There is in South Africa at present no law regarding the validity or enforceability of a “Living Will”.
It is effectively a document which is an “advance decision,” a decision made when the maker is in a sound physical and mental condition and can make a decision instructing medical caregivers not to resuscitate them when there is no chance of being resuscitated after an accident, operation or terminal illness.
An advance decision to refuse life-saving or sustaining treatment will not be honoured under all circumstances.
The South African Medical Association’s Human Rights, Law and Ethics Unit issued guidelines to medical practitioners on how to deal with the issue.
- Doctors will rely on their professional judgment to decide on the applicability of the advance directive to a particular situation; and
- Doctors with a conscientious objection to withholding treatment in any circumstance are not obliged to comply with an advance directive, and another doctor may replace them.
How to help the medical practitioner to make an ethical judgment in balancing your best interest with your wish expressed in the Living Will:
- Make sure that the advance directive is not too vague or too specific:
Suppose an advance decision is so general that it applies to all possible events that could arise. In that case, the doctor may view it as too ambiguous to give any definitive direction. In either case, doctors must rely on their professional judgment to decide following the directive issued.
If an advance decision is specific to a particular set of circumstances, the decision will have no force when these circumstances do not exist.
- Make sure that it is known to your family.
You are responsible for ensuring that the advance directive is known to your family and anybody asked to comply with its provisions.
- Make a Living Will a separate document.
The Living Will should be a separate document from one’s Last Will and Testament since the “Living Will” content is a directive to be acted on whilst one is still alive.
At least three original Living Wills should be signed. Hand one to the attending doctor, keep one safe with a family member and hand a 3rd one in at the hospital.
Source:
- SOUTH AFRICAN MEDICAL ASSOCIATION: LIVING WILLS AND ADVANCE DIRECTIVE (SAMA 2012)
Lize Vermeulen
May 2023
lize@lombardlaw.co.za
Copyright@Lomardlaw 2023
