I’ve never spoken with or had any dealings with Robin Stransham-Ford. But I now know enough to conclude that he was a man of great courage.
Stransham-Ford died last week. His prostate cancer had metastasised to his spine, kidneys and lymph nodes.
Stransham-Ford had applied to the North Gauteng High Court asking that if his doctors helped him die, to absolve them from legal culpability. Poignantly, just hours before a landmark judgment in his favour, he died.
Some people who are medically at the brink of death manage to rally for a while. Often this is driven by wanting to reach a fiercely desired goal — the birth of a longed for grandchild or the final embrace of a loved one travelling from afar. With Stransham-Ford, in his day an advocate of some renown, the goal was to live long enough to shepherd his court application through the slow mills of justice.
Just before judgment was passed there was yet another delaying application from the respondents — the ministries of health and justice, the health professions council, and the national director of public prosecutions. With reluctance, Judge Hans Fabricius conceded a brief overnight recess.
That was long enough to deprive Stransham-Ford of his dream. He could hang on no longer and died at 8am on the following morning. The respondents immediately demanded that the judgment against them be nullified by his death, an argument Fabricius rejected.
The issue of assisted dying is complex. It is a balancing of individual constitutional freedoms, the medical mechanics of prolonging the circulation of air and blood, the need to protect the frail and vulnerable from exploitation, and a democratic state’s duty to ensure that no one is compelled to act against the dictates of conscience and beliefs.
These issues, Fabricius points out, will ultimately have to be resolved by the government through legislation or by the Constitutional Court in terms of the Bill of Rights. Fabricius’ judgment dealt with the assisted death of only a single person, Robin Stransham-Ford.
In 1999, at the request of former president Nelson Mandela, the SA Law Commission (SALC) under former chief justice Ismael Mahomed thoroughly investigated assisted dying, presenting legislative options to allow it. Although its recommendation was accepted in principle by the government, it was never acted upon.
The official explanation dished up to Fabricius was that there was no time, since HIV and Aids had become the government’s overriding focus. Truth is, it was a change not in government priorities but in government attitudes, that caused the commission’s proposals to be shelved.
There are two factors behind the now definite, albeit incoherently articulated, government opposition to assisted dying.
The first is cultural. Despite South Africa’s modern, secular constitution, the African National Congress is increasingly traditionalist, socially conservative and fundamentalist.
The second is ideological. The state respondents argued that to allow Stransham-Ford a court-sanctioned private arrangement for dying “would be tantamount to promoting inequalities and discrimination of the poor, by limiting access to the courts to the rich”.
This is a profoundly anti-progressive view cloaked in egalitarianism. It is akin to saying that nobody can have a transplant unless everybody can. It’s also an intellectually treacherous path, which could even lead some to the conclusion that a former ANC health minister should not have had a liver transplant, since not everybody else could.
Fabricius’ ruling in favour of Stransham-Ford leaves the government in something of a pickle. It opens the courtroom door to other terminally ill people to seek approval for assisted dying on a case-by-case basis.
Health Minister Aaron Motsoaledi blusters about appealing “all the way to the Constitutional Court”. But on the jurisprudential merits of Fabricius’ ruling — bolstered by the SA Law Commission’s similar conclusions — the state might very well lose in the Constitutional Court. Its best hope then is to overturn the ruling on a technicality, such as the death of Stransham-Ford prior to it being handed down.
Medical reports before the court show that Stransham-Ford’s final months were dire. He was constipated, nauseous and vomiting. He was hooked to a catheter and various intravenous drips. He had stomach cramps, no appetite and was skeletal, too weak to get out of bed and unable to see to his own hygiene.
His options were to endure severe pain and anxiety or to take the opioids that rendered him confused, unaware of his surroundings and his loved ones.
But such a death, contends the government submission, is not undignified. His suffering, says the government submission, is “subjective” and in any case, “natural”.
Fabricius’ judgment, rendered under the pressure of an applicant’s dying agony, is solidly persuasive but plainly written. However, he quotes approvingly Judge Kate O’Reagan’s elegant summation, from another case, of the nub of the matter:
“So the rights to dignity and to life are intertwined. The right to life is more than existence, it is a right to be treated as a human being with dignity. Without dignity, human life is substantially diminished.”
Stransham-Ford said the same thing in a different way, in his submission: “It is universally accepted that to permit an injured or sick animal to suffer is not only merciless and cruel, but a crime. Why can the same dignity not be accorded to me?”
Robin Stransham-Ford was stripped of dignity in his own death. He endured it in the hope that death with dignity will one day be accorded to others.
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