Death with dignity in lieu of euthanasia*

Magda Slabbert**
Carina van der Westhuizen ***

Much of the prestige and power of modern medicine

relates to developments which have diminished the suffering
and prolonged the lives of many who would otherwise
have suffered intensely or succumbed earlier.1

1 Introduction
Due to advances made in medical sciences over the last few decades and the
application of advanced medical technology, it is now possible to prolong life in
extremely difficult situations. For some people it has resulted in a prolongation of
a meaningful life, but for others it merely resulted in a meaningless existence.2
Although everyone will eventually die, it is accepted that it is not the fear of death
that leads to the euthanasia debate, but the way in which one might die. People are
anxious that their dying process might become a burden to their relatives and
friends.3 The deterioration of bodily functions may make it difficult for some
individuals to maintain their dignity in the eyes of relatives or even nursing staff who
may treat them as infantile or senile.4 Many people are appalled by the thought of
resources being ‘wasted’ on patients without any chance of recovery and which could
otherwise have been available for the benefit of other patients who have meaningful
lives to live.5 Advances in medicine prolonging life, have therefore resulted in the
need for serious moral choices, and when medicine fails to provide a socially
acceptable answer, many of these dilemmas are referred to the law for solutions.6

*
Recognision is given to prof Carstens for his assistance with this article.
**
BA (Hons), HED, BProc, LLB, LLD. Lecturer, UNISA.
***
BA (Hons), MA, HED, LLB. Senior Lecturer, UNISA.
1
Benatar ‘Dying and Euthanasia’ (1992) SAMJ 35 37 at 37.
2
Le Roux ‘Aspekte van eutanasie in die strafreg’ (1979) De Jure 73 83 at 73.
3
Dworkin ‘Do we have a right to die?’ in Uhlmann (ed) Last rights? Assisted suicide and
euthanasia debated (1998) 82. See also Le Roux (n 2) 75.
4
Cohen Almagor Euthanasia in the Netherlands: the policy and practice of mercy killing (2004)
5
Id 1.
6
McClean Old law, new medicine: medical ethics and human rights (1999) 158. See also Strauss
Doctor, patient and the law (1991) 324.
Death with dignity in lieu of euthanasia 367

The South African community at large is much more aware of their individual
right to self determination, as entrenched in the constitution, than in the past.1
Many people are also better informed about their rights as patients as encompassed
in different documents given to patients by either hospitals or medical schemes.
The ability to choose and to have those choices respected is a way of maintaining
control over one’s life and it goes hand in hand with the preservation of dignity.2
To make choices about health and welfare has thus become a legitimate
expectation and, because it is so important for a patient to give informed consent
concerning his medical treatment,3 patients are nowadays more knowledgeable
about their condition and various options open to them. It is therefore necessary
to re-consider whether one has a right to make a decision concerning the ending
of one’s life when death is unavoidable. People who are still mentally competent
are permitted to decline medical treatment, even if declining it will result in death
(ie a form of ‘letting die’), yet action that deliberately and directly causes death
(active euthanasia) is outlawed.4
In most countries patient autonomy is being recognised. This necessitates
the need to consider the protection of the patient’s right to refuse medical
treatment and also to receive assistance, should he so require, in ending his
life. This is especially applicable where a patient has strong feelings about his
treatment and is concerned that he may in future be unable to communicate his
wishes to the doctor.5 In these cases the so-called ‘living will’ may be relevant6
as can be found in the locus classicus, Clarke v Hurst.7
As Strauss indicated the Clark v Hurst judgment is indeed a ‘landmark
judgment’.8 Although it clarified issues pertaining to the withdrawal of life
sustaining treatment in the case of terminal illness and particularly patients who are
in a persistent vegetative state (PVS) it is distinguishable from the court cases
discussed below: It is a civil case and not a criminal case. Neither did this case deal
with active euthanasia, but rather passive euthanasia, since it involved the
discontinuance of life-sustaining treatment.9 In other words the patient was not killed

1
Constitution of the Republic of South Africa, 1996.
2
Biggs Euthanasia, death with dignity and the law (2001) 1.
3
Ss 6 and 7 National Health Act 61 of 2003. See also Van Oosten “The doctrine of informed
consent in medical law’ (unpublished LLD thesis Univeristy of South Africa) 1991.
4
Biggs (n 2) 5.
5
South African Law Commission Report on Euthanasia and the Artificial Preservation of Life
Project 86 (1998) 3.
6
Ibid. See also Pillay ‘The right to die’ (2000) February De Rebus 19; Oosthuizen ‘Doctors can
kill active euthanasia in South Africa’ (2003) 22 Medicine and Law 551 560 at 554; Strauss
‘The “right to die” or “passive euthanasia”: two important decisions, one American and the other
South African’ (1993) SACJ 196 208 at 196; Taitz ‘Euthanasia and the “legal convictions of
society” in a South African context’ (1993) SALJ 440 445 at 445.
7
Clark v Hurst NO 1992 4 SA 630 D.
8
Strauss (n 6) 201. See also the discussion of this case by Lupton ‘Clarke v Hurst NO, Brian NO and
Attorney General Natal: A Living Will, brain death and the best interest of a patient’ (1992) SACJ 342.
9
Id 204. See also Taitz (1993) SALJ 441.
368 (2007) 22 SAPR/PL

but allowed to die. One of the points of criticism against this decision was that the
court did not recognise the patient’s right to autonomy.10 A ‘living will’ does not,
however, have legal status in South Africa and is therefore not the ultimate solution.11
The Netherlands, the state of Oregon in the United States of America and
Switzerland are the only regions in the world where assistance to die has legally been
practiced in recent years. The Swiss regulations are the most lenient, in that the law
requires neither a second medical opinion (as in both the Netherlands and Oregon)
nor that the patient be terminally ill (as in Oregon) as prerequisites to assistance in
dying.12 In the Netherlands the basis for allowing euthanasia lies in the conflict of the
physician’s duties of respecting life versus relief of suffering, while in Oregon and
in Switzerland the right-to-die concept plays a major role.13 The purpose of this
article is neither to debate the morality of euthanasia nor the criminal aspect14 thereof
but to compare the existing Swiss practices with legislation in the state of Oregon and
to draw on this for the benefit of South Africa.15 These two ‘countries’ were chosen
for this article because in both of them the physicians are allowed to prescribe or
supply a drug in a lethal dose (physician-assisted suicide PAS), however, in Oregon
PAS is strictly regulated while in Switzerland there are no such regulations. The
analysis of the position here leads to a proposal that the Oregon model could be the
way to put an end to the euthanasia debate in South Africa.

