Medical Ethics Handbook 2018

Suspected Patient Malingering and Fraudulent Practitioner Claims 49

prolonged the interview, the more difficult whole. One of the contributing factors is
it will be for the malingerer to maintain a health-care fraud.
false account. Because malingerers are
unaware of the detailed psychopathology, Fraud is an intentional deception made
the symptoms they describe often appear for professional gain or to damage
too “mad” or too exaggerated. Malin- another individual; an act of deception or
gerers are often flamboyant in the descrip- misrepresention.
tion of new symptoms, unlike schizophrenics
who may be reluctant to share odd or Fraud occurs when somebody intention-
bizarre experiences. In malingerers, symp- ally “attempts to obtain something of
toms are presented early and are value that the party is not entitled to under
embellished as the interview progresses, statutory, regulatory or contractual rules
especially when a closed questions format that govern the relationship”.
is used. Malingerers are easily suggestible
and can be induced to add contradictory The words “statutory” and “regulatory”
or absurd symptoms to their story. are very important in the definitions above.
They encompass national laws regarding
Investigations theft, false statements, false claims,
medical fraud, and breach of fiduciary
Clinicians should take a full history, assess relationships and conspire to defraud
mental status and perform a detailed sources, a system or government.
physical (including neurologic) examina-
tion. History-taking is best achieved with It is important to note that the above
open-ended questions whereby symp- definitions allude to “contractual” rules
toms may be found to be vague, ill- that govern relationships.
defined and over-exaggerated. They may
not conform to identifiable or known clin- Health-care fraud describes “physicians
ical conditions as white-collar criminals”. White-collar
crimes are characterised by deceit,
In most routine ward-based evaluations, concealment or violation of trust. Fraud is
malingering is mostly diagnosed with the not a victimless crime. It drives up the cost
aid of clinical history, mental state exami- of providing a full range of legitimate
nations, physical and neurological medical services. It also increases the
examinations, appropriate investigations, premiums patients pay.
collateral information, discreet observa-
tion of patients during the assessment Persons who committed fraud are
period and repeated clarifications of subject to both criminal and civil actions.
inconsistencies.
Some of the common types
In a medico-legal setting, psychometric of fraud in service delivery
evaluations may provide a more objec-
tive measure of inconsistencies in the 1. Misrepresentation of services with
patient’s presentations. incorrect ICD/CPT codes

These psychometric evaluations are n Upcoding or miscoding.
based on the idea that individuals who 2. Billing for services not rendered:
malinger in an attempt to magnify symp- n Phantom billing
toms, will perform less adequately than n Ghost claims
predicted on a simple measure of cogni- 3. Falsification of information in medical
tive functioning.
record documents
Fraudulent claims n Includes treatment of nonmember
by practitioners 4. Perverse relationship with facilities,
to medical schemes
laboratories and supplies of medical
Health-care cost inflation invariably services.
exceeds growth in the economy as a
Some of the common types
of fraud in the health-care
sector

n Fraud is committed by all parties
across the health-care delivery chain.

50 MEDICAL ETHICS

n A major contributing factor is the - According to a KPMG study, fraud:
billing for supplies not provided. → Accounts for 10 % to 20 % of total

n Increasingly prevalent is “unbundling annual health-care spend
of care”: Patients present with multiple → Amounts to R11 to R22 billion per
illnesses but care is administered
over a period for each symptom. This annum
increases the number of consultations. → Adds 10 % to 20 % to medical aid

n Also on the rise is unnecessary contribution
hospitalisation linked to insurance
claims or for investigations and KPMG has warned that administrators
treatment when daily benefits are need to tighten control and develop inno-
exhausted. vative data analysis technology because
in a recessionary climate, people are
n Fraud in research. This is evidenced under financial pressure and are more likely
when there is scientific inaccuracy to commit fraud.
in publications, fraud, fabrications,
falsification and plagiarism. This is also Mechanism of investigation
evidenced with the manipulation of
outcomes or results of clinical trials. The use of predictive software and model-
ling can help detect fraud. Following the
Magnitude of medical fraud data analysis, practices or practitioners
are red-flagged.
n U SA:
- Estimates range from $60 to Claims that are red-flagged are routed to
$600 billion a year lost to fraud. a Case Manager who reviews the problem
- $47 million made to questionable alert then prioritises claims for additional
Medicare payment. review. This is followed by an analyst inter-
- 10c in every 100 cents used to pay vention and inquiry and then routed into the
fraudulent claims. practice management system.
- GSK; settled a fraud claim of
$3 billion, the largest case of fraud in Once fraud has been established, there
US history. will be civil action and referral to the
HPCSA for disciplinary action against the
n S A: health-care professional.
- Qhubeka Forensic services believes
that the SA health system is defrauded Every choice
to the tune of 4 to 8 billion rand has a consequence
annually.
- Discovery Health estimates fraud to be “Unless there are safeguards put in place
between 3 and 15 billion rand to remove temptations that allow ethical
annually – but closer to 3 billion rand. persons to make unethical choices, we will
continue to have fraud and face the
n U K: consequences that follow.” (Anonymous)
- 3 % of NHS expenses is lost to fraud,
according to research by the References available on request.
University of Portsmouth.

