1.1 Errors in the Fabricius Judgement

ERRORS IN THE JUDGEMENT

Judge fails to correctly understand correctly or rebut the prevailing medical ethical position
Judge selectively applies his own position on the role of religion and philosophy
Judgement repeats list of medical errors despite rebuttal
Judgement incorrectly cites the South African Law Reform Commission
Substantive arguments incorrectly cited
Recommendations incorrectly cited
Claim SALRC report did not go to parliament
Misinterprets constitution on dignity
Failure to correctly consider the ‘Right to life’
Failure to give primacy to the right to life
Incorrectly defines the Right to life
Muddling the Sanctity of Life
Muddles first generation rights and second generation rights
Citation of applicant view in cited case law rather than judgement
Fails to differentiate between legal positions on issue elsewhere in world
Muddling of the difference between humans and animals
Dismissal of risk of ripple effect and impacts on vulnerable
Comparison with Environmental Social Impact Assessment Requirements
Applicant and judge refuses to identify the medical practitioner authorised to kill
Incorrect citation of medical ethical requirements
Attacking ethical boundaries without defining new ones
Elitist decision making
Claims he is developing the common law
Errors in the Judgement

Judge fails to correctly understand correctly or rebut the prevailing medical ethical position

• The judge clearly does not agree with the logic of the prevailing ‘Sanctity of Life’/ Hippocratic oath status quo legal-medical-ethical position regarding ethical boundaries in end of life decisions and advocates one based instead on maximising ‘quality of life’ (page 41).
• Nevertheless, in attempting to rebut the opposing position, he fails anywhere in his judgment to clearly and correctly state and rebut it. Instead in attempting to do so, he fudges and muddles different issues together into a confusion, misrepresents it and then attacks this as logically inconsistent. It appears logically inconsistent, only because he misrepresents the opposing alternative view. The apparently learned judge fails to understand the core argument or prevailing medical ethical position, but only his own position.
• He fails to understand what the whole of the medial profession potentially affected by this judgement does understand and what in fact the overwhelming majority of citizens of South Africa believe.
• The judge has thus acted without properly applying his mind.

Judge selectively applies his own position on the role of religion and philosophy
• During the trial, the judge argued that religion and philosophy were interesting, but not relevant to the legal decision. Nevertheless, in his judgement he:

i. Acknowledges that philosophy overlaps with jurisprudence.
ii. Attempts to hijack a the ‘Sanctity of life’ argument, by imposing the religious concept of ‘sanctity’ on ‘The sanctity of the quality of life’ – something not supported by any religion.
iii. Calls the euthanasia killer ‘a Samaritan’ again alluding incorrectly to a biblical metaphor (page 7, para 5.3).

• The judge uses this argument selectively as a razor to dismiss arguments that don’t favour his position, but then will happily ignore the criterion when he believes they favour his position.
• The judge contrary to his own claims, does make use of religious pre-suppositions in his decision, but does so:
– Skilfully dressed up as legal argument.
– Muddling and confusing the religious concepts that the cites. These misunderstandings could have been remedied had the trial not been rushed.

Judgement repeats list of medical errors despite rebuttal
• The judgement repeats multiple medical errors in the applicants affidavits despite being previously rebutted by two medical affidavits by the respondent and amicus (see previous discussion on this above). See pages 12-13 of judgement.
• Judgement does cite one of the medical rebuttal points, but then seems to ignore its significance to the case and assumes the opposite claim by the applicant is true. This point of dispute was thus never resolved in court.
• Errors cited in the judgment include the claim the applicant may otherwise breathe his last breath on a machine and in a hospital, both of which he has every right to refuse.

• The judgment (page 20) stresses the reasons that:
 The applicant is fully aware of the treatment alternatives available to him. Nevertheless, this is incorrect, since the applicant describes these alternatives incorrectly.
 The applicant has no alternative to be released from unbearable suffering.

