Euthanasia and patient’s right to refuse treatment

Publication | 17 November 2010


Our courts have been confronted with cases involving the various forms of euthanasia: some of these cases and decisions are discussed in this paper.

Euthanasia (also known as mercy killing) is not permitted by law in South Africa. The advent of the 1996 Constitution has not brought about any law reform, by way of new legislation, regarding this subject. The Constitution only added momentum to the debates on the possible legalisation of euthanasia in the country. These debates are even more heated in the medical, legal and religious circles. Although there are countries (including Netherlands, Sweden, some states in the USA, and Norway) which have legislation regulating some aspects of euthanasia (know as ‘living will laws), the subject remains one of the most controversial in recent times.

The word euthanasia originates in Greek language and is made up of two words, “eu” which means “good” and “thanatos” meaning “death”. There is no conclusive definition of euthanasia. Some dictionaries define euthanasia as “gentle and easy death”; “a painless killing, especially to end a painful and incurable disease”; and “bringing about of a gentle and easy death, especially in the case of incurable and painful disease”. Some authors and academics have provided various definitions of euthanasia. I refer to a few definitions below:

  • Intentional termination of the life with a noble motive by another at the explicit request of a terminally ill person who dies.
  • Mercy killing of the hopelessly ill, injured or incapacitated person.
  • The ending as painlessly as possible of life of the person who is fatally ill and suffering.
  • The hastening of the death of a person who is terminally ill with no prospect of recovery or one who is permanently unconscious with no prospect of recovering consciousness.

Above are some of many definitions used to describe euthanasia. The difficulty in defining euthanasia is a reflection of the complexity of the subject and the difficult philosophical, theological, ethical and legal problems underlying this subject.

Euthanasia can take many different forms

These are

  • Active euthanasia, which involves intentionally causing the death of a person through a direct action, in response to a request from that person
  • Passive euthanasia, which can defined as the hastening of the death of a person by withdrawing some form of life-sustaining support and letting nature to take its cause.
  • Physician-assisted suicide, which is a situation in which a physician supplies information and/or means of committing suicide (e.g. a prescription for a lethal dose of sleeping tablets) to a person in order for that person to kill herself.
  • Voluntary euthanasia, which involves the killing of a patient with their consent or some form of advanced directive such as a “living will” (a living will is dealt with in more detail further below).
  • Involuntary euthanasia, which involves the killing of a patient against their will (this is regarded as murder no matter how noble the motive).

Our courts have been confronted with cases involving the various forms of euthanasia. I discuss some of these cases below in this paper. I will also discuss the decisions of courts in other jurisdictions in giving context to the types of euthanasia described above.

Central to the question whether or not euthanasia has taken place is the so-called “moment of death”. Prior to the National Health Act 61 of 2003, there was no definition in common law or in statutes of the moment of death. The precise moment at which death occurs has always been of importance, not only for the purposes of determining whether euthanasia has taken place, but also for succession, harvesting of organs, insurance and criminal liability. Section 1 of the National Health Act defines death as “brain death”.

Although the moment of death is now defined, it is not helpful in situations where a patient is biologically alive (i.e. the brain and the brainstem are intact) but the patient is in persistent vegetative state (PVS) and has no cognition or conation. According to the definition of the moment of death, it is clear that such a patient cannot be regarded as dead. Although such a person is biologically alive, the person is socially, for all practical purposes, dead. Some writers have argued that a person dies when permanent loss of consciousness occurs. The heart may beat on, breathing may continue, the blood may circulate, but the when mind, the determinant of the quality of life is gone, the person is dead. In the circumstances, the question is whether mechanical continuation of life by life-sustaining equipment, can be regarded as life or a life worth living. The answer to this question is the trigger of the medical, legal, ethical, religious, moral, philosophical and social difficulties surrounding euthanasia.

Prior to discussing case law relating to euthanasia, it is important to deal first with the issue of a “living will” sometimes also referred to as an “advance directive”. A living will can be described as a declaration in terms of which a person, whilst mentally sound and of full legal capacity, declares that if at any time in future she should suffer from an incurable disease or injury which cannot be successfully treated, artificial life-sustaining treatment should be withdrawn and she should be left to die naturally. A living will is not a will in the true sense of the word. Unlike a conventional will, a living will is read and becomes operational during the lifetime of the person who signed it. Such wills are still not been given effect to in terms of the South African law. This will be demonstrated in a South African case discussed below.

