What is meant by euthanasia?

registered as a medical practitioner2  and so this act leaves the establishment of death

entirely at the hands of doctors, as we see in the case Clarke v Hurst as the determination

of whether the patient was in an irreversible vegetative state or not could only be

determined by them.

In Clarke v Hurst the applicant’s husband (‘the patient’) had suffered a cardiac arrest in

1988 and had since then been in a persistent and irreversible vegetative state and was fed

artificially by means of a naso-gastric tube. The applicant applied to be appointed as

curatrix personae in respect of the patient, with powers in that capacity to authorize the

discontinuance of any treatment to which the patient was subjected specifically the

discontinuance of any naso-gastric or other non-natural feeding regime, and to act in this

manner not withstanding that the implementation of such a decision might hasten the

patients death. The patient a medical doctor was a life member of the SA voluntary

Euthanasia society and had signed a document headed ‘A Living Will’ directed to his

family and physician in which he requested that in the event of there being no reasonable

expectation of his recovery from extreme physical or mental disability he be allowed to

die and not kept alive by artificial means.

The court held that it was entitled, despite the opposition of the Attorney-General, to

exercise its discretion in an appropriate case in favour of declaring whether the adoption

by an applicant of a certain course of conduct would constitute a crime and that the

instant case was a proper one for the exercise of the courts discretion. The applicant, who

was facing an agonizing decision, was entitled to have the legal position dispassionately

and objectively determined by the court. Judged by the boni mores of society, it would be

reasonable to discontinue such artificial feeding and that the decision of that issue

depended on the quality of the life which remained to the patient.The patient’s brain had

permanently lost the capacity to induce a physical and mental existence at a level which

qualified as human life and that in these circumstances, judged by society’s legal

convictions, the feeding of the patient did not serve the purpose of supporting human life

as it is commonly known. The court held that the applicant appointed as curatix would act

reasonably and would be justified in authorizing the discontinuing of the artificial feeding

of the patient and would therefore not be acting wrongfully if she were to do so and

would be doing it in the best interests of the patient. Although the court approached the

interests of the patient with a strong predilection in favour of the preservation of life, it

however did not extend as far as requiring that life should be maintained at all costs

irrespective of its quality.

Under the present law, voluntary euthanasia would except in certain narrow

circumstances, be regarded as suicide in the patient who consents and murder in the

doctor who administers, even on a linient view most lawyers would say that it could not

be less than manslaughter in the doctor, the punishment for which, according to the

jurisdiction and the degree of manslaughter, can be anything up to imprisonment for life.

In S v Williams3  which influenced the courts decision in Clarke v Hurst the accused shot

the deceased in the neck with the result that his jugular vein and carotid artery were

severely damaged. Unconscious after loosing a lot of blood, patient was connected to a

respirator. After one day it was found that according to medical evidence the left side of

the brain was dead. He was kept ‘alive’ by artificial respiration for forty-eight hours after

which the respirator was disconnected on the instruction of the neurosurgeon, after

consultation with two other neurosurgeons. Ten minutes later no heartbeat could be

found. The question was whether the accused had in fact caused the death of the

deceased. The court found that death set in with the death of the brain stem and that it

was the accused who caused the death and not the doctor and that the doctor’s actions

were reasonable.

Many legal commentators have argued that brainstem death should b accepted and

recognized as a legal criterion of death4. The Commission however decided that it was

unnecessary for present purposes to choose or to justify one or the other of test to prove a

man’s death. It is enough to accept that death occurs irreversible cessation of spontaneous

respiratory and circulatory functions or with irreversible brainstem-death. Whether one or

the other has occurred is a question of fact and depends on clinical proof.

The reason why I dwell upon the proof of death or when a person is said to be dead is

because certainty of death is the only thing that constitutes or gives any reason for a

person to commit euthanasia. If the chances of survival of a human are in an irreversible

vegetative state as in Clarke v Hurst a person making such a decision has got very few

choices as to whether to go through with euthanasia. Establishing a person’s death also

differentiates euthanasia from actual murder and in cases of inheritance, it distinguishes

whether one is entitled to inherit or not as it is part of our common law that “The bloody

hand will not inherit.” Euthanasia is a situation that very few people would like to make a

decision on, especially upon a loved one but before being done must in my opinion be

carefully justified as in Clarke v Hurst because it is law that “Every one has the right to

life”5 and so the action of euthanasia must not be in-violation of this right. In Clarke v

Hurst the court justifies euthanasia against this right in that particular case with

determining the quality of the patients life, which in my opinion was a fair thing to do.

The fact that the patient was a member of SA Voluntary Euthanasia Society and had a

‘Living Will’ then has an amount of influence to the courts decision considering his

quality of life but I think as the court highlighted in its judgement that normally this

would not have been of any influence as the court would have been aiding the ends of

suicide which most find morally wrong and at on behalf of the person actually carrying

out the ‘euthanasia’ would be in reality an act of murder and this is why it is essential to

establish when a person is actually dead.

Considering  all the facts of the argument above as well as the precedent set by the courts

in the above cases euthanasia can be used as legal defence in South African criminal law

but must be accordingly justified by determination of death so as to be distinguished from

murder. It can be done also if it is in best interests of a patient and should be treated with

a strict appriciation of  life as it is clearly depicted in the judgement of the court in Clarke

v Hurst.    

Name : Ndabezulu .T. Khumalo

Student Number : 0514425Y

Module : Introduction to South African law (laws 149)

Subject : Euthanasia

Due Date : 13/04/05

           

   

Bibliography

1. Euthanasia and the artificial preservation of life, by South African law Commission
2. Government Gazette of the Republic of South Africa
3. Introduction to South African Law course pack

4.The Sanctity of life and the      criminal law, by Glanville Williams

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