MAiD in SA: Our Courts, Murder and MAiD

Currently our common law regards medical assistance in dying (MAiD) as no different from killing or murdering in cold blood and a blanket prohibition (or ban) is in place. This is true for both forms of MAiD — medical practitioner-administered as well as self-administered — are considered to constitute the crime of murder. Supplying the means that causes death and administering those means are criminal actions. This means that currently, in respect of MAiD, our Constitution contradicts our common law.

From well before the 1996 Constitution, our South African courts have expressed their discomfort with equating MAiD and murder in cold blood by refusing to sentence individuals found guilty of MAiD to imprisonment. The case of Dr Alby Hartman of Ceres back in 1975 in particular was remarkable.

Dr Hartman, a GP from Ceres, was found guilty of murdering his 87-year-old father who was dying a painful death from terminal cancer. Judge Louis van Winsen sentenced Dr Hartman to the "rising of the court" which meant that he was technically imprisoned until the judge had left the courtroom. The remainder of his one-year prison sentence was suspended. Still, a vindictive professional body (MASA at the time) stripped him of his licence to practise medicine.

Why lesser sentences for committing the crime of murder, such as technical imprisonment in Hartmann (1975) (NB: incorrect spelling by the court), or no imprisonment, as in Marengo (1991), or house arrest or community service as in Davison (2018)? Clearly, our courts are uneasy about equating MAiD with killing in cold blood.

In 1998, something remarkable happened. Originating in the late 1980s, following a request from the Living Will Society (otherwise known as SAVES), the South African Law (Reform) Commission (SALC, later SALRC) was tasked with investigating all end-of-life medical decisions.

Project 86 was duly completed during the Mandela presidency, and the SALC chair, Chief Justice Ismael Mahomed, handed the second and final report to the Minister of Justice, Dr Dullah Omar, in November 1998. It incorporated extensive public comments on the draft first report, an extensive survey of practices in foreign jurisdictions and, importantly, draft legislation that covered four areas of end-of-life decision-making:

1. Pain management that shortens life;
2. Withholding and withdrawal of life-sustaining treatment;
3. Advance directives (living will; healthcare mandate); and
4. MAiD.

It was handed to the Ministers of Justice and Health and then nothing happened. Since 1998 the SALC's draft legislation about MAiD and other end-of-life decisions has been ignored by Parliament for more than a quarter of a century. By contrast, our Parliament passed the world's most progressive termination of pregnancy act in 1996.

Why this difference? We can only guess, but what has become clear is that Parliament will not act unless it is directed by a court of law to do so.

In 2015, another prominent case appears in the headlines. Adv Robin Stransham-Ford, a terminally ill advocate, secured pro-bono representation and was supported by DignitySA. With Judge Hans Fabricius presiding, the North Gauteng High Court granted him permission to access lawful medical assistance in dying — however he died approximately two hours before the ruling was handed down.

The following year, in 2016, the Ministers of Justice and of Health successfully appealed this finding and it was overturned on technical and procedural grounds. Crucially though, the Supreme Court of Appeal (SCA) noted a discrepancy that exists between the current common-law prohibition and our Constitution and said that this “defect” in our law would be “rectified” when a comprehensive constitutional argument for MAiD is brought before a future court. Furthermore, the SCA affirmed DignitySA as a legitimate entity that could act in the public interest in future cases, laying the groundwork for our constitutional challenge to come…

The next instalment in this MAiD in SA series will explain DignitySA's constitutional challenge in more depth. To read more about our journey and the path that has led up to this historic court application please visit dignitysouthafrica.org/our-journey.