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Speaker 1: And next up that very important conversation, Professor Villam Lunt

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Speaker 1: Munche and co founder of Dignity Essay joins us on

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Speaker 1: the line. And yesterday, of course, at the media briefing,

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Speaker 1: Dignity Essay announced the landmark constitutional challenge to decriminalize medically

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Speaker 1: a sister dying in South Africa.

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Speaker 2: And I think we should be looking and exploring.

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Speaker 1: The maybe ethical gray zones that make South Africans an

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Speaker 1: easy Professor welcome, It's great to have you.

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Speaker 3: Good morning, Karence. It's a pleasure to be with you, a.

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Speaker 1: Prof Your application sites unbearable suffering as a cried tvon,

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Speaker 1: and I think it's an entirely subjective subject. I think

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Speaker 1: so a guide me on that how do we provide

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Speaker 1: this from you know, becoming a rubbers stamp for anyone

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Speaker 1: who's just simply tired of living?

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Speaker 3: Karens. I should preface what I want to say with

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Speaker 3: by making it clear that these questions, these questions of detail,

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Speaker 3: for example, making determinations about somebody's mental capacity, whether somebody

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Speaker 3: is acting under duress, etc. All of these will be

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Speaker 3: addressed eventually in the legislation that we ask Parliament to

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Speaker 3: enact to legalize as the medical assistance in dying, but

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Speaker 3: certainly when it comes to determining mental capacity. For example,

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Speaker 3: we already do it in life and death decisions, decisions

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Speaker 3: at the end of life. We do it when we

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Speaker 3: decide with the patient or with the patient sarrega decision

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Speaker 3: maker whether to discontinue or refuse treatment, withhold or withdraw

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Speaker 3: treatment when it comes to pain management that may hasten death.

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Speaker 3: So these are decisions that are already made, and there

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Speaker 3: are people who at the bedside determine the mental capacity

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Speaker 3: of patients. It's it's a standard procedure we we have also,

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Speaker 3: we foresee, as in other jurisdictions, that there will be

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Speaker 3: eligibility criteria. In other words, we would qualify in terms

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Speaker 3: of capacity, mental capacity, freedom of choice, et cetera. Where

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Speaker 3: it comes to suffering, suffering is has both subjective and

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Speaker 3: objective components. We can see whether somebody suffers, We see

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Speaker 3: how their bodies react, we can see how they behave,

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Speaker 3: and this is it is a standard way of determining

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Speaker 3: whether suffering occurs. But then people have different subjective responses

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Speaker 3: to suffering. Some people are, you know, to tolerate something

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Speaker 3: much much better than others. But what we are saying

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Speaker 3: is that there is must be intractable and unbearable suffering

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Speaker 3: caused by injury or terminal illness or irremediable illness. I

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Speaker 3: should maybe stop there, and you can you can take

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Speaker 3: those further if.

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Speaker 1: You wish, and and all of that is an objective conclusion.

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Speaker 1: Then I get to add prof I think it's it's

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Speaker 1: it's very difficult for us to navigate those ethical kind

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Speaker 1: of gray zones. Ends by propensity for the for the question,

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Speaker 1: and I want to stay there because we we can

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Speaker 1: talk about the principle of autonomy, but I think we

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Speaker 1: also need to talk about the principle of social justice

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Speaker 1: in a in a country that has just so much poverty,

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Speaker 1: and and and and the absence of palette of care

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Speaker 1: or maybe the absence of clean water. You know, those

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Speaker 1: are kind of issues as as well.

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Speaker 3: You're asking a number of very important questions. Maybe I

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Speaker 3: should start simply by by by saying that we have

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Speaker 3: a number of social practices that are that could be abused.

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Speaker 3: I want to use the analogy of somebody driving a

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Speaker 3: motor vehicle under the influence and causing the death of

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Speaker 3: another person. So we're not going to banish cars from

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Speaker 3: the road because some people abuse the practice. We're going

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Speaker 3: to try and control the practice better. We're going to

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Speaker 3: improve our controls and our management. It shouertainly be no

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Speaker 3: different for you know, assistance with dying, medical assistance in dying,

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Speaker 3: it is no different from other practices. It is possible

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Speaker 3: to abuse it. The important thing here is to look at,

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Speaker 3: for example, other jurisdictions where it is legal, and what

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Speaker 3: are their experiences, what do their annual reports say. Now

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Speaker 3: we have solicited that solicited the help of fifteen international

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Speaker 3: experts on four different countries, on four different continents, in

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Speaker 3: several countries where medical assistance in dying is legal, and

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Speaker 3: we have studied their arguments, We have studied the factual testimonies,

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Speaker 3: and we are convinced that should there be abused, should there,

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Speaker 3: for example, be somebody who is uh, you know, who's

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Speaker 3: assessed with dying, we should not have been. We should

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Speaker 3: not have qualified. That these are few and far between,

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Speaker 3: and in some jurisdictions that has never happened.

