INTRODUCTION
In recent years, a variety of life-saving and life-prolonging treatments have been developed which make it possible to sustain life artificially for many years in cases where there is little hope of recovery. However, in 2008 the Health Professions Council of South Africa (HPCSA) provided guidelines for the withholding and withdrawing of treatment, which require medical practitioners to respect a competent patient’s right to autonomy in refusing particular medical interventions – even in circumstances where this can result in serious harm to the patient.
In order to allow people to exercise control over their bodies once they no longer have the ability to communicate their wishes or make rational decisions as a result of physical or mental incapacity, various legal systems provide for a person, while still competent to do so, to give instructions with regard to his or her future medical treatment and care. Such instructions are generally referred to as advance directives. Advance directives can take the form of a living will or an enduring power of attorney.
LIVING WILL
A living will is defined as a written declaration designed to allow competent individuals to express their preferences regarding the withholding or refusal of specified treatments which may keep them alive by artificial means, in anticipation of a time in the future when the person may be incompetent to do so himself.
PROXIES AND ENDURING POWERS OF ATTORNEY
Section 7 of the National Health Act 61 of 2003 provides that consent regarding treatment may be given by someone who has written authorisation to do so from the person requiring treatment. This provision seems to recognise the principle that a person may, in writing, create an advance directive which appoints a proxy to take healthcare decisions on his or her behalf when he or she no longer has the required mental capacity. A patient can thus issue a proxy directive in terms of an enduring power of attorney.
SOUTH AFRICAN LAW
Advance directives in the form of living wills are not expressly recognised in South Africa as legally enforceable instructions by either statute or common law. However, in practice decisions regarding further treatment must often be taken and are indeed taken by medical practitioners. Advance directives are considered lawful in terms of public policy and have to date not been prohibited by statute. As a result, the treatment of patients that are no longer competent to express their wishes is at present dealt with on an ad hoc basis, leading to uncertainty amongst the general public and medical practitioners alike.
The 2008 HPCSA guidelines for medical practitioners rest on the principle of patient autonomy. These guidelines require medical practitioners to respect any valid advance refusal of treatment that was made by a patient at a time when he or she was still mentally competent. The guidelines provide for the drafting of a living will and also make provision for proxy decision-making in terms of an enduring power of attorney.
The guidelines also provide that, in the absence of any advance directive, the medical practitioner is required to consult the patient’s authorised proxy or alternatively, close family of the patient who can indicate what preferences for care were expressed by the patient concerned. A decision will then be taken based on the best understanding of the patient’s wishes and his or her best interests. In the absence of any of the above options, the decision may fall on the medical practitioner who is responsible for the treatment of the patient.
In Clarke v Hurst 1992 (4) SA 630 (D), the patient had drafted a document headed ‘A Living Will’, in which he requested that, in the event of there being no reasonable expectation of his recovery, he be allowed to die and not kept alive by artificial means. The court held that generally, the hastening of a person’s death is not justified and is therefore wrongful, even when the person is terminally ill and suffering unbearable pain. The court, however, confirmed that this is not an absolute rule and that effect should be given to a patient’s wishes as expressed when he was still competent The court contended that the boni mores of society would determine the reasonability or otherwise of the omission to institute life-sustaining procedures and that the decision on this issue is dependent on the quality of life that remains for the patient concerned. In the circumstances, the court held that discontinuance of nasal feeding when the patient was in a vegetative state would not be wrongful.
COMPARATIVE PERSPECTIVE: DUTCH LAW
The status of advance directives in the Netherlands is described as “one of the strongest in the world.” Section 450(3) of the Wet op de Geneeskundige Behandelingsovereenkomst provides that if a person of sixteen years or older is no longer competent, a doctor is required to honour a refusal of treatment made in writing when the patient was still competent. There are no limits on the treatments that can be refused nor on the circumstances in which a written refusal is valid. In addition, there are almost no formal requirements. There must be certainty as to the authenticity of the document, the identity and competence of the author, and the voluntariness of its execution.
Section 450(3) further provides that a doctor is allowed to depart from the written instructions given by the patient if the doctor considers that there are well-founded reasons for doing so. Valid reasons may include doubt regarding the authenticity of the document, the competence of its author and the meaning of the instructions given.
CONCLUSION
It is evident from the above that the enforcement of advance directives in South Africa is problematic – especially because South Africa does not at present have formal legislation to regulate and control the practical application and enforcement of such directives. The absence of formal legislation to regulate end-of-life issues has led to legal uncertainty and poses various challenges to medical practitioners who are confronted with making these difficult decisions on a daily basis.
In an attempt to provide some clarity with regard to end-of-life issues in practice, what can be deduced from various sources is that where a patient no longer has the capacity to make his or her own decisions regarding medical treatment and care, valid advance directives must be respected. It also appears from the legal position in other jurisdictions that generally, valid advance directives should be respected and enforced. South Africa accordingly stands to learn from other jurisdictions that have formal legislation to regulate end-of-life issues – both in relation to the enforcement of advance directives and the substantive requirements for the validity of such directives.