2 Euthanasia in South Africa

The current position in South Africa is that neither active euthanasia nor
assisted suicide is legally acceptable and any person, who assists a patient to
die, will be prosecuted. In 1998 the Law Commission of South Africa16 (as it
was then known) published a report, Project 86 ‘Report on euthanasia and the

10
Strauss (1993) SACJ 208.
11
Taitz (1993) SACJ 445. See also Strauss (1993) SACJ 196, Burchell Principles of criminal law (2006)
328 where he argues that the recommendation of the South African Law Reform Commission that a
‘living will’ should be legally recognised especially considering the emphasis placed on the Bill of Rights.
12
Bosshard et al ‘Open regulation and practice in assisted dying: How Switzerland compares
with the Netherlands and Oregon’ (2002) 132 Swiss Med Wkly 527 534.
13
Id 527.
14
Van Oosten ‘Aandadigheid aan selfmoord in die Suid Afrikaanse strafreg’ (1985) TSAR 189
200; Labuschagne ‘Die stafregtelike verbod op hulpverlening by selfdoding: ’n Menseregtelike
en regsantropologiese evaluasie’ (1998) Obiter 45 60; Labuschagne ‘Dodingsmisdade, sosio
morele stigmatisering en die menseregtelike grense van misdaadsistematisering’ (1995) Obiter
34 50; Labuschagne ‘Dekriminalisasie van eutanasie’ (1988) THRHR 167 193; Labuschagne
‘Aktiewe eutanasie: Mediese prerogatief of strafregtelike verweer?’ (1996) SALJ 411 414.
15
The situation in the Netherlands where doctors are permitted to administer active voluntary euthanasia
will not be discussed as numerous articles and books have been written on the topic and it is not our
proposal that euthanasia in the wide sense as in the Netherlands should be legalised in South Africa. For
a summary of the position in the Netherlands see Bosshard et al (2002) 132 Swiss Med Wkly 528.
16
The South African Law Commission was established by the South African Law Commission
Act, 1973 (Act 19 of 1973). The project leader responsible for the investigation was the
Honourable Mister Justice PJJ Olivier, the researcher was Mrs AM Louw.
Death with dignity in lieu of euthanasia 369

artificial preservation of life’. According to one of the researchers, Amanda

Louw, the report was submitted to the Department of Health, but as yet no
legislation was forthcoming in this regard.17
In order to propose a new approach for South Africa, ie one which differs
from the seemingly acceptable proposals of the Law Commission, it is
necessary to scrutinise changes in views on euthanasia in South Africa, and to
compare the position here with new developments in Oregon and Switzerland

2.1 Overview of the position in South African law

2.1.1 Common law
Assisted suicide was not known in Roman Dutch law, but certain writers did
address the issue of suicide. Grotius said the following:
Maer vol recht heeft niemand over sijn leven: oversulcks zijn altijd in Holland
strafbaer gheweest, die haer zelve door opzet verdeden, schoon van geene
misdade zijnde beschuldigt: want hare lichamen werden op een horde gesleept
ende gehangen in een mick, ende de goederen zijn verbeurt: zoo verre ooc dat
veele hand vesten toelatende uitkoop van verbeurde goederen voor een kleine
penning, nevens eenige groote misdaed, oock deze wanhoop uitzonderen.18
In other words, a person who had committed suicide was punished even
after death by not burying the body immediately, but by disgracing the corpse
publicly. In later years Van der Linden said that suicide was undoubtedly an
unlawful act, but it should not be condemned publicly. Such persons should
be buried in silence without ceremony.19
Regarding suicide Matthaeus distinguished between those committing
suicide because of knowledge of guilt (conscientia criminis) and those who
commit suicide because of inability to bear pain, sickness, or some grief (sin
doloris impatientia, aut morbi, luctusve). In the latter instances the punishment
was more lenient (ut mitius puniatur reus).
Ex sapientibus vero, qui Stoicorum praeceptis inbuti erant, exitistimabant, posse
interdum, sine scelere sapientem pretiis vivendi mortis rationes anteponere, cum
nimirum summa ratio, quae sapientibus pro necessitate est, ad tam triste
consilium impellit, ut Plinius pro Corellio disserit? 20
Voet pointed out that the Stoics and Seneca were in favour of suicide unless
it was a result of a criminal conscience,21 but the view held by the Stoics and

17
The researcher, Amanda Louw, was contacted telephonically on 2007 03 05.
18
Grotius Inleidinge 2 1 44.
19
Van der Linden Koopmanshandboek 2 5 14.
20
Mattaeus De Criminibus 48 5 9. ‘However, some philosophers who were imbued with Stoics
precepts were of the opinion that a wise man can sometimes rightly prefer the advantages of death to
the cost of life, since supreme reason which for the wise takes the place of necessity, impels to such sad
counsel as Pliny said in connection with Corellius’. (Translation by Hewett and Stoop (1994)).
21
Voet 48 21 1.
370 (2007) 22 SAPR/PL

Seneca was disproved by the community at the time when Voet wrote his
Commentariae ad Pandectas and if someone committed suicide, he could be
punished by confiscating his property.22
According to modern day perceptions in South Africa suicide is not regarded as a
crime, but assisting someone to die is still a crime. In a few decided court cases it
transpired that although it is a crime, extenuating circumstances were found and
consequently punishment was very lenient. The court took the personal circumstances
of each accused as well as the facts of the case into consideration before coming to a
verdict. To date there is no specific legislation concerning assisted suicide.

