No appetite for euthanasia reform
Faced with a very long prison sentence if convicted of murder, Professor Sean Davison recently concluded a court-approved plea and sentencing deal in pleading guilty to three counts of murder. For all three cases he received an eight-year prison sentence wholly suspended, with three years’ conditional house arrest and community service.
Donald Dinnie – CEO of Natmed Medical Defence – says it is interesting to compare this case with the ‘rather quaint outcome’ of the 1975 judgment in State v Hartmann.
In an analysis on the Daily Maverick site, Dinnie notes Hartmann was sentenced to imprisonment for one year and to be detained only until the rising of the court – with the balance of the sentence suspended for one year – subject to the condition that during that period he was not to commit an offence involving the intentional infliction of bodily injury.
Dinnie says Davison’s reconsideration of his position in his latest trial was influenced by the enormous financial costs he was exposed to in litigating the three prosecutions, the severe penalties he faced if convicted following trial, and also the comments of the SCA in the 2016 judgment in Minister of Justice and Correctional Services and Others v Estate Late James Stransham-Ford and Others.
‘The SCA firmly said that physician-assisted euthanasia constitutes the crime of murder and a medical practitioner who administers a lethal agent to a patient at the latter’s request carries out the crime of murder.’
However, Dinnie points to the Project 86 report of November 1998 by the SA Law Commission entitled ‘Euthanasia and the artificial preservation of life’. While this did not make any specific recommendation regarding the act of voluntary euthanasia, it set out various options:
- One option was confirmation of the legal position that arguments in favour of legalising euthanasia are not sufficient reason to weaken society’s prohibition of intentional killing since it is considered to be a cornerstone of our law and all social relationships.
- The alternative option was to regulate the practice of active euthanasia through legislation in terms of which a medical practitioner may give effect to the request of a terminally ill but mentally competent patient to end the patient’s suffering by providing a lethal agent to the patient.
- Another option suggested the practice of active euthanasia regulated through legislation in terms of which a multi-disciplinary panel or committee is instituted to consider requests for euthanasia according to set criteria.
Says Dinnie: ‘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 20-years-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.’
© Juta and Company (Pty) Ltd 2016
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