In May 2012, Professor Willem Landman of the Ethics Institute of South Africa presented a research paper, End-of-life decisions, ethics and the law: A case for statutory legal clarity and reform in South Africa, in Cape Town at the First Annual Congress of the Faculty of Consulting Physicians of South Africa.
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:
From the perspective of the person who causes another’s death, “euthanasia” has two meanings:
From the perspective of the person who dies, “euthanasia” has three meanings:
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 request it). Still, ethics and the law would need to address non-voluntary assisted dying too (where persons irreversibly lack, or have never had, the capacity to decide for themselves), for example severely defective newly born infants.
Although this Paper does make some observations about non-voluntary euthanasia, it does not deal with it systematically, since substitute decision makers would decide on behalf of such patients.
Involuntary euthanasia is rejected in a medical setting, and only referred to in a discussion of the Nazi “euthanasia” projects.
In short, any talk of unilaterally “deciding for (competent) others” that they should die is totally out of place in this discussion.
Assisted dying is a highly controversial and emotive topic. Ethical beliefs about these practices are steeped in religion, and thus interpretations or understandings of the doctrine of the sanctity (special moral value) of human life.
The mere fact that views are personal and strongly held, whether inspired by religion or not, does not justify the suppression of responsible public debate about those views. On the contrary, we have a compelling ethical obligation to address assisted dying in the democratic process, as we did with respect to capital punishment and termination of pregnancy (abortion).
Our public policy should not be driven by partisan religious beliefs – often resting on mistaken assumptions and projections that religion forbids these practices – but rather by our Constitution.
The Bill of Rights in the Constitution is an ethical document that sketches the basic values upon which our democracy is to be built and proposes human rights that we should realise progressively.
So, a key question regarding legalising assisted dying would be its constitutionality. In short, do we have an ethical obligation to decriminalise assisted dying given our constitutional rights?
But would this not put the cart (the law) before the horses (ethics)? Might we not end up legalising a practice that is regarded as fundamentally unethical, similar to legalising abortion which the majority of the population regards as unethical?
Can assisted dying be ethically justified, or do arguments against assisted dying hold more force?
This Paper is, in the first place, concerned with the ethics of legalising end-of-life decisions, including the ethics of legalising assisted dying.
Still, because there are such strongly held and hotly contested ethical views about assisted dying, a persuasive ethical case for assisted dying would reinforce the ethical need for legalising assisted dying. Three key ethical arguments each support the respective cases for and against assisted dying.
Ethical Argument for Assisted Dying
The argument from autonomy and the argument from suffering make the most powerful ethical case for assisted dying. A third argument contends that assisted dying is ethically speaking the same as withholding and withdrawal of potentially life-sustaining treatment, both of which are widely accepted practices.
Implicit in these three ethical arguments for assisted dying is the view that it is not always wrong intentionally to bring about someone’s death, whether by an act or omission. Correspondingly, someone’s right to life does not entail an obligation to live; or someone may have a right to die, given clearly defined circumstances.
We already accept ethical justifications for other forms of causing death, for example, individual self-defence and in a defensive war.
But the three arguments for assisted dying are different because, in the circumstances, the one whose life it is does not regard dying as wrong, nor death as bad, but rather as desirable in defined circumstances.
This is so because suffering has broken the connection between life and good, so that death becomes a good, or in the patient’s best interest.
Personal Autonomy
The argument from personal autonomy or individual self-determination goes as follows: respect for autonomy is a basic ethical principle which asserts that competent persons have a moral right to make their own choices, including choices about their continued life in clearly defined circumstances, and to act upon those choices.
We have an ethical obligation to respect that right. Consequently, medical practitioners, or specified other people, should have the choice to respect people’s autonomous wishes by assisting them with dying, their conscience permitting.
One line of critique against the autonomy argument is that the sanctity (special moral value) of human life outweighs or trumps considerations of autonomy used to justify the taking of human life.
But, surely, the sanctity of human life does not reside in biological human life, but in human life that comes up to a certain standard (quality). Also, human life characterised by uncontrollable pain due to terminal disease, for example, fails to meet that standard, judged by the person whose life it is.