Handbook of MEDICAL ETHICS

Medical Treatment and Consent in Vulnerable Populations 51

Medical Treatment and Consent
in Vulnerable Populations

Dr Jillian Gardner Because they are more likely to be
PhD (Philosophy), MSc (Med) (Bioethics wronged or harmed, many international
and Health Law) and national documents recognise vulner-
 Senior Lecturer: Steve Biko Centre for able populations as deserving of special
Bioethics, Faculty of Health Sciences, treatment. For example, Article 8 of the
University of the Witwatersrand Universal Declaration on Bioethics and
Human Rights (2005) enshrines the principle
Vulnerability is a key concept in bioethics of respect for human vulnerability and
and it is usually used in two ways. In a personal integrity as a bioethical value of
broad sense, it is used to refer to the universal concern to UNESCO Member
inherent and inevitable vulnerability that states, and the World Medical Association’s
encompasses everyone by their very (WMA) Declaration of Helsinki (2013) makes
nature, as part of the human condition. In specific reference to vulnerable groups
another way, the concept is associated and individuals taking part in medical
with contextual factors that signify research. Moreover, one of the aims of the
increase risk of wrongs or harms for partic- South African National Health Act (61 of
ular individuals or populations. The reasons 2003) is to protect, respect, promote and
why some individuals are regard- fulfil the rights of vulnerable groups. And,
ed as vulnerable vary widely. While some the National Patients’ Rights Charter
groups of people can always be consid- recognises the needs of specific groups,
ered vulnerable because of their status; such as infants, children, pregnant women,
others may be vulnerable in one situation the elderly and disabled.
but not in another. Conditions that may
render individuals and groups vulnerable Children are assumed to be vulnerable
include: disease, disability, personal, regardless of their conditions because of
societal or environmental conditions or their age and comparative lack of matu-
limited resources. rity. They find it difficult to participate in
decisions about their lives or to influence
People, as such, are vulnerable but outcomes. Adults are entrusted to protect
there are individuals and groups that are and promote their rights and also to assist
more likely to be exploited, or unable to them when their rights have been
safeguard their own interests, who lack violated. Older persons may be more
basic rights, or are susceptible to addi- vulnerable because of their reduced
tional harm, or are at risk of unequal physical and sometimes mental capaci-
opportunity to achieve maximum pos ties. Persons with disabilities need help to
sible health and quality of life. Because access and sustain the exercising of their
they are typically less empowered to self-determination, and persons with
protect or defend themselves, or de- mental illnesses may not be able to
mand their rights, they are more likely to defend themselves or claim their rights
be victims of human rights abuses or because mental illness affects a person’s
neglect than others. Vulnerable groups capacity to consent in that it affects their
are not more important than others, but cognitive ability to understand and weigh
rather require special protection and up the key issues relevant to the decision.
additional attention exactly because
they are vulnerable, i.e., more likely to Consent in the National
experience wrongful or harmful treat- Health (Act 61 of 2003)
ment than the general population.
In terms of the National Health Act,
everyone has the right to participate in

