Health practitioners generally have the greatest regard for life and the right to life. The entire scope of health practitioners’ training is aimed at preserving or improving health and life. A topic which is naturally contentious, not only in general terms but especially in context of the health profession, is that of euthanasia or assisted suicide.

The Constitution (Act 108 of 1996) is considered supreme in South Africa and therefore trumps all other legislation, previous court judgments and legal policy if these clash with the constitution. According to South African human rights, every person has the right to life in terms of section 11 of the constitution. Every person has the right to bodily and medical autonomy in terms of section 12 of the constitution. No human right is, however, absolute and any human right may be limited in terms of the legal test set out in section 36 of the constitution. A competent court will test a fact complex against the test available in section 36 to consider if a human right may be limited or not.

The following considerations apply to establish if conduct should be considered a criminal offence. The considerations usually apply in this particular order: legality (points in limine, usually technical points); conduct; causation; unlawfulness; capacity; and fault. Any legal practitioner and ultimately any judge will consciously or subconsciously consider the aforementioned when testing if conduct constitutes a crime or whether it should be allowed in our society. All the considerations must be present in a particular case to conclude that the particular conduct constitutes a criminal offence.

In the case of euthanasia the consideration in question is that of unlawfulness. The main legal question is if a health practitioner acts unlawfully when assisting a patient to commit suicide or if the consent given by the patient to the health practitioner qualifies as a ground of justification which excludes unlawfulness.

In the case of Clarke v Hurst NO [1992 (4) SA 630 D] the court allowed a health practitioner to assist Clarke in his suicide. Clarke was already brain-dead when the family approached the court with his living will. Clarke’s living will clearly requested assistance in his suicide if he had no reasonable prospect of survival other than for the artificial preservation of life by means of machines and medical equipment. The court allowed the family and health practitioners to cease all medical assistance to Clarke, which caused his biological death. The court found that it was not unlawful to assist Clarke in his suicide.

Living wills are not scarce documents and are drafted daily by attorneys. They usually have standard clauses with standard wording which is based on the aforementioned judgment. The challenge is therefore not in asking if a patient has a living will but if the living will may lawfully be executed.

There was little to no development in our law on the topic of euthanasia until the matter of Stransham-Ford v Minister of Justice & Correctional Services & Others [2015 (4) SA 50 GO]. In the recent case, many role-players raised various, contrasting arguments in respect of euthanasia. Many arguments were religious in nature, whereas others were purely medical in nature.

The court developed the legal position as Judge Fabricius found that not only a person who was declared brain-dead had the right to have his request to assisted suicide as set out in his living will executed. According to this judgment, Stransham-Ford had the right to request medical personnel to affect euthanasia despite being fit enough to be physically present at the court during this court application. He was terminally ill with cancer but was certainly not brain-dead when the application was made or heard by the court.

Section 10 of the constitution describes a person’s right to dignity. In the aforementioned case, the court found that the following is undignified: 1) having severe pain all over one’s body; 2) being dulled with opioid medication; 3) being unaware of your surrounding and loves ones; 4) being confused or dissociative; 5) being able to care for your own hygiene; 6) dying in a hospital or hospice away from home; 7) dying in a dissociative state that prevents one from saying “good bye” to loved ones. These instances allow the request of assisted suicide as a denial of such request would breach the constitutional right to dignity.

If ever you are confronted with a terminally-ill patient that presents you with a living will, it advisable to have the family of the patient approach a court of law on an urgent basis to have the particular living will in the particular circumstances analysed. Although our legal system considers similar, previous cases (stare decisis) as binding every case is considered on its own merits.

In one case the court may find a request for assisted suicide to be a ground of justification which excludes unlawfulness, whereas in another it may find that a health practitioner acted unlawfully when assisting a patient in suicide. No patient, family member or health practitioner is advised to take the law into own hands and therefore a court order will clarify the specific patient’s position and will also protect all involved.

Many role-players in the recent Stransham-Ford judgment urge the Supreme Court of Appeal to find a judgment different from the Judge Fabricius judgment. The position is therefore not permanent or fixed and may change when the Supreme Court of Appeal or the Constitutional Court hears the matter. Until then, however, it is best for a health practitioner to be informed of the current position and to appreciate that irrespective the findings in the Strasham-Ford case, only a court can determine the lawfulness of assisted suicide in a specific case.