A second critique attacks the notion of autonomy, arguing that ethical debate about assisted dying “assumes an ethic of radical individualism” that is based on a “contractual model of care”.
According to this view, any debate that contemplates the ethical justification of assisting an individual to die is of necessity anti-community, and as such dismissive of the fact of our interconnectedness and interdependence.
This view is surely contradicted by overwhelming anecdotal evidence of cases where requests for assistance with dying are made in a caring, personal setting in which our relationships with, and interdependence on, others are fully recognised and actually constitute the very foundation of a moral obligation to assist with dying.
Appeals to community need to define “community” since we are all at once members of several overlapping communities, from immediate family to the global community. If any one of these communities respects the right of an individual to request assistance with dying in defined circumstances, it does not for that reason cease to be a community.
And even if someone’s request for assistance with dying were to spring from “radical individualism” that is embedded in a contractual rather than caring relationship, that would in no way invalidate the ethical case for respecting personal autonomy.
Moreover, the argument that adequate terminal-pain management would remove the need for assisted dying fails to give due recognition to the personal autonomy of persons in a terminal phase of dying by prescribing to them how they should deal with their suffering induced by pain and distress.
Suffering
Suffering is an emotional response to significant pain or distress (anxiety). The argument from suffering is premised on the value of human well-being.
Life, the good that makes all other goods possible, may become a burden or worthless on account of suffering pain, or suffering distress at the loss of control and dignity. Death may become the only deliverance.
Judging another’s well-being, or whether life is worth living, or death desirable, is not merely a matter of considering objective facts, such as medical information about diagnosis and prognosis.
It also requires considering the subjective values, projects, preferences and experiences of the person whose life and well-being is at issue.
Consequently, if a competent person freely judges that death is the only escape from suffering, then assisting that person to die would not wrong or harm them but be in their interest. On the contrary, refusing to help would harm them by frustrating their projects and preferences, and would be crueller and less merciful than assisting them with a gentler, more dignified, death.
The counter-argument usually maintains that the suffering caused by pain or distress is controllable by means of comfort care. Again to maintain that pain medication, coupled with a conventional dosage of sedative, would keep patients asleep until they die naturally ignores their legitimate preferences not to die in a state of palliative or terminal sedation. And it does not address suffering induced by distress at the loss of dignity.
Another counter-argument contends, from a religious point of view, that God has a purpose with suffering and that we would frustrate his will when we remove suffering by hastening death. Not all religious believers would accept this interpretation of God’s will.
Moreover, for what sound ethical reason would we wish to relieve others’ suffering throughout their lives, but retreat if suffering occurs when death is imminent and relief of suffering may hasten death?
Moral Equivalence
There is a strong argument for assistance with dying premised on the moral equivalence of assistance with dying (assisted suicide and voluntary euthanasia), on one hand, and withholding and withdrawal of life-sustaining treatment, on the other.
If the latter are ethically justified healthcare practices, so should be the former, since there are no relevant moral differences between the two.
The mere fact that one action is an omission or “passive”, while the other is an act or “active”, does not in itself render the former morally acceptable and the latter morally objectionable.
All these practices involve deliberation about the patient’s condition, intention, benevolent motive, and consequences – directly for the patient who dies, and indirectly for family, friends, healthcare workers, other interested parties, and state interest.
The only difference is the means whereby death is caused: withholding or withdrawal of life-sustaining treatment involves an omission of treatment, whereas assisted dying requires an act. This, however, is not a morally relevant difference because we are (morally and legally) responsible for both acts and omissions.
In short, there is no one set of distinctions or differences that attach only to either acts or omissions.
Ethical Arguments against Assisted Dying
There are three significant ethical arguments against assisted dying: it is wrong to “play God”; the responsibilities of healthcare workers should never include killing people; and “slippery slope” undesirable consequences, including abuse, will follow or are likely to follow.
Playing God
The doctrine of the sanctity – or special moral value – of human life means, among others, that only God should determine the time and manner of our death. It is therefore wrong to “play God” by shortening our lives, even if suffering is intractable and unbearable.
