International discussion about the question of assisted suicide and euthanasia has grown increasingly urgent, as several countries in the world, including the United Kingdom, Scotland, New Zealand and Australia, have reopened debate.
Euthanasia was briefly legal in the Northern Territories of Australia with the passing of the Rights of the Terminally Ill Act of 1995. However, an amendment to the Northern Territories Self-Government Act by the Commonwealth government resulted in the controversial repeal of the Act in 1997. At present euthanasia and assisted suicide are illegal in Australia, however, the issue is being debated by the New South Wales Parliament.
Debate in New Zealand has been particularly robust, with two attempts at changing the current legal status. The Death with Dignity Bill was championed in 1995 and 2003, when it was narrowly defeated in Parliament by three votes (60 to 57).
In 2008, a controversial publication, The Peaceful Pill Handbook, was unbanned in New Zealand and is permitted to be sold to readers over the age of 18 and only if it is sealed and the age restriction displayed. However, author Philip Nitschke, a vocal advocate for assisted suicide and euthanasia in New Zealand, agreed to cut a chapter that set out specific methods of suicide.
In March 2012, Member of Parliament for the New Zealand Labour Party, Maryan Street, forwarded a private members bill, the End of Life Choice Bill, to the parliamentary ballot box to forward the debate.
South Africa
South Africa’s laws currently prohibit assisted dying and euthanasia. However, in 1998, the South African Law Reform Commission (SALC) published a report, Euthanasia and the artificial preservation of life project 86, which included a draft bill, the End of Life Decisions Bill 1998.
President Nelson Mandela commissioned the report after an approach by SAVES, a Living Will society. It was tabled in Parliament in 2000 but has received no attention since then.
The End of Life Decisions Bill proposes the legalisation of passive euthanasia, which is defined as the withholding or withdrawal of artificial life support without which a person would die naturally.
Section 4(1) of the draft reads: “Should it be clear to a medical practitioner or a nurse responsible for the treatment of a patient who has been diagnosed by a medical practitioner as suffering from a terminal illness that the dosage of medication that the patient is currently receiving is not adequately alleviating the patient’s pain or distress, he or she shall – with the object to provide relief of severe pain or distress, and with no intention to kill – increase the dosage of medication (whether analgesics or sedatives) to be given to the patient until relief is obtained, even if the secondary effect of this action may be to shorten the life of the patient.”
The Bill also provides three options on voluntary active euthanasia, to be discussed in Parliament and opened for public comment: the first is that the law remains as it is; the second is the legalisation of active euthanasia with a doctor making the decision to euthanise; and the third that it be legalised with the final decision resting with an independent panel.
In March 2012, Professor Willem A Landman, Executive Director of the Ethics Institute of South Africa, Professor Extraordinaire in the Department of Philosophy at the University of Stellenbosch and co-founder with Professor Melodie Slabbert and Professor Sean Davison of Dignity SA, presented a position paper at the First Annual Congress of the Faculty of Consulting Physicians of South Africa.
Professor Davison founded Dignity SA in September 2011, after returning to South Africa from New Zealand on bail. He was later sentenced by a New Zealand court to five months’ home detention for helping his terminally ill mother, Patricia, to die in 2006.
The organisation, says Davison, aims to inform the public about euthanasia and to seek legal reform in South Africa. Since its founding scores of people have turned to Dignity SA with heart-wrenching stories of tremendous end-of-life suffering.
Professor Landman’s document, rather than an exhaustive academic research paper, was intended to put forward an ethical case for end-of-life decision-making in South Africa.
Such legislation, he suggests, would clarify areas of legal uncertainty, most notably in respect of terminal-pain management, withholding and withdrawal of life-sustaining treatment (also referred to as “passive euthanasia”), and advance directives (a Living Will and a durable power of attorney for healthcare).
Professor Landman’s paper also argued for the inclusion of assisted dying (assisted suicide and voluntary active euthanasia) in a comprehensive end-of-life decision-making bill, which would mean decriminalising what is currently unlawful.
Professor Landman has argued that the End of Life Decisions Bill 1998 should serve as a basis for public debate.
“Globally, many countries are addressing assisted dying, albeit in different ways. Some have legalised assisted dying and others have set criteria for not prosecuting it. In South Africa, the debate should be based on the spirit, values and rights in the Constitution, particularly the interpretation of the right to life and its intimate connection with the right to dignity.”
The South African Constitution should shape “a moral community that binds us together as citizens, despite the different personal, ethical and religious beliefs we might have in our local communities. A constitutional democracy means, among others, that we resolve our differences about the social arrangement of society by appealing to the Constitution, thus granting others the right to live by their convictions even if we disagree with them.”
The most urgent issue is the current suffering of people in the end-of-life stage, and that the law, as it currently exists, fails to recognise appropriately that human life is finite and that the dying process is a natural part of life.
The following chapter features an extensive extract from Professor Landman’s paper.
3Legal Reform and Clarity
In May 2012, Professor Willem Landman of the Ethics Institute of South Africa presented a research paper, End-of-life decisions, ethics and the law: A case for statutory legal clarity and reform in South Africa, in Cape Town at the First Annual Congress of the Faculty
