The debate around euthanasia and its legal implications has stirred again due to the 2019 case of Professor Sean Davison, charged with three counts of murder in circumstances where the individuals had asked him for assistance in their deaths. Understandably, faced with a long prison sentence if convicted of murder, Professor Davison concluded a court-approved plea and sentencing deal in pleading guilty to murder. He received a suspended sentence of 8 years with house arrest and community service. The court took into account the compelling mitigating circumstances including the compassionate motivation in seeking to assist those persons in a dignified death, that he was ‘remorseful for his actions’, that each person had asked the professor for his assistance in dying, and the relatives of each deceased were supportive of their decisions.

The 1975 judgment in S v Hartmann is a comparable case. Hartmann was a doctor who assisted the death of his 87 year old father, who had been suffering from incurable cancer. The evidence presented strongly suggested that his quality of life had become meaningless and the doctor was motivated in his actions solely by what he considered to be the best interests of his father.

Dr Hartmann was prosecuted and convicted of murder, the law being clear that the wilful hastening of the death of a human being who is due to die in any event constitutes the crime of murder.

The judge in considering a proper punishment said that ‘this is a case, if ever there was one, in which, without having to be unfair to society, full measure can be given to the element of mercy’. Dr Hartmann received a suspended prison sentence and his name was struck from his profession’s roll. He was reinstated after a lapse of time.

Forty-four years later and there has been no real progress in developing our law on physician assisted euthanasia.

Professor Davison was responsible for ending the lives of three people between 2013 and 2015. He was not their doctor. They had requested his help to die. None of them were in a final terminal stage of illness although they had all lost function of their bodies to varying but severe degrees.

Professor Davison’s plea was no doubt influenced by the unenthusiastic approach of the Supreme Court of Appeal to suggest development of the law of physician assisted euthanasia in the 2016 Stransham-Ford appeal.

Stransham-Ford dealt with a patient suffering from the terminal stages of cancer. The patient had sought an order from the High Court permitting his medical practitioner to administer a lethal agent at his request or provide him with a lethal agent that he could administer himself. Mr Stransham-Ford died hours before the High Court granted the order sought without knowing of his death. The court nevertheless declined to recall its order on the grounds that the judgment had broader societal implications.

The order of the lower court was taken on appeal to the Supreme Court of Appeal. Because the relief sought was specifically tailored to Mr Stransham-Ford’s circumstances, the court decided that no public purpose was served by granting the order and it was not for the lower court to make orders on a cause of action that had been extinguished just because they thought their decisions would have broader societal implications. The court must wait for litigants to bring appropriate cases before them to develop the common law. The Supreme Court of Appeal set aside the lower court judgment.

The Supreme Court of Appeal reaffirmed that physician assisted euthanasia constitutes the crime of murder.

Consent is not a defence available to the person who brings about the death of the deceased. Nor does the fact of consent justify a conviction on the lesser charge of culpable homicide.

The Supreme Court of Appeal reaffirmed that physician assisted euthanasia constitutes the crime of murder. The circumstances may materially affect the sentence imposed for that crime but a conviction would stand.

The court in non-binding remarks distinguished physician assisted euthanasia (where the doctor administers a lethal substance to the patient) from physician assisted suicide (where the doctor provides the patient with an appropriate lethal agent which the patient self-administers). Of course, it is not unlawful for the patient to commit or attempt to commit suicide but criminal exposure would attach to the medical practitioner who prescribed the lethal agent.

Our courts have found in previous matters, on the facts, that the person committing suicide had by their independent act been the cause of their own death even though the means for the cause of death had been supplied by another person, but commented that the voluntary and independent act of suicide need not always result in the acquittal of another person accused of facilitating the suicide.

Project 86 of the South African Law Commission dealt with euthanasia and the artificial preservation of life and issued a report in November 1998. The Commission did not make any specific recommendation regarding the act of voluntary euthanasia and set out various options. Draft legislation in that regard was provided for consideration by Parliament. Nothing of substance has happened since then.

Absent any Parliamentary appetite to dust off and revisit one of those twenty year old proposals for reform of our law we are destined for a repetition of the Hartmann and Davison outcomes or variations thereof from time to time unless someone takes this issue all the way to the Constitutional Court. It is rumoured that there are such cases being prepared.

Read our full review of these cases here.