Clarke v Hurst NO and Others

• Jurisdiction: South Africa
• Judge: Thirion J
• Judgment Date: 30 July 1992
• Citation: 1992 (4) SA 630 (D)
• Hearing Date: 30 July 1992
• Court: Durban and Coast Local Division

Thirion J:

On 30 July 1988 and while undergoing epidural treatment, C Frederick Cyril Clarke ('the patient') suffered a sudden drop in blood pressure and he went into cardiac arrest. His heartbeat and breathing ceased. Resuscitative measures were instituted but by the time that his heartbeat and breathing were restored, he had suffered serious and irreversible brain damage due to prolonged deprivation of oxygen to the D brain (cerebral anoxia). He had become deeply comatose and has remained in that condition ever since.

The patient's swallowing mechanism is not functioning and consequently, even if he had been conscious, he would not have been able to ingest food in the natural way. The patient is fed artificially by means of a E naso-gastric tube. Through this tube he is fed a readymade powder diluted with water. The powder provides all the patient's nutritional needs, while the water provides the hydration necessary for the maintenance of life. Food is digested naturally and the bowels are evacuated by involuntary reflex. There is a tendency to constipation and when this occurs suppositories are administered or manual evacuation is undertaken. The F discharge of urine occurs in the normal manner but because it is involuntary the urinary discharge is administered by a Paul's tube in order to keep the patient dry.

Because of the patient's inability to swallow, nasal secretions tend to flow down his trachea into his lungs. In order to maintain respiration unimpeded and to prevent infection, excess secretions are removed by G suction several times a day. A plastic tube passes through a tracheotomy opening in the trachea into the patient's lungs. A suction machine is used to expel the excess fluid from the lungs. The patient is in what is commonly known as a persistent vegetative state. There is no prospect of any improvement in his condition and no possibility of recovery.

H The applicant, the patient's wife, now applies to be appointed as curatrix to the patient's person with powers in that capacity to:

(1)

agree to or withhold agreement to any medical or surgical treatment for the patient;

(2)

authorise the discontinuance of any treatment to which the patient I is at present subjected, or to which the patient may in future be subjected, including the discontinuance of any naso-gastric or other non-natural feeding regime or like regime for the hydration of the patient;

(3)

act as set forth in paras (1) and (2) above notwithstanding that the implementation of her decisions may hasten the death of the J patient.

Thirion J

A In her founding affidavit the applicant has expressed it as her intention, if the application should be granted, to have the tube removed which has been introduced into the patient's stomach to provide for his body's nutritional requirements. In effect what the applicant intends doing is to put an end to the artificial feeding regime at present in operation whereby the patient obtains the necessary sustenance for his bodily functions - such as they are. The applicant expresses herself as B follows:

'If the order is granted I will consult with the medical practitioners with whom my husband will be in custody at the time and give such directions as will ensure that any physical distress which accompanies the removal of the tube is minimised; that being necessary, as I understand it, to preserve the dignity of the relationship between the attending C medical staff and my husband and to alleviate the stress on family members. I am of course mindful of the fact that my husband's death will follow the removal of the tube from his stomach. However, I respectfully submit that the removal of the tube will not cause his death. In my respectful submission what will cause my husband's death is the cardiac arrest that occurred on 30 July 1988. Notwithstanding their best efforts and intentions, all that the various medical attendants have been able to D do is to suspend the process of death. They did not save my husband's life.'

The applicant makes it clear that the effect of stopping the artificial feeding regime will be to terminate the present 'suspension of the process of death' of the patient by starving the body of its nutritional needs. The application is supported by the patient's nearest relatives - his two sisters and his four children - all of whom are majors. E

The patient was born on 22 March 1925 and is therefore in his 68th year. The patient is a qualified medical practitioner and at the time when he suffered the cardiac arrest he was still actively conducting a medical practice. From 1977 to 1986 the patient had been a member of the then F Natal Provincial Council and from 1981 to June 1986 he had been a member of the Executive Committee of the Council, responsible for Hospital Services.

