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HomeA FocusRight-to-die doctor could face multiple murder charges

Right-to-die doctor could face multiple murder charges

Davison
Sean Davison

The arrest for murder of Professor Sean Davison, a medical doctor and founder of Dignity SA, five years after the assisted death of quadriplegic, Dr Anrich Burger, may be the result of pressure from those opposed to the campaign to legalise assisted dying , the organisation believes.

Two weeks after a World Federation of Right to Die Societies conference in Cape Town hosted by Dignity SA, police arrested Davison on a charge of murder relating to the suicide of Burger in a Cape Town hotel room in 2013.

A Daily Maverick report notes that for over five years Davison has been lobbying for a change to end-of-life legislation in South Africa, and has openly and publicly spoken about the death of his friend, Dr Burger.

Davison has always maintained, when questioned, that he had nothing to fear from the law as he had not done anything illegal.

The report says which is why the arrest of Davison, who was sentenced to five months’ house arrest in Dunedin New Zealand after he helped his terminally ill mother Patricia to die in 2006, has come as a surprise to those involved in Dignity SA and who know the professor of biotechnology.

Professor Willem Landman, executive committee member for Dignity SA, said that there was speculation that those who were vociferously opposed to legalising assisted dying might have prompted the NPA to action after so many years. Landman added that Dignity SA was lobbying for a change to South African law to bring it in line with the Constitution but that it did not “assist people to die – what anyone does in their private capacity is their own matter”.

The report says Davison was arrested last week after a police raid on his Pinelands home where a phone and a laptop were seized. The professor was held overnight in the Sea Point police cells before his bail application in the Cape Town Magistrate’s Court. He was released on R20,000 bail and will appear again on 16 November.

The state is charging Davison with the planned and premeditated murder of Burger and may face multiple murder charges. The report says prosecutor Megan Blows informed the court that “new information has come to light … the accused might have committed similar offences”. Davison’s lawyer, Joshua Greef, read from an affidavit in which Davison stated that “it is and has always been my contention that I have not committed any offence as alleged in this matter”.

The report says Burger, who was 43 when he consumed a lethal dose of phenobarbital while Davison sat with him in the hotel room, had been confined to a wheelchair after an accident in Botswana in 2005. Burger had had a passion for the outdoors. Davison often spoke of how he and Burger became friends in 2012 after Burger had plotted to end his life at Dignitas, the Swiss non-profit members’ society which offers assisted suicide to those who qualify.

Burger, said Davison, had lost all control and autonomy over his body, and was confined to a wheelchair, often soiling himself. Burger began to plot to end his life but travelling to Switzerland, Burger realised, would present a logistical nightmare. He had subsequently requested Davison to “to be part of his plan” to end his life in South Africa. Davison said he had agreed as a friend to do so. “He didn’t want people to know, he did not want to be stopped. He was determined to die. It was a very carefully thought out decision; he [Burger] had no hesitation,” Davison said.

However, the report says, while Burger’s mother had supported her son’s decision to end his life, other members of his family, including his fiancee, did not.

Davison has always maintained that Burger wrote the prescription for the drugs, had been accompanied by a carer when he went to collect the medication at the pharmacy and had consumed it himself.

The report says in 2014 Davison was elected to the board of the World Federation of Right to Die Societies in Chicago and described how Burger, at the time of his accident, had been a young man with his life ahead him. “He was a brilliant medical doctor training in acute and emergency medicine, and he was strong and fit, with a passion for the outdoors.”

Dignity SA said in the report that it was awaiting more information about the charges against Davison. “The law must take its course, as it should in a constitutional democracy,” said Landman. “Whereas we would do whatever possible to assist Prof Davison and his family in this difficult time, Dignity SA wishes to reaffirm that our mission is a change in the legal position regarding assisted dying in South Africa. To this end we have been involved in the Stransham-Ford High Court case and the consequent appeal to the Supreme Court of Appeal, as well as a new High Court case that is pending, and the draft healthcare amendment bill to legalise advance directives.”

“We trust he will be given a fair hearing and, in particular, that the apparent conflict between our common law and the Bill of Rights in our Constitution will be argued in court. There is a class of people who, for no choice of their own, die in extremely distressful circumstances. Their rights have not been aligned with the Bill of Rights in the Constitution. For that reason, some individuals act compassionately in ways that might attract the attention of legal authorities.”