Clearly, people have different views about the existence of God, and divergent interpretations of coming to know His will. For some, He is authoritarian and inscrutable, giving us orders and instructions, for example, in the form of a Bible text or some personal revelation. For others, He is merciful and understanding, and confers upon us autonomy and responsibility to do our best through rational and compassionate decisions in situations of great tragedy and ambivalence.
But even if we accept an authoritarian conception of God, His orders or instructions still need to be interpreted. For example, if God prohibits us from usurping His authority by making decisions that alter (hasten) the time of our death, then surely we likewise “play God” when we shorten our lives with bad eating habits, or lengthen our lives with antibiotics or surgery. Which, then, is acceptable in the eyes of God, and which not?
In essence: the “playing God” argument is weak since it is impossible to make a non-arbitrary distinction between practices of which God approves and those of which He disapproves. Something is not right because God says so; God says so because it is right. Irrespective of our religious convictions, we need to use our reason and compassion to come to know what course of action ethical values demand of us.
Professional Responsibilities
A second anti-assistance with dying argument contends that healthcare professionals have responsibilities that are incommensurable with killing or shortening life, namely, general moral obligations as human beings to prevent harm (non-maleficence) and do good (beneficence), and specific professional and institutional duties to care, heal, extend life, or preserve life.
Assisted dying would undermine these responsibilities and commitments, thus eroding the trust patients have in healthcare professionals to act in their best interest. These practices are forms of killing, and killing is not what healthcare professionals do, or ought to do. And this professional prohibition against killing goes right back to the Hippocratic Oath.
This argument fails to take adequate account of non-curative healthcare of terminally ill persons whose death is imminent. Life is finite, and all humans eventually die of natural causes unless some unnatural cause intervenes.
Tragically, a natural death, for some, may be infused with intractable or unbearable suffering, and death may be preferable to a life that is no longer worth living. It follows that the ethical responsibilities of healthcare professionals cannot, in all circumstances, be to save life, or to heal.
Healthcare professionals, or others, who assist with dying would be morally blameworthy only if death is the enemy in all circumstances, and therefore always to be resisted at all cost. But this would be a denial of the fact that dying is an integral part of life.
In short, there are tragic situations where healthcare professionals’ routine goals of restoring health or preserving life are unattainable, and indeed inappropriate, and times when assistance with dying may indeed constitute desirable and appropriate care.
Certainly, those who assist with dying, should this practice be decriminalised, should have the right to opt out of participating in such practices if they clash with their conscience, as is the case with termination of pregnancy (abortion) in South Africa.
Slippery Slope
A significant argument against assistance with dying is that practising it would have ethically undesirable or unacceptable consequences, such that it would be better to refrain from it altogether.
Proponents of this argument predict a variety of undesirable consequences. For example, it is claimed that some healthcare professionals would abuse their social standing and power to exert undue influence over vulnerable patients to end their lives, thus embarking upon a slippery slope towards non-voluntary or even involuntary euthanasia.
This would undermine the trust people have in healthcare professionals and in the professions themselves. Others hold that hospice care, pain relief and comfort care would be undermined.
This argument is not about assistance with dying being morally wrong in itself, or intrinsically wrong, but about its possible or probable effects.
Presumably, then, if predicted bad consequences fail to materialise, assistance with dying as such would be ethically acceptable.
Any responsible practice of assistance with dying would need to put in place strict guidelines and effective safeguards to prevent undesirable consequences, accompanied by monitoring, reporting and oversight.
Predicted bad consequences remain just that – predictions that are not inevitable, but may turn out to be alarmist and false. Although the slippery-slope argument has intuitive appeal, both its logical and empirical versions are questionable.
First, according to the logical version, the justification used for assisted dying would also justify other forms of killing that are clearly wrong. It does, however, not follow, on logical grounds, that the reasons justifying assisted dying, namely respect for autonomy and mercy, would also justify killings that are neither respectful of autonomy nor merciful.
People routinely make a clear distinction between ethical and unethical practices, even if they are closely related in other respects, including justified and unjustified forms of killing, for example in self-defence or war.
