Faced with a very long prison sentence if convicted of murder, Professor Sean Davison understandably concluded a court-approved plea and sentencing deal in pleading guilty to three counts of murder. For all three cases he received an eight-year prison sentence wholly suspended, with three years’ conditional house arrest and community service.

The court took into account the compelling mitigating circumstances, including Davison’s compassionate motivation in seeking to assist those persons in a dignified death, that he was “remorseful for his actions”, and that each of those persons had asked the professor for his assistance in dying and the relatives of each one were supportive of their and Davison’s conduct.

It is interesting to compare the resolution of Davison’s prosecutions with what at one time seemed to be the rather quaint outcome of the often-referred-to 1975 judgment in S v Hartmann (1975 (3) SA 532 (C)).

Hartmann was a medical practitioner in Ceres. His 87-year-old father had been suffering for years from a carcinoma of the prostate and his condition had spread to other parts of his body with secondary cancer in his bones and his ribs.

He had been treated elsewhere in the country, but had come to Ceres for treatment as a private patient of his son at the local hospital. With no cure possible, Hartmann Snr’s treatment was symptomatic. By the time he was hospitalised in Ceres, he was bedridden, emaciated, incontinent, and suffering great pain. He was given intravenous food because he could not swallow without choking. Within a short time, he was in a critical state, declining, close to death, and suffering great pain which was treated through morphine administered via a drip.

The general picture of Hartmann Snr was of a patient in extreme misery and entirely dependent on his attendants for his simplest needs. The evidence presented strongly suggested his quality of life had become meaningless. There was no dispute that Hartmann was motivated solely by what he considered to be the best interests of his father.

Hartmann had instructed a nursing sister to give his father half a gram of morphine which she had reluctantly done. An hour later, Hartmann himself administered a further half a gram of morphine through his father’s drip and about 90 minutes later injected a lethal dose of Pentothal into the drip. Within seconds Hartmann Snr died. The medical evidence was that the immediate cause of his death was the administration of the Pentothal.

The court found that Hartmann had not desired to end his father’s life, but had done so out of compassion to relieve his father of the further endurance of pain and a continuation of a pitiable condition. He was, however, aware that his conduct would inevitably terminate his father’s life.

Hartmann was convicted of murder, the law is clear that the wilful hastening of the death of a human being who was due to die in any event constitutes the crime of murder. The evidence was that Hartmann Snr’s medical condition was so critical that he would have died within hours, even had his son not administered the additional analgesics.

The judge, in considering a proper punishment, said the punishment must serve the public interest in the sense of discouraging repetition of the offence by the offender and the prevention of like offences by others. The circumstances were so unique it could be accepted that the chances of Hartmann repeating his offence were negligible.

The court then asked: “In how far is there a deterrent necessary to prevent other medical men from taking similar action in respect to patients who are their close relatives or to their patients generally?”

In answering his own question, the judge said: “Regard being had to the known commitment of the members of that profession to preserve life, I would think that such a deterrent has not a great role to play… This is a case, if ever there was one, in which, without having to be unfair to society, full measure can be given to the element of mercy.”

Hartmann was sentenced to imprisonment for one year and to be detained only until the rising of the court, with the balance of the sentence suspended for one year, subject to the condition that during that period he was not to commit an offence involving the intentional infliction of bodily injury.

He had the benefit of the then-wording of the relevant section of the Criminal Procedure Act when it came to the penalty, and the court’s discretion.

Hartmann was charged before the South African Medical and Dental Council for unprofessional conduct and his name struck from the roll. He was reinstated after a lapse of time.

The matter was sympathetically reported in the press. At the time, however, no one was prepared to propose any amendments to any laws to enable the lawful termination of a life in circumstances similar to those of Hartmann Snr.

Forty-four years later and there has been no real progress in developing our law on physician-assisted euthanasia.

Davison was responsible for ending the lives of three people between 2013 and 2015. He was not their doctor. He was the friend of one, who had been rendered a quadriplegic in a car accident in 2015 and who had expressed his desire to die to Davison. The professor administered a lethal concoction of drugs to him.