2.1.2 Case law

As mentioned above it is trite law in South African that suicide is not a crime, but
a person who assists or encourages someone else to commit suicide, may be found
guilty of murder or culpable homicide depending on the circumstances of each
case.23 In 1940 in R v Peverett24 a suicide pact between two lovers failed. Since the
accused was the one who had made all the arrangements, he was convicted of
attempted murder. ‘In the eyes of the law, therefore, he intended to kill her,
however little he may have desired her death’.25
In S v Gordon26 a deceased took tablets knowing exactly what the result would
be. This act caused her death. The court held that although the accused had
supplied the deceased with drugs, knowing that they could be fatal and that she
most probably would take them, it did not constitute the killing of the deceased in
law. The act which killed the deceased was her own independent, voluntary act.
The accused undoubtedly assisted her, but that did not constitute an offence. The
accused was therefore not found guilty. The latter case may be distinguished from
the Peverett case in that in the former the accused completed every necessary act
to bring about the death of him and his lover. In the latter case the deceased took
the tablets herself, knowing what the result would be.
In S v De Bellocq27 the accused drowned her baby who was born with a disease
called toxoplasmosis. She was found guilty of murder, but because of extenuating
circumstances she was sentenced in terms of section 349 of the old Criminal
Procedure Act28 – postponing her sentence. Before sentencing the court made the
following remark: ‘The law does not allow any person to be killed whether that
person is an imbecile or very ill’.29

22
Voet 48 21 2.
23
Ex parte Die Minister van Justisie: In re S v Grotjohn 1970 2 SA 355 (A). See also S v
Nkwanyana 2003 1 SA 303 (W) and Labuschagne (1996) SALJ 413.
24
1940 AD 213.
25
R v Peverett 1940 AD 219.
26
1962 4 SA 727 (N).
27
1975 3 SA 538 (T).
28
Act 56 of 1955.
29
S v De Bellocq 1975 3 SA 538 (T) 539C.
Death with dignity in lieu of euthanasia 371

In another act of compassion a medical practitioner administered a lethal

dose of the drug Pentothal to his dying father. This act directly led to the death
of his father who died seconds after the drug had been administered. The court
found that he did not intend to kill his father, and that his motive was a
compassionate one, namely to relieve him from insufferable pain. Despite his
motive the accused was found guilty of murder and sentenced to one year
imprisonment. The sentence was suspended for one year.30 In this case the
court gave recognition to the term ‘mercy killing’31 in lieu of murder and was
consequently very lenient when it came to punishment, especially concerning
the extenuating personal circumstances of the accused and his father.
In S v Hibbert32 the accused provided the deceased with a rifle which she
used to commit suicide. Since he had provided the deceased with the means
of killing herself, he was found guilty of murder. The court however found that
there were extenuating circumstances of a personal nature and therefore
sentenced him to four years’ imprisonment which was suspended for five
years.
The two most recent judgments concerning active euthanasia are S v
Marengo33 and S v Smorenburg34 . In the former the accused shot her father
who was suffering from cancer out of compassion. In the latter case a nurse
injected two elderly people with insulin to end their suffering, both died
shortly afterwards. In the Marengo case the accused was convicted of murder;
in the Smorenburg case the nurse was found guilty of attempted murder. In
both cases the court found extenuating circumstances and a suspended
sentence was imposed.
It follows from the cases mentioned that the current position in South
Africa is that someone who knowingly supplies or applies a lethal substance
to a patient well aware what the effects will be, is guilty of aiding and abetting
suicide and can be accused and convicted of murder even though it may be
seen as ‘mercy killing’.35 In all the discussed cases the accused actively
provided the deceased with assistance to die; in every instance the motive was
to end the suffering of a terminally ill patient. It is evident that the courts
follow a lenient approach when considering punishment of convicted persons
for committing so-called ‘mercy killing’ for humane reasons. Since there are
no clear guidelines which the courts can follow, the South African Law
Commission was tasked to examine euthanasia and the artificial preservation
of life.

30
S v Hartmann 1975 3 SA 532 (C).
31
Id 534 535H.
32
1979 4 SA 717 (D). See also S v Nkwanyana 2003 1 SA 303 (W), In re S v Grotjohn 1970 2
SA 355 (A).
33
S v Marengo 1991 2 SACR 43 (W).
34
S v Smorenburg 1992 2 SACR 389 (C).
35
SA Law Commission (1998) 59 60. See also Pillay (2000) De Rebus 18 21.
372 (2007) 22 SAPR/PL

2.1.3 Report on Euthanasia and the Artificial Preservation of

Life: South African Law Commission, Report, Project 86 36
Although the Law Commission does not clearly distinguish between active
euthanasia37 and PAS there are, however, differences. For the purpose of this
article it is extremely important to note the differences. In the case of active
euthanasia the doctor or health care worker acts with the deliberate intention
to induce the death of the patient, while in the case of PAS it is not the doctor
or health care worker who desires the patient to die, and actively involves
himself with the process although they might agree with the patient’s wish in
view of his terminal illness.
When a terminally ill patient reaches the point where the doctor or health
care worker feels active euthanasia is the best option the patient is usually no
longer mentally competent to make any decisions. It is, however, an important
requirement for PAS that the patient is still mentally competent and can make
his own decisions.
In cases of active euthanasia it is the doctor or someone else who performs
the final act, while in PAS the patient must still be able to take the lethal
substance himself although the doctor is required to help with the prescription.
The distinction between PAS and active euthanasia is lacking in the Law
Commission’s report. In view of the fact that the Oregon and Swiss models
that will be discussed in this article are based on this distinction, it is essential
to differentiate between these ways of inducing death.
The report recommends amongst others the enactment of legislation to the
effect of the following:
• that a medical practitioner may cease or authorise the cessation of medical
treatment of a patient who is brain dead;
• that a person has a right to ‘informed refusal’ of life-sustaining medical treatment;
• that a doctor, or in specified circumstances, a nurse may relieve the
suffering of a terminally ill patient by prescribing drugs knowing that the
dosage will eventually lead to the death of the patient;38
• that recognition should be given to a ‘living will’;