Judgement incorrectly cites the South African Law Reform Commission
Substantive arguments incorrectly cited
• The judgement cites arguments in favour of euthanasia in the South African Law Reform Commission Report, 1999. Nevertheless, the report actually summarises arguments in submissions for and against euthanasia and the judge simply copies the set of arguments in favour of euthanasia, without referencing the heading in the report i.e. Arguments in favour of euthanasia. He fails to similarly reference the arguments against euthanasia and incorrectly claims this list of arguments in favour of euthanasia is the view of SALRC, which they explicitly stated they did not.
Recommendations incorrectly cited
• The judgment claimed the SALRC recommended legalisation of euthanasia. It did not. It specifically stated in multiple places that it did not make such a recommendation but put this forward as one alternative (see previous discussion).
• The judgment also cites a legal textbook, which also incorrectly cites the SALCR on this issue.
Claim SALRC report did not go to parliament
• The attempt here is to portray parliaments rejection of these proposals as neglect on their part, and in effect to try to fill the gap of neglect rather than what it is, an attempt to usurp the constitutional role of the legislature.

Misinterprets constitution on dignity

The SA Bill of Rights says on Dignity “10. Everyone has inherent dignity and the right to have their dignity respected and protected.”

• Firstly this refers to inherent dignity. The judgment does not seem to understand this concept, which is linked to the Sanctity of Human Life, but rather advocates subjective relative dignity. The judgment fails to understand the difference or the affidavits submitted to this effect.
• Secondly this protects people from other people who may abuse such dignity. It does not protect people from the indignities that may arise from natural processes and the circumstances of life – as the judgment tries to do in this instance.
• Thirdly, rights must be balanced with other rights. The judgment places the right to dignity as paramount and gives ‘trump rights’ to his incorrect interpretation of the right to dignity above the right to life.

Failure to correctly consider the ‘Right to life’
Failure to give primacy to the right to life
The judgement fails to consider the Right to life in its summary of the relevant parts of the Bill of Rights (page 16-18) but simply cites dignity.
Incorrectly defines the Right to life
Later in the judgement he redefines the ‘Right to life’ as a right to experience of quality of life. No correct definition of the Right to Life is given. An incorrect ‘straw man’ definition of the opposing view is given and then falsely rebutted without considering the correct definition.
Muddling the Sanctity of Life
• The judgement refers to the ‘Sanctity of the quality of life’, which is an attempt to ignore the issue of the Sanctity of life by muddling it with Quality of life.
• ‘Quality of life’ is not in the Bill of Rights at all. If it was to be found indirectly in the Bill of Rights by a ‘creative’ judge, it would have to be interpreted and ‘read in’ indirectly via the rights to education, housing and healthcare – with the qualification that the state must progressively realise these. The scope of such a right is very limited to the topics mentioned in the Bill of Rights and not an absolute right comparable with the Right to life, let alone replacing it. Quality of Life cannot thus be read to trump the Right to Life.

Muddles first generation rights and second generation rights
• The judgement fails to consider the difference between first generation rights (inherent rights) which are absolute and second generation rights (socio-economic rights) which are relative to the state’s capacity to assist people (page 29).
• When the Bill of Rights was drafted, I opposed the inclusion of second generation rights in the Bill of Rights exactly because of the risk of this manner in which second generation rights undermine inherent rights. These were included as a result of the specific historical context.
• The second generation rights (e.g. Right to housing, education, and healthcare are qualified in the Bill of Rights with the words ‘progressive realisation’ which acknowledges the state does not have the resources to give these to everyone and thus they are not absolute).
• The judgement thus muddles weight that should be attached to the two types of rights and then reinterprets the first generation rights (e.g. Right to life and dignity) as if they were second generation rights (e.g. Right to quality of life and extra-ordinary medical treatment).

Citation of applicant view in cited case law rather than judgement
While the judgement does refer to case law, it is selective in such citation and frequently quotes the contention of the applicant rather than the judgement (example page 28). Many people make claims in applications to the court, which do not and should not become precedent. He should be citing the conclusions of the judgment and not just the selected claims of the applicants favouring his position.

Fails to differentiate between legal positions on issue elsewhere in world

The judge cites on page 37, eleven legal jurisdictions which allow for euthanasia and assisted suicide as precedent. Nevertheless, he fails to differentiate between the actual laws in these jurisdictions: i.e. between allowing denial of sustenance, lethal prescription to assist suicide and active euthanasia. In fact only three of these jurisdictions have current active euthanasia, which is what he permits in his court ruling. These three Benelux countries are tiny and make up less than half a percent of the world’s population. The judge is apparently unaware of the radical nature of his ruling in relation to international precedent.

