Abstract
For several reasons, a national report on South African civil law provisions for the protection of patient autonomy at the end of life presents difficulties:
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(a)
No legislation governing end-of-life decisions exists. However, the South African Law Commision has just, in its latest report entitled Euthanasia and the Artificial Preservation of Life l, come up with a new2 proposed End of Life Decisions Bill, which is expected to be debated and processed in Parliament in the near future.
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(b)
With the exception of the most recent court judgment in Clarke v Hurst 3, which dealt with both criminal and delictual liability for discontinuing life-support measures, the reported court cases on euthanasia have all been criminal trials. However, it is trite law that pecuniary and/or non-patrimonial damage or loss which has been caused by an intentional or negligent and wrongful killing of, or injury to, another human being may be recovered under the appropriate delictual actions.4 The effect of this is that delictual liability may not only be incurred for wrongful euthanasia, but may, in appropriate circumstances, also overlap5 with criminal liability for murder or attempted murder.6 On the one hand, therefore, the approach of the courts in the reported criminal euthanasia cases is anything but irrelevant for purposes of delictual liability, particularly on the issue of unlawfulness, while on the other it is also true that delictual liability and criminal liabililty for euthanasia will not necessarily coincide.
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(c)
From a medical law point of view, the fundamental principle of patient autonomy and its concomitant requisite, informed consent to medical intervention, is firmly entrenched in South Africa.7 In the absence of other legal justifications8, the patient, as master of his or her own life and body, has the right to self-determination and, hence, freedom of choice to undergo or refuse any proposed medical intervention at will. This applies even if the patient’s refusal of a medically indicated intervention would be grossly unreasonable and would inevitably result in his or her death.9 From a lawful euthanasia point of view, however, the so-called “living will“ or “advance directive“, as an expression of the patient’s decision to forego medical intervention in defined circumstances, has failed to receive judicial recognition and acceptance as the decisive factor in determining whether or not medical treatment should be withdrawn.10
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(d)
The Constitution of the Republic of South Africa11 gives no guidance on the topic under discussion. It affords general protection to the right to life12, the right to bodily and psychological integrity13, the right to privacy14 and the right to dignity15, all of which are in issue in euthanasia cases. These rights may in turn be restricted in terms of the guidelines contained in the so-called “limitation clause“ 16, which are, again, of a general nature. In fact, commenting on the right to life under the predecessor of the present Constitution17 Mahomed J, in S v Makwanyane 18, made the following remarks:
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Notes
Project 86, dated November 1998, but still in the process of being edited for final publication.
Replacing the previous ones in Working Paper 53 (1994) and Discussion Paper 71 (1997).
1992(4) SA 630(D).
See, eg, Neethling J, Potgieter JM& Visser JP The Law of Delict (1999) 279
Notwithstanding some material differences between criminal law and the law of delict, eg as opposed to criminal law, the law of delict knows no liability for attempt, incitement and conspiracy, or as an accomplice or accessory after the fact.
Where in delict the attempt causes damage or loss.
See Van Oosten FFW “Castell v De Greef and the Doctrine of Informed Consent: Medical Paternalism Ousted in Favour of Patient Autonomy“ 1995 De Jure 164 166 ff 173 ff and the authorities cited there, and since then C v Minister of Correctional Services 1996(4) SA 292(T); cf Broude v Mclntosh 1998(3) SA 60(SCA).
Emergency situations, statutory authority or court order.
See Phillips v De Klerk 1983(T) (Unreported, discussed by Strauss SA Doctor, Patient and the Law (1991) 29 ff); Castell v De Greef 1994(4) SA 408(C) 420-421.
See [g], mrg. n. 15, page 1035 and [h], mrg n. 16, page 1035 infra.
Act 108 of 1996.
Section 11.
Section 12(2).
Section 14.
Section 10.
Section 36(1).
Act 200 of 1993: section 9.
1995(2) SACR 1(CC).
94.
For South African literature and legal and medical opinion on euthanasia and the artificial preservation of life, see the Law Commission Report passim.
For cases outside the medical setting, see R v Davidow 1955(W) (Unreported, discussed by Van Dyk HP 1956 THRHR 286); S v De Bellocq 1975(3) 538(T); S v Marengo; cf S v McBride 1979(4) SA 313(W).
