Insurers and assisted suicide

Patrick Bracher

On 4 May 2015 the Pretoria high court found that an applicant who was terminally ill and suffering intractably with a life expectancy of a few weeks at most, and fully mentally competent, could freely and voluntarily without undue influence be assisted in the act of suicide.

The applicant was entitled to be assisted, by a qualified doctor willing to do so, to end his life by the doctor administering a lethal agent or providing the lethal agent to the applicant to administer himself. It was declared that a medical doctor assisting the applicant would not be guilty of any crime. The court urged the government to introduce the right to assisted suicide with appropriate safeguards by legislation as recommend by the Law Commission in 1998.

The judgment (Robert James Stransham-Ford v Minister of Justice and Correctional Services & Others) is based on every individual’s constitutional right to dignity, which is a pre-eminent foundational right, and to bodily integrity.

The insurance principle against paying claims where the insured commits suicide is based on the fact that insurance benefits should not be paid for deliberate conduct by the insured that causes the risk event. It aims to discourage people from deliberately causing events in order to claim benefits. This rationale is not applicable if an insured takes out a policy at a time when there is no hint of a disease likely to cause a painful and undignified death and then seeks to hasten such a death in order to die with dignity.

The issue will not arise often. Until there is legislation, anybody who wants the right to assisted suicide will have to approach a court and persuade them on their particular facts that the order should be granted. Until there is legislation, insurers will on similar facts to this decision no doubt take the attitude that such claims will be paid even if there is a suicide clause in the policy. Once there is legislation making assisted suicide legal under specifically controlled circumstances, a provision in a policy that precludes payment of a claim where the insured exercises this right will be void because it will be contrary to statutory and constitutional rights.

First published by: Financial Institutions Legal Snapshot