Moreover, there is no logical reason why medical practitioners, even (improbably) assuming they might sometimes wish their patients dead, will slide down a slippery slope only in respect of one subset of end-of-life decisions, namely, assisted dying.
It seems perfectly reasonable to assume that what is true of withholding or withdrawal of potentially life-sustaining treatment, or terminal sedation, is prima facie also true of assisted dying. Logically speaking, slippery-slope dangers would be equally existent or nonexistent in either case.
Second, the empirical version of the slippery-slope argument holds that assistance with dying will, as a matter of fact, lead to unjustified forms of killing, such as involuntary euthanasia.
If this were in fact true, one would expect there to be evidence of all kinds of other slippery slopes in end-of-life decision-making, for example, that the accepted medical practice of refusal of life-sustaining treatment would also put one on a slippery slope towards assisted dying.
On the contrary, available evidence does not bear this out. A comparative study of limitation (rationing) of life support in intensive care units (ICUs) in the United Kingdom and South Africa, shows no significant differences across the developed/developing world “divide”.
Where physician-assisted suicide is legal, for example, in the states of Oregon and Washington in the United States, there is no evidence of a slippery slope to voluntary active euthanasia.
More generally, proponents of the slippery-slope argument need to produce credible evidence that withholding or withdrawal of life-sustaining treatment lead to abuse of vulnerable patients. Lack of such evidence is not surprising, since decision making in this context involves loving family members and caring, professional healthcare professionals.
Nor is there credible evidence that legalising assisted suicide in, for example, the states of Oregon or Washington, has led, or would lead, to voluntary euthanasia.
Having said that, such decriminalised practices should be closely monitored, for example, to assure proper informed consent. Interestingly, a significant percentage of patients who opt for physician-assisted suicide in Oregon eventually die of natural causes, but they have the assurance that if their suffering became unbearable they would be assisted with dying.
Abuse is possible in all human activities and practices. It follows that opponents of assisted dying have a moral responsibility to factor in the possible abuse of patients at the end of life who are denied assistance with dying.
So, the claim that assisted dying is somehow unique or different from other end-of-life decisions – since it alone would make society or medical practice slide down a slippery slope towards unintended forms of killing, thus eroding our respect for human life – lacks evidence.
Still, the Nazi’s “euthanasia” programme before and during the Second World War is often cited as proof that legalising assistance with dying would place society on a slippery slope to something equally bad.
Before the war, Nazi Germany indeed embarked upon a programme of non-voluntary “euthanasia” of defective infants. The programme expanded to non-voluntary and involuntary euthanasia of adults with mental and physical disorders.
It was embedded in an ideology of the superiority of the Volk, and the motive was racial purity. It was state-sanctioned mass murder, not euthanasia where death is voluntarily requested and is in the interest of the person who dies. It was an abuse of the term “euthanasia”. Significantly, holocaust survivors do not see any link between the Nazi “euthanasia” programme and voluntary active euthanasia in a caring healthcare setting.
Since unintended – foreseen and unforeseen – bad consequences are risks that attach to virtually any human activities and practices, the constant challenge is to put in place the policies, structures and practices to address those risks as best we can.
In sum, possible bad consequences need to be managed through effective strategies and their implementation. And we need to weigh the possible bad consequences – in terms of suffering and loss of trust – if assistance with dying remains unlawful, often as a consequence of invalid arguments, or simply a blanket refusal to address the need for assistance.
Assisted Dying Is Unlawful
South African law on assistance with dying is clear: it is a criminal offence.
First, assisting with suicide is a criminal offence – murder, attempted murder, or culpable homicide – even though attempted suicide itself is no longer a crime.
Second, voluntary (active) euthanasia is the intentional killing of another person, which is murder, unless there is a ground of legal justification.
Motive – such as empathy, compassion, or mercy – is not a recognised ground of legal justification of an act of killing, but it may impact on the severity of the sentence.
Following this legal position, the HPCSA (Health Professional Council) “finds active euthanasia, or the wilful act by a healthcare professional to cause the death of a patient, unacceptable, notwithstanding whether or not such an act is performed at the request of the patient or his or her closest relatives or of any other person”.