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Speaker 1: Maybe also just to help us to understand where the

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Speaker 1: common law or maybe the constitution is that in respect

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Speaker 1: of a sister dying, is there anything there.

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Speaker 2: Proof have we lost you?

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Speaker 1: It appears we've lost Professor William Luntmann. We'll just try

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Speaker 1: and get him in and get a sense of where the.

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Speaker 2: Law is at in respect of a sister dying.

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Speaker 1: But you're welcome, of course, to join the conversation via

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Speaker 1: WhatsApp and seven to five six seven one five six seven.

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Speaker 1: Better still, you can call an O two one four

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Speaker 1: four six five six seven and direct your questions directly

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Speaker 1: to Prof. Villain Villain Lundmann, chair and co founder of Dignity.

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Speaker 2: Say, prof is back, Welcome back, Prof Okay.

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Speaker 3: I don't know what happens there, Terence. But the common law,

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Speaker 3: there's a general prohibition in the common law of medical

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Speaker 3: assistants with dying. Is it constitutes a crime it intact

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Speaker 3: murder if all the elements of the crime is proven

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Speaker 3: are proven. So our common law says this is not one. Now,

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Speaker 3: there are two types of medical assistants were dying. The

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Speaker 3: one is where in both cases there needs to be

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Speaker 3: the means needs to be supplied, which which caused it?

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Speaker 3: And the administration can be by the person himself or

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Speaker 3: herself or by a doctor. Now a common law says

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Speaker 3: that both of these it doesn't matter whether you. The

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Speaker 3: final act is you are ingesting something which causes your death,

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Speaker 3: or whether a doctor or another healthcare worker you know

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Speaker 3: administers to you, it constitutes the crime of art murder

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Speaker 3: if all the elements are proven. So that's a situation

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Speaker 3: with a common law. Of course, when it comes to

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Speaker 3: self administration, it's difficult. When do you really help somebody?

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Speaker 3: If that person you know is accompanying somebody to Switzerland,

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Speaker 3: is that help issues? That's a gray area in our law.

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Speaker 3: So the law is very clear about that. Interesting thing

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Speaker 3: about the court our court cases, there have been a

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Speaker 3: number of court cases in the past fifty years. Our

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Speaker 3: judges have been reluctant to impose prison sentences. In fact,

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Speaker 3: they've never done that, which shows that they are uncomfortable

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Speaker 3: with a common law which considers medical assistance in dying

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Speaker 3: as on a are with killing in cold blood. The

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Speaker 3: important thing is that our Constitution is in direct opposition

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Speaker 3: to the common law and this has to be made clear,

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Speaker 3: be made clear by a court of law. And we

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Speaker 3: believe there are four pivotal constitutional rights that underpin and

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Speaker 3: support the right to be assisted in dying under certain

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Speaker 3: conditions under Title controlled.

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Speaker 1: Conditions, prevalence and last question, So you essentially asking the

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Speaker 1: court to force Parliament's hand. And the question is why

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Speaker 1: the judges they've been diligent and by and large why

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Speaker 1: in their judgment of important matters. Why are the judges though,

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Speaker 1: why is this not a matter of a national referendum.

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Speaker 3: Well, you see, a national referendum would be a political decision.

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Speaker 2: You see.