In S v Hartmann 1975(3) SA 532(C) 534 the court appears to have rejected the suggestion that the accused had asked the patient whether “he wanted to sleep“ and that the latter had nodded his head in approval, on the basis that it was highly doubtful that the patient was capable of appreciating what he was being asked or sufficiently rational to signify his assent; cf S v Smorenburg 1992(2) SACR 389(C) 393 ff 399-400, in which the accused, a nurse who had injected two terminally ill patients in her care with large doses of insulin, believed that the patients were indicating in a non-verbal manner that they wished to die.
The term “mercy-killing“ is also sometimes used: see S v Hartmann 534 ff; S v Marengo 1991(2) SACR43(W) 45 47.
In R v Davidow and S v McBride the accused were found not guilty of murder on the basis of criminal incapacity at the time of firing the shots that caused the victim’s death, and in S v Smorenburg the accused was charged with and convicted of attempted murder.
In S v Hartmann 535 the court took the view that the legalisation of euthanasia lies solely within the competence of the legislature; cf, however S v Marengo 47, in which the court took the view that “[e]uthanasia cannot be countenanced in any civilised society“.
S v Hartmann 534 ff; cf S v De Bellocq 539; S v Marengo 47; S v Smorenburg 400.
S v Hartmann 535 ff; cf S v De Bellocq 539; S v Marengo 45 ff; S v Smorenburg 398 ff.
S v Hartmann 534 ff 537; for similar sentences, see S v De Bellocq 539; S v Marengo 47; S v Smorenburg 404; cf S v Mayer 1985(4) SA 332(Z).
650.
The existing statutory and common-law sources on the so-called “moment of death“ reveal approaches which are to some extent inconsistent: (a) Section 7(2) of the Human Tissue Act 65 of 1983 does not define the moment of death for purposes of the donation and transplantation of the vital organs, but renders it a matter of clinical judgment; (b) in S v Williams 1986(4) SA 1188(A) 1194 it was held that it was in casu not necessary to decide whether a medical test of brainstem death or society’s notion of cardio-pulmonal death prevails in law, but that this was not to be seen as an indication that brainstem death should be adopted by the courts since the medical approach to the question of death is a purely mechanical or physical one which fails to take moral, religious and social views on the matter into consideration; and (c) in Clarke v Hurst neocortical death was evidently not regarded as the legal moment of death (see infra; cf Collins v Administrator Cape 1995(4) SA 73(C) 76 83-84); cf further Greyling v Greyling 1978(2) SA 114(T) 117; S v Makwanyane 94; [I], mrg. n. 17, page 1036 infra.
See 640 ff 658-659.
649-650.
In view of its decision on the wrongfulness or unlawfulness of the applicant’s envisaged steps.
659.
660.
656-657.
657.
650 ff 653 656 659, adding that although feeding ordinarily has a special symbolic significance, in the instant case it did not have any symbolic significance at all for the simple reason that the patient was quite unaware of it and would be equally unaware of it if it were to be withheld: 656.
653 656 659.
653.
658, adding that to explain an omission giving rise to an action in the light of previous conduct is pure sophistry.
658.
658, adding that it would be unreasonable to suggest that if it were known at the time when the resuscitation was undertaken that it would only be possible to restore the quality of life which the patient now had, the doctors would then have been under a duty to undertake resuscitation; for the same reason there would not now be a duty to maintain this quality of life by artificial means.
638 660, adding that a person who assists another to commit suicide may, depending upon the circumstances of the particular case, be guilty of murder or culpable homicide (cf 639): 638.
660-661.
659.
660, adding that, save where the patient is suffering unbearable pain or is in a persistent vegetative state, it is indeed difficult to appreciate a situation where it is in his or her best interest not to exist at all.
660.
For brevity’s sake the provisions of the Bill have sometimes been paraphrased and for clarity’s sake the headings presented here do not necessarily coincide with those used by the Bill.
Bill heading: “Conduct of a medical practitioner in the event of clinical death“.
Clause 2(1).
le a medical practitioner registered as such in terms of the Medical, Dental and Supplementary Health Service Professions Act 56 of 1974: clause 1.
Clause 2(2).
Bill heading: “Mentally competent person may refuse treatment“.
Inclusive of the maintenance of artificial feeding: clause 1.
Clause 3(1).