36
It does not fall within the scope of this article to discuss the report in detail. Some
shortcomings are highlighted. See Oosthuizen (2003) 22 Medicine and Law 554 559, Carstens
and Pearmain Foundational principles of South African medical law (2007) 208 210.
37
For a definition of active and passive euthanasia see West’s Encyclopedia of American Law
236. See also Leenen ‘The definition of euthanasia’ (1984) 3 Medicine and Law 333 338; Le
Roux (1997) De Jure 74. He distinguishes between active voluntary and involuntary euthanasia
and passive voluntary and involuntary euthanasia. See also Le Roux ‘Aspekte van eutanasie in
die strafreg’ (1980) De Jure 136 139; Rall ‘The doctor’s dilemma: Relieve suffering or prolong
life?’ (1977) SALJ 45 53.
38
This must be seen in the context of a patient’s right to freedom from pain. See alsoWeinman
‘Freedom from pain: Establishing a constitutional right to pain relief’ (2003) 24 The Journal of
Legal Medicine 521.
Death with dignity in lieu of euthanasia 373

• that passive euthanasia should be tolerated in the case of a patient in a

persistent vegetative state.39
As mentioned earlier, nothing came of the report and the proposed Bill.40
The South African Constitution41 determines that recognition should be
taken of foreign legislation where applicable.42 Before analysing legislation of
other countries, cognisance should be taken of the implications of the Bill of
Rights43 on dying with dignity.

2.2 The Constitution of the Republic of South Africa, 1996

A patient has a choice not to be linked to a life-sustaining apparatus and the
doctor has to respect the wish of that patient. Similarly a woman has the
choice to have an abortion should she wish so and her doctor has to respect her
wish.44 By analogy it may be asked whether one has a choice on how and when
to die? And should that choice not be respected?45 There will always be moral
objections, on religious grounds, against euthanasia or assisted suicide, and in
the Report by the Law Commission mention is made of cultural differences
with regard to euthanasia.46 However, in a constitutional state the law should
not be biased against any individual and/or cultural or religious group. It is
therefore submitted that assisted suicide should be legalised and it be left to
each individual to decide the issue whether to make use of it or not according
to his own religious or moral beliefs.
The Constitution, in section 12(2)(b),47 specifically grants a right to self
determination. Individual autonomy is therefore enshrined in the Bill of
Rights. Strauss48 made the following remark: ‘In the absence of an overriding
social interest, ... the mentally competent individual’s right to control his own
destiny in accordance with his own value system, his ‘selfbeskikkingsreg’,
must be rated even higher than his health and life’. Currie and De Waal49

39
Carstens and Pearmain Foundational principles (2007) 208.
40
End of Life Decisions Act 1999. See SA Law Commission (1998) 217 231for the draft bill.
41
The Constitution of the Republic of South Africa, 1996.
42
S 39(1)(b) Constitution of the Republic of South Africa, 1996.
43
Chap 2 of the Constitution of the Republic of South Africa, 1996.
44
Choice of Termination of Pregnancy Act 92 of 1996.
45
See also Carstens and Pearmain Foundational Principles (2007) 202.
46
‘It was firstly argued that enough consideration was not given to the fact that South Africa is
a multi cultural society … Many of the traditions and customs of the black South African
population do not support interventions like euthanasia or PAS … there would be very limited
demand for assisted suicide and euthanasia among traditional people. Some might see the
legalisation of assisted suicide and euthanasia as an imposition of Western values on people with
different cultural belief systems’. Opinion raised by the Department of Health against active
euthanasia. SA Law Commission (1998) 121.
47
‘Everyone has the right to bodily and psychological integrity which includes the right to
security in and control over their body’.
48
Strauss Doctor (1991) 31. See also Pillips v De Klerk TPD March 1993 (unreported).
49
Currie and De Waal The bill of rights handbook (2005).
374 (2007) 22 SAPR/PL

interpret ‘control over’ in section 12(2)(b) as being allowed to live the life one
chooses, and by analogy also to choose the death you wish for.50
Neither euthanasia nor PAS as such has so far been tested in the
Constitutional Court. The only possible link can be found in the Soobramoney
case.51 The Law Commission also refers to the relevance of this case in its
report where it indicates that it has the effect that the state would in certain
circumstances be inconsistent if it denies a request for suicide or euthanasia:
The appellant, in the final stages of chronic renal failure, claimed that he was
entitled to emergency dialysis, given the constitutional provision that no one
may be refused emergency medical treatment, and the constitutional right to life.
The court ruled his application unsuccessful on the grounds that withholding of
life prolonging treatment that is, rationing care, is compatible with a human
rights approach, given scarce resources. Withholding dialysis, a scarce resource,
given the extreme health care needed, led directly to the appellant’s death.
Hypothetically stated, if the State can legitimately withhold resources necessary
for life, surely it would be inconsistent, as well as cruel, if the state were to deny
the ‘condemned’ man’s request for assisted suicide or euthanasia so that he
could die sooner and, perhaps with less suffering. How could the State sanction
death when it is bad for the applicant, but deny it when it is a good especially if
the State has made death the only option? 52
As indicated in the introduction to this article, the average person is not
scared to die, but they fear dying without dignity. This is quite possible where
medical technology keeps a terminally-ill patient alive. Section 10 of the Bill
of Rights entrenches everyone’s inherent right to dignity and to have his
dignity respected and protected. As a person’s health deteriorates, an
undignified stage could be reached. Assisted suicide being the choice of a
patient could avoid him reaching this undignified state of absolute dependence
on the help of others or machines. The State of Oregon realised the need to
make provision for an act protecting the health care worker assisting the
patient to die while he still has the ability to perform the act himself and the
position in that state will now be discussed.

