Wednesday 27 May 2015

Medical council appeal posthumous death warrant!

A while ago, I wrote about a bizarre set of circumstances that led to a ruling which authorised what otherwise would be the murder of a supposedly dying cancer patient, a Robert Stransham-Ford. Capetonian advocate, Stransham-Ford, in a further turn of fate, was quite dead as the Pretoria based judge read out the verdict.

I referenced a case in the British commonwealth, where a court authorised the killing of a Siamese twin, to save the life of its equally young sibling, and where the court also sought to claim it was not creating a precedent. I thought the Pretoria Euthanasia ruling might not protect any doctor involved from actual prosecution, due to a concept known to lawyers as ripeness.

The court in the British case was the highest in the land, and it had the necessary constitutional authority to make the decision it had, to authorise a medical operation which would save one life and end another. In any case, the court specifically stated that it was not setting a precedent, and the death of the Siamese twin was never prosecuted.

The primary problem for me, with the current euthanasia ruling, lay in the court pre-judging a matter which was not yet ripe for trial, in that the killing had not yet taken place. I have little trouble with a court in a criminal matter developing our case law to allow euthanasia, after a killing has occurred, assuming it has enough authority to overturn the accepted practice of dealing with euthanasia in sentencing but still convicting of murder. This case however does not involve facts already at play, but facts which would not happen without the warrant to break with the current standing decisions of the South African courts, and to kill, issued by the court.

Any law student will be taught in Constitutional Law that the courts cannot be allowed to decide on matters that are as yet merely theoretical, and not yet arrived upon. My Constitutional law lecturer, was quite the activist type, he used to say that if you wanted a law changed, you should find someone prepared to break it, and defend them after the fact. The courts only have jurisdiction over matters which are already pressing, that is to say, over ripe matters. The judiciary furthermore, do not have jurisdiction over matters which are moot, that is, matters which their rulings will no longer affect.

The place of the courts, where there is established law, is reactive. It is not the place of the courts to judge matters which have not yet occurred. Were this not the case, I could at this moment ask the courts to decide the fate of the famed cannibals of the future: the Speluncean Explorers. They certainly can rule that certain laws are unconstitutional, but were the high court to do so, for instance, where a statute infringes on the constitution, it would need the endorsement of the Constitutional Court to back up its decision. Courts can also issue declarations on the law, or interdicts in accordance with it, but they cannot authorise its breaking ahead of time without invalidating the law for the rest of us. Even the law involving criminal informants who break minor laws, is heavily regulated by case law. In effect, the decision, by basing itself on facts as yet to occur, and contradicting set criminal law, was in danger of pre-empting a criminal law case, and one, what is more, likely in a different territorial jurisdiction.

One cannot imagine the nightmarish predicament the judge adjudicating a murder trial would find themselves in, had another judge already ruled in his matter before the facts had occurred. Imagine if the cancer patient had at the last minute backed out and told his doctor he did not want to die, and the doctor decided to go ahead with the euthanasia. This is a major variation of the facts, which would call into question the decision to authorise the killing, but were this or another variation to occur, it would hurt the perception of justice and make the job of the trial judge extremely difficult. Also, it would create a presumption that the cancer patient still wanted to die, even if he had decided contrary. Would the doctor now no longer need to prove that the man still desired death to the end? In Dignitas, a suicide clinic, the patients are asked if they still want death throughout their medically induced demise.

The practical problem with such a case as the present matter, would lie in a new authority created for the courts, to warrant the breaking of the law ahead of time, without bothering to set aside the law itself as unconstitutional... Not the Constitutional Court, but mere high court judges, and judges before whom the otherwise criminal act-to-be has not even occurred.
I argued at the time of the judgement, that any reliable precedent would only occur if there were a decision to prosecute the doctor who administered the suicide, and if a court in the jurisdiction of the murder were then to uphold the pre-emptive decision.
The decision in fact occurred and was given when the whole thing was already moot. As Hans Fabricius, the judge in the case read out the decision, after his spending much of the trial emphasizing his concern for the cancer patient's wellbeing - the cancer patient was already lying dead, allegedly of natural causes. Media state that Dignity SA, and the man's lawyers were unaware that he had passed away and did not purposely deceive the court of law.

In today's Stop Press, from LexisNexis Current Awareness, there is an update on this fascinating incident. It was already well established that the state would be appealing the unusual decision which sought to bar it from prosecuting what the standing precedent setting decisions of the courts consider to be a murder. Joining the state however, report The Times, is the Health Professions Council of South Africa, the body that regulates the medical profession. The HPCSA is quite upset with the part of the decision which would see the doctor not lose their medical licence for acting in what otherwise would be classed as unethical medical negligence and the intentional ending of the life of their patient.

'Robert Stransham-Ford, who won the right to die with a doctor’s help, was wrong when he said his terminal cancer had robbed him of his constitutional right to dignity.
This is according to the Health Professions Council of SA’s appeal against the landmark ruling that Stransham-Ford be allowed to commit doctor-assisted suicide.
Stransham-Ford, 65, argued that his slow death was undignified.
In appeal papers filed this week the council said: “The process of dying does not constitute an insult upon human dignity. Infirmity, incompetence, dementia and immobility, all of them of natural origins, limit human possibility. But sooner or later they are unavoidable, the products of inevitable bodily and or mental decay.”
An appeal has been lodged by the state and its papers, filed by the minister of health, minister of justice and the director of public prosecutions, assert: “Dying is part of life; its completion.”' (The Times | 'Medics, state line up to challenge euthanasia ruling' 27th May 2015)
Notably, Dignity SA is quoted as saying that they welcome the matter being appealed, and that rightly the Constitutional Court should be the court to decide the matter. Indeed, it would be, but for such a precedent setting case, why it wasn't approached as court a quo on an urgent basis is beyond me.

As it is, we sit with a situation where a court of law states that it can authorise the breaking of standard law beforehand, and that each decision in such regard must be made based on its own merits. This is a scenario where two doctors both euthanise a patient, one with a court order and another without one, and where one goes to jail and the other does not. It is a strange scenario indeed. Perhaps it will become our standing law, but it is up to the Constitutional or other appeal court to decide that now.

Nothing in this article constitutes legal advice.

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