Living wills : what is the current legal status in South Africa?

Abstract

In this article the current legal status of living wills (advance directives) in South Africa is investigated. The legal enforcement of living will documents should allow compos mentis persons to state their medical instructions in writing in advance. These instructions should be adhered to in medical decision-making processes in situations where the makers of such living wills are no longer able to convey their medical instructions contemporaneously, for example, in states of temporary or permanent unconsciousness. The historical and current legal debate on living wills in South Africa is explored. It is found that there are currently legal lacunae in the South African law, as living wills and enduring powers of attorney which could be incorporated into living wills have not yet been found to form part of our common law and no living will-specific legislation has been enacted. As a result of the legal lacunae there is much legal uncertainty which can, for example, be seen by the varying terminology used by the legal and medical fraternity regarding living wills and related documents. These inconsistencies lead to much confusion and subsequent varying enforcement standards. The Law Reform Commission has investigated the legal lacunae; its reports and suggestions for draft legislation are discussed. The applicable provisions of the National Health Act 61 of 2003 as well as draft legislation, specifically the Draft Bill on End of Life Decisions, 1998, and the National Health Amendment Bill, 2019, the applicable case law and ethical guidelines, including the Health Professions Council of South Africa Guidelines and the South African Medical Association Guidelines, are discussed. The legal lacunae should be addressed to promote legal certainty in South Africa on the enforceability of living wills. This would enhance the doctor-patient relationship and promote the protection of patients’ fundamental human rights.