The Health Professions Council of South Africa (HPCSA) wants the Supreme Court of Appeal to overturn a high court ruling allowing a doctor to help a terminally ill man to die.
HPCSA advocate Henry van Bergen said that High Court Judge Hans Fabricius’s ruling had no legal value because Cape Town advocate Robin Stransham-Ford died hours before ruling.
Van Bergen argued that there was insufficient evidence that Stransham-Ford wanted to die.
According to medical records the HPCSA subpoenaed‚ Stransham-Ford expressed misgivings about going through with his quest in a conversation to his doctor.
Van Bergen said it was common for terminally ill people to suffer from anxiety and depression and fluctuating decisions about whether they wanted choose when to die.
For this reason a patient needed multiple assessments‚ according to HPCSA court papers citing psychologists and medical experts.
Supreme Court of Appeal (SCA) Judge Carol Lewis agreed there was a lack of evidence and more records were needed to determine Stransham-Ford’s state of mind but his was an urgent application and "the parties … did their utmost [in providing] credible and weighty evidence to the court".
Stransham-Ford filed an urgent application on April 22 to die with a doctor’s assistance. He died April 30‚ two hours before the high court ruling. Stransham-Ford’s doctor‚ the lawyers and judge were not told about his death.
Despite Stransham-Ford dying before the high court ruling‚ the appeal court judges said the case may set a precedent allowing terminally ill people to approach the court and ask for the right to die.
The SCA debated whether the constitutional right to dignity does allow a suffering person to ask to end their life. But the HPSCA’s Adrian d'Oliveira said using dignity to demand constitutional rights was a “slippery slope. If dignity gives people the right to demand their constitutional rights‚ a rich person could become bankrupt‚ live in squalor and say they are undignified and want to die."
The state advocate and HPCSA have argued that doctors who help patients to die are committing murder.
Judge Malcolm Wallis disagreed‚ saying the law could be used to show that if a doctor prescribes medicine for a terminally ill patient to take‚ the doctor could not be held liable for murder. The patient may use the medicine when the disease has progressed and commit suicide six months after seeing doctor.
D'Oliveira said the doctor would know what the medicine was for and therefore could be held liable. Stransham-Ford's estate under advocate HB Marias has argued that suicide is not a crime.