52 MEDICAL ETHICS

decisions affecting their personal health certain children are given legal capacity
and treatment. Individuals who are even though they are still minors in respect
capable of understanding must be of other aspects of the law.
informed even if they lack the legal
capacity to give the informed consent. The Children’s Act provides a compre-
For informed consent generally to be hensive scheme for the acquisition of
valid, individuals must be given full and consent for medical treatment and
accurate information about their health surgical operations and a range of other
status, the range of diagnostic procedures procedures. In all matters concerning the
and treatment options generally avail- care, protection and wellbeing of a child,
able, the benefits, risks, costs and the standard that the child’s best interests
consequences generally associated with are paramount must be applied. Every
each option, their right to refuse health child that is of the age, maturity and stage
services and the implications, risks and of development that will enable them to
obligations of refusal. Where possible, participate in any matter concerning that
individuals must be informed in a child has the right to participate in an
language that they understand and in a appropriate way.
manner which takes into account their
level of literacy. In terms of the Act, a child may consent to
medical treatment for her/himself or her/his
If they are unable to participate in a child if he or she is at least 12 years old and
decision affecting their personal health of sufficient maturity and mental capacity
and treatment, they must be informed to understand the benefits, risks, social and
after the provision of the health service in other implications of the treatment. A child
question unless the disclosure of such may consent to a surgical operation for her/
information would be contrary to their himself or her/his child if he or she is at least
best interest. 12 years old and of sufficient maturity to
understand the benefits, risks, social and
Health-care practitioners may not other implications of the treatment, and the
provide health services without informed child is assisted by his parent or guardian. Assis-
consent except in an emergency where tance from a parent or guardian and in
there is no evidence of an advance limited instances, caregiver, is required if a
refusal, or if authorised in terms of any law child is younger than 12 years or over that
or a court order, or if a failure to treat will age and not sufficiently mature to under-
result in a serious risk to public health. stand the benefits, risks and social and other
implications of treatment. If treatment is
Where a person is unable to give inform- urgent, the superintendent of a hospital can
ed consent and no one is mandated or consent.
authorised to give such consent, then
consent is given by the spouse or partner If consent is unreasonably refused by the
of the user or, in the absence of such parent, guardian or child or if the parent or
spouse or partner, a parent, grandparent, guardian is incapable of giving consent, or
an adult child or a brother or a sister of the cannot readily be traced or if they are
user, in the specific order as listed. deceased, then the Minister of Social
Development can give consent. And if all
Children and consent else fails, the court can be approached.
to treatment No parent, guardian or caregiver may
refuse to assist a child with consent or with-
Legally, in terms of the Constitution of the hold consent by reason only of religious or
Republic of South Africa (1996) and the other beliefs unless the parent or guardian
Children’s Act (38 of 2005), children and can show that there is a medically accept-
persons under 18 years do not have full able alternative choice to the medical or
legal capacity and hence generally surgical procedure.
require the consent and assistance of their
parents or guardians before entering into The Choice on Termination of Pregnancy
contracts. However, in medical matters Act (92 of 1996) allows a female of any

Handbook of MEDICAL ETHICS

Medical Treatment and Consent in Vulnerable Populations 53

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Osteoporos Int (2008) 19:733-759. 2. Nancollas GH, et al. Novel insights into actions of bisphosphonates on bone: Differences in interactions with
hydroxyapatite. Elsevier Inc. Bone 38 (2006) 617–627. For full prescribing information refer to the package inserts approved by the Medicines Control Council.
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54 MEDICAL ETHICS

age to consent to an abortion; however his or her integration into community life.
they must have capacity to understand The care, treatment and rehabilitation
the nature and consequences of the services administered to a user must be
procedure. Health-care practitioners can proportionate to his or her mental health
promote pre- and post-abortion coun- status and may only intrude as little as
seling, although counselling must be possible to give effect to the appropriate
neither directive nor mandatory. They care, treatment and rehabilitation.
may also advise pregnant minors to
consult with parents, guardian, family In general, the provision of services or
members or friends, but termination may admission to a health-care establish-
not be denied if she refuses to do so. ment, whether on an outpatient or
inpatient basis, may only be given with
Consent to treatment the user’s consent. Users may, however,
for people with mental illness be provided with services or admitted to
a health establishment without their
The specific concerns of people with consent, if authorised by court order or
impaired decision-making capacity the Review Board.
(including those with mental illness) are
addressed in the Mental Health Care Act Similarly, they must be provided with
(17 of 2002), which regulates access to appropriate care, treatment and rehabili-
services for voluntary, assisted and invol- tation or admitted to a health establish-
untary patients, State patients and ment if, due to mental illness, any delay in
mentally ill prisoners. Mental illness is providing services or admission may result
defined in the Act as a positive diagnosis in the:
of a mental-health-related illness in terms n Death or irreversible harm to the
of accepted diagnostic criteria made by
a mental-health-care practitioner author- health of the user;
ised to make such a diagnosis. Chapter 3 n The user inflicting serious harm
of the Act clarifies the rights and obliga-
tions of both mental-health-care users to himself or others; or
and mental-health-care providers. n The user causing serious damage