Muddling of the difference between humans and animals

The judgment fails page 33-34 to consider the difference both in law and reality between animals and humans. The applicant supported by the judge cites how animals are euthanased to relieve suffering.

This fails to consider that animals are not given palliative care precisely because they are animals and have lesser dignity and no right to life as people do. In wishing to treat people like animals the judgment is lowering and not raising the dignity of people.

Taking that logic to its absurd conclusion, should we also allow people if they so request to voluntarily contract themselves into slavery to be sold, branded, neutered and housed like animals? No. Because people and animals are different. The judgement fails to acknowledge this basic distinction.

Dismissal of risk of ripple effect and impacts on vulnerable
The judgment without any evidence or consideration of social impacts in other countries dismisses such concerns (page 34). There are a number of problems here:
• Firstly a failure to consider that the abuses in the countries with legal euthanasia (in Benelux)
• Secondly a failure to consider scope creep of the criteria for euthanasia (in Benelux)
• Thirdly, a failure to consider scope creep in the criteria for euthanasia already being demanded by the euthanasia lobby in South Africa.
• Fourthly, a failure to consider such scope creep over the longer term.
• Fifthly a failure to consider that South Africa has a struggling regulatory system much weaker than that in Benelux.
• Sixthly a failure to consider the greater number of terminally ill (HIV) patients in South Africa.

Comparison with Environmental Social Impact Assessment Requirements
• We have here an ironic situation, where engineering projects of comparatively trivial social impact are required to undertake a detailed ‘Social Impact Assessment’ under National Environmental Management Act regulations.
• The courts are frequently approached for relief if they believe such impact assessment is inadequate or if there has been inadequate consultation.
• Nevertheless here a much bigger social impact risk is dismissed without any evaluation.

Applicant and judge refuses to identify the medical practitioner authorised to kill

• The court order fails to identify the medical practitioner authorised to kill the applicant When challenged the judge argued this was a privacy issue (Judgement page 44). Nevertheless, this is problematic for a number of reasons:
• It is legally irregular since the specific court order is really in favour of the doctor and not the suicide applicant. The doctor is the one who would be breaking existing law. There is no law against suicide in South Africa but only assisting suicide.
• This ‘privacy’ right granted by the judge then implicitly violates the right of the patients of that doctor to know that their doctor is a killer.
– Most patients would not want to be treated by a doctor who is killing other patients
– Most people would they trust their grandmother to be treated by a killer doctor.

Incorrect citation of medical ethical requirements

The judgment page 48 cites a legal masters thesis discussing ethical considerations used by the doctor in caring for the dying patient. The only issue cited is quality of life and dignity. There are multiple other ethical requirements considered by doctors in caring for patients and this requirement is not central. This is a case of lawyers not understanding the ethics of another profession. Considering the correct spectrum of medical ethical criteria would have yielded a different result.
Attacking ethical boundaries without defining new ones

• The judgment attacks various existing recognised ethical boundaries. In doing so it muddles the issues, for example in failing to draw a distinction between ordinary care and extra-ordinary care.
• While trying to destroy existing ethical boundaries it fails to define any new ones that are legally defensible. In doing so, it creates an ‘open season’ for legal applications of a similar nature to be brought to courts, without any firm criteria to consider them. It then allows a situation where these may be incrementally pushed one case at a time, since once this clear boundary is crossed, there is no other boundary.

Elitist decision making
• The judge dismisses the views of the majority of South Africans as well as those of religious bodies as irrelevant, but gives weight to academic views (judgement page 49-50) which conveniently fit his views. Nevertheless, the entire attitude of his judgement in thinking he has some sort of right to overturn the Bill of Rights, the democratic majority, the parliament with a fiat judgment is elitist in the extreme.
• He is trying to see what he can get away with. South Africans need to put a stop to this kind of judicial power abuse.

Claims he is developing the common law

The judge claims he is developing the common law (page 52-53). Nevertheless, this is an extreme departure from the common law, attempting to change 1500 years of Roman law and 2400 years of Hippocratic Oath medical ethics and the considered decision of the state and legislature in one lower court judicial fiat.