The Ethical Dilemma of Legalising Assisted Dying.
What are the ethics of legalising assisted dying? Is there an ethical case to be made for decriminalising it?
Or are there compelling grounds for excluding assisted dying from a comprehensive bill on end-of-life choices that includes terminal pain management, withholding and withdrawal of life-sustaining treatment, and advance directives?
The ethics of assisted dying (as opposed to the ethics of legalising it) poses a typical ethical dilemma since both the case for and the case against assisted dying appear to be able to muster strong ethical arguments.
We face an ethical choice between right (we should assist) and right (we should refrain from assisting). In terms of purely ethical argument, untainted by partisan religious beliefs, the case for assistance with dying appears to be more cogent than the case against.
Still, moral or ethical consensus is probably impossible, given different basic values, priorities and interpretations. The SALC says the following about this ethical dilemma: “From the submissions received it is clear that in so far as active euthanasia [assisted dying] is concerned, society is divided and moral controversy is rife. It places the SA Law Commission in the difficult position of having to clarify the principles on which legal intervention should proceed in the absence of a moral consensus on the issue.”
Public opinion alone cannot resolve this dilemma. In this regard, the SALC quotes Constitutional Court Judge Arthur Chaskalson who said that “public opinion may have some relevance to the enquiry, but, in itself, it is no substitute for the duty vested in the courts to interpret the Constitution and to uphold its provisions without fear or favour. If public opinion were to be decisive there would be no need for constitutional adjudication.”
Escaping this impasse would require finding common ground on a level other than our different, ethical and religious beliefs, by interrogating the content of our common constitutional values and rights, and asking what they require from us in our constitutional democracy.
Interpreting the Constitution – A Right to Life
The SALC Report contends that “the only way in which an answer will present itself is if the discussion could be conducted with total objectivity in terms of the constitutional principles.”
It argues that the constitutional debate will hinge on an interpretation of the constitutional right to life. In its most basic form, the right to life is a guarantee to citizens that they have a right “to be alive”.
Since a law authorising a limitation of the right to life does not necessarily amount to an extinction of that right (as was the case with legalising termination of pregnancy or abortion), it follows that a law authorising assisted dying may be a reasonable and justifiable limitation on the right to life.
Thus, “the constitutional survival of the proposed legislation [on assisted dying] will therefore depend on whether the Court gives ‘life’ a content value, importing some form of quality of life beyond mere existence; secondly whether it accepts that there are circumstances in which a person’s quality of life has degenerated to such an extent that to prolong the dying process runs counter to the right to life guarantee; and thirdly, to what degree the other rights of a terminally ill patient embody values of an open and democratic society which would justify a limitation of the right to life in circumstances where a person is little more than alive [emphases added].”
Legal academics Pieter Carstens and Debbie Pearmain make the same point about the constitutional right to life (section 10 of the Constitution) being pivotal to the constitutionality of assisted dying.
In the case of termination of pregnancy, the right to freedom of choice and the right to bodily integrity are justifiable limitations to any other right that may be infringed by such an act, provided there is compliance with all regulations.
The anomaly is that, given a right to life, there is no right to die that would be the equivalent of the right to abortion. One could say that having a right to life does not entail that one has a duty to live, regardless of circumstances.
Carstens and Pearmain put the constitutional position of assisted dying as follows: “[L]egalising euthanasia in South Africa, in the constitutional paradigm, will only be possible if such a practice is regarded as a justifiable and reasonable limitation on the right to life in terms of section 36 of the Constitution. Conversely, the criminalisation of euthanasia will imply a justifiable limitation to the right to dignity, freedom of bodily integrity and privacy… [A] central tenet of contemporary South African medico-legal doctrine is the notion of patient autonomy, that is, the right of a competent adult to determine what shall be done to his or her body.”
This right to personal autonomy in South Africa has its legal roots in both the common law and certain constitutionally protected rights to dignity, privacy and freedom of bodily integrity.
In the final analysis, at issue is the ethical imperative that law and public policy in the democratic state should balance responsibly respect for personal conscience (individual autonomy) with the pursuit of the public good (state interest).