In terms of the Act, consideration must to or loss of property belonging
be given to what is in the best interests of to himself or others.
the user. In addition, the respect, human
dignity and privacy of the user must be If admission or treatment is given without
maintained. Every mental health care consent due to suspected mental illness,
organisation must be provided with care, this must be reported in writing to a Review
treatment and rehabilitation services that Board. The services may not be provided
improve the capacity of the user to for more than 24 hours, unless an applica-
develop to full potential and to facilitate tion is made for permission to do so within
24 hours.

Resources available on request.

Handbook of MEDICAL ETHICS

Legal Aspects Relating to Euthanasia... Some Reflections 55

Legal Aspects Relating to Euthanasia,
the Moment of Death, Living Wills and
Resuscitation Orders in South African
Medical Law: Some Reflections

Prof Pieter Carstens request, for compassionate reasons.
BLC LLB LLD Euthanasia can be voluntary, nonvolun-
 Professor of Medical and Criminal Law, tary or involuntary. “Voluntary euthanasia”
University of Pretoria; Associate Member of means euthanasia performed in accord-
the Pretoria Bar ance with the wishes of a competent
individual, whether those wishes have
The controversial legal and often emo- been made known personally or by a
tional public debates with regard to the valid, written advance directive. “Non-
possible legalisation of euthanasia in voluntary euthanasia” means euthanasia
South Africa, have increasingly gained performed without knowledge of the
momentum over the last decade, since wishes expressed by a competent person
the advent of the Constitution. This is so or through a valid advance directive.
because the right to equality (section 9), “Involuntary euthanasia” means eutha-
dignity (section 10), the right to life (section nasia performed against the wishes
11), the right to freedom and security of expressed by a competent person or
the person (section 12), the right to privacy through a valid advance directive. Active
(section 14) and the right to access to euthanasia involves unlawfully and inten-
health care (section 27), as foundational tionally causing the death of a person
cross-currents to the debate, have all through a direct action, in response to a
been entrenched in the Bill of Rights. request from that person. An example in
Pivotal to the euthanasia debate is the this regard in S v Hartmann 1975 2 SA 532
content to be afforded to the right to life, (C), where the accused, Dr Hartmann,
in context of what is to be regarded as the injected his father who was suffering from
quality of life, and to what extent patient cancer, at his father’s request, with an
autonomy and the right to self-determina- overdose of penthothal. Passive eutha-
tion may be influential to request a nasia involves the hastening of the death
physician to end a life which is “not worth of a person by withdrawing some form of
living” on account of terminal illness. life-sustaining support and letting nature
take its course. For example: a) removing
Meaning of terms the life support equipment (e.g., turning
off a respirator or, b) stopping of medical
“Euthanasia” means the intentional termi- procedures, medication and so on; c)
nation of the life of a person, by another stopping food and water allowing the
person, in order to relieve the first person’s person to dehydrate or starve to death; d)
suffering. According to the Shorter Oxford not delivering CPR (cardio-pulmonary
English Dictionary, it is derived from the resuscitation) and allowing a person
Greek eu, meaning good, and thanatos whose heart has stopped, to die. An
meaning death, and so means “a quiet example in South African case law of
and easy death”. In the context of the passive euthanasia in respect of a patient
issues in this note, the term “euthanasia” in a persistent vegetative state, is Clarke v
means the unlawful and intentional termi- Hurst NO 1992 4 SA 630 (D) where a court
nation of the life of a patient by a order was obtained to remove the
physician, or someone acting under the patient’s naso-gastric tube, to allow him
direction of a physician, at the patient’s