The patient is a life member of the SA Voluntary Euthanasia Society. He had signed a document headed 'A Living Will' which is directed to his family, his physician and to any hospital and which reads:

G 'If there is no reasonable expectation of my recovery from extreme physical or mental disability . . . I direct that I be allowed to die and not be kept alive by artificial means and heroic measures. I ask that medication be mercifully administered to me for terminal suffering even though this may shorten my remaining life. I hope that you who care for me will feel morally bound to act in accordance with this urgent request.'

H During his active life the patient held strong views on the individual's right to die with dignity when living has ceased to be worthwhile and when there is no hope of improvement or recovery. In a public speech delivered in 1983 he said:

'I feel sure that the general public gets a certain degree of I satisfaction in knowing that if they, by a stroke of misfortune, become cabbages or suffer prolonged and intractable pain where a successful outcome is impossible, no valiant and fruitless endeavours will be instituted by the medical team to prolong intense suffering and anguish and to, in fact, prolong death.'

These statements undoubtedly stemmed from a settled, informed and firmly J held conviction on the patient's part that should he ever be in the

Thirion J

A condition in which he has been since the cardiac arrest, no effort should be made to sustain his life by artificial means but that he should be allowed to die.

In her application the applicant cites as first and second respondents the senior medical superintendent and chief nursing services manager at B Addington Hospital, where the patient is at present being cared for. As third respondent has been cited the Attorney-General for Natal in his capacity as the prosecuting authority in the province. A curator ad litem has been appointed to represent the patient's interests.

The third respondent, the Attorney-General, opposes the application on a number of grounds. He has filed an affidavit in which he says that he is C not prepared to undertake in advance not to prosecute should steps be taken to terminate the patient's life and that he is not prepared to declare in advance what his decision would be in the event of such steps being taken. He says that in view of his opposition to the granting of the order the Court does not have the power to 'tie his hands in the event of D the contemplated termination of the patient's life' and that even if the Court does have the power it should refrain from exercising it in this case.

Counsel who appeared on behalf of the Attorney-General submitted that despite the form which the applicant's order prayed for takes, she is in effect asking for an order declaring that she would not be acting unlawfully if, in her capacity as curatrix, she were to withhold her E agreement to the giving of medical and surgical treatment to the patient or if she were to authorise the discontinuance of artificial life-sustaining measures such as naso-gastric feeding, even though the discontinuance of such measures or the withholding of such treatment would result in the termination of the patient's life. I agree with this F submission. Admittedly the order which is sought is not couched in the form of a declaratory order but takes the form of an order conferring on the applicant, as curatrix to the person of the patient, certain powers (which have been set out at the beginning of this judgment). However, despite the form of the order, it is implicit in it that the applicant is asking the Court to declare that she would not be acting unlawfully if she G were to exercise those powers. I say that because if, in exercising the powers which she is asking for she would be acting unlawfully, the Court would be exceeding its competence if it were to grant to her those powers. No Court would be competent to sanction the commission of a crime or a wrongful act. In essence, therefore, what the applicant is asking for is H an order declaring that if she were to take the steps envisaged by her and if as a result of the taking of those steps the life of the patient were to terminate, she would nonetheless not be acting unlawfully.

Building on his submission that what the applicant seeks is a declaratory order, counsel submitted that the Court should refrain from I making a declaratory order which would anticipate facts which have yet to come about; which would pre-empt the authority of the Attorney-General to decide in due course whether to prosecute and which would render nugatory the provisions of the Inquests Act 58 of 1959. In support of this submission counsel relied on Ex parte Farquhar 1938 TPD 213; Ex parte Taitz 1946 TPD 211; Mabukane v Port Elizabeth Divisional Council and the J Solicitor-General 1957 (4) SA 293 (E); Central African Examiner (Pvt) Ltd

Thirion J

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