In South Africa, the case of Clarke NO v Hurst and Others 1992 (4) SA 630 (D) was the first case involving the right to die to be considered by a high court. This remains a landmark case which clarified several major legal issues regarding the termination of life-sustaining treatment in a case of terminal illness, especially, in cases of patient’s who are in persistent vegetative state.
In this case, a well known medical practitioner and a politician in the then province of Natal, Dr Frederick Clarke, suffered a sudden drop in blood pressure and went into cardiac arrest whilst undergoing epidural treatment on 30 July 1988. His heart and breathing ceased. Resuscitative measures were instituted but by the time his heartbeat and breathing were restored, he had suffered serious and irreversible brain damage due to prolonged oxygen shortage. He was in coma and remained in that condition permanently.
Dr Clarke was 63 years of age at the time. During his life time he was a member of SAVES – The Living Will Society and had signed a living will. In 1983 he delivered a public speech in which he said:
“I feel sure that the general public gets a certain degree of satisfaction in knowing that if they, by a stroke of misfortune, became cabbages or suffered prolonged and intractable pain where a successful outcome is impossible, no valiant and fruitless endeavours will be instituted by the medical team to prolong intense suffering and anguish and to in fact prolong death.”
After three years of Dr Clarke’s tragedy, his wife applied for a court order appointing her as curatrix to her husband’s person, with special powers to authorise the withdrawal of any artificial medical treatment, including any naso-gastric feeding, provided to her husband. The application was opposed by the Attorney-General. One of the main grounds of opposition was that the withdrawal of any artificial life-sustaining treatment would hasten Dr Clarke’s death and would thus be the cause of such death, and as the applicant could foresee death as a probable result of the withdrawal of the artificial treatment, she would in law be liable for murdering her husband.
The court said the following about Dr Clarke’s public statement of 1983 (quoted above):
“These statements undoubtedly stemmed from a settled, informed and firmly held conviction on [his] part that should he ever be in the condition in which he has been since the cardiac arrest, no effort should be made to sustain his life by artificial means but he should be allowed to die.”
The specialist physicians and neurologists who had examined Dr Clarke were in agreement that he was in a persistent vegetative state. They also agreed that his condition was irreversible and that no improvement was possible. Dr Clarke had suffered a serious loss of brain tissue and a gross atrophy of the cortex. Large areas of his brain had become fluid filled. Dr Clarke was incapable of any movement, and could not speak. He did not have any sense or sensory capacity and could not communicate. He also could not swallow and take fluids naturally. Despite these deficiencies, Dr Clarke’s automatic nervous system was largely unimpaired. His respiratory system, kidneys, heart and lungs were functioning satisfactorily.
The court said “[t]here is…….no doubt that legally the patient is still alive; nor is death imminent. His life expectancy is uncertain. The discontinuance of naso-gastric feeding and any other form of nourishment is bound to lead to the termination of such life as the patient still has”. The court refused to acknowledge the existence of the living will that had been signed by Dr Clarke prior to his tragedy.
Dr Clarke’s counsel argued as follows for the court to recognise Dr Clarke’s living will:
“An adult of full legal competence has, while of sound mind, an absolute right to the security and integrity of his body. In the exercise of that right he is entitled to refuse to undergo medical treatment, irrespective of whether such refusal would lead to his death...... Where, as in the present case, such a person while he is of sound mind, has directed that should he lapse into a persistent vegetative state with no prospect of recovery, he should be allowed to die and that he should not be kept alive by artificial means, then if he does lapse into such a state, there is no reason why a curator appointed to his person should not have the power to give effect to his direction.”
In rejecting counsel’s argument, the court said that in our law a curator to the person is obliged to act in the best interest of the patient and not necessarily in accordance with the wishes of the patient. The well-being of the patient is of paramount consideration in this regard. The court further said:
“In our law the Court would not simply weigh the patient’s interest in freedom from non-consensual invasion of bodily integrity against the interest of the state in preserving life or the belief in the sanctity of human life; nor would it necessarily hold that the individual’s right to self-determination and privacy always outweighs society’s interest in the preservation of life. Furthermore, in our law a person who assists another to commit suicide may, depending on the circumstances of the particular case, be guilty of murder or culpable homicide…. ”
The court then embarked on the investigation whether or not the withdrawal of the naso-gastric feeding which would result in Dr Clarke’s death, would be wrongful in the circumstances. The court said the test for determining this question was whether, judged by the legal convictions of our society, it would be reasonable to discontinue such nutrition. The quality of life (i.e. the physical and mental status of that life) that remained in the patient would be a determining factor in this regard. The court was unequivocal in saying that, in as much as the doctors and family members of a patient are consulted in making a decision on whether or not to institute life-sustaining procedures on patients such as Dr Clarke, it can never be said that the external decision maker has a right to impose death.
In coming to its decision, the court said:
“No doubt feeding ordinarily has a specific symbolic significance, but in the present case the artificial feeding does not have any such significance at all for the simple reason that the patient is quite unaware of it and would be equally unaware of it if it is withheld.
The hastening of a person’s death is ordinarily not justified and is therefore wrongful even when the person is terminally ill and suffering from unbearable pain….. This is, however, no absolute rule. It has come to be accepted that the doctor may give a terminally ill patient drugs with the object of relieving his pain, even if, to the doctor’s knowledge, the drugs will certainly shorten the patient’s life….”
The court came to the conclusion that, judged by the legal convictions of the society, the feeding of the patient did not serve the purpose of supporting human life as it is commonly known. Accordingly, Dr Clarke’s wife, would be acting reasonably and would be justified in discontinuing the artificial feeding. No wrongfulness would attach to Mrs Clarke’s conduct.
Dr Clarke was discharged after artificial treatment was withdrawn and taken home to be treated. He died at his home in August 1992, four years after he suffered a cardiac arrest.
The two cases can be contrasted in that in the Cruzan case the court would have found in favour of the applicants had a living will been produced or if clear and convincing evidence of Mrs Cruzan’s desire not to be placed on artificial life-supporting treatment was led. In stark contrast, the court in Clarke case failed to take cognisance of the directive that contained clear and convincing evidence that Dr Clarke did not wish to be placed under any artificial feeding and hydration if he ever was in the state in which he was. The court in Clarke held a strong view in favour of the preservation of life over the patient’s choice to end his life if the quality thereof had deteriorated to a certain level. The court was unequivocal that the legal convictions of the society allowed only the withholding of treatment and not the killing of a patient.
The killing of a terminally ill patient is still considered murder in South Africa. In S v Hartmann 1975 (3) SA 532 (C) the court convicted Dr Hartmann of murder after he had given his father, at the latter’s request, a lethal dose of pain killers. Despite the fact that Dr Hartmann’s motives had been compassion and to alleviate his father of pain, the court still found him guilty of murder. Due to mitigating circumstances, Dr Hartmann was sentenced to 1 year imprisonment. He was, however, detained until the rising of the court (effectively, a few minutes), with the balance of the sentence wholly suspended.
In an unreported judgment of S v Smorenburg CPD June 1992, a nursing sister was found guilty of attempted murder on two counts when she attempted, on two occasions, to end the lives of terminally ill patients by injecting them with insulin in order to end their lives.
There are other cases in South Africa which fall squarely within the ambit of euthanasia, all of which have resulted in a conviction of murder, culpable homicide or attempted murder. Since its inception, the Constitutional Court has not been confronted with a case of euthanasia. Section 9 of the Constitution provides for a right to life. There is no specific ‘right to die’ in the Constitution. The question is whether or not any proposed legislation allowing various forms of euthanasia would be contrary to the guaranteed right to life, or whether the right to life includes the right to choose to end one’s life with assistance.
The debate on whether a person can request a termination of her life on medical grounds carries on. Not even the Constitution seems to provide any assistance in this regard. Many academics have written extensively in support of the right to die as a human right. The argument is largely that since people are afforded a constitutional right to life, a right not to be subjected to inhuman treatment, and a right to terminate pregnancy, by the same token, a person must be afforded a right to determine a manner in which her life should be ended, particularly, in a case of terminal illness.
Professor SA Strauss in his book Doctor and Patient Law, 1984 edition, states that “in principle every person is legally entitled to refuse medical attention, even if it has the effect of expediting his death. In this sense, the individual has a right to die. All that is required is that the declarant at the time of making his refusal known is compos mentis. The declaration remains valid even though the declarant may at a later stage become non compos mentis as a result of physical or mental illness, or for any other reason”. There are problems with this submission, particularly, since there is no legislative framework by which such a declaration can be tested. A glaring problem is that the declarant might change his mind later in life and evidence of subsequent conduct will have to be considered.
Lucius Annaeus Seneca (known only as Seneca), a Roman Stoic philosopher, once wrote “Quem ad modum navem eligam navigaturus et domum habitaturus sic mortem exiturus ex vita” translated, “Just as I choose a ship in which to sail and a house in which to live so also do I choose the mode of my death”.
If there is to be legislation that deals with euthanasia, such legislation ought to address grave conflicts and opposing views surrounding the subject itself. I cannot conceive of a situation where a complete equilibrium can be reached over such a thorny subject. One view will have to prevail over the other. What South Africa probably needs is to focus on legislation dealing specifically with active euthanasia and assisted suicide, which aspects are not addressed by the National Health Act. It does not seem like efforts to have legislation dealing with euthanasia as proposed in the 1997 Law Commission’s report will bring about some tangible results any time soon. South Africa has successfully passed legislation dealing with other controversial subjects such as abortion, which passed the constitutional muster. It is likely that a living will law will similarly be approved.