Developing the common law crime murder in relation to physician-assisted suicide and physician-assisted euthanasia: Revisiting the missteps of Stransham-Ford v Minister of Justice and Correctional Development 2015 (4) SA 50 (G)

Résumé 0

The paper reflects on the court’s attempt in Stransham-Ford v Minister of Justice and Correctional Services to develop the common law in relation to physician assisted suicide and physician assisted euthanasia. It does so by first considering whether lawful avenues which may potentially curtail life bring meaningful relief for persons facing terminal illness and intractable suffering. The paper demonstrates that these avenues do not provide an assurance that the dying process will be quick, painless and dignified. In some instances, these avenues may even lead to protracted suffering.It is these considerations that prompted Stransham-Ford to request the High Court to develop the common law. In turn, the paper considers the missteps of the court’s attempt to develop the common law. It does so by considering whether the court followed a proper remedy when it held that the prohibition on physician assisted euthanasia and physician assisted suicide requires development to give effect to Stransham-Ford’s constitutional right to dignity and freedom of bodily and psychological integrity. Turning to the thesis of the research, the paper argues that the court adopted a remedy that was inappropriate for developing the common law. The court erroneously used a remedy that is reserved for invalid statutory provisions. In doing so, the court overlooked the demands of section 39(2) read with section 173 of the Constitution. Remedies that are appropriate in matters dealing with breaches of the Constitution by common law principles are referred to and discussed. Furthermore, the research considers which of the available common law remedies would have been constitutionally sound in the circumstances of the case.