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Speaker 3: The judges they interpret the Constitution and they can say

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Speaker 3: we have law or a common law which has been superseded

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Speaker 3: by the Constitution and there's a tension, there's a contradiction

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Speaker 3: here that must be a resolved. In fact, the court

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Speaker 3: is strong of court into ten years ago already said

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Speaker 3: that there's a sufficiency in our law that will be

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Speaker 3: rectified when a proper case comes to court. And if

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Speaker 3: we're bringing a proper case to the court, where all

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Speaker 3: their arguments are put on the table. But the court

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Speaker 3: cannot write a law. The court can say that common

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Speaker 3: law is invalid and unconstitutional, but it cannot put something

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Speaker 3: in its place that manages the institution of medical assistance

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Speaker 3: in dying, so that the court doesn't write laws. Only

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Speaker 3: Parliament can, which is the highest elected democratic body in

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Speaker 3: the country, and they have to do it. But they

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Speaker 3: have to do it if the court tells them to

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Speaker 3: do it, which is what happened in Canada, which is

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Speaker 3: quite different from the United Kingdom, where simply don't they're

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Speaker 3: not guided by a constitution. They're simply to late this

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Speaker 3: in the heart of comments and the heart of laws,

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Speaker 3: and it depends which the MPs and lords can be persuaded.

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Speaker 3: But we have the guidance of the constitution like in

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Speaker 3: the same way as Canada.

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Speaker 1: Very fortunately, is it possible for us to hold on

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Speaker 1: to you for a short while longer. We've just have

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Speaker 1: so many voice notes and maybe we can play them

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Speaker 1: to you and you can respond. Could you stay on

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Speaker 1: the line for a for a short while, We've got to.

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Speaker 2: Go to the news lights.

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Speaker 3: Absolutely. It was communicated to me that I may, we.

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Speaker 1: Appreciate my time, We appreciate your time. Profit we'll be

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Speaker 1: back in a short while. But the time is ten

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Speaker 1: thirty one and standing by with eyewitness.

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Speaker 2: Welcome back to these ten thirty four exactly. My name Clarence.

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Speaker 1: This is Views and news Week together through the twelve

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Speaker 1: o'clock and I think this is such an important conversation

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Speaker 1: to have and we need to of course explore the

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Speaker 1: various issues at stake, and we are talking about Dignity Essay.

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Speaker 1: I have a launch on a landmark constitutional challenge for

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Speaker 1: assisted dying, and they launched yesday at a media briefing

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Speaker 1: and we are exploring some of the content of that

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Speaker 1: submission with Landmann Cha and co founder of Dignity Essays,

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Speaker 1: still on the line with us.

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Speaker 2: We appreciate your time and maybe.

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Speaker 1: We should go straight to the voice notes they've come

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Speaker 1: through on seven to five six seven one five six seven.

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Speaker 2: Let's take a listen to Sue.

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Speaker 4: With regards to dignity is as case. There's so many

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Speaker 4: old people in very much pain, and as you mentioned,

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Speaker 4: Clarence would like to leave planet Earth, but suicide is

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Speaker 4: not really an option because they know that suicide is

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Speaker 4: not easy to do. My husband's a clinical psychologist and

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Speaker 4: he told me that eighty percent of cases are not

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Speaker 4: successful and you can even do yourself a great deal

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Speaker 4: of harm doing it and leave yourself in a worse

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Speaker 4: of position by.

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Speaker 1: A Lantman, do you want to respond to Sue Karents.

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Speaker 3: I think you know this is an issue that you're

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Speaker 3: also raised that I don't think I've answered properly, and

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Speaker 3: that is the issue of suffering. Just before my answers

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Speaker 3: to I just want to say that in our funding

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Speaker 3: affidavit we rest our case on, amongst others, on eleven

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Speaker 3: case studies of people who's suffering was unbearable and intractable

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Speaker 3: and they wanted medical assistance in dying, that it was illegal.

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Speaker 3: So it's nice to focus on it's, you know, on

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Speaker 3: clear cut cases of suffering that qualifies for medical assistance

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Speaker 3: in dying. So we will get cases where you say, no,

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Speaker 3: this person does not qualify. This person's just pretty depressed

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Speaker 3: or whatever the case may be. And then there are

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Speaker 3: clear cusses of excruciating suffering where there's no escape other

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Speaker 3: than two you know, to be assisted with dying, and

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Speaker 3: then there are gray areas in between. Now, Sue raises

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Speaker 3: a very important point. Older people with pain will wish to,

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Speaker 3: you know, consider themselves as having had a completed life.

