The Last Right

by Marianne Thamm

  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 quot
es 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 wi
th 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.”