Professor Landman’s paper is an exhaustive review of the law in South Africa, but for purposes of this work, we have extracted his research specifically in relation to assisted suicide. For the full report, go to www.ethicssa.org.
ASSISTED DYING (assisted suicide and voluntary euthanasia) is an end-of-life decision-making practice that should recognise the moral right of individuals in the terminal phase of dying to assisted dying, as well as the corresponding moral obligation of caregivers, family and the state to respect that right.
Whereas the other three practices in end-of-life decisions – terminal pain management; withholding and withdrawal of potentially life-sustaining treatment; and advance directives – simply require greater legal clarity than is currently the case, assisted dying would require substantial legal reform (decriminalisation) since it is unlawful in both its forms.
The key question is whether legalising assisted dying would be consistent with – or perhaps even required by – the Bill of Rights in the Constitution, particularly the right to life.
Key terms for a discussion of the ethics and law of assisted dying are the following:
Assisted dying, in its wider sense, refers to all end-of-life interventions in the dying process – terminal-pain management and comfort care; withholding and withdrawal of potentially life-sustaining treatment; respecting advance directives; and assisted suicide and voluntary euthanasia. In its narrower sense, “assisted dying” refers only to the last two, namely, assisted suicide and voluntary euthanasia. The significance of using an umbrella term – such as “assisted dying” or “euthanasia” – for assisted suicide and voluntary euthanasia, is that they represent two distinguishable acts that are sufficiently similar from ethical and legal points of view to justify such a joint classification. Whereas the SALC (South African Law Commission) Report and draft bill use the umbrella terms “assistance with dying” and “euthanasia” for these two acts, this Position Paper prefers “assisted dying” or “assistance with dying” for these two acts, that is, in their narrower sense. (Analogously, we decriminalised “termination of pregnancy”, not “abortion”.)
Assisted suicide (or “doctor-assisted suicide” or “physician-assisted suicide”) occurs when a medical practitioner or other person intentionally provides the means for a competent person to take their own life, in which case the patient’s act is the proximate cause of death in the causal chain of acts, events and conditions that results in the patient’s death. For example, a medical practitioner, in response to a request by a competent patient, writes a prescription for a lethal drug whereupon the patient ingests it. Or a family member gathers a sufficient dosage of lethal substances, enabling the patient to ingest them.
Euthanasia comes from the classical Greek words “eu” (good) and “thanatos” (death) and thus literally means “a good death”, “a gentle death”, or “dying well”. More technically, “euthanasia” means intentionally causing the death of a person, for that person’s own sake, where a positive act of another person, and not the natural process of dying (as with withholding or withdrawal of potentially life-sustaining treatment), is the proximate cause of death.
From the perspective of the person who causes another’s death, “euthanasia” has two meanings:
Passive euthanasia is a term used for contributing to the death of a person by intentional withholding or withdrawal of potentially life-sustaining treatment from a competent or incompetent patient so that a natural death can set in, where death is reasonably believed to be in that person’s interest, or continued life is reasonably believed to be no longer worthwhile. An inaction or omission (“not doing” something), like an act or commission (“doing” something), is a subclass of action, both involving responsibility for choices and decisions. Apart from terminological clarification, this Position Paper, however, does not use the term “passive euthanasia”, but instead uses the terms “withholding” or “withdrawal” of potentially life-sustaining treatment.
Active euthanasia means intentionally causing the death of a competent or incompetent person by means of an act or commission (“doing” something) that is the proximate cause of death, where death is reasonably believed to be in that person’s interest, or continued life is believed to be no longer worthwhile. Again, an act, like an omission, is a species of action involving responsibility for choice, for example administering a lethal injection. Again, apart from terminological clarification, this Position Paper does not use the term “active euthanasia”, but prefers the terms “assisted dying” or “assistance with dying”.
From the perspective of the person who dies, “euthanasia” has three meanings:
Voluntary euthanasia (in the sense of “voluntary active euthanasia”, also called “mercy killing”) means that a competent person freely (without duress) requests a medical practitioner or other person for assistance with dying on account of suffering from a terminal disease, or unbearable and intractable suffering, whereupon the medical practitioner or other person obliges with an intentional act that is the proximate cause of death.
Non-voluntary euthanasia refers to cases where a competent patient’s wishes cannot be known – either because they are no longer competent (for example, a person in a PVS (persistent vegetative state) without an advance directive), or have never been competent (for example, a defective newly born infant) – and their death is brought about by the intentional act of a medical practitioner or other person, where death is reasonably believed to be in that person’s interest, or continued life is reasonably believed to be no longer worthwhile.
Involuntary euthanasia refers to cases where a competent person is intentionally killed for their own good, but against their wishes. For example, a bystander kills a driver trapped in his burning truck for compassionate reasons, or for his own good, but against the wishes of the driver, because there is no prospect of rescuing him from a certain, cruel death.
Ethical Considerations
Crucially, both the ethics and law of assisted dying (assisted suicide and voluntary euthanasia) deal with free or voluntary choices by competent persons to end their lives. No one is forced, coerced or unduly influenced to make that decision.
From the point of view of the dying person, at issue here is only voluntary assisted dying (where persons freely
