Apex Court ‘must shape assisted dying policy’

The Constitutional Court, not public opinion, should shape South Africa’s legal position on assisted dying, DignitySA chair Willem Landman told the Cape Town Press Club on Tuesday.

DignitySA is campaigning for the decriminalisation of assisted dying. It launched legal action in the Pretoria high court last month seeking to have the common law prohibition on assisted dying declared unconstitutional and invalid. It has asked the court to direct parliament to draft new legislation to enable voluntary self-administered and physician-assisted medically assisted dying for people with a terminal illness or irremediable condition.

“Despite our personal, religious [or] cultural differences, we have to accept what the constitution determines, even if we do not agree with it,” he said. “Even if we do not choose termination of pregnancy for ourselves (if we are female) or we do not enter same-sex unions, we have to accept that others have the right to exercise that choice,” he said.

DignitySA has so far raised R4.6m for its campaign, more than halfway to its target of R7m, said Landman. It has cited the minister of justice & constitutional development, minister of health, the National Prosecuting Authority and the Health Professions Council of South Africa as respondents. They have yet to indicate whether they intend to oppose the matter.

Landman appealed to palliative care practitioners opposed to medically assisted dying to consider the patients whose suffering could not be alleviated by palliative care. “We argue that life is not always good and that death may become preferable for the unfortunate few,” he said.

He highlighted the case of former IFP MP Mario Oriani-Ambrosini, who had terminal cancer and died by suicide. Quoting the testimony of his wife, Carin, from papers, Landman said: “He was … in unbearable pain, on the brink of death that would not come gently and quickly. Imagine if we could … hold his hand, hug him for one last time while a doctor injected him and released him peacefully from all his suffering.”

DignitySA anticipated palliative care practitioners who do not support assisted dying would ask the court for permission to provide their input as amicus curiae, said Landman.

Palliative care offers specialised care to people with serious illness and aims to manage pain, relieve symptoms and improve their quality of life.

“Palliative care and medical assistance in dying (MAiD) should be understood as synergistic and complementary. MAiD should only be the end point of palliative care continued for the few who need it and should not be offered where palliative care is absent or compromises freedom of choice on account of being inadequate or substandard,” said Landman.

DignitySA is advocating for palliative care services to be improved hand in hand with the legalisation of assisted dying, he said.

The Association of Palliative Care Centres has previously said it does not endorse medically assisted dying as part of palliative care.