3 Oregon53
3.1 Background
Patient autonomy and informed consent are firmly entrenched in American
law. The right of patients to make medical decisions and refuse care is also
rooted in certain constitutionally protected rights, namely the right to privacy

50
(N 49) 308.
51
Soobramoney v Minister of Health KwaZulu Natal 1997 BCLR (12) 1696 (CC). See also
Oosthuizen (2003) 22 Medicine and Law 559 560.
52
SA Law Commission (1998) 118.
53
See also Hillyard and Dombrink Dying right: The death with dignity movement (2001) 69 98.
Death with dignity in lieu of euthanasia 375

and the right to liberty. In Cruzan v Director, Missouri Department of Health54

the United States Supreme Court suggested that a patient’s right to refuse
treatment is protected liberty interest under the Fourteenth Amendment. Thus
a competent patient’s right to reject unwanted medical care, even if that
decision will result in the patient’s death, has constitutional support.55 The first
major case involving an incapacitated terminally-ill patient was the case of
Karen Ann Quinlan.56 In this case the court held that a competent adult has a
constitutional right to privacy that allows him to refuse life-sustaining medical
care and that a guardian could assert that right on his behalf.
The other major area of controversy regarding the rights of the terminally-
ill in the United States of America is the so called PAS. PAS57 is currently
legal in the United States of America, albeit only in the state of Oregon58 under
severe restrictions. In other states, a terminally-ill patient who wishes to die
must continue living until his body eventually collapses, or until a family
member or friend commits a criminal act by helping him to commit suicide.59
Assisted suicide is also expressly forbidden in the American Medical
Association’s Code of Medical Ethics.60

54
497 US 261 (1990). This case arose after Nancy Cruzan had an auto accident in which her cardiac
and respiratory functions were temporarily disrupted leading to an interval of anoxia of about 14
minutes. She was comatose and progressed to a state where she had to be provided nutrition and
hydration through a gastrostomy tube. She was diagnosed as being in a persistent vegetative state.
Her parents asked that the hydration and nutritional support be withdrawn. The hospital refused.
The parents obtained approval from a state trial court that held that substantive due process gave
a competent person a Federal constitutional right to refuse death prolonging procedures and that
Cruzan had effectively exercised that right when some years before the accident she had told a
friend that if injured, she would not wish to continue her life unless she could live at least halfway
normally. The Supreme Court of Missouri reversed the decision. Subsequently the Cruzan family
approached the state court again and presented additional evidence. Life support was withdrawn
and Nancy died. Basanta and Cowan ‘The rights of the terminally ill. Withdrawal of supportive care
and physician assisted suicide’ unpublished poster at the 16th World Congress on Medical Law
2006 08 7/11, Toulouse, France. See also Strauss (1993) SACJ 197 201.
55
Basanta and Cowan (2006).
56
In re Quinlan 355 A 2d 647 (NJ 1976). Ms Quinlan ingested a combination of alcohol and Valium
at a party. She stopped breathing for at least two periods of up to 15 minutes each and consequently
ended up in a persistent vegetative state. Ms Quinlan required a respirator to breathe and was fed
through a nasogastric tube. Her father was appointed as his adult unmarried daughter’s guardian. He
wanted to cease all extraordinary medical procedures concerning his daughter. The trial court refused
but the Supreme Court of New Jersey reversed the decision. Basanta and Cowan (2006).
57
Physician assisted suicide, see also Bascom and Tolle ‘Responding to requests for physician
assisted suicide: These are uncharted waters for both of us’ (2002) 288 JAMA 91 98; Willens
et al ‘Attitudes and practices concerning the end of life: A comparison between physicians from
the United States and from the Netherlands’ (2000) 160 Arch Intern Med 63 68.
58
A state by state listing of states in the USA concerning euthanasia/the right to die in Smith
Right to die policies in the American states: Judicial and legislative innovation (2002) 249 256.
59
West’s Encyclopedia of American Law (2nd ed ) 238.
60
Ibid.
376 (2007) 22 SAPR/PL

3.2 Oregon’s Death with Dignity Act

3.2.1 History
The Oregon Death with Dignity Act61 was a citizen’s initiative first passed by
Oregon voters in November 1994 with 51 per cent in favour thereof.
Implementation was delayed by a legal injunction, but after proceedings
including a petition denied by the United States Supreme Court, the Ninth
Circuit Court of Appeals lifted the injunction on 1997-10-27.62 In November
1997, a measure asking Oregon voters to repeal the Death with Dignity Act
was placed on the general election ballot.63 Voters rejected this measure by a
margin of 60 to 40 per cent, retaining the Death with Dignity Act. Oregon
became the only state in the United States of America allowing legal
physician-assisted suicide.64
Although physician-assisted suicide has been legal in Oregon for eight years it
still remains controversial.65 In 2001, the United States Attorney General issued a
new interpretation of the Controlled Substances Act66 prohibiting doctors from
prescribing controlled substances (barbiturates) for use in physician-assisted
suicide.67 In response to a lawsuit filed by the State of Oregon in November 2001,
a United States district court issued a temporary restraining order against the
Attorney General’s ruling pending a new hearing. In April 2002 a United States
District Court Judge upheld the Death with Dignity Act. The Attorney General
appealed against the decision but the appeal was denied in 2004 by a three-judge
panel.68 The Attorney General thereupon filed an appeal requesting that the Court
rehear his motion with an 11-judge panel. The Court declined to rehear the case.
He then requested the United States Supreme Court to review the decision of the
Ninth Circuit Court. The Supreme Court heard arguments in the case and in
January 2006 it affirmed the lower court’s decision. The Oregon’s Death with
Dignity Act therefore remains in force.69

3.2.2 Requirements
The Death with Dignity Act allows terminally ill Oregon residents to obtain
and use prescriptions from their physicians for self-administrable, lethal
medications. Ending one’s life in accordance with this Act does not constitute

61
Oregon’s Death with Dignity Act. Oregon revised statute 127.800 127.995.
62
Oregon Department of Human Services ‘Eighth annual report on Oregon’s Death with Dignity
Act ’ 2006 03 09.
63
Measure 51, authorised by Oregon House Bill 2954.
64
Oregon Revised Statute 127.800 127.995 Available at http://egov.oregon.gov/DHS/ph/pas/
docs/year7.pdf
65
(N 62) 6.
66
The Controlled Substances Act (CSA), 21 USC 801 et seq.
67
(N 62) 6.
68
Ibid.
69
Ibid.
Death with dignity in lieu of euthanasia 377

suicide. The Death with Dignity Act legalises physician-assisted suicide, but
specifically prohibits euthanasia, where a physician or other person directly
administers medication to end another’s life.70
Under the Death with Dignity law, a person who sought physician-assisted
suicide would have to meet certain criteria:71
• The person must make two oral requests for assistance in dying to his or her
physician separated by at least 15 days.72
• The person must make one written request for assistance in dying signed in
the presence of two witnesses.
• The person must convince two physicians that he or she is sincere and not
acting on a whim, and that the decision is voluntary.
• The person must not have been influenced by depression.
• The person must be informed of ‘the feasible alternatives’, including, but
not limited to, comfort care, hospice care, and pain control.
• The prescribing physician must request, but may not require, the patient to
notify his or her next-of-kin of the prescription request.
Under the Oregon law, a person complying with all the requirements would
receive a prescription for a barbiturate that would be sufficient to cause death.
Physicians are prohibited from inducing death by injection or carbon monoxide.73
To comply with the law, physicians must report all prescriptions for lethal
medications to the Department of Human Services (DHS).74 In 1999 there was
a requirement that pharmacists must be informed of the intended use of the
prescribed medication.75 Physicians and patients who adhere to the
requirements of the Act are protected from criminal prosecution and the choice
of legal physician-assisted suicide cannot affect the status of a patient’s health
or life or life insurance policies. Physicians, pharmacists and health care
systems are under no obligation to participate in the Death with Dignity Act.76