Another had asked Davison to help him end his life after he had a stroke and was diagnosed with motor-neuron disease which caused him difficulty in carrying out basic life tasks. Davison placed a bag over his head and administered helium deoxygenation.

The third was a young sportsman who had lost all motor function following a bicycle accident and who had communicated via eye movements his desire to die. Davison administered a lethal dose of pentobarbital. On the information available it does not appear that any of those persons were in a final terminal stage comparable to that of Hartmann Snr.

Davison’s reconsideration of his position was no doubt influenced by the enormous financial costs he was exposed to in litigating the three prosecutions, the severe penalties he faced if convicted following trial, and also the comments of, and less than enthusiastic approach of, the Supreme Court of Appeal to developing the law of physician-assisted euthanasia in the Stransham-Ford appeal.

The Supreme Court of Appeal in its 2016 judgment in the Stransham-Ford matter had to deal with patient-applicant suffering in the terminal stages of cancer. The patient had sought an order from the North Gauteng High Court permitting his medical practitioner to administer a lethal agent at his request or provide him with a lethal agent that he could administer himself.

Stransham-Ford died just before the High Court granted the order sought. The court nevertheless declined to recall its order on the grounds that the judgment had broader societal implications. The court had ruled that “a terminally-ill patient with intractable suffering was entitled to commit suicide with the assistance of his doctor, whose conduct would not be unlawful”, according to the SA Medical Journal.

The ruling was taken on appeal to the Supreme Court of Appeal (SCA). The SCA was clear that the nature of the relief claimed was a personal action and the purpose of the litigation was to obtain a court order to enable Stransham-Ford to die in a manner of his own choosing. The court said that upon Stransham-Ford’s death there was no longer an existing controversy for the court to pronounce upon, whether that involved constitutional issues or not, and the case was no longer justiciable.

Because the relief sought was specifically tailored to Stransham-Ford’s circumstances and only to any doctor who provided him with assistance to terminate his life, no public purpose was served by granting the order and it was not for the lower court to make orders on a cause of action that had been extinguished just because they thought their decisions would have broader societal implications. The court must wait for litigants to bring appropriate cases before them to develop the common law.

Referring with approval to a United States Supreme Court judgment, the court said :

“[Courts] do not, or should not, sally forth each day looking for wrongs to right. We wait for cases to come to us, and when they do, we normally decide only questions presented by the parties. Counsel almost always knows a great deal more about their cases than we do …”

For that reason alone, the Supreme Court of Appeal set aside the lower court judgment.

It was then faced with the dilemma that there was a recent and reported judgment in the High Court dealing with, to some extent, the merits. The court went on to consider and explain why both on the law and on the facts the High Court should never have made the order it did.

The court embarked on a review of South African law regarding assisted suicide and voluntary euthanasia and related issues and said it was apparent there were many steps available to individuals facing the type of intolerable situations described and to the medical practitioners responsible for their care, that would not result in interminable, purposeless treatment for the preservation of life as a purely mechanical process artificially maintained.

It was firm that “mercy killing” undoubtedly constitutes the crime of murder and referred to among others the judgment of Hartmann.

In commenting on whether the consent of the patient made any difference to the legal consequences of the medical practitioner’s conduct, the court said that as the law stands it does not. Consent is not a defence available to the person who brings about the death of the deceased. Nor does the fact of consent justify a conviction on the lesser charge of culpable homicide.

The SCA firmly said that physician-assisted euthanasia constitutes the crime of murder and a medical practitioner who administers a lethal agent to a patient at the latter’s request carries out the crime of murder. The circumstances may materially affect the sentence imposed for that crime, but the conviction would stand.

The court noted there were only four countries which permitted physician-assisted euthanasia. If the common law were to be developed, that needed to be confronted squarely and the scope and ambit of the requisite departure from the existing principles had to be defined. That was not identified as an issue for consideration by the High Court and so it was not given full and proper consideration by the court. The SCA said an order making such a profound change to our law of murder, without any consideration of applicable principles, should not have been made.

