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A living will (also known as an advance directive) is a declaration which sets out a patient’s wish to refuse any medical treatment and attention – notably being kept alive by artificial means – when the patient is terminally ill or rendered permanently unconscious.

Any person may refuse medical treatment, even if such refusal will result in irreversible harm or death, unless such treatment is sanctioned by law. A living will therefore stands as evidence as to a person’s wishes regarding medical treatment when he/she is no longer able to express a view in this regard. To be able to make such a declaration a person has to be over the age of medical consent and also be of sound mind (“compos mentis”).

Living wills have no clear legal standing in South Africa, therefore the South African Medical Association (SAMA) advises doctors to approach living wills with considerable circumspection.

SAMA, which is on hand to offer advice on this matter if necessary, has previously issued guidelines to assist doctors who are confronted with a living will. These guidelines include the fact that:

  • A doctor should offer to treat and relieve suffering and should generally act in the best interests of his/her patients;
  • All patients have a right to refuse treatment and this right should be respected (this, however, does not imply or justify abandonment of the patient); and
  • A written advance directive (living will) shall, in the absence of contrary evidence, be regarded as representing the patient’s expressed wishes (bearing in mind that a living will can be put as evidence before the court where a court application is required to enforce the withdrawal of life support).

NATIONAL HEALTH AMENDMENT BILL

Congress of the People (COPE) Member of Parliament Deidre Carter recently drafted a private member’s bill with the help of DignitySA, a lobby group campaigning for the right to assisted dying. Carter is planning to introduce the National Health Amendment Bill to Parliament. The legislation will provide for legal recognition, legal certainty and legal enforceability of advance healthcare directives such as the living will and the durable power of attorney for healthcare.

Although, according to Carter, the National Health Act (Act 61 of 2003) provides for the right of a user to refuse health services and outlines that a health service may not be provided to a user without that user’s informed consent, the Act is still ambiguous. This has led to uncertainty among health professionals who fear adverse legal consequences.

The draft Bill will, among other points, address the following:

  • Provide for and clarify the legal status of two types of advance healthcare directives, namely a living will and a durable power of attorney for healthcare;
  • Set out the purpose, scope and format for these advance healthcare directives and provide for the resolution of disputes related to these directives;
  • Clarify whether a living will or a substitute decision-maker’s choices may be overridden by a medical practitioner or family members in any circumstances;
  • Clarify whether someone acting upon these directives is immune from criminal and civil prosecutions; and
  • Prescribe how to deal with a situation in which “two substitute decision-makers disagree about the treatment a patient should receive”.

Although the National Health Amendment Bill seems to be a step in the right direction, the Bill still needs to be passed through Parliament, therefore no legal certainty regarding the status of advance healthcare directives in South Africa has as yet been reached.

Citadel Fiduciary understands the sensitivity of a document like a living will and is keeping a close eye on developments in this area of our law.

ORGAN DONATION IN SOUTH AFRICA

Another question that is often asked when assisting clients with the drafting of a will is whether or not an organ donation clause can be included.

Should you wish to donate your organs, you need to formally register with the Organ Donation Foundation as an organ donor and, once registered, you should receive an organ donation card to carry on your person. This registration may then be recorded in your will. It is also important to discuss these wishes with your loved ones since, by law, they have to consent to the collection of your organs by the medical authorities (regardless of you having formally registered as an organ donor).

Written by Jan Dawid Luttig, Citadel Fiduciary Partner