Abstract:
This thesis investigates the legal validity of living wills (advance directives) in South
Africa. The study explores the current status of living wills in South Africa and
contains recommendations on how legal enforceability of living wills can be improved
in the South African context. The Constitution of the Republic of South Africa, 1996,
the common law and the National Health Act, 61 of 2003, serve as basic points of
departure for this investigation. Shortcomings in the current South African legislation
and proposed draft legislation including the Law Commission’s Draft Bill on End of
Life Decisions, 1998, and The National Health Amendment Bill, 2019, as well as
shortcomings in the common law, the field of medical ethics and medical practice are
indicated and recommendations for an improved framework are made. For purposes
of a legal comparative methodology, the legal frameworks of living wills in the
Netherlands, England and Canada are investigated. Specific circumstances which
could potentially hamper the legal enforcement of living wills are discussed,
including: emergency situations, do-not-resuscitate orders, permanent vegetative
states, dementia, cessation of artificial hydration and feeding, pregnancy,
euthanasia, assisted suicide, palliative care, pain relief and organ donation. It is
argued that a living will could be an important tool in enhancing the doctor-patient
relationship, not only to the benefit of the autonomous patient whose dignity and
other fundamental human rights should be protected, but also to the benefit of the
doctor as the medical care provider.