The court distinguished physician-assisted euthanasia (where the doctor administers a lethal substance to the patient) from physician-assisted suicide (where the doctor provides the patient with an appropriate lethal agent which the patient administers). Of course, it is not unlawful for the patient to have committed or attempted to commit suicide. The criminal exposure would attach to the medical practitioner who prescribed the means whereby the patient committed suicide.

In that regard, our courts have found in previous matters on the facts that the person committing suicide had by their independent act in doing so been the cause of their own death, even though the means for the cause of death had been supplied by another person, but commented that the voluntary and independent act of suicide need not always result in the acquittal of another person accused of facilitating the suicide. While the immediate cause of death is the act of suicide, that does not necessarily interrupt the chain of causation between the conduct of the accused person and the person’s death so as to free the accused from criminal liability.

Our courts recognise the possibility that a person may be guilty of murder if their actions were performed with criminal intent and there was no break in the chain of causation between their actions and the ultimate death by suicide.

It will have to be determined on the facts of the particular case, and the requirements of section 39 of our Constitution which requires that in developing the common law our courts strive to give effect to the nature, purport and objects of the Bill of Rights. These are all things which were not considered by the lower court in the Stransham-Ford matter and there was no relevant evidence on the issues which the court would need to have considered in order to develop the common law.

The SCA judgment contains a very useful review of the law and different approaches of other jurisdictions regarding physician-assisted euthanasia and physician-assisted suicide.

The Supreme Court of Appeal was critical of the High Court, saying that it:

• Misstated the situation in South African law;

• Failed to consider precisely what legal development was being sought;

• Treated physician-assisted euthanasia and physician-assisted suicide as clear and simple concepts capable of a clear and simple application when they are nothing of the sort, and did not recognise the distinction between the two;

• Paid little regard to international jurisprudence or to the answers to the constitutional questions posed by the Supreme Court of Appeal;

• Claimed the relief it was granting was case-dependent and not a precedent for a general “free for all” without any indication of how its effects could be limited;

• Erred in purporting to develop the common law of murder and culpable homicide in respect of an individual but not for the rest of society, when the factual record was inadequate, particularly relating to Stransham-Ford’s physical condition and possible medical interventions;

• Did not give any consideration to what constraint on physician-assisted euthanasia and physician-assisted suicide would be reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom; and

• Was overly hasty to deal urgently with the matter so that insufficient opportunity was available for a fair public hearing and determination of the issues of the case. None of the relevant issues necessary to develop the common law were fully canvassed in the High Court.

Project 86 of the South African Law Commission dealt with euthanasia and the artificial preservation of life and issued a report in November 1998.

The commission did not make any specific recommendation regarding the act of voluntary euthanasia and set out various options.

One option was confirmation of the legal position that arguments in favour of legalising euthanasia are not sufficient reason to weaken society’s prohibition of intentional killing since it is considered to be a cornerstone of our law and all social relationships. While there may be individual cases in which euthanasia may seem appropriate, these cannot establish the foundation of a general pro-euthanasia policy.

The alternative option was to regulate the practice of active euthanasia through legislation in terms of which a medical practitioner may give effect to the request of a terminally ill but mentally competent patient to end the patient’s unbearable suffering by providing a lethal agent to the patient. The medical practitioner would have to adhere to strict safeguards to prevent abuse. A further alternative suggested the practice of active euthanasia regulated through legislation in terms of which a multi-disciplinary panel or committee is instituted to consider requests for euthanasia according to set criteria.

Draft legislation in that regard was provided for consideration by Parliament.

Nothing of substance has happened since then.

Absent any Parliamentary appetite to dust off and revisit one of those 20-years-old proposals for reform of our law, we are destined for a repetition of the Hartmann and Davison outcomes or variations thereof from time to time.

Every 44 years or so it seems. DM

Donald Dinnie is CEO of Natmed Medical Defence which provides medical specialists in high-risk fields such as obstetrics-gynaecology and surgical specialities with medical malpractice cover and advice.