A Framework for Legal Enforceability of Living Wills in South Africa

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.