Clause 3(2); see further clause 3(3), which provides that care should be taken when taking a decision as to the competency of a person, that an individual who is not able to express himself or herself verbally or adequately should not be classified as incompetent unless expert attempts have been made to communicate with that person whose responses may be made known by means other than verbal; clause 3(4), which provides that where a medical practitioner does not share or understand the first language of the patient, an interpreter fluent in the language used by the patient must be present in order to facilitate discussion when decisions regarding the treatment of the patient are made.
Bill heading: “Conduct of medical practitioner in relieving distress“.
Ie a nurse registered as such in terms of the Nursing Act 50 of 1978 and authorised as a prescriber in terms of section 31(14)(b) of the South African Medicines and Medical Devices Regulatory Authority Act 132 of 1998: clause 1.
Clause 4(1); see further clause 4(2), which provides that the medical practitioner or nurse who treats a patient must record in writing his or her findings regarding the condition of the patient and his or her conduct in treating the patient, which record must be documented and filed in and become part of the medical record of the patient.
Clause 1.
Bill heading: “Cessation of life“.
See clause 5(6), which provides that if a patient who has orally requested his or her medical practitioner to assist the patient to end the patient’s life is physically unable to sign the certificate of request, any person who has attained the age of 18 years, other than the independent medical practitioner (see clause 5(2) under n 64 infra) may, at the patient’s request and in the presence of the patient and both the medical practitioners, sign the certificate on behalf of the patient; clause 5(7), which provides that (a) a patient may rescind a request for assistance at any time and in any manner without regard to his or her mental state; and (b) where a patient rescinds a request, the patient’s medical practitioner must, as soon as practicable, destroy the certificate of request and note that fact on the patient’s medical record; clause 5(8), which provides that the following must be documented and filed in and become part of the medical record of the patient who has been assisted: (a) a note of the oral request of the patient for such assistance; (b) the certificate of request; (c) a record of the opinion of the patient’s medical practitioner that the patient’s decision to end his or her life was made freely, voluntarily and after due consideration; (d) the report of the independent medical practitioner (see clause 5(2) under n 64 infra); and (e) a note by the patient’s medical practitioner indicating that all requirements have been met and indicating the steps taken to carry out the request, including a notation of the substance prescribed.
Clause 5(1); see further clause 5(2), which provides that no medical practitioner to whom the request to make an end to a patient’s suffering is addressed may give effect to such a request, even though he or she may be convinced of the facts under clause 5(1), unless he or she has conferred with an independent medical practitioner who is knowledgeable with regard to the terminal illness from which the patient is suffering and who has personally checked the patient’s medical history and examined the patient and who has confirmed the facts under clause 5(1) (a), (b) and (i); clause 5(3), which provides that a medical practitioner who gives effect to a request must record in writing his or her findings regarding the facts under clause 5(1) and the name and address of the medical practitioner with whom he or she has conferred under clause 5(2) and the independent medical practitioner must record in writing his or her findings regarding the facts under clause 5(2).
Clause 1.
Clause 5(4).
Clause 5(5).
Bill heading: “Decision by panel or committee“ and sub-heading: “Cessation of life“.
Clause 5(1).
Ie an attorney as defined in section 1 of the Attorney’s Act 53 of 1979 and an advocate as defined in section 1 of the Admission of Advocates Act 74 of 1964: clause 1.
Ie the patient’s spouse (inclusive of a person with whom one lives as if married or with whom one habitually cohabits: clause 1), parent, child, brother or sister: clause 1.
Clause 5(2); see further clause 5(3), which provides that a request for euthanasia must be heard within three weeks of it being received by the committee; clause 5(4), which provides as follows: (a) The committee which grants authority for euthanasia must, in the prescribed manner and within the prescribed period after euthanasia has been performed, report confidentially to the director-general of health, by registered post, the granting of such authority and set forth: (i) the personal particulars of the patient; (ii) the place and date where the euthanasia was performed and the reasons for it; (iii) the names and qualifications of the members of the committee who issued the necessary certificates; and (iv) the name of the medical practitioner who performed the euthanasia; and (b) The director-general of health may call upon the members of the committee required to make a report or the medical practitioner to whom the request is addressed to furnish any additional information required; clause 5(5), which provides that the following must be documented and filed and become part of the medical record of the patient who has been assisted: (a) full particulars regarding the request made by the patient; (b) a copy of the necessary certificate; and (c) a copy of the required report.