Controversy should not deter us from exploring public-policy options with intellectual honesty. Following the first democratic election of 1994 and the adoption of the new Constitution in 1996, we have made a fresh start that enabled us to be bolder than most other states in rewriting some of our society’s ground rules.
Among others, we decriminalised termination of pregnancy (abortion) and abolished capital punishment, both in the face of majority popular opinion, but faithful to the ethical demands of the Constitution.
Our point of departure should be the ethical values in the Bill of Rights of the Constitution which recognise not only the right to life, but also that every person has inherent dignity and has a right to have that dignity respected, as well as other related constitutional rights.
Although the question regarding the constitutionality of assisted dying has not been decided by the Constitutional Court yet, it would be fair to say that quality-of-life considerations and the right to dignity should inform the content of the right to life, and therefore end-of-life decisions.
So, the key question is: Can our constitutional rights be interpreted in such a way that assistance with dying – assisted suicide and voluntary euthanasia – could, or even should, be decriminalised within clearly defined parameters?
Significantly, Carstens and Pearmain conclude their discussion of the legal position in respect of assisted dying as follows: “[T]he underlying values, spirit and purport of the applicable sections of the Constitution [sections 10, 12 and 14], seem to be supportive of the introduction of voluntary euthanasia in South Africa.”
Reopening the Legalisation Debate
The question is: Do we want to remain silent about the criminality of these practices, or is it better to confront their legality head-on, given our constitutional rights?
There are strong arguments on both sides, and they should be heard in public.
Internationally, this debate has been advanced considerably, albeit in quite different ways, since the publication of the SALC Report in November 1998 – in the United States, the Netherlands, Belgium, Luxembourg, Switzerland, the United Kingdom, and Canada.
Evidently, the trend is towards careful, measured liberalisation of the law.
Mindful of Judge Chaskalson’s views about the limited relevance of public opinion for constitutional interpretation, some anecdotal evidence suggests that in South Africa the time is ripe to reopen the public debate about decriminalising or legalising assisted dying, kept on hold since 1998.
It is probably fair to say that sensitive people, who come to know the tragic circumstances in which assistance with dying is contemplated, increasingly believe that we need to create the space for individuals, as a matter of clear public policy, to be assisted with their dying.
It should be everyone’s personal, free choice, within clearly defined boundaries. Each person should be allowed to decide for themselves if their suffering is unbearable or their dignity lost, and whether they wish to end their lives. And the law should set the boundaries within which such decisions can be made responsibly.
Opponents of liberalising our law in this regard can, quite rightly, insist that no pressure or duress should taint a free and informed decision about one’s own continued existence. But they should also accept that others may make personal choices of which they disapprove, provided they are respectful of the law.
Refusal to decriminalise assisted dying could lead to inconsistencies that are unjust and lack compassion. For example, a ruling by the Constitutional Court case of Soobramoney has the effect that the state, in certain circumstances, may be inconsistent if it denies a request for assisted dying.
The appellant, in the final stages of chronic renal failure, claimed that he was entitled to emergency dialysis, given the constitutional right to life (section 11) and right not to be refused emergency medical treatment (section 27(3)). The court rejected this application on the grounds that withholding life-prolonging treatment, or rationing care, is compatible with a constitutional human-rights approach, given scarce resources.
Withholding dialysis, a scarce resource, led directly to the appellant’s death. But given that the state can legitimately withhold resources necessary for life, it would be inconsistent, as well as cruel, if the state were also to deny the “condemned” man’s request for assistance with dying so that he could die sooner and, perhaps, with less suffering.
On what grounds can the state sanction death when it is a bad for the appellant, but deny it when it is a good, especially if the state has made death the only option?
Similarly, the SALC Report refers to an example of a person, bitten by a dog with rabies, who is in the final stages of an irreversible and unbearable state of pain and suffering, and is legally and mentally irreversibly incompetent.
Unlike a person in a persistent vegetative state, this person cannot die a natural death without intractable and unbearable suffering. Surely, any legal regime that denies this person active assistance with dying is inhumane in the extreme.
So, the question is: Should the law make provision for competent persons freely to choose that their lives be terminated, and for assisting incompetent persons with dying in the terminal phase of their illness?
