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

• Jurisdiction: South Africa
• Published date: 12 October 2020
• Pages: 270-296
• Author: Grové, G.
• Date: 12 October 2020
• Citation: (2020) 31 Stell LR 270

270

LIVING WILLS: WHAT IS THE CURRENT LEGAL

STATUS IN SOUTH AFRICA?

Gertruida Grové

BA LLB LLM (US) (LLD) (Pret)*

Attorney of the High Court of 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-specic 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, specically 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.

Keywords:

Living wills, advance directives, medical directives, enduring powers of

attorney, end-of-life decisions, mental incompetence

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(2020) 31 Stell LR 270

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LIVING WILLS 271

1 Introduction

Modern science and medical technology have made it possible to relieve pain

and suffering, as well as to prolong life like never before in history. However,

this has brought about a scientic, ethical, and legal dilemma, as for some

patients it could result in the prolongation of a meaningful quality of life, but

for others, it could merely result in a drawn-out meaningless existence.

Living wills provide a means whereby people are given freedom of choice

and control over important end-of-life decisions as they provide mentally

competent people with mechanisms to record their health care wishes and

instructions, to be effected in the future at a time of mental incompetence

or incapacity. Living wills thereby promote patient autonomy and have

altered the traditional doctor-patient relationship from medical paternalism

and benecence to a patient-centred approach where the patient exercises an

informed choice.

However, living wills have not yet been legally recognised in South

African law. Living wills, furthermore, have neither been found to form part

of the common law nor has any living wills-specic legislation been enacted.

This legal lacuna may result in the disregard of a person’s fundamental human

rights, including the right to life, right to dignity, right to privacy, right to

equality, right to security of the person which includes the right to bodily and

psychological integrity, freedom of religion, belief and opinion and the right

to access to health care. This article focusses on the historical and current

legal debate on living wills in South Africa. The applicable provisions of

the National Health Act 61 of 2003 (“National Health Act”)1 as well as

draft legislation, specically the Draft Bill on End of Life Decisions, 1998

(the “Draft Bill”) and the National Health Amendment Bill, 2019 (Private

Member’s Bill) (the “2019 Bill”),2 applicable case law and ethical guidelines

including the Health Professions Council of South Africa Guidelines and the

South African Medical Association (“SAMA”) Guidelines, will be explored

in this article.

2 Denition of a living will in South Africa

Strauss denes a living will as follows:

“Legally [...] a declaration in which a person in anticipando by way of an

advance directive refuses medical attention in the form of being kept alive by

articial means.”3

* This article is based on the author’s LLD dissertation: GLR Grové A Framework for Legal

Enforceability of Living Wills in South Africa University of Pretoria (2020), Supervisor

Prof PA Carstens.

1 Sections 6-8 National Health Act.

2 B8-2019.

3 SA Strauss Doctor, Patient and the Law (1991) 344.

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