Currently, there is no legislation in South Africa that governs or validates the concept of a living will. Nevertheless, some living wills may contain conditions that deals with the enforceability thereof, for example, “Should they wish, any person has my concurrence to apply for a court order to ensure compliance with this directive should any medical practitioner or health authority refuse to give effect to it”.
This raises an important question, is such a clause (and by extension, a living will) generally enforceable? Before examining the enforceability of living wills, it is helpful to examine our law in relation to euthanasia.
Different types of euthanasia
Euthanasia is an umbrella term and can take different forms, including; Active euthanasia, Passive euthanasia, Indirect euthanasia or Physician assisted suicide.
Active euthanasia and Physician assisted euthanasia (“PAE”) (often used interchangeably) is a form of euthanasia in terms whereof a medical practitioner is permitted, at the request of the patient, to administer lethal drugs to them. As our law stands, PAE is unlawful. Any person—
whether a medical practitioner, friend or family member—who administers a lethal agent to a patient at the latter’s request may be charged with the crime of murder.
Passive euthanasia, by contrast, is a form of euthanasia in terms whereof a patient refuses medical treatment that would otherwise prolong life. Passive euthanasia is, as our law stands, lawful.
Indirect euthanasia is euthanasia in terms whereof drugs are prescribed by way of palliative treatment that has the effect of hastening the death of a patient. This is also known as the double-effect doctrine where the drugs serve the purpose for which they have been prescribed, but have potentially detrimental side effects. Indirect euthanasia is lawful in our law, and a doctor does not commit a criminal offense by prescribing drugs by way of palliative treatment for pain that the doctor knows may have the effect of hastening the patient’s death.
Physician assisted suicide (“PAS”) is a form of euthanasia in terms whereof a patient is permitted to obtain a prescription for lethal drugs, used to terminate their own lives. PAS is not necessarily unlawful, as our law stands.
Euthanasia in living wills
From the above, it is clear that Passive and Indirect euthanasia may be provided for in living wills. Thus, if a doctor acts in accordance with a living will and ceases treatment or other forms of medical intervention that serve neither a therapeutic or palliative purpose and/or if a doctor prescribes by way of palliative treatment, drugs for pain that the doctor knows may have the effective of hastening the patient’s death, then the doctor does not commit a criminal offense.
The below clause is often included in a living will:
“Should I no longer be capable of making decisions for my own future and should my physical and/or mental condition deteriorate to such an extent that there is no reasonable prospect of my recovery from physical illness or impairment which is expected to cause me severe distress or to render me incapable of rational existence, I request that:
1. I be allowed to die. I further request that no systems be used in order to keep me alive in circumstances where, but for the use of such systems, I would have died;
2. I be given whatsoever quantity of drugs which may be required to keep me free from pain or distress even if the moment of death is hastened.”
Enforceability of living wills
Can a doctor be compelled to give effect to a living will? We are of the opinion that it is possible to compel a doctor to cease treatment (passive euthanasia), given that medical treatment without consent would constitute assault, as held in Stoffberg v Elliot 1923 CPD 148.
The Health Professionals Council of South Africa (“HPCSA”) has issued “Guidelines for the withholding and withdrawing of treatment”, 2016, in which paragraph 8.2.1 states that “where a patient lacks the capacity to decide, health care practitioners must respect any valid advance refusal of treatment”.
Importantly, the guidelines emphasises that “these guidelines form an integral part of the standards of professional conduct against which a complaint of professional misconduct will be evaluated”.
It appears as though ethical grounds support the enforceability of indirect euthanasia and as if disciplinary proceedings could potentially be instituted against a medical practitioner refusing to give effect to a living will.
Conclusion
In the absence of statutory recognition, living wills occupy a legal grey area. For now, passive and indirect euthanasia do not appear to be gentleman’s agreements only but appear to be legally enforceable if provided for in a living will.
Written by Andrew Louw
Checked by Johan Taljaard