The report says in 2015, Advocate Robert Stransham-Ford, 65, who had stage four cancer, applied to the North Gauteng High Court for an order to allow a doctor to administer a lethal agent to end his life. Stransham-Ford requested the court not to charge the doctor for this action. Two hours before Justice Hans Fabricius granted the order, Stransham-Ford died. In his order the judge noted that the order should not be read as an endorsement of the proposals of the draft Bill on End of Life as contained in the Law Commission Report of November 1998 (Project 86). Fabricius had said that the Constitutional Court and Parliament should reconsider legalising assisted suicide.

Then Minister of Correctional Services, Michael Masutha, the NDPP and the Health Professions Council of South Africa appealed the ruling. In December 2016 the SCA ruled that it had been wrong for the high court to issue the order. “It was wrong to hold that the common law crimes of murder and culpable homicide needed to be or should be developed to accommodate PAE [physician-assisted euthanasia] and PAS [physician-assisted suicide],” the SCA ruled.

Speaking at the recent World Federation of Right to Die Societies’ 22nd biennial conference hosted in Cape Town, Advocate Tseliso Thipanyane, CEO of the SAHRC, said that the general “negative attitude shown by society towards suicide, assisted suicide and euthanasia whilst understandable from a religious and cultural point of view is difficult to understand and accept from a human rights perspective and the right to dignity in particular”.

He said that the right to dignity and the right of every individual to “security in and control over his or her body” were both entrenched in South Africa’s Bill of Rights which clearly provided “a basis for the acceptance of euthanasia, and at the very least, physician administered euthanasia”.

The report says in the meantime Dignity SA has joined Dr Sue Walter, who has been diagnosed with terminal multiple myeloma, as well as Dieter Harck, who has terminal motor neurone disease, as a plaintiff in an action instituted in September 2017 to the Gauteng Division of the High Court.

Said Davison: “Dignity SA hopes to build on this judgment and support Dr Walter and Mr Harck in their brave action and so doing generate the legal precedent that should in turn result in the regulation and legalisaton of assisted dying.”

 

Archbishop Emeritus Desmond Tutu has come out in support of euthanasia after Davison was arrested for murder. According to a Polity report Tutu said: "Just as I have argued for compassion and fairness in life, I believe that terminally-ill people should be treated with compassion and fairness when it comes to their death. This should include affording people who have reached the end stages of life the right to choose how and when to leave Mother Earth."

Tutu encouraged policymakers to engage, enable and regulate assisted suicide, the report says.

 

Describing the dilemma he faced when Burger offered him R1m to assist him to die, Dr Joseph Huskisson said: “For me‚ it was first that he is a friend. Secondly‚ legally I cannot do it.”

Huskisson is quoted in The Times as saying: “I didn’t even ask him where he is going to get the money. I don’t know if he had the money. He told me the whole time that he knows that he cannot put pressure on me to do it‚ but I must help him. I could not bring myself to do it.”

According to the report, in 2011 Burger attempted suicide by drinking an overdose of pills with the help of an unknown party. He was rushed to the Mediclinic Vergelegen in Somerset West and his stomach was pumped. “He was very angry that we resuscitated him.”

Huskisson believes if Davison helped to euthanise Burger‚ he was wrong. “But‚ in mitigation‚ I know how determined he (Burger) was to go away‚ to die. He did not want to live another day. When he got up in the morning‚ those were his words‚” Huskisson said. “Later on I could not visit him anymore‚ because all he would tell me is he does not want to be here anymore. It was too depressing for me and later on I became depressed. The last three months of his life‚ visiting him it was too much because it (to die) was all he wanted to do.”

 

It was not immediately clear to which other deaths the prosecution in the Davison was referring, reports News24. But, Davison's affidavit in support of his release on bail highlighted an extensive academic career and memberships to numerous professional organisations.

He has been a professor of biotechnology at the University of the Western Cape since 2004 and heads up the forensic DNA laboratory there. And, the report says, he helped the Truth and Reconciliation Commission identify the remains of anti-apartheid activists, including the Mamelodi 10 of Pretoria. He also developed a DNA kit to help identify suspects in gang rapes, a service that was offered free to rape victims.

In arguing to be released on bail, Davison said he had built an "impeccable reputation" over the years and incarceration could destroy his character and all for which he had worked. The court heard that being in custody would jeopardise several projects, outstanding DNA analysis and students under supervision, who Davison assisted.

The investigating officer was in possession of his South African and New Zealand passports. Davison pointed out that he abided by all bail conditions while standing trial in New Zealand for helping his cancer-stricken mother end her life. At the time, he pleaded guilty to assisted suicide in the Dunedin High Court and was sentenced to five months' house arrest.

Weighing in on Davison's case, defence lawyer William Booth said in the report that there had been a number of serious debates in the last decade to change the law on assisted suicide or voluntary euthanasia. "In my opinion, it should be legal under certain circumstances. No legislation has been promulgated where strict criteria is in place," he said. "This is about human dignity. If somebody is going to die… alleviate pain and suffering not only for the patient, but the family too."