Bill heading: “[Directives] as to the treatment of a terminally ill person“.
Own heading.
Ie treatment and care of a terminally ill patient with the object of relieving physical emotional and psychosocial suffering and of maintaining personal hygiene: clause 1.
Clause 6(1).
Clause 6(2); see further clause 6(3), which provides that a directive and a power of attorney and any amendment thereof must be signed by the person giving the directive or power of attorney in the presence of two competent witnesses (ie persons of the age of 18 years or over who at the time they witness the directive or power of attorney are not incompetent to give evidence in a court of law and for whom the death of the maker of the directive or power of attorney holds no benefit: clause 1) who must sign the document in the presence of such person and in each other’s presence.
Clause 6(4).
Bill heading: “Conduct in compliance with directives by or on behalf of terminally ill persons“.
Clause 7(1); see further clause 7(5), which provides that (a) the medical practitioner who gives effect to a directive must record in writing his or her findings regarding the condition of the patient and the manner in which he or she implemented the directive; and (b) the medical practitioner confirming the condition of the patient must record in writing his or her findings regarding the condition of the patient.
Clause 7(2); see further clause 7(4), which provides that if a medical practitioner is uncertain as to the authenticity of the directive or its legality, he or she must treat the patient in accordance with the provisions of clause 8 (see [VI1], p. 1041 infra).
Clause 7(3).
Clause 7(6).
Own heading.
Bill heading: “Conduct of a medical practitioner in the absence of a directive“.
See clause 9 under [VI2], p. 1042 infra.
Clause 8(1).
Clause 8(2); see further clause 8(3), which provides that the medical practitioner must record in writing his or her findings regarding the patient’s condition and any steps taken by him or her in that regard.
Clause 8(4).
le a provincial or local division of the High Court of South Africa within whose jurisdiction the matter falls: clause 1.
Clause 9(1).
Clause 9(2).
Clause 9(3).
Clause 9(4).
Bill heading: “Interpretation“.
Clause 10.
le a person over the age of 14 years who is competent to give evidence in a court of law: section 1.
Ie any human tissue, including flesh, bone, organ, gland or body fluid, but excluding any blood (ie human blood: section 1) or gamete (ie either of the two generative cells essential for human reproduction: section 1), and any device or object implanted before the death of any person by a medical practitioner or dentist into the body of such person: section 1. Gonads may not be donated to and transplanted into the body of a living person if that might result in procreation: see section 16.
Medical or dental training, research, the advancement of medicine or dentistry, or therapy (which includes (a) the use of tissue concerned in any living person or persons or for the production of a therapeutic, diagnostic or prophylactic substance; and (b) the use of tissue needed by a person who requires therapy) or the supply of any specific tissue to an institution or medical practitioner or dentist: section 4(1).
A hospital, university, technikon, authorised institution, medical practitioner, dentist or a person who requires tissue for therapy: section 3(1).
Section 2(1). Such donation may be revoked before the death of the donor in the same way in which it was made, or in case of a will or document, by the intentional destruction of such will or document: section 5. A medical practitioner or dentist (or a person acting under the supervision of a medical practitioner or dentist, or an authorising medical practitioner) is exempted from criminal or civil liability for having removed tissue from the body of a dead person or having conducted a post-mortem in good faith, where the donation or consent is subsequently found to have been legally invalid: section 35(1).
Cf Medical Research Council Guidelines on Ethics for Medical Research (1993) 8.11.
On which see b(iii), infra, p. 1044.
See b(i) and (ii) supra.
Since the decision in Clarke v Hurst preceded the decision in Castell v De Greef, the question arises whether the former can be considered to have been overtaken by the latter. If so, an advance directive simply serves as an instrument which expresses the patient’s exercise of his or her right to die as a logical extension of his or her right to refuse.
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van Oosten, F. (2000). Country Report South Africa. In: Taupitz, J. (eds) Zivilrechtliche Regelungen zur Absicherung der Patientenautonomie am Ende des Lebens / Regulations of Civil Law to Safeguard the Autonomy of Patients at the End of Their Life. Veröffentlichungen des Instituts für Deutsches, Europäisches und Internationales Medizinrecht, Gesundheitsrecht und Bioethik der Universitäten Heidelberg und Mannheim, vol 4. Springer, Berlin, Heidelberg. https://doi.org/10.1007/978-3-642-57256-2_23
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