The legal status and enforceability of living wills in South Africa

As medical technology continues to advance, enabling the prolongation of life in ways previously unimaginable, individuals are increasingly seeking to assert control over their medical treatment in the event of terminal illness. This shift has contributed to the growing use of living wills. However, despite their significance, living wills are not formally recognised as legally binding instruments in South Africa, and their enforceability remains subject to legal interpretation. This article examines the concept of a living will, its current legal status, and the basis for its enforceability under South African law.

What is a living will?

A living will is a written directive in which an individual expresses their wish to refuse medical treatment that would artificially prolong life in the event of a terminal condition. It becomes effective when the individual is no longer able to competently communicate their medical preferences. The primary purpose of a living will is to uphold a person’s right to dignity and bodily integrity, ensuring that their medical choices are respected even when they can no longer advocate for themselves.

Legal recognition of living wills in South Africa

Living wills are not expressly recognised as legally binding under South African statutory or common law. Although courts have had opportunities to formally validate them, they have thus far refrained from doing so. Nonetheless, while not legally enforceable per se, living wills are acknowledged as having evidentiary value in cases concerning the cessation or refusal of medical treatment.

The legal landscape has evolved significantly with the adoption of the Constitution of the Republic of South Africa, which enshrines the rights to dignity and bodily integrity. Given these constitutional protections, courts may take a more favourable approach toward the enforceability of living wills, particularly when a patient’s best interests align with their previously expressed wishes.

The enforceability of living wills

Despite the absence of explicit legal recognition, the enforceability of living wills can be argued under the National Health Act 61 of 2003 (“NHA”). The NHA places a strong emphasis on the requirement for informed consent in medical treatment, stipulating that healthcare services may not be administered without a patient’s informed consent unless the patient is unable to provide such consent and a legally mandated representative does so on their behalf. Additionally, the Act affirms a patient’s right to participate in decisions affecting their health and treatment.

A living will serves as a pre-emptive and conditional refusal of medical intervention under specific circumstances. It can be argued that a medical practitioner has a duty to honour a patient’s documented wishes, as administering treatment contrary to a living will may constitute unlawful medical intervention. Furthermore, professional guidelines issued by the Health Professions Council of South Africa (HPCSA) reinforce the principle that all patients have the right to refuse treatment, and healthcare providers should respect advance directives wherever possible.

Proposed legislative reforms

The National Health Amendment Bill, 2019, seeks to grant legal recognition to living wills by explicitly allowing individuals to refuse life-sustaining treatment through a written directive. If enacted, the Bill would provide legal certainty on the matter, reinforcing the fundamental right of individuals to make advance decisions about their medical treatment.

Under the proposed amendments, before honouring a living will, a medical practitioner must be satisfied that the patient’s condition is terminal and incurable, that they are no longer competent to make medical decisions, or that they are in a permanent vegetative state. The practitioner must also verify the authenticity of the living will and, where possible, inform the patient’s next of kin. While this legislative development is promising, the Bill has yet to be passed into law.

Guidelines for drafting a living will

Although there are no formal statutory requirements for the validity of a living will in South Africa, certain ethical and practical considerations can enhance its enforceability:

• The document should be issued by a competent adult and clearly outline the individual’s medical preferences regarding life-prolonging treatment.

• To minimise disputes regarding authenticity, it is advisable that the living will be signed in the presence of two competent witnesses.

• Individuals should discuss their living wills with their families and healthcare providers to ensure that their wishes are understood and respected.

Conclusion

While living wills are not yet formally recognised as legally binding instruments in South Africa, they remain powerful expressions of individual medical preferences. The existing legal framework, particularly the provisions of the NHA, provides a basis for their enforceability, and constitutional principles of dignity, bodily integrity, and self-determination strengthen the argument for their recognition.

Individuals are encouraged to draft living wills to ensure their medical choices are respected, even in situations where they cannot communicate them. Legal practitioners should also take care to ensure that living wills conform to best practices to maximise their likelihood of being honoured. Until formal legal recognition is granted, the enforceability of living wills will largely depend on legal interpretation, ethical considerations, and healthcare practitioners’ adherence to patient rights.

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