Davison said in 2012 that many doctors had told him in private that they had helped people to die at their request. "If you don't have a law change, you might be playing Lotto with your doctor."

 

Davison had said he was unperturbed about whether his assistance to Burger could lead to criminal charges. “I would be worried if there was something to worry about.” Burger had stated clearly that he wanted to die and organised his own medication for the process‚ said Davison is quoted in The Times as saying.

The academic returned to South Africa from New Zealand in May 2012 after serving five months' house arrest for helping his mother end her life. She initially tried going on a hunger strike‚ but when that failed he gave her a lethal dose of morphine.

In 2011‚ Davison was originally charged in the Dunedin High Court with attempted murder but later entered a plea bargain whereby he pleaded guilty to a lesser charge of assisted suicide.

The report says Davison’s ordeal in New Zealand began in 2004 when his mother‚ Patricia‚ a retired doctor who had worked all over the world and spent the last 10 years of her life in Dunedin‚ was diagnosed with cancer. The professor flew to New Zealand to take care of her before she died in October 2006. He kept a moving diary of her slow‚ painful decline.

After she died he wrote a book‚ Before We Say Goodbye. His initial manuscript detailed how he fed his mother a lethal dose of morphine to end her suffering. Patricia tried in vain to starve herself to death‚ and then begged her son to kill her. “I prepared to give her what I calculated would be a lethal drink of crushed morphine tablets‚” Davison wrote in his manuscript. “I held it in front of her and said: ‘If you drink this‚ you will die.’ I really wanted to be so absolutely sure that there was no hesitation. She answered‚ ‘You’re a wonderful son'.”

The report says Davison’s confession was edited out of the book‚ but was later leaked to newspapers in New Zealand. Soon after the book appeared‚ Davison told the Otago Daily Times: “I decided to publish the book of my experiences and the circumstances I found myself in to help others think about the issues surrounding death. I hope the book helps people to be less afraid of death.

In the 2014 interview‚ Davison said he believed there was a lot of support for a change in legislation‚ and his family was “very supportive” of his work in promoting the legalisation of euthanasia.

According to the report, he also said Dignity SA's other mandate – “to inform the public about the issue” – been given a great boost through Tutu's support. Tutu's encouragement was important because he was seen as a man of the church and came from a traditional African background‚ said Davison. Culture should not be a divisive factor in accepting the right of assisted dying. "I think for most people‚ when they consider the issue‚ it is about compassion and kindness."

In general‚ society needed to overcome its reluctance to talk about death and dying‚ he suggested. Death was the common experience of all‚ and many would be exposed to painful and undignified deaths of family members. "That’s every reason to embrace and talk about it‚ and don't make it a scary issue‚" said Davison.

 

Davison is the president of the World Federation of Right to Die Societies, which supports euthanasia and assisted suicide for adults with incurable illnesses and, according to a New Zealand Herald report the New Zealand End of Life Choice Society (formerly the Voluntary Euthanasia Society) is a member.

At a speech at the federation's conference in 2014, the 57-year-old said "not all quadriplegics want to die, but those who do want to, should have the option".

The report, however, quotes executive officer of Euthanasia-Free NZ, Renée Joubert, as saying that Davison's actions suggested the federation wants any adult to be eligible.

"Mr Davison's words and actions demonstrate that 'assisted dying' advocates don't really want a narrow law limited to terminal illness, but one that would eventually allow virtually any competent adult to be eligible, including people with disabilities.

"Disabled people would be included under both clauses of David Seymour's Bill.”

[link url="https://www.dailymaverick.co.za/article/2018-09-20-timing-of-arrest-of-dignity-sa-director-sean-davison-questioned/"]Daily Maverick report[/link]
[link url="http://www.polity.org.za/article/tutu-backs-euthanasia-as-policy-after-arrest-of-right-to-die-advocate-sean-davison-2018-09-21"]Polity report[/link]
[link url="https://www.timeslive.co.za/news/south-africa/2018-09-23-why-doctor-turned-down-r1m-to-euthanise-his-friend/"]The Times report[/link]
[link url="https://www.news24.com/SouthAfrica/News/i-have-not-committed-any-offence-euthanasia-advocate-sean-davison-20180919"]News24 report[/link]
[link url="https://www.timeslive.co.za/news/south-africa/2018-09-19-right-to-die-champion-arrested-for-murder/"]The Times report[/link]
[link url="https://www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=12128875"]New Zealand Herald report[/link]

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