56 MEDICAL ETHICS

to die. “Assisted suicide” means the act of pulmonal test vs modern moment: a)
intentionally killing oneself with the assis- Whole brain death; b) Brainstem death
tance of another person who provides the (clinical death, section 1 of the National
knowledge, means or both. “Physician- Health Act 61 of 2003); c) Neo-cortical
assisted suicide” means the act of death (social death [PVS]); d) “Esta-
intentionally killing oneself with the assis- blishment of death” in terms of Regulation
tance of a medical practitioner, or person 9 (regarding the general control of human
acting under the direction of a medical bodies, tissue, blood and gametes) (GG
practitioner, who provides the knowledge, 35099 of 2 March 2012) in terms of National
means, or both. (This is a crime in SA law: S Health Act; e) “deceased” in terms of
V Grot John 1970 2 SA 355 (A) & S V Agliotti Regulation 1 (regarding artificial fertilisation
2011(2) SACR 437 (SGJ). of persons)(GG 35099 of 2 March 2012)) in
terms of National Health Act); f) “terminally
Terms related to consent and capacity ill”, “grievously and irremediably ill ( Draft Bill
are also central to any discussion of End-of-life decisions and Canadian
assisted dying. In the health law context, Charter of Rights and Freedoms)
“informed consent” means an intelligent
choice as to treatment options made The “tricky” moment of death
after the patient has been provided with
sufficient information to evaluate the risks Problematic is the question with regard to
and benefits of the proposed treatment the patient who is not brain dead or in a
and other available options (see sections persistent vegetative state, but who is
6 and 7 of the National Health Act, 61 of “grievously and irremediably” ill and who
2003). When a patient is competent, he or requests assistance to die [e.g., PAS]. The
she is said to have “decisional capacity”, question then arises whether continua-
which means the ability to make a subjec- tion of such a life [devoid of all quality],
tive treatment decision based on an supported by palliative care and seda-
understanding of the medical facts tion, can be considered as “life” or a “life
provided by the doctor and on an assess- worth living” – in these instances, it is no
ment of one’s own personal circumstances longer a purely clinical medical judg-
(see Castell vs De Greef 1994 4 SA 408 (C). ment, but involves, for purposes of
terminating such a life, the slippery slope
Moment of death of the legal/moral/religious/social
convictions of the society in context of
One has to contextualise these various wrongfulness or unlawfulness. Compare
forms of euthanasia with reference to the Barnard CN, Good Life, Good Death: a
influence of the so-called “moment of Doctor’s Case for Euthanasia and Suicide
death” as a determinant when eutha- (1980) 17: "It is therefore, not the diagnosis
nasia can be considered. In this regard it is of death that concerns me as much as a
to be noted that prior to the enactment of possible means of determining when the
the National Health Act in which death is state of “being alive” ceases. Dying in this
now defined as “brain death”, there was context, can be defined as the irrevers-
no definition in the common law or in the ible deterioration in the quality of life
South African law of the moment of death which precedes the death of that partic-
or the point in time at which it can be said ular individual”.
that a person has died. The precise mo-
ment at which death occurs, is, however, Living wills and
of the utmost importance in law since it do-not-resuscitate orders
holds legal implications, inter alia, for
purposes of succession, harvesting of It is to be noted that in South Africa there is
organs, insurance and criminal liability. For currently no legislation governing the use
purposes of the euthanasia debate the of Living Wills or Do-Not-Resuscitate orders.
following “moments of death” are to be However, keeping in mind the provision in
noted: Traditional moment: Cardio the National Health Act 61 of 2003