If not, how could our law force people to die in inhumane and undignified circumstances merely to satisfy abstract legal rules, even with optimum terminal pain management? In addition, given that a denial of assistance with dying might be unconstitutional, the justification for reopening the debate about legalising assisted dying needs no further argument.
The SA Law Commission Draft Bill
We have a good point of departure for such a debate about legalising assisted suicide and voluntary euthanasia, namely, the SALC Report that puts forward three options, having received extensive submissions in response to its earlier draft report.
The SALC supports Option 1, maintaining the status quo in terms of which assisted dying is unlawful. Options 2 and 3 are formulated in the End of Life Decisions Bill 1998, included as a draft bill in the report, and are intended to serve as a basis for discussion in a democratic process.
Option 1
Option 1 is “the confirmation of the present legal position”. This is the position favoured by the SALC Report – no change to the law – which rests on the following point of departure: “Since the right to refuse medical treatment is far removed from the right to request euthanasia [assistance with dying] the Commission strongly endorses the right of the competent patient to refuse consent to medical treatment but holds that a law to permit euthanasia is unacceptable.”
Let us call the SALC’s view that there is a significant, perhaps unbridgeable, moral difference between refusal of potentially life-sustaining treatment and a request for assisted dying (assisted suicide and voluntary euthanasia), where the former is legally justified but the latter not, the “difference thesis”.
The difference thesis stands in opposition to the “equivalence thesis”, supported in this Position Paper.
The difference thesis cannot be merely asserted but needs arguments in its support. Nor can the matter be decided by majority public opinion, for the very same reasons that termination of pregnancy and abolition of capital punishment were not so decided.
Having committed to the difference thesis, the SALC Report puts forward four arguments against legalising assisted dying.
First, the “Commission is of the opinion that the arguments in favour of legalising voluntary euthanasia [assisted dying] as set out above are not sufficient reason to weaken society’s prohibition of intentional killing as entrenched in section 11 of the Constitution and which is considered to be the cornerstone of the law and of social relationships.”
Certainly, the right to life in the Constitution needs to be interpreted, taking account of life being at an end or not worth living (devoid of quality), and of the free and legitimate preferences of the person whose life it is. If assistance with dying would be unconstitutional, a law legalising it might be overturned by the Constitutional Court, if tested.
But what evidence does the SALC have for the claim that legalising assistance with dying would undermine the legal prohibition of intentional killing in general, thus eroding society’s commitment to the special moral value of human life?
If withholding and withdrawal of potentially life-sustaining treatment does not have that consequence, why would assistance with dying? Surely, the decisive consideration is that all of these practices would take place in a compassionate, humane, merciful and controlled medical environment. It has nothing in common with killing people because one intends to harm them.
One can understand that widespread breakdown of the civil order, in which murder is unchecked and, in the public eye, would weaken society’s prohibition against killing. But why would assistance with dying in a medical context, where compassion and mercy are the driving elements, have such an effect?
Without any supporting evidence, this argument has no merit. In fact, we have good evidence suggesting quite the opposite, namely, that when public policy is disrespectful of human life, then, far from eroding society’s commitment to the special moral value of human life, society might rally to the defence of human life. Thus, civil society went right up to the Constitutional Court to force government to change its policy in respect of mother-to-child transmission of the HI virus.
Second, the SALC Report argues that “[w]hilst acknowledging that there may be individual cases in which euthanasia [assisted dying] may be seen by some to be appropriate, these cases cannot reasonably establish the foundation of a general pro-euthanasia policy”. At issue is not whether such cases are few, but that every human being will die and may die, in the absence of a protecting and merciful law, while suffering intractable and unbearable pain and distress. Although exceptions indeed make bad law, the constant presence of terminal suffering is hardly an exception but part of the human condition.
Third, the SALC Report contends that “[i]t would be impossible to establish sufficient safeguards to ensure that euthanasia were truly voluntary and would not inevitably lead to involuntary and compulsory euthanasia”. This is a factual or empirical claim, in fact it amounts to three empirical claims about the efficacy of safeguards against possible abuse of decriminalised assisted dying, namely, that there is no way to determine whether safeguards designed to eliminate bad consequences or abuse would (1) ensure that a choice is truly voluntary; (2) prevent involuntary euthanasia; and (3) prevent compulsory euthanasia.
