthanasia critic, says that the difference between the Stransham-Ford case and the application from Walter and Harck is that there was an urgency with regard to the Stransham-Ford case because his death was imminent.

The Walter-Harck case is a “considerable lowering of the price tag”, Rosenthal contends, because “these people could still be living for many years”.

Dr Walter and her lawyers, Tshabalala Attorneys, did not respond to comment from Daily Maverick before deadline.

Rosenthal opposes the current application before the South Gauteng High Court on the basis of its ability to set a precedent to affect all terminally ill people.

On one issue both Rosenthal and Walter agree, however: that Parliament has an important role to play. Rosenthal suggests that the appropriate platform for the airing of the debate is Parliament, rather than the courts.

For Walter and Harck, however, the issue is personal as well as of constitutional significance.

They have asked the South Gauteng High Court to declare them “of sound mind and mentally competent” to undergo physician-assisted euthanasia, and for an appointed and willing physician – who in Harck’s case would be Walter – to be permitted to “prescribe the necessary medication or render the necessary lethal administration, as the case may be”.

Writer Karel Schoeman, who ended his life in May, recorded in a final letter his decision to fast until death.

This is at least a dignified way to end life,” Schoeman wrote, “which cannot be said for the alternative methods that are available in the current circumstances in South Africa”. DM

File photo: Daan Stevens/(Unsplash)


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