The Stransham-Ford judgment elicited much debate not only from a legal perspective but an ethical one. Both the Health Professions Council and the Ministry of Health have indicated that they are opposed to doctors playing any role in assisted suicide.
In South African law the position remains according to the Stransham-Ford judgment that unless the medical professional’s assistance in an assisted suicide is specifically sanctioned by a court on the facts of each case, the assisting medical professional will be exposed to criminal sanction for murder or culpable homicide.
That the debate is not an easy one is demonstrated by the different positions taken by jurisdictions all over the world.
In the European Union, the question whether assisted suicide is a criminal offence differs between jurisdictions. Some take a restricted position and others such as Belguim, a liberal approach.
Recently, in Germany, their parliament dealt with four proposals relating to the culpability of individuals who assist in another persons’ suicide. The position was previously that German criminal law did not punish individuals who assist in suicide.
The German parliament has now voted to adopt a law that a person would be guilty of an offence when assisting in suicide if the act demonstrates that the person is willing to assist more than once, independent of whether the act is commercially influenced (that is, done on a “business” basis, as opposed to individual altruistic acts of, for example, a family member). On the proposal adopted, it is not an offence for a family member to assist a patient in suicide but it is an offence for organisations such as Dignitas to assist. Some argue that doctors assisting in suicide are acting on a commercial basis, but this debate has not been settled.
The other three proposals before the German parliament, although not adopted, are interesting to consider. They were:
- Assistance in suicide should be punishable in criminal law;
- The counterparts to a suicide should be free to act as such and only behaviour which is commercially guided and advertised should be punishable; or
- Doctors should be free to assist in suicide for terminal patients only.
In South Africa, despite the Stransham-Ford judgment, there is currently no proposal to legislate any sanction for assisting in another person’s suicide. The common law position applies.