Allowing physician-assisted euthanasia (or suicide) is the morally correct thing to do, as I’ve argued many times in the past. This doesn’t however mean that any given attempt to make it legally permissible is sufficiently persuasive.
A court has to decide on the merits of the case before it, and the Supreme Court of Appeal’s decision to uphold an appeal by the Ministers of Justice and Health (among others), against the Pretoria High Court’s 2015 ruling permitting Stransham-Ford’s assisted suicide, seems to have been the correct one.
I say “seems to”, because I’m a philosopher rather than a lawyer, but clause 41 of yesterday’s judgment makes a compelling argument that this case did not offer sufficient reason to change the law with regard to whether consent should be regarded as a defence against a charge of murder.
Again, I think that it should so count, and that it’s therefore unfortunate that this case won’t take us closer to the point where it does. But as much as many of us might hope that we reach that point soon, we don’t want to get there through poorly-reasoned arguments and judgments, because our courts are important as a general good, not just for how they serve us on particular issues.
There are other issues one could address in this regard also, such as the implications of Stransham-Ford having died before the Pretoria judgment was even made (see clause 15 of the judgment for comment on this). I’ll leave those for the lawyers to discuss, as what interests me more are clauses 98 – 101. (The full judgment is here as pdf, for anyone who would like to read it.)
This seems unpersuasive. While it’s of course true that there are risks in allowing PAE (physician-assisted euthanasia), for example that of terminal relatives being placed under pressure to end their lives in order to release inheritances, it doesn’t seem to me that differential access to resources would necessarily result in more abuse.
We could start with very stringent regulations, insisting on counseling of the family by an independent party, the approval by some specified number of physicians, and even that of a ministerially-appointed person from the Department of Health.
This would assist us in learning about whether abuses might be more common in certain areas, or take certain common forms, guarding against exactly those abuses while simultaneously allowing for at least some unnecessary suffering to be ended.
It is of course true that different sectors of our population would have different views on the moral permissibility of PAE. But we have these differences on all sorts of issues – gay marriage, the death penalty, abortion, etc. I therefore don’t see the relevance of noting the details of clause 99 – people who don’t want to pursue PAE are free to not do so, while those of us who want to could have access to it.
Clause 100 is more interesting, and it is of course true that any debate on such significant decisions should weigh these matters carefully, given that they risk causing significant disaffection in the population.
I believe that the arguments for PAE being on the whole supportive of the right to life are entirely compelling, and would hope that the courts (or Parliament – more on that in a moment) could be persuaded of that.
The Stransham-Ford case, that of Oriani-Ambrosini, as well as foreign examples such as Tony Nicklinson have been extensively discussed in the local and international media, and it seems clear that there is great public interest in PAE.
It’s not as clear that large numbers of people understand the issues, or have thought them through carefully, rather than resorting to spurious objections relating to “playing God” and the like.
So I agree – it’s of utmost importance that, instead of hoping that the right case will come along and result in a change of law, that we look at the issue as objectively and comprehensively as possible, and Parliament is (theoretically) where we do that sort of thing. But as Sean Davison has pointed out:
The problem with this route is the government’s consistent reluctance to listen to the arguments around an assisted dying law, let alone proactively engage in the debate. Our politicians are always fearful of putting their heads above the parapet.
So please, lawmakers – do please consider whether it’s not time to take this issue more seriously, and to tackle it more bravely?
In conclusion, my condolences to all those who invested so much into trying to win this particular battle, and especially to Stransham-Ford’s family.