3.2.3 Eight years of PAS in Oregon

The DHS uses a system involving physician and pharmacist reports, death
certificate reviews and follow-up interviews to maintain data on PAS.77
Patients are classified by year of participation based on when they ingested the
legally prescribed lethal medication.

70
Id 7.
71
West’s Encyclopedia of American Law 239 240.
72
S 2.02(1) The Oregon Death with Dignity Act.
73
Eighth Annual Report (2006) 240.
74
Eighth Annual Report. Oregon Administrative Rules 333 009 000 to 333 009 0030. Available
at http://egov.oregon.gov?DHS/ph/pas/oars.shtml
75
Eighth Annual Report (2006) 8.
76
Ibid.
77
Reporting forms and physician questionnaires are available at http://www.oregon.gov/
DHS/ph/pas/pasforms.shtml.
378 (2007) 22 SAPR/PL

The number of prescriptions written and the number of Oregonians using PAS
vary annually. For example in 2005, 39 physicians wrote 64 prescriptions for lethal
doses of medication. In 1998, 24 prescriptions were written; followed by 33 in
1999; 39 in 2000; 44 in 2001; 58 in 2002; 68 in 2003 and 60 in 2004.78
Two-thirds of the 2005 prescription recipients died after ingesting the
medication. Of the 32 recipients who did not ingest the medication, 15 died
from their illness and 17 were still alive on December 31, 2005 when the
statistics were evaluated. Six patients who received prescriptions during 2004
died in 2005 as a result of ingesting the lethal medication, giving a total of 38
PAS deaths during 2005.79
In 1998, 16 Oregonians used PAS, followed by 27 in 1999; 27 in 2000; 21
in 2001; 38 in 2002; 42 in 2003 and 37 in 2004. Ratios of PAS deaths to total
deaths have shown a similar trend: in 1998 there were 5.5 PAS deaths for
every 10 000 total deaths, followed by 9.2 in 1999; 9.1 in 2000; 12.2 in 2002;
13.6 in 2003; 12.3 in 2004 and an estimated 12 in 2005.80
There are no statistically significant differences between Oregonians who
used PAS in 2005 and those from prior years. Although year-to-year variations
may occur, certain demographic patterns have become evident over the past
eight years.81 There was no difference between males and females requesting
PAS. Divorced and never-married persons were more likely to use PAS than
married or widowed residents. A higher level of education had an influence on
the use of PAS; Oregonians with a baccalaureate degree or higher were 7.9
times more likely to use PAS.
Patients with certain terminal illnesses were more likely to use PAS. The
request rate was the highest for three conditions, namely amyotrophic lateral
sclerosis, HIV/AIDS and malignant neoplasm. During 2005, 36 patients died
at home and two died at assisted living facilities. All individuals had some
form of health insurance and as in previous years, most of the patients who
used PAS in 2005 were enrolled in hospice care. The median length of the
patient-physician relationship was eight weeks.
The prescribing physicians of patients using PAS during 2005 had been in
practice for a median of 26 years. Their medical specialties included family
medicine, oncology and internal medicine.
Seventy-four per cent of the physicians who wrote prescriptions for lethal
medication during 2005 wrote a single prescription. Of the 39 physicians who
wrote prescriptions in 2005, 29 wrote one prescription, three wrote two
prescriptions, three wrote three prescriptions, three wrote four prescriptions
and one wrote eight prescriptions.82

78 th
8 Annual Report (2006) 11.
79
Ibid.
80
Ibid.
81
See 8th Annual Report (2006) tables 1 4 at 19 24.
82 th
8 Annual Report (2006) 13.
Death with dignity in lieu of euthanasia 379

Discussions with patients indicated that the most frequent reported concerns
why people requested death were decreased ability to participate in activities that
make life enjoyable (89%), loss of dignity (89%) and losing autonomy (79%).83

3.3 Conclusion
It seems that since 2002 both the number of prescriptions written for
physician-assisted suicide and the number of terminally-ill patients taking
lethal medication have remained relatively stable with about 1 in 800 deaths
among Oregonians in 2005 resulting from physician-assisted suicide.84 It
seems a small numbers of patients, however, one should bear in mind that the
statistics for Oregon are based on a reporting system for terminally-ill patients
who legally receive prescriptions for lethal medication and do not include
patients and physicians who may have acted outside the law.
For a patient with a terminal illness it may be a solution to consider PAS.
For a medical provider a request for PAS provides an opportunity to explore
patients’ fears and wishes concerning end-of -life care, and to make patients
aware of other options. Often once the provider has addressed a patient’s
concerns, he may choose not to pursue PAS.85

4 Switzerland
4.1 Background
Swiss law does not recognise the practice of euthanasia: ‘Murder upon request
by the victim is considered less severely than murder without the victim’s
request, but it remains illegal’.86 It does, however, seem to be the only country
in which assisted suicide with no egotistic motive is allowed without
regulating requirements.87 Furthermore, non-physicians may participate in
assisting with a patient’s suicide as the law has explicitly separated the issue
of whether or not assisting death should be allowed in some circumstances
from that of whether physicians should perform it.88

4.2 History of Swiss law concerning assisted suicide

In 1918 the Swiss Federal Government commented that modern penal law
does not treat suicide as a crime and that aiding someone to commit suicide

