Clarke v Hurst

Clarke v Hurst

Clarke v Hurst NO and Others[1] is an important case in South African law, with significant ramifications for the legal status of euthanasia. It was heard and decided by Thirion J in the Durban and Coast Local Division on July 30, 1992, and is distinguished from S v Hartmann not only in that it was a civil rather than a criminal matter, but also by the court's divergent finding.

Contents

Facts

Dr Frederick Cyril Clarke was a life member of the SA Voluntary Euthanasia Society. In 1988, he suffered cardiac arrest and was reduced to a vegetative state. Dr Clarke had signed a living will, requesting of his family and physician that, in the event of there being no reasonable expectation of his recovery from an extreme physical or mental disability, he be allowed to die rather than live by artificial means. His wife duly applied to be appointed his curatrix personae, with the power, even were this to result in his death, to authorise the discontinuance of his treatment.

The Attorney-General opposed the application, arguing that Mrs Clarke was effectively asking for a declaratory order to end a life, and declined to undertake not to prosecute if this should transpire.

Findings

The court determined that "it is but right" that Mrs Clarke should have the legal position on this matter determined by a court, "which can view the evidence dispassionately and objectively."[2] It weighed with the judge that Dr Clarke was himself a strong proponent of euthanasia; as to the question of whether or not the discontinuance of artificial feeding (and the likely resultant death) would be unlawful, Thirion had to determine whether or not it was reasonable, judged by the boni mores of society.

This question he found to be contingent on the quality of life which remained to the patient. In this regard, it was notable that, although Dr Clarke was still alive and his death was not imminent, his brain had "permanently lost the capacity to induce a physical and mental existence at a level which qualifies as human life."[3] It was clear, in light of this, that the feeding of the patient did not serve the purpose of supporting human life (as judged by the legal convictions of the society), and that "the applicant, if appointed as curatrix, would act reasonably and would be justified in discontinuing the artificial feeding and would therefore not be acting wrongfully if she were to do so,"[4] even if death were to ensue.

Although "her conduct would not be justifiable in law on any of the grounds of justification ('regverdigingsgronde'),"[5] it was not necessary that Mrs Clarke's actions fit neatly into one of the established grounds of justification; rather, the concept of wrongfulness had itself to be examined.[6] If the legal convictions of the society did not regard such actions as wrongful, they could not be wrongful in law; and it was no obstacle to this reasoning that legal convictions are very often shapted by moral convictions.[7] "The distinction between what is wrong and what is right," Thirion noted, "cannot always be drawn according to logic. Logic does not dictate the formation of society's legal or moral convictions."[8] He added that "law is but a translation of society's fundamental values into policies and prescripts for regulating its members' conduct."[9]

The application was therefore granted, and the court ordered that Mrs Clarke would not be acting wrongfully or unlawfully

  1. "if she authorises or directs the discontinuance of the naso-gastric or any other non-natural feeding regime for the J patient"; and/or
  2. "if she withholds agreement to medical or surgical treatment of the patient save such treatment as may seem to her appropriate for the comfort of the patient."[10]

References

  • Clarke v Hurst NO and Others 1992 (4) SA 630 (D).

Notes

  1. ^ 1992 (4) SA 630 (D).
  2. ^ 637B.
  3. ^ 659A-B.
  4. ^ 569B-C.
  5. ^ 650H. That is to say, it would be wrongful and unlawful.
  6. ^ 660A.
  7. ^ 652G.
  8. ^ 657F.
  9. ^ 652G-H.
  10. ^ 660I-J - 661A.

Wikimedia Foundation. 2010.

Игры ⚽ Нужно сделать НИР?

Look at other dictionaries:

  • Geoff Hurst — Geoffrey Hurst Pour les articles homonymes, voir Hurst. Geoffrey Hurst en 2008. Sir Geoffrey Charles Hurst est un ancien footballeur an …   Wikipédia en Français

  • Geoffrey Hurst — Pour les articles homonymes, voir Hurst. Geoff Hurst …   Wikipédia en Français

  • Kenneth Clarke — This article is about the politician. For other persons with similar names, see Kenneth Clarke (disambiguation). The Right Honourable Kenneth Clarke QC MP Cla …   Wikipedia

  • Ryan Hurst — Infobox actor imagesize = 150px birthdate = Birth date and age|1976|6|19|mf=y birthplace = Santa Monica, CaliforniaRyan D. Hurst (born June 19, 1976) is an American actor who perhaps most notably starred as Gerry Bertier, an All American… …   Wikipedia

  • Ryan Hurst — Ryan Douglas Hurst[1] (* 19. Juni 1976 in Santa Monica, Kalifornien) ist ein US amerikanischer Schauspieler. Seine bekannteste Rolle ist die des Star Linebackers im Disney Film Gegen jede Regel Inhaltsverzeichnis 1 Leben 2 Filmografie …   Deutsch Wikipedia

  • Ryan Hurst — Données clés Nom de naissance Ryan D. Hurst Naissance 19  …   Wikipédia en Français

  • Billy Clarke — Pour les articles homonymes, voir Clarke. Billy Clarke …   Wikipédia en Français

  • Allan Clarke — Pour le chanteur des Hollies, voir Allan Clarke (musicien). Allan John Clarke (né le 31 juillet 1946 à Willenhall) est un ancien footballeur et entraîneur de football anglais. En tant qu attaquant, il fut international anglais à 19… …   Wikipédia en Français

  • England national football team results — This is a list of the England national football team results from 1966 to the present day.Forthcoming Fixtures*2010 FIFA World Cup Qualification Group 6: **England v Belarus, 14 October 2009 **Ukraine v England, 10 October 2009 **England v… …   Wikipedia

  • Chelsea F.C. — FC Chelsea Voller Name Chelsea Football Club Ort London Chelsea Gegründet 14. März 1905 …   Deutsch Wikipedia

Share the article and excerpts

Direct link
Do a right-click on the link above
and select “Copy Link”