MHM Magazine

24 | MENTAL HEALTH MATTERS | 2025 | Issue 1 MHM have the agency to choose their preferred course of action. This shift from medical paternalism to patient autonomy has redefined the dynamics of decision-making in healthcare. Doctors no longer dictate treatment plans; instead, they present options, allowing patients to make informed choices. Once a decision is made, physicians are obligated to respect and follow through with the patient’s wishes, regardless of their personal beliefs about the choices made. The concept of competence and capacity is crucial in determining a patient's ability to make informed healthcare decisions. Competence refers to a patient's capacity to understand relevant information, appreciate the situation and its consequences, rationally process the information, and express a choice. Conversely, a patient may lack capacity if they can’t understand or retain the information necessary for making a voluntary choice. In complex cases, a multidisciplinary team, including psychologists, may be involved to support patients in making informed decisions. A pertinent question arises: does pain alone negate a patient’s decision-making capacity? Research indicates that medical decisions made by patients suffering from terminal illnesses, such as cancer, are generally respected. It would be unreasonable to assume that a patient lacks decision-making capacity simply because they request a medically assisted death. This raises a critical introspection for the medical profession: are healthcare providers equipped to assess decision-making capacity accurately? The assumption that some patients lack capacity should not preclude a thorough evaluation of each request on an individual basis. The argument regarding competence has been a significant reason for maintaining the illegality of assisted dying. However, this perspective suggests a deficiency in physicians' ability to assess patient competence, which also raises questions about the validity of informed consent across various treatments. In this context, the argument against assisted dying based on perceived lack of competence becomes problematic. The underlying issue may not be competence but rather moral considerations. The prevailing moral framework allows patients to endure protracted, painful deaths while simultaneously placing physicians in the position of facilitating such suffering. In South Africa, assisting another person in committing suicide falls under homicide laws, whether through direct administration of a lethal substance or providing tools for self-harm. Current common law definitions encompass medically assisted deaths, categorising them as murder. Thus, both PAS and PAE are criminal offenses. Some jurisdictions have decriminalised these practices under specific conditions, recognising patients' rights to request and consent to assisted dying. However, South African law does not recognise consent as a valid defence against murder charges in cases of assisted dying. In contrast, passive euthanasia—such as withdrawing or withholding treatment or administering palliative care—has been accepted as a lawful means of causing death, provided the patient consents. This approach is not categorised as murder, even if it hastens death. The distinction between active and passive euthanasia highlights the complexities of the legal and ethical considerations surrounding assisted dying. The debate surrounding the decriminalisation of voluntary active euthanasia (VAE) resurfaced in 1998 when the South African Law Reform Commission explored arguments for and against its legalisation. A draft bill was prepared, but legislative progress has stalled. The case of Stransham-Ford reignited discussions, though the court did not implement immediate changes. The Supreme Court of Appeal suggested the law might evolve to accommodate lawful forms of medically assisted dying, contingent upon a thorough investigation of the reasons for the current illegal status. Central to this discourse is the balance between autonomy and the protective measures that limit it. Advocates for decriminalising VAE argue that existing limitations infringe upon constitutional rights to dignity, life and privacy. Conversely, opponents maintain that such restrictions are necessary to protect these same rights. Analysing these rights and divergent arguments is essential for determining whether reform is justifiable and reasonable within a constitutional framework. The research surrounding my PhD thesis, supported the conclusion that the status quo regarding assisted dying as being increasingly untenable in light of constitutional advancements, particularly concerning the right to dignity. It suggests that assisted dying could be decriminalised under strict conditions, confining the practice to VAE within a medical context. This would signify a shift away from criminalisation to a form of regulated and monitored end-of- life healthcare, particularly the decision of how and when to end one’s own suffering. The goal is to allow patients to frame their own vision of a dignified end would be. Ultimately, this discussion advocates for a pro-choice stance rather than a strictly pro-life or pro-death position. Respecting patients' rights to make informed decisions about their own lives and deaths aligns with the principles of constitutionalism in a democratic state. Acknowledging and addressing the complexities of informed consent, patient autonomy, and the ethical responsibilities of healthcare providers is crucial as society navigates the challenging terrain of assisted dying legislation. The goal should be to ensure that patients can make choices that honour their dignity and autonomy, while also providing healthcare professionals with clear guidelines and protections as they navigate these sensitive issues. References available on request. MHM | 2025 | Volume 12 | Issue 1 | Informed consent and decision-making capacity in the debate on assisted dying – autonomous and dignity affirming decision making and the role of health care professions. H