Handbook of MEDICAL ETHICS

Legal Aspects Relating to Euthanasia... Some Reflections 57

(section 6 – the right to refuse medical 389 (C); S v Agliotti supra; S v Robinson
treatment) and section 12 (patient 1986 1 SA 666 (A); S v Marengo 1991 2
autonomy) of the Constitution, and on SACR 43 (W); R v Davidow 1955 TPD unre-
condition that the patient gave informed ported; S v De Bellocq 1975 3 SA 538 (T); In
consent, there should be legally no reason re Grotjohn supra.
why these instruments, in context, should
not be enforceable. Legal perspective:
the Constitution
Legal perspective
The debate and concomitant jurispru-
It is submitted that any legal perspective dence in South Africa have exposed the
on euthanasia, in context of the irreconcilable anomalies and underlying
Constitution, must be canvassed on an tensions: for instance, although the
integrative level. An integrative level, in my Constitutional Court has ruled that capital
view, is indicative of a legal framework in punishment is unconstitutional and an
which an attempt is made to integrate or unacceptable limitation to the right to life
harmonise the understanding and applica- in contrast, a female person of any age is
tion of euthanasia with reference to a permitted in terms of the Choice of
multilayered-approach, which has as its Termination of Pregnancy Act to request,
source the applicable supreme provisions within the prescribed period, a termina-
of the Constitution; the applicable princi- tion of her pregnancy. In these instances,
ples of the common law; relevant the freedom of choice and the right to
legislation (often articulated in terms of the bodily/physical integrity are respected
Constitution); interpretative case law (as a and regarded as justifiable limitations to
source of the positive law) and, considera- any other right which may be infringed, on
tions of medical ethics. On any given topic condition that there is compliance with
or issue in medical law, in the new para- the strict regulatory framework of the
digm, this multilayered approach “kicks in”, stated legislation. In other words, although
as it were, in a quest to find the applicable there is a right to abortion and a right to
legal position which will eventually offer the life in South Africa, there is no similar right
solution to the problem. to die. It is also clear that legalising eutha-
nasia in South Africa, in the constitutional
Legal perspective: case law paradigm, will only be possible if such a
practice is regarded as a justifiable and
In terms of our reported case law (with the reasonable limitation to the right to life in
exception of the recent case of Stransham- terms of section 36 of the Constitution.
Ford 2015 (4) SA 50 GP in which assisted Conversely, the criminalisation of eutha-
dying was allowed for a specific person), it nasia, will imply a justifiable limitation to
is clear that apart from voluntary passive the right to dignity, freedom of bodily
euthanasia, in cases of patients who are in integrity and privacy. It is submitted that a
a persistent vegetative state, all other central tenet of contemporary South
forms of euthanasia (that is, voluntary/ African medico-legal doctrine is the
involuntary active euthanasia, involuntary notion of patient autonomy, that is, the
passive euthanasia) and assistance to right of a competent adult to determine
suicide, will be unlawful and will render a what shall be done to his or her body. This
physician who performed such forms of right emanates in part from the common
euthanasia, liable of either murder, law principles of autonomy and self-
attempted murder, or culpable homicide, determination that underlie the con-
depending on the circumstances. These sensual nature of the doctor-patient rela-
instances (albeit performed with a noble tionship. In this regard, the doctrine of
motive), at most, will lead to mitigation of informed consent that has become firmly
sentence: See Clarke v Hurst supra; S v entrenched in South African law also
Hartmann supra; S v Nkwanyana 2003 1 dictates that a patient generally possesses
SACR 67 (W); S v Smorenberg 1992 2 SACR

58 MEDICAL ETHICS

the right not to consent, that is, to refuse nonmaleficence (do not cause harm to
treatment. Beyond this common law the patient); (c) beneficence (do good
“informed consent”-basis, however, the to patients); and (d) justice (treatment
right of patients to make medical deci- should be fair, equitable or reasonable).
sions and refuse care is also rooted in This medical ethical paradigm is gener-
certain constitutionally protected rights, ally regarded as the foundation of the
namely the right to dignity, privacy and ethical principle of principlism, also
freedom of bodily integrity. It is to be drawing on the principle of universalism in
noted that ultimately the right to voluntary that these medical ethical principles
active euthanasia, is essentially the right of should apply to everyone.
freedom to choose, empowering people
to have control over their own bodies. The relevance
of the ethical debate
Invoking the right to dignity
as the ‘ultimate/supreme’ right The ethical debate has a bearing on the
following questions:
The following ruling (invoking the right to 1. Would SA physicians be willing to assist
dignity) of O’Regan J in S v Makwanyane,
serves as persuasive jurisprudence for the patients with hastening death if it were
recognition of a regulated and dignified legal to do so?;
system of active euthanasia, specifically 2. Does current medical practice to end-
where the quality of human life is severely of-life care make distinctions that are
compromised/diminished due to terminal ethically defensible, and is the distinc-
illness:“[T]he right to life is, in one sense, tion between suicide and assisted
antecedent to all other rights in the suicide ethically defensible?;
Constitution… It is not life as mere organic 3. Does the law attempt to uphold a
matter that the Constitution cherishes, conception of morality inconsistent
but the right to human life: the right to with the consensus in SA society?
share in the experience of humanity…
The right to life, thus understood, incorpo- SA law commission
rates the right to dignity. So the rights to and end-of-life decisions bill
human dignity and life are entwined. The
right to life is more than existence, it is a An analysis of the Draft Bill (to regulate
right to be treated as a human being with end-of-life decisions and to provide for
dignity: without dignity, human life is matters incidental thereto), proposed by
substantially diminished. Without life, the South African Law Commission, 1999, is
there cannot be dignity”. indicative of the fact that no definite
recommendation is made regarding
The role of medical ethics active voluntary euthanasia – instead,
three options, are proposed in this regard:
The core consensus seems to be that a a) confirming the present legal position
medical practitioner, by accepting and
treating a patient, irrespective of the which sanctions active voluntary
circumstances, is first and foremost euthanasia;
required “to do no harm” and to act in b) regulating the practice of active
the best interest of the patient. The voluntary euthanasia by legislation,
notion of normative medical ethics has permitting a medical practitioner to
over time evolved into what is generally give effect to the request of a termi-
known today as the Beauchamp- nally ill, but mentally competent,
Childress-medical-ethic-paradigm, person, to end unbearable suffering, or
consisting of the following four princi- c) regulating the practice of active
ples: (a) respect for autonomy (a euthanasia by legislation conferring
medical practitioner has no right to the final decision on a panel or
impose treatment upon a patient); (b) committee to decide on set criteria. In
addition, the South African Law
Handbook of MEDICAL ETHICS Commission recommended that a

