In order to address the above issues, this dissertation will focus on the Constitution of the Republic of South Africa, 1996. The definition of euthanasia shall be discussed and also explained in relation to the various aspects of it which are and are not permissible under South African law;. South African law must be studied by researching the Constitution of the Republic of South Africa, common law, statutes as well as case law.
A list of constitutional rights will then be explained to gain insight into the importance of the right to die in relation to each of these constitutional rights.
Definitions
An advance directive is an instruction that patients give regarding their future treatment if they become incapable of consenting to or refusing such treatment.”53 In addition, an advance directive may authorize a third party or proxy to give or withhold consent for the patient; however, an advance directive is not absolute and unqualified. Palliative care focuses on caring for the patient rather than treating the patient. Autonomy refers to the right of each individual to make his own decisions – that is, the final decision regarding his treatment, after being informed of all necessary and relevant information.63.
The right to die is not included in this right; however, those in favor of euthanasia may argue that the right to life should include the right to choose how one wishes their life to end.
Theoretical Framework
South Africa does not allow a patient the right to die (specifically the right to choose the time and manner of their own death); however, living wills are accepted at common law to facilitate death. This indicates that the law does not give a person the right to die with dignity if they choose and are able to choose it. Therefore, the right to choose to die also includes an ethical concern regarding the patient and his condition.
Dignity is a right that belongs to everyone, but whether the right to die is included in this is still a question that needs to be addressed.
- South Africa’s position with regards to Advance Directives
- South Africa’s position with regards to Euthanasia
- The Constitution of the Republic of South Africa
- Legal Precedents in South Africa
- South Africa
- Netherlands
Active euthanasia is considered a crime because it involves a positive act of a person or the doctor that results in the death of the patient.74 It was further stated that courts have held that when a person provides the required and necessary instrument for the intend to commit suicide, knowing that it is necessary and that they intend to commit suicide, that person is held guilty of murder.75. Furthermore, the law would give the Court the power to make decisions on discontinuing treatment based on facts and evidence of the patient's condition and medical history, and would also allow the doctor to avoid liability in any way to be stated.80. It is obviously limited because it is permitted provided it does not infringe on the rights of anyone else as proposed in section 36 of the Constitution.
It has been stated that the motive was that of compassion and to relieve the endurance of pain; however, the Court found that it "nevertheless constitutes the crime of murder, even if all the accused did was to hasten the death of a person who would have died anyway."91 It was stated that the desire of the was deceased. The wife of the patient was the petitioner who applied for the withdrawal and withholding of treatment from her husband as she was appointed as curator. The patient is said to be a member of the SA Voluntary Euthanasia Society where he has drawn up a living will requesting that his life be ended and not kept alive artificially.
The Court found that the wife of the patient was in fact acting in the best interest of the patient and appointed her as curator. The curatrix was allowed to withhold treatment where the patient was in a condition where there was no prospect of improvement in the patient's health. It is argued that although this case focuses on the aspect of passive euthanasia as the medical practitioner withdraws treatment, it is important as it focuses on the best interests of the patient.
First, the case distinguished the differences between assisted suicide and euthanasia, stating that assisted suicide involves assisting death, while euthanasia consists of the aspect where a patient is terminally ill. 115. It is argued that it was stated that there should be an allowance for mentally capable terminally ill patients to be able to die with dignity, and not experience “or suffer the fear of having to shoot or hang themselves.”124 Moss was believes that South. In closing the case, the Court ruled that it was of the opinion that “the absolute ban on assisted suicide in customary law is not consistent with the rights relied on by the applicant.139 However, the Court made it very clear that this was only for this case and should not be regarded as a precedent.
According to Berghmans and Widdershoven (2012), reported cases stated that there are difficult issues that physicians face, such as assessing unbearable suffering, responding to patient fears, identifying patient wishes and improving of communication with the patient. and family, and when is the right time to perform euthanasia.159 While this all seems like a lot to consider, one must keep in mind that this is what a practitioner must deal with to ensure that the act is done correctly is carried out and the patient is not simply abused.
- The Right to Patient Autonomy
- The Role of the Family in Decision Making
- Best Interests of a Patient and Futile Treatment
- Futile Treatment and Unbearable Suffering
The decision on the right to die affects not only the patient himself, but also his family members. The problem arises when the choice of the patient conflicts with the choice of the patient's family. A tremendous number of factors must be considered, such as the ethical and moral values of the physician, the legal beliefs of the wider community, the best interests of the patient, and the patient's autonomy.
Although the doctor can act in accordance with the patient's wishes, a question arises about the legal implications for the doctor. Therefore, a doctor will be found guilty if he or she were to comply with the patient's request to die. The goal of medical care is to ultimately act in the best interests of the patient.
Many writers argue that it is in the patient's best interest for the doctor to treat the patient as well as possible. Euthanasia, on the other hand, is not a method of treating the patient, but of ending the patient's suffering. It is argued that this may fall within the definition of 'the best interests' of the patient.
It is argued that the best interest of the patient is not always the treatment of the patient. And if this treatment is not what the patient wants, how can we say it is in their best interest?
CONCLUSION AND RECOMMENDATION 5.1 The Right to Die
A Move Forward for South Africa
In many cases it boils down to a person's preferences for how they want to die, but such individual choices would have to be tested against the Constitution. If South Africa can give women the choice to abort a pregnancy in 1996210, it is argued that the law can allow terminally ill patients to have the right to die. The law is amended to adapt and improve as time goes on, as a method of ensuring that it is current with the interests of society.
There is no doubt that South Africa will allow the right to die eventually. Further, when a person is allowed to choose to die when they are terminally ill, how can we then determine the ages at which they are able to make such a decision. However, like any other statute, with strict consideration of these issues, it is possible to establish an appropriate law.
A person who suffers and can tell you how they feel is refused to die because they are human. With reference to Avron Moss211 and Stransham-Ford212 it is seen that a step forward is now being taken. Although the ruling in the Stransham-Ford case has not been applied, it is seen as hope for those in the same position to apply to achieve the death they want.
The courts will consider each case on its own merits; however, it is strongly argued that with the increase of these applications, a law regulating such a right will soon be seen as necessary. The law adapts to the change in society, therefore it is suggested that there is now a change in society whereby patients make the informed decision to die.
Recommendations for a Law
In relation to the countries mentioned above in Chapter 3, it is stated that South Africa may enact certain laws to enable the right to die. In addition, it is argued that a review process should also be introduced in South Africa, such as that which exists in Belgium and the Netherlands, to ensure that the process is reviewed. South Africa has started to face many demands for the right to die and this is currently attracting media attention.
It is predicted that like the Netherlands, most of South African society will start looking for a law to govern euthanasia in order to prevent patients and doctors from taking their own actions. It is therefore submitted that with the right law in place and the above criteria, the vulnerability of poorly cared for patients can be avoided and South Africa can successfully allow active euthanasia like the Netherlands and Belgium. In conclusion, South Africa may not yet be ready for Right to Die.
It is further argued that active euthanasia cannot be understood as encouraging suicide, but as a method of discouraging people from violent suicide. It is high time that some action was taken and the law changed. It is then up to the doctors to take appropriate precautions in helping such patients.
DignitySA 'Dignity South Africa's Patrons' available at http://www.dignitysa.org/blog/dignitysas-patrons/, accessed 1 September 2015. Oxford University City Press 'Euthanasia' available at http://www.oxforddictionaries.com /definition/english/euthanasia accessed April 6, 2015.