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Speaker 3: Doing it by themselves or anyone doing it by himself

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Speaker 3: or herself is not on because it can just make

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Speaker 3: everything worse. And basically it's a lonely deed. You you

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Speaker 3: abandoned and you left your own devices. So all I

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Speaker 3: can say is that if there's legislation, there will be

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Speaker 3: clear guidelines for wool is energible will qualifies what are

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Speaker 3: the conditions you know, that you are competent, that you're

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Speaker 3: suffering is of a certain kind, that you're not under

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Speaker 3: the arrest, that you're making a decision of your own

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Speaker 3: free will. And then there are all sorts of safeguards

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Speaker 3: that don'ts But look at you two doctors at least

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Speaker 3: independently and like their assessments. So yes, there are older

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Speaker 3: people who come towards the end of life that life

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Speaker 3: is difficult. I mean, the whole equation is that life

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Speaker 3: usually is good and death is bad. But life may

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Speaker 3: progress for some people in a way where death is

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Speaker 3: actually good and life is bad. The death is there

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Speaker 3: is escape. But in terms of public policy, in terms

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Speaker 3: of legislation, we'll have to have criteria that we hope

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Speaker 3: would cater for the you know, capture the worst cases

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Speaker 3: of sufferings.

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Speaker 1: And we've got this one from Bruce as well. Let's

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Speaker 1: take a listen to it and we can wrap up

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Speaker 1: after that one.

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Speaker 2: This is Bruce for Somerset rest.

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Speaker 5: I think there's a bit of a gray area with

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Speaker 5: regards to this, because if a person ever chose to

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Speaker 5: be born, what right does the government.

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Speaker 2: Have in.

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Speaker 5: Not allowing them to take their life. I mean there's

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Speaker 5: a bit of a contradiction where suicide is concerned in

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Speaker 5: the normal conventional way. Who's held your account for that?

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Speaker 5: You can't arrest somebody who's killed themselves already, So assisted

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Speaker 5: suicide or euthanasia would be more humane. If a person

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Speaker 5: decides that he doesn't want to be on this earth anymore,

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Speaker 5: it's not the government's decision to determine whether he can

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Speaker 5: or not, because the government didn't decide whether that person

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Speaker 5: was going to be born or not in the first place.

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Speaker 5: So the less government get involved in this and the better,

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Speaker 5: it's down to the individual who decides whether they want

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Speaker 5: to be on this earth or not.

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Speaker 1: Yeah, And I think we've got to talk, just in

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Speaker 1: closing then, about the role of palliative care and hospice

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Speaker 1: and people's inability to access it to what extent.

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Speaker 2: May it remove some of the pain.

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Speaker 1: And I'm not talking about the physical pain, but the

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Speaker 1: kind of responsibility because of the lack of autonomy that

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Speaker 1: you bring onto your loved ones.

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Speaker 3: I think you're raising a very important question, and I'll

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Speaker 3: make some remarks about what Bruce has said palet of

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Speaker 3: care is non negotiable pain management and palette of care

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Speaker 3: in general is not at the serial to medical assistance

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Speaker 3: in dying. And we see it as an endpoint of

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Speaker 3: palette of care in certain circumstances where where there is

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Speaker 3: no way out and that palet of care no longer helps.

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Speaker 3: And if you look at the case studies we take

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Speaker 3: to the court, you'll see that there was no way out.

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Speaker 3: But it means no other way out than medical assistance

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Speaker 3: were dying. But it means that palative care needs to

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Speaker 3: be up to a certain standard. And it's interesting that countries,

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Speaker 3: some of the countries where they have legalized medical assistance

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Speaker 3: in dying, that they have passed parallel dolls legislation stepping

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Speaker 3: up palette of care. And a very interesting observation I

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Speaker 3: want to make is that in all the digits, particularly

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Speaker 3: some of them where they have legalized medical assistance in dying,

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Speaker 3: and to remember it includes countries in this in South

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Speaker 3: America like Cuba or big trend Cuba also where they

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Speaker 3: introduced where they legalized medical assistance in dying paneative care,

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Speaker 3: the quality really improved marketing. If we introduce this, it

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Speaker 3: will only be introduced in facilities where paneative care is

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Speaker 3: up to a certain standard, and if that is not there,

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Speaker 3: we cannot we cannot have it.

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Speaker 1: And I think you bring a great understanding of the

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Speaker 1: very many moving parts profit.

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Speaker 2: I think we need a lot more time than we

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Speaker 2: have available