Other countries, including most of the states in the USA, have legislation which can broadly be described as ‘living will laws’. Most countries, including South Africa and Britain still do not have any legislation dealing specifically with living wills. In Britain, many terminally ill patients travel to countries like Switzerland and Sweden to die.

Here in South Africa, section 7 of the National Health Act provides that no patient is to be provided with any medical treatment without such patient’s informed consent. The Act defines ‘informed consent’ as “consent for the provision of a specified health service given by a person with legal capacity to do so and who has been informed as contemplated in section 6”. It is sometimes argued that section 7 creates a more power right than a living will. Where a patient is unable to give consent to the treatment, another person mandated in writing by the patient or authorised in terms of any law or court order, may give such consent. Where a patient is unable to give informed consent and there is no person mandated or authorised to give such consent, the responsibility to give consent is given to immediate family members.

The Act also provides that treatment should be given without a patient’s consent if any delay in treatment might result in the patient’s death or irreversible damage to such patient’s health unless the patient expressly, impliedly or by conduct refuse such treatment. The question is whether refusal of treatment can be made by way of a living will when a patient is in a persistent vegetative state?

Section 8 of the Act gives a patient the right to participate in any decision affecting her personal health and treatment. Where consent is given by another person on behalf of the patient, section 8 requires that the patient be consulted in advance, if possible. Section 6 of the Act requires that the patient be informed of the treatment even if such a patient lacks the legal capacity to give consent.

The Living Will Society (also known as the South African Voluntary Euthanasia Society (SAVES)) which was formed in 1974 in KwaZulu-Natal, has a membership of over 40 000 people throughout the country. This is notwithstanding the fact that living wills are not recognised by law.

A typical living will will contain

A typical living will will contain a declaration such as this one:

“Choice Not To Prolong Life:

I do not want my life to be prolonged or to be kept alive by artificial means if:

  • I have an incurable and irreversible condition that will result in my death within a relatively short period;
  • I become unconscious and, to a reasonable degree of medical certainty, I will not regain consciousness; or
  • The likely risks and burdens of treatment would outweigh the expected benefits.”

The South African Law Commission’s Report on Euthanasia and the Artificial Preservation of Life, Project 86 (compiled in 1997) has made a recommendation for legislation which will deal with the following matters:

  • The circumstances in which it would be lawful for a medical practitioner to cease or authorise the cessation of all artificial life-sustaining treatment of a patient if a patient has no spontaneous respiratory and circulatory functions or if the patient’s brainstem does not register any impulse.
  • The right of a mentally competent person to refuse any life-sustaining treatment with regard to any specific illness from which such person may be suffering, even though such refusal may cause the death or hasten her death.
  • The right of a medical practitioner responsible for the treatment of a terminally ill patient to alleviate pain and distress in accordance with responsible medical practice, by increasing the dosage of medication to be given to the patient, with the object of relieving the pain and distress of the patient and with no intention to kill, even if the secondary effect of this action may be to shorten the patient’s life.
  • Whether it would be lawful for medical practitioner to give effect to the well-informed request of a terminally ill, but mentally competent, patient to end the patient’s unbearable suffering or to enable the patient to end her unbearable suffering by administering or providing a lethal agent.
  • Express recognition of a living will or advance directive.
  • Recognition of the continuity of a power of attorney after the principal has become mentally incompetent. Currently a power of attorney lapses when the principal becomes mentally incompetent.
  • Authorising the chief medical practitioner of a hospital or clinic to discontinue the treatment of terminally ill patient’s without the patient’s directive to that effect.
  • Granting a court powers to order a cessation of medical treatment or the performance of any medical treatment that would have an effect of terminating a patient’s life.

Some of these proposals were given effect to in the National Health Act discussed above. What has not been given effect to is a patient right to active euthanasia and physician-assisted suicide.

We now discuss various cases that dealt with instances of euthanasia. The case of Cruzan v Director, Missouri Department of Health et al 58 LW 4916 (1990) was the first case in which the United States Supreme Court was called upon to decide based on what is referred to as the right to die. This case made international headlines.