These claims can be rebutted. Factual claim (1) – we cannot determine whether a choice is truly voluntary – could mean that we are never able to “get into another’s head”.
If this is what is meant, then, of course, the whole of criminal law, premised on voluntariness, accountability and liability, would have its foundation taken from underneath it. Our everyday understanding, even of those closest to us, as well as psychology, would be in trouble.
Or is there somehow a difference between voluntary and “truly” voluntary and, if so, what might that be? Truth and justice would be better served if we trust our tested criteria of understanding other minds and applying them to requests for assistance with dying, rather than to treat such requests as somehow exceptional and beyond the pale.
As for factual claim (2) that foresees a real risk of involuntary euthanasia, we now have significant data that was unavailable in 1998, most notably from the implementation of physician-assisted suicide in the state of Oregon, where meticulous records are being kept and annual reports are open for scrutiny.
And there is new data from Western Europe, where, among others, the Netherlands decriminalised assistance with dying following a tacit public-policy understanding of non-prosecution for assistance with dying.
Factual claim (3) cites compulsory euthanasia as a possible unpreventable consequence of legalising assistance with dying. It is hard to imagine what this could mean other than a possible Nazi “euthanasia” scenario, with “compulsory” referring to the power of the state. This alarmist claim requires supporting evidence. Again, even holocaust survivors dismissed a suggestion of a similarity between the Nazi programme and euthanasia in a compassionate, medical context. Our Constitution contains adequate checks and balances to prevent such a far-fetched doomsday scenario, especially given effective and enforced safeguards built into legislation. This kind of argument hardly merits consideration in an honest public debate.
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:
Conclusion
This Paper argues for statutory legal clarity and reform in respect of the following four end-of-life decision-making practices, each involving a moral right of a terminally ill person, and a corresponding moral obligation of interested parties, such as caregivers, family, and the state:
Whereas the first three are relatively uncontroversial and should be guided by the applicable standard of care for responsible medical practice, South African law is not sufficiently clear to provide adequate comfort and protection to medical practitioners and substitute decision makers.
This can be rectified by tabling a comprehensive end-of-life decision-making bill before Parliament, thus creating an enabling environment for all decision makers in the tragic but inevitable circumstances that are a natural part of life.
The fourth, assisted dying (assisted suicide and voluntary euthanasia), is unlawful in South Africa and can only be decriminalised through legislative reform.
There are very strong arguments to suggest that such legislative change would be consistent with the letter and spirit of the Constitution’s Bill of Rights, if not required by it, as was the case with abortion.
In sum, there should be a public debate on end-of-life decision-making, resulting in a comprehensive end-of-life decision-making bill, along the lines of the draft bill, End of Life Decisions Bill 1998, included in the SALC Report of 1998.
It is quite understandable that some would argue that we should not legislate in this area because all possible situations can be handled by means of the other three options, rendering assisted dying redundant.
The counter-argument, however, is persuasive: people justifiably want greater control over the time and manner of their death and, for example, elect not to die in a drug-induced state of semi-consciousness or unconsciousness.
They regard doing so as an assault on their autonomy and dignity, and simply require compassionate recognition in their dying distress. And, crucially, with justification, they do not regard such recognition of their autonomy as anti-community or selfish.
Those who find such assistance with dying an affront to their personal conscience and religious beliefs should consider that we live in a constitutional democracy which seeks to balance individual and state interests.
Consequently, what some regard as unethical may not be unlawful. On the contrary, there may be an ethical duty to decriminalise what some regard as unethical. This is part of the trade-off of a peaceful coexistence in a heterogeneous society.
And even though our democracy is young and still taking shape amidst great challenges, we have been brave and progressive in many other areas of social reform. There is no reason why it should be any different in respect of end-of-life decision-making.
Finally, the following 10 statements summarise key elements of the ethical perspective of this Position Paper: