Are we there yet? A look at the remaining questions on physician-assisted suicide and physician-administered euthanasia

• Citation: (2023) 36 SACJ 203
• DOI: https://doi.org/10.47348/SACJ/v36/i2a2
• Published date: 14 November 2023
• Pages: 203-227
• Author: Mnyandu, N.
• Date: 14 November 2023

Are we there yet? A look at the

remaining questions on physician-

assisted suicide and physician-

administered euthanasia

NTOKOZO MNYANDU*

ABSTRACT

The research exam ines the common law to determ ine whether physician-

assisted suicide and physician-ad ministered euthanasia are lawf ul. In doing

so, it establishes that these pr actices meet the denit ion of murder. The

research then determ ines the underlying rat ionale for the common law and

concludes that the prohibition agai nst deliberate killing is the cor nerstone of

our law and social relationships. I n order to determine whet her the current

position follows the logic of the common law, there is a discu ssion of how

the prohibition against i ntentional killing has evolved over time. It is shown

that the law has been at pain s to protect life and that as sisting another

person to kill them selves for whatever reason has never been lawf ul under

the various sources of our com mon law. Finally, it considers whether the

current position is i n line with the spir it of the Constitution. In doi ng so,

regard is had to the values of ubuntu, human d ignity and the advancement

of human rights and freed oms. Although the resea rch argues that the

prohibition is consistent with t he spirit of the Constit ution, it recognises

that these practices i nvolve compelling policy considerations p ointing in

opposite directions. It may well be t hat current public policy considerations

do not chart the path of com mon law development with sufcient clarity for

the courts to inter vene. The reason for this is t here are few matters more

sensitive and challenging t han those which concern delib erate decisions to

end life, either by providing person s with the means to comm it suicide or

by actively taking steps t hat end life on request. Therefore, t he legislature

may be the proper engine for legal development.

1 Introduction

Doctor Suzanne Walter, a palliative care specialist, and her patient

have approached the high court for an order that would allow them

to bring about their own death.1 In effect they request the court

to declare the prohibition against physician-administered euthanasia

(PAE) to be invalid. They have not made a similar request in respect

* LLB LLM (U KZN); Lectu rer, School of Law, University of KwaZulu-Nata l.

1 Walter v Ministe r of Health case no 31396/2017.

https://doi.org/10.47348/SACJ/v36/i2a2

203

(2023) 36 SACJ 203

© Juta and Company (Pty) Ltd

of physician-assisted suicide (PAS) as they consider it to be lawful.

They argue that it is lawful for a physician to prescribe a lethal drug

to a patient that will enable them to end their life. However, they

argue that physicians are unable to do so because the guideli nes of

the Health Professions Council of South Africa2 deem such assistance

to be unprofessional conduct.

This research exam ines the common law to determine the lawfulness

of PAS and PAE. Doing so has become necessary in light of the ongoing

case of Walter v Minister of Health3 and the arguments m ade therein.

The discussion is also in formed by the decision of Stransham-Ford

v Minister of Justice and Correctional Se rvices4 which held that

PAS and PAE are unlawful. Moreover, Walter’s argument seems to be

at odds with the Supreme Court of Appeal’s decision in Minister of

Justice and Correctional Service s v Estate Stransham-Ford,5 which

held that the lawfulness of PAS must be determined according to the

circumstances of a par ticular case.

After evaluating the lawf ulness of PAS and PAE, the research examines

the law’s underlying rationale for the common law position. In effect,

it examines whether the position follows the logic of the common law.

Doing so enables us to compare that outcome with a fundamental

principle of justice which requires that like cases be determined

alike. An analysis of the common law also allows us to determine if

the outcome that is created by it is consistent with the spirit of the

Constitution; if it is not then the common law must be developed in

terms of s 39 of the Constitution.6 The rese arch examines the remaining

questions that a court needs to consider when determ ining whether

the common law is consistent with spirit of the Constitution. Flowing

from this are several points of consideration. However, the research

limits itself to a discussion of whether the law should acknowledge

PAS and PAE as grounds of justication. Further more, the research

focuses on whether the common law position as it stands is in line

with the value of ubuntu, human dignity and the advancement of

human rights and freedoms.

2 ‘Guideli nes for the Withholding and Withdrawi ng of Treatment’ HPCSA, September

2016, available at https://www.hpcsa.co.za/Uploads/Professional_Practice/Conduct

%20%26%20Ethics/Booklet%207%20Guidelines%20withholding%20and%20

withdrawing%20treatment%20September %202016.pdf, accessed 20 November 2021.

3 Walter v Ministe r of Health supra (n1).

4 Strans ham-Ford v Minister of Justice and Corr ectional Services 2015 (4) SA 50 (GP).

5 Minister of Ju stice and Corre ctional Serv ices v Estate Stran sham-Ford 2017 (3) SA

152 (S CA).

6 The Con stitution of the Republ ic of South Africa, 1996, s 39.

204 SACJ . (2023) 2

https://doi.org/10.47348/SACJ/v36/i2a2

© Juta and Company (Pty) Ltd