Nancy Cruzan, a young married woman was involved in a tragic accident in January 1983. Her vehicle overturned and Nancy was found lying face down in a ditch without detectable respiratory and cardiac function. Paramedics managed to restore her breathing and heartbeat at the accident scene, and she was transported to a hospital in an unconscious state. It was later determined that Nancy had suffered permanent brain damage as a result of being deprived of oxygen for 12 to 14 minutes. She remained in a coma for three weeks and then she progressed to an unconscious state in which she was able to ingest some form of food orally. A naso-gastric feeding tube was then inserted in order to ease feeding. Subsequent rehabilitative efforts proved fruitless. Nancy then remained in hospital in a persistent vegetative state. Her respiration and circulation were normal for a woman her age. She was however oblivious to her environment except for reflective responses to sound and painful stimuli.

After it had become apparent that Nancy stood no chance of recovering her mental faculties, her parents asked the hospital stuff to terminate the artificial nutrition and hydration procedures. The termination would result in Nancy’s death and both her parents and hospital stuff were aware of this fact. The hospital refused to cause the termination without a court approval. The state trial court authorised the termination of the artificial feeding. However, on appeal to the Supreme Court of Missouri, the state trial court’s decision was reversed. The court found that there was not enough evidence to support the statement that Nancy had told her roommate (years before her tragedy) that she would not want to live if she became a vegetable. The court found no support to end Nancy’s life in the Living Will statute of Missouri.

The US Supreme Court affirmed the Missouri Supreme Court’s decision to refuse termination of the life-sustaining procedures that supported Nancy’s life at Missouri state hospital.

In refusing termination of life support, the court acknowledged the patient’s common-law right to refuse treatment. The court then assumed, for the purposes of this case, that the United States Constitution would grant a competent person a right to refuse life-saving treatment. Nancy’s parents argued that there was no reason why an incompetent person would not possess a similar right. In dealing with this argument, the court acknowledged that the State of Missouri recognised that under certain circumstances a surrogate may act for the patient in electing to terminate an artificial life-sustaining procedure. However, such action had to follow certain procedural safeguards to ensure that a surrogate’s action conforms as best as possible to the wishes of the patient. The court said in this regard:

“Missouri, requires that evidence of the incompetent’s wishes as to the withdrawal of treatment be proved by clear and convincing evidence. The question, then, is whether the United States Constitution forbids the establishment of this procedural requirement by the State. We hold that it does not.”

Nancy’s parents had adduced oral evidence, through Nancy’s friend and former roommate, that Nancy had stated her desire to end her life if she were to be in the position she then was. The court rejected this testimony saying that it did not amount to clear and convincing proof of the patient’s desire to have hydration and nutrition withdrawn.

Justice Brennan delivered a dissenting judgment. The dissenting judgment cited interesting legal and medical aspects in concluding that the parents’ application should have been granted. Justice Brennan said medical technology has created a twilight zone of suspended animation where death commences whilst life, in some form, continues. Nancy had dwelt in that twilight zone for six years when the application was heard.

The dissenting judge continued to say that Nancy had a fundamental right to be free of unwanted artificial nutrition and hydration, which right by far outweighed any interests of the State. The judge found that the Supreme Court of Missouri imposed improperly biased procedural obstacles that improperly burdened Nancy’s right to be free from artificial life-sustaining procedures. The judge, in holding that Nancy was entitled to die with dignity, said: “The timing of death – once a matter of fate – is now a matter of human choice”.

The dissenting judgment highlighted important points that the proponents of euthanasia or the right to die the world over, employed in their plight to have euthanasia recognised as a right that is on the same footing as the right to life. To date, no constitution, including the most progressive in the world, grants any subject a right to die. As mentioned above, there are countries which legislation regulating certain aspects of euthanasia.

After the US Supreme Court’s decision to refuse the discontinuation of the resuscitative treatment, Nancy’s parents made a fresh application with new and additional evidence to the Missouri county court. This application was not opposed and the court granted the application on the basis that the evidence of Nancy’s wishes was clear and convincing. Nancy died in December 1990, seven years after her tragic accident.

Clarke NO v Hurst and others in South Africa

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.

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