83
Id 14.
84
Id 15.
85
Id 16.
86
Art 114 of the Swiss penal Code. See also Le Roux (1979) De Jure 257.
87
Hurst and Mauron ‘Assisted suicide and euthanasia in Switzerland: Allowing a role for non
physicians’ (2003) 326 BMJ 271 273; Sobel ‘Outline of the campaign to decriminalise active
euthanasia in Switzerland’ www.exit geneve.ch/Exitdepangl.pdf (accessed 2007 01 18).
88
Id 271.
380 (2007) 22 SAPR/PL

may be inspired by altruistic motives. Article 115 of the Swiss Penal Code
considers assisted suicide a crime if, and only if, the motive is selfish.89 The
Code also does not require the involvement of a physician nor that the patient
be terminally ill.90
In Switzerland the development of assisted dying is based on two specific
prerequisites.91 The first is the non-penalisation of assisted suicide under
Article 115 and the second is the decision of the right-to-die organisation Exit
Deutsche Schweiz92 not to strive primarily for greater liberalisation of active
euthanasia in Switzerland, but rather to use the liberal legislation concerning
assisted suicide to offer such assistance on request to severely ill people
wishing to die.93 Since 1990, Exit has offered members suffering from a
disease with ‘poor prognosis, unbearable suffering or unreasonable disability’
and who wish to die, personal guidance through suicide.94 This is done through
the ingestion of a lethal dose of barbiturates prescribed by a physician with the
explicit intention of enabling the patient to end his life.95 The physician does
not have to be present when the act is performed.
In 1994 the Swiss Federal Council set up a Federal Commission of Experts
which included specialists in law, medicine, and ethics96 to examine active
euthanasia, especially Article 114 of the Swiss Penal Code.97 Concerning
punishment for assistance in suicide the article stipulates that: ‘He or she who,
prompted by an honourable motive, notably that of pity, has brought about the
death of a person upon the serious and insistent request of this person, will be
punished by imprisonment’.98 Following deliberations in 1999 the majority of
the working group proposed an amendment to Article 114, with a new
paragraph 2, which reads as follows: ‘If the perpetrator has brought about the
death of a person suffering in his or her health from an incurable illness which
is in its terminal phase, and this with the intent of bringing an end to his or her
unbearable and irremediable sufferance, the competent authority will renounce
taking legal action, sending the person to court, or imposing a punishment’.99
The majority of the group could not ignore the fact that the absolute protection

89
Art 115 of the Penal Code states: ‘Whosoever incites another person to commit suicide or helps
him or her to do so from motives of self interest, will be liable to a maximum of 5 years
imprisonment if the suicide is carried out or attempted’. Bosshard et al (2002) Swiss Med Wkly 530.
90
Hurst and Mauron (2003) BMJ 271.
91
Bosshardt et al (2002) Swiss Med Wkly 258 259.
92
Founded in 1982 in Zurich.
93
Bosshard et al (2002) Swiss Med Wkly 529.
94
Ibid.
95
Ibid.
96
Hurst and Mauron (2003) BMJ 271.
97
Sobel ‘Outline of the campaign to decriminalise active euthanasia in Switzerland’ www.exit
geneve.ch/Exitldepangl.pdf (accessed 2007 01 18).
98
Ibid.
99
Ibid.
Death with dignity in lieu of euthanasia 381

of human life may in certain cases become unbearable especially where

suffering can no longer be alleviated through appropriate measures.100 In
December 2001, the Swiss Parliament rejected an initiative requesting that the
proposals of the majority of the working group be put into practice. In the
same session, however, the Parliament also rejected another initiative which
intended to restrict assistance in suicide performed by right-to-die
organisations and to prohibit it completely for physicians.101

4.3 Requirements
Under Swiss law, if there is no self-interest on the part of the assistant then
there is no penalty for assisted suicide. This holds true for all cases in which
a person of age wishing to die is competent. Medical conditions to restrict
assistance in suicide are not given by the Swiss Penal Code. However, the
Zurich Administrative Court formulated more limiting conditions for
participating physicians. In addition to the mental competence of the person
wishing to die, the court stipulated ‘a medical indication in the sense of a
terminal illness with an inevitable progression to death’ as a minimal
requirement for physician-assisted suicide.
A central issue of the interpretation of Article 115 concerns the question
whether assisted suicide means by definition the oral route of administration. At
first widely unnoticed by the general public, Exit began, in 1997, to assist people
who wished to die but had difficulties in swallowing, by preparing lethal infusions
or even helping with the introduction of such substances into gastric tubes. These
cases have been classed – and thus tolerated – by the investigating authorities as
assisted suicide, since the final step causing death was actually carried out by the
person wishing to die. The term ‘assisted suicide’ is therefore interpreted far more
extensively in Switzerland than in Oregon.102
Switzerland also differs from Oregon concerning the monitoring of assisted
suicide cases. In Switzerland, health regulations require health care workers to
notify the police of all unnatural deaths which include suicide as well as assisted
suicide. These deaths are examined by the authorities.103 There is no central
registration body to which cases of assisted suicide must be reported. The Federal
Statistics Office does not keep any such data.104 In the case of suicide, mortality
statistics are based on the method employed and the cause of death. It does not

100
Ibid. ‘When in such a situation, a human being asks for death, it appears problematic, in the
eyes of the working group, to persecute and impose a punishment on the person who, in
relieving another person of a life which is no longer anything other than useless suffering,
commits an act of human compassion’.
101
Hurst and Mauron (2003) BMJ 272.
102
Bosshard et al (2002) Swiss Med Wkly 530.
103
Id 531.
104
Ibid.
382 (2007) 22 SAPR/PL

differentiate between ‘ordinary’ and assisted suicide.105 For statistics on assisted

suicides, Switzerland relies strongly on figures from the right-to-die
organisations.106 From the records of Exit Deutsche Schweiz it appears that
assistance was provided to 124 cases of suicide among Swiss residents in 2001.
This represents 0.2% of the 63 000 deaths occurring in Switzerland every year.107
These statistics unfortunately do not provide a full picture as the situation is
complicated by the fact that other right-to-die societies have been offering
assistance in suicide as well and there was an increase in ‘suicide tourism’.108
Figures from these societies are only partly known, but will probably be
considerably lower than those from Exit Deutsche Schweiz.109

