Fourth and last, the SALC Report argues that “[d]ying should not be seen as a personal or individual affair, the death of a person affects the lives of others.
The issue of euthanasia is one in which the interest of the individual cannot be separated from the interest of society as a whole”. Indeed, the manner in which a person dies affects the lives of others, but so do their suffering and frustrated appeals for assistance.
So the “affects” are not only those that the SALC chose to consider. And indeed, while balancing of individual and state interests is a core issue in a democracy the SALC’s position could imply that state interests by implication trump individual interest should they clash. Again, this flies in the face of the termination of pregnancy legislation.
So, Option 1, favoured by the SALC Report, says that assisted dying should remain unlawful. Of course it is a position worthy of serious consideration and debate. But the arguments in its support are weak, largely leaning on unproven factual claims made without interrogating credible evidence.
Option 2
Option 2, “decision-making by the medical practitioner”, proposes legislation enabling a medical practitioner to assist a patient with dying by “administering” (voluntary euthanasia) or “providing” (physician-assisted suicide) a “lethal agent”, provided certain safeguards, aimed at preventing abuse, are met.
Option 2 poses two further points for debate.
First, its wording, namely, that a medical practitioner “shall give effect to the request” may suggest that medical practitioners have no choice but to honour the patient’s request for assistance with dying if the safeguard conditions are met.
By contrast, South Africa’s abortion legislation as well as Option 3 (below) state that a medical practitioner “may” act on a patient’s request, thus affirming an implicit conscience clause.
Second, Option 2 does not mention mental or dementing illness, but the reference to “intractable and unbearable suffering” probably covers these.
Option 2 can be strongly defended ethically. It also may have considerable constitutional force, but this question has not come before the Constitutional Court yet.
Within Option 2 are possibilities that may be ethically preferable to maintaining the legal status quo that outlaws all forms of assisted dying (Option 1).
For example, although there is no intrinsic ethical difference between assisted suicide and voluntary euthanasia, a public policy that decriminalises only assisted suicide (or, more narrowly, doctor-assisted suicide) may be a pragmatic legislative compromise if legalising voluntary euthanasia would meet formidable resistance.
However, it may be unfair and crueller to some patients to decriminalise assisted suicide only, and not also voluntary euthanasia. Patients in the terminal phase of ALS (amyotrophic lateral sclerosis) may be unable to commit suicide due to paralysis, with death by asphyxiation a real possibility, while other terminal patients may have the necessary mobility to commit assisted suicide.
Option 3
Option 3, “decision-making by a panel or committee”, proposes that euthanasia (assisted dying) be regulated through legislation permitting a multi-disciplinary ethics committee to consider requests for euthanasia on the basis of set criteria.
This option draws from the practice in the Netherlands prior to the passing of assisted-dying legislation some years after the release of the SALC Report.
Option 3, while certainly vastly preferable to the legal status quo, is an unnecessarily cumbersome response to a request for assistance with dying.
First, who would constitute an ethics committee and how would it function? Who elects or appoints the committee? Could someone who is in principle opposed to physician-assisted suicide and voluntary euthanasia serve on such a committee? How would decisions be taken, for example – by majority vote or consensus?
Second, should not a provision be made to appeal the decision of an ethics committee?
Third, and most significantly, it raises issues of distributive justice. Since a committee approach is premised on the availability of additional resources, it could lead to discrimination against patients in areas with poor access to healthcare facilities.
Ethics committees, whose membership requires, among others, three medical practitioners, a lawyer, and a member of a multidisciplinary team, are likely to be limited to tertiary, and therefore urban, centres while rural areas may not have an “ethics capacity”.
In the final analysis, Option 3 would be an unjustifiably paternalistic approach that would take control away from the patient and medical practitioner and transfer it to a group outside the more intimate doctor-patient relationship.
Attending medical practitioners can display the same caution and circumspection as a committee, and, together with patients and their families they would be able to focus on the tragic choices at hand, while avoiding general debates about the ethics of an already decriminalised practice, which may be the fate of an ethics-committee approach.
Issues to be clarified if the Legalisation Route is to be followed
If legalising assisted dying follows the Option 2 route – which is what this Position Paper argues for – a number of issues would need further discussion to settle the boundaries of what would be permissible, such as the following:
Should the moral argument that there is no intrinsic ethical difference between assisted suicide and voluntary euthanasia have any bearing on public policy? In other words, should public policy review pursue an incremental approach and have assisted suicide decriminalised, rather than having both forms of assistance with dying either rejected or adopted?
In this regard, the SALC Report observes that although there is no general intrinsic moral difference between the two, the distinction could have some value in practice since there is an important evidentiary difference between the two, with assisted suicide being a better test of the voluntariness of the choice to die or of patients’ resolve to end their lives.
However, the report concludes that both are, legally speaking, versions of active euthanasia (assisted dying) and should be dealt with accordingly. Of course, this goes against the course taken, for example, by the citizens of the states of
