Judge to rule on euthanasia case

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Cape Town resident Robin Stransham-Ford‚ who has terminal cancer‚ wants to die when he chooses to‚ with his family around him. He has even explained this to his youngest child‚ a 12-year-old daughter.

The Pretoria High Court yesterday heard an urgent application for Stransham-Ford to be allowed to ask a doctor to help him die.

In his affidavit‚ Stransham-Ford explains he is nauseous‚ unable to eat‚ weak and in terrible pain‚ and needs help being bathed and no longer wants to live.

He has asked that the doctor who helps him die with dignity face no criminal sanction or risk losing his licence to practice medicine.

His main argument is that he has a constitutional right to dignity and his current state of life on morphine‚ which he says makes him groggy‚ is undignified.

The Health Professions Council of SA‚ the Minister of Health‚ the Minister of Justice and Director of Public Prosecutions responded in the matter and were in opposition to assisted suicide.

The state‚ through lawyer Lesego Monthso SC‚ has said the constitution includes the right to life and therefore assisted suicide is unconstitutional.

“You can waive your right to die‚” responded Judge Hans Fabricius.

Judge Fabricius said it “made no sense to him” when people used the constitutional right to life to argue that a terminal patient could not ask for assisted suicide.

He also said using weapons of mass destruction in war and abortion were instances were the right to life was taken away. He told Montsho he was “not impressed” with his argument.

Judge Fabricius has taken a central role in the case‚ questioning advocates‚ quoting footnotes from a thesis on the subject of euthanasia from memory and making jokes. He has even lectured advocates on the topic‚ and their incorrect use of the words philosophy and ethics.

“We all want to know what Dolus Eventualis is‚” he joked. He said when a doctor [ secretly] helps a person to die by giving them too much morphine for “pain management“‚ this would be a case of dolus eventualis. This he insinuated happens in secret in South Africa when doctors tried to help people with intractable suffering to die.

The judge said he spent the weekend reading about the issue.

He had read and quoted from the February case in the Supreme Court of Canada‚ in which the Canadian judges voted nine to zero in favour of assisted suicide for the terminally ill who request it.

He also read the full Law Reform Commission Review on assisted dying that was conducted in 1998.

Ironically‚ former President Nelson Mandela‚ whose own life is believed to have been prolonged through medical care‚ had asked the commission to investigate the issue of assisted suicide.

The commission found in favour of euthanasia as long as safeguards were in place to ensure only terminally ill people in a sound state of mind could request and receive it.

But the draft law allowing euthanasia was never adopted by parliament.

Judge Fabricius said in the absence of any law on the matter‚ he was legally obliged to rule on the case and the man’s rights.

He was at pains to explain that if he made a ruling‚ it would concern only Stransham-Ford and not all South Africans who may wish to end their life prematurely when in terminal disease and suffering.

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