4.4 Conclusion
Opposition to Exit Deutsche Schweiz has waned considerably in Switzerland.
A few physicians have even expressed a possible relief of their moral burden
by collaborating with right-to-die societies in a field that extends beyond
medicine.110 A family doctor recently reported on his collaboration with a
right-to-die organisation in the case of the suicide of a severely ill patient:
… to respect the freedom of a patient, to help him over obstacles, to guide him
through the twilight and confront death with him; this is all part of my work as
a doctor. But these tasks (respecting another person’s freedom, giving someone
support, confronting death) are by no means specific medical tasks but much
rather general humanitarian requirements. Therefore, why not suggest to others
people from the church, lawyers, and everyone who feel motivated that they
assist those close to them in committing suicide? 111
In 2001 the Swiss Academy of Medical Sciences stated in a press release
that, in contrast to their earlier position, they can now conceive that ‘in certain
situations, assistance in suicide may also be a medical responsibility’.112
Thus it seems that in Switzerland the way is basically open for regulation
of the role of the physician and for medical preconditions in assisted suicide.113
The more recent Swiss practice of assisted suicide by the parenteral or
intragastric route specifically allows assistance in dying by physicians.114
Having compared legislation concerning assisted suicide in Oregon and
Switzerland, the following conclusion may be drawn: The Swiss model is far

105
Ibid.
106
Ibid.
107
Ibid.
108
Ibid.
109
Ibid.
110
Ibid.
111
Ibid.
112
Ibid.
113
Ibid.
114
Id 533.
Death with dignity in lieu of euthanasia 383

more lenient in that it firstly, does not require the patient to be a Swiss resident
before assistance in suicide may be given. Switzerland is therefore open to
‘suicide tourism’ which is not possible in the state of Oregon. Secondly,
Oregon law requires the patient to be diagnosed with a terminal illness and he
must have no more than six months to live, requirements not applicable in
Switzerland. Thirdly, the most important difference between the two countries
concerning death with dignity is that in Oregon there is specific legislation
explaining where, how and under what circumstances a person may end his
life with dignity, while in Switzerland there are no such prescriptions in their
Penal Code. According to Swiss practice they simply do not prosecute people
who assist a patient to die out of compassion without self interest.

5 Recommendations
The purpose of this article is to suggest recommendations concerning death
with dignity115 in South Africa, since there has been no action following the
report of the Law Commission. At the beginning of this article it was
mentioned that developments in medical sciences can now prolong patients’
lives irrespective of whether it is meaningful or not. The effect of the Bill of
Rights and the Constitution in general on dying was also analysed. It appeared
that in terms of the constitution choosing one’s death and the right to die in a
dignified manner should be respected. The euthanasia debate therefore cannot
be ignored. Since euthanasia is, however, experienced negatively by many
people, a new approach is necessary.
The state of Oregon took the lead in this regard by formulating the Death
with Dignity Act. It is suggested that South Africa should follow their lead.
However, due regard should also be taken of the situation in Switzerland: A
positive aspect of the way in which people are allowed to assist a person to die
in Switzerland, is that a lay person with no interest in the death of the patient
may assist him in dying. In other words, he does it for humanitarian reasons
only. This may alleviate the psychological burden placed on attending
physicians or health care workers. But there should be strict regulations
prescribing when and how a person may assist a patient to die with dignity in
order to avoid abuse. In the latter instance cognisance should be given to the
stipulations in the Oregon act.
First, when formulating South African law it should be very clear that dying
with dignity should be voluntary. The patient requesting it, as well as the
person assisting the patient in administering the lethal substance (in other
words PAS), should do it without any pressure. It should be helpful, therefore,
if the patient can put his request in writing, signed by witnesses. It can also be

115
For a contrary opinion regarding the position in Australia, see Somerville ‘“Death talk”: Debating
euthanasia and physician assisted suicide in Australia’ The Medical Journal of Australia
file://C:\DOCUME~1\Breckke\LOCALS~1\Temp\EPRMYH62.htm (accessed 2007 04 24).
384 (2007) 22 SAPR/PL

stipulated that the request should be followed by a second request, in writing

or orally, about 15 days after the first. In the time between the two requests the
patient should receive counselling and the position should be discussed with
his family and friends in order to ensure that it is actually his wish to die.
A terminal illness is not a prerequisite for assisted suicide in Switzerland.
It is proposed that in South Africa, as in Oregon, it should be a requirement.116
The terminal aspect of the illness should be confirmed by a second
independent physician who is also an expert in the field of the specific illness.
The patient requesting death should be above 18 years and mentally
competent. The environment in which the patient chooses to die should be left
to his choice, be it a hospital, hospice or his own home. His attending
physician need not be present when he takes the lethal substance, but the
physician is required to prescribe the dosage as well as to deliver it to the
patient. Record should be kept by the physician of the prescription, the dosage,
as well as the date when the patient took it.
A specific clause in the South African legislation should state that no person
who has an interest in the estate of the patient may be allowed to assist with his
suicide as it may have an effect on the inheritance.117 Assisted suicide should also
be distinguished from ordinary suicide for insurance purposes. It should be seen
as death instead of suicide as the patient would have died in any event, death just
came sooner at his choice in order to be released from suffering.
The purpose of new legislation should not only be to assist the patient with
his desire to die in a dignified manner, but should also protect the person
assisting with his death as well as the physician. The physician should be
protected against prosecution in providing the lethal prescription. In other
words, in assisted suicide the physician will not be regarded as playing an
active role, this makes it different from the cases already dealt with in our
court system. Assisted suicide should not be viewed as ‘mercy killing’ or a
criminal offence. As assisted suicide is done by the patient himself, and
therefore no one should be blamed criminally.118
Finally, if someone has the right to life,119 can he then be denied the right
to end his life when his suffering becomes unbearable and life is no longer
meaningful?

116
For the meaning of terminally ill, see Rall (1977) SALJ 41 42.
117
According to the Common Law maxim: ‘Een bloedige hand erft niet’.
118
See also Le Roux (1979) De Jure 77.
119
S 11 Constitution of the Republic of South Africa 1996.