Legal Aspects Relating to Euthanasia... Some Reflections 59

so-called Living Will should be legally practitioner in the context of a physician-
recognised insofar as it requests a patient relationship, where the assistance
passive form of cessation of life is provided to a fully informed, nonambiv-
alent competent adult patient who is
Comparable foreign law grievously and irremediably ill, or soon to
become so. The effect of the declaration
Assisted suicide and euthanasia are crim- was suspended for one year and the
inal offences in most western countries, Court directed that the applicant, during
including the UK, Australia, New Zealand, the period of suspension of the declara-
France, Germany and most parts of the tion of constitutional invalidity, was
USA. (With regard to the UK – see cases of granted a constitutional exemption
Pretty [2001] UKHL 61, Purdy [2009] UKHL 45 permitting her to obtain physician-assisted
& most recently Nicklinson [2012] EWHC death under strict conditions. The Attorney
2381 [“locked in syndrome”]). Countries/ General noted an appeal but ultimately
states where assisted suicide and eutha- the Supreme Court of Canada in 2015
nasia are regulated and lawful include: upheld the trial court’s decision.
Oregon (1994), Washington (2009),
Montana (2009), The Netherlands (2002), Drawing on the persuasive judgment in
Belgium (2002), Luxembourg (2009), Carter v Canada supra, in context of
Switzerland (2001), Colombia (1997) and sections 36 and 39 of the CRSA, a compel-
Canada (2015). ling case for the decriminalisation of
euthanasia and assisted suicide seems to
The landmark Canadian case be made. It seems to be a strong argu-
ment that the common law prohibition of
The Carter v Canada (Attorney-General) assistance to suicide (in context of the
[2012] BCSC 886 – decided on 15 June doctor-patient relationship) infringes on
2012 – judgement of 354 pages and 1 415 the right to equality, patient autonomy,
paragraphs is the most important and dignity and access to health care as
comprehensive case and review yet in contemplated in the CRSA. These were in
western jurisprudence on euthanasia and any event the considerations that the High
assisted suicide (including extensive and Court in Pretoria (Fabricius J) relied upon in
careful discussion of medical ethics and 2015 to allow physician-assisted suicide in
end-of-life practices); also appeal Carter the Stransham-Ford case (supra).
v Canada [2012] BCCA – decided 12
August 2012. It is a Blueprint (precedent) Recommendation
which can be followed by the SA and conclusion
Constitutional Court if called upon.
In conclusion, it is submitted, that the
Effect of the case underlying values, spirit and purport of the
applicable sections in the Constitution,
Applicant (Ms Taylor, suffering from amyo- seem to be supportive of the introduction
trophic lateral sclerosis (ALS) [also known as of voluntary active euthanasia in South
Lou Gehrig’s disease] sought a declaratory Africa. Such a dispensation should be
order that the Canadian Criminal Code strictly regulated and monitored to ensure
(prohibiting assisted suicide) unjustifiably the autonomy of competent terminally ill
infringed on section 7 (the right to liberty patients while guarding against any
and security of a person) and on section 15 possible abuse of the system. In pursuance
(the right to equality) under the Canadian of section 39 of the Constitution, there is
Charter of Rights and Freedoms. Madam much to be gleaned from the Dutch and
Justice Smith ruled that the said provisions Oregon experiences. Ultimately, eutha-
of the Criminal Code violate the said nasia is a matter of patient autonomy and
sections of the Charter and are of no force individual choice.
and effect to the extent that they prohibit
physician-assisted suicide by a medical

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