Introduction
A living will, also known as an
advance directive, is a document that expresses a person's wishes regarding
medical treatment in situations where they are unable to communicate their
decisions where:
- They lack the mental capacity to refuse treatment;
and
- Their quality of life is very poor and there is no
hope of recovery or even of significant improvement.
Current Legal Framework
In South Africa, the legal status
of living wills remains complex and somewhat ambiguous.
Living wills are not officially
recognized by South African law and have no legal force. However, the South
African Constitution acknowledges every individual's right to bodily and
psychological integrity, which includes control over one's own body.
Medical Practitioners'
Perspective
The Health Professions Council of
South Africa implicitly recognizes living wills in its "Guidelines for the
Withholding and Withdrawing of Treatment." These guidelines encourage
patients to document their wishes regarding future care in critical
circumstances, and the South African Medical Association has advised doctors
that they can comply with a living will when a patient is in a permanent
vegetative state.
Importance of Living Wills
Evidence of Patient's Wishes
A living will is the only written
evidence of a person's desires regarding end-of-life decisions, especially when
they are in a coma or vegetative state.
Clarity in Decision-Making
Living wills help individuals
clarify their decisions about quality of life and can appoint a specific person
to make necessary decisions on their behalf.
Prevention of Unwanted
Interventions
Without a living will, doctors,
courts, or others may take steps contrary to what the person would have wanted.
Limitations
It's important to note that a
living will:
- Cannot include directives for active euthanasia or
physician-assisted suicide.
- Does not allow another person to make decisions on
behalf of the patient (this requires a healthcare proxy).
- Is not a request for basic care to be withdrawn.
·
Living wills may include requests for Do Not
Resuscitate (DNR) Orders under specific circumstances. However, DNR orders
differ from advance directives as they are written by treating physicians.
Recommendation for Have a
Living Will
Despite the lack of formal legal
recognition, having a living will in South Africa is highly recommended for
several reasons:
- Documentation of Wishes: It provides clear
evidence of your end-of-life medical treatment preferences.
- Guidance for Healthcare Providers: It
assists medical professionals in making decisions aligned with your
values.
- Reduced Family Burden: It can alleviate the
emotional stress on family members who might otherwise have to make
difficult decisions on your behalf.
- Potential Legal Weight: While not legally
binding, courts and healthcare providers may consider the contents of a
living will when making decisions.
- Preparation for Future Legislation: As
discussions around end-of-life decisions continue, having a living will
may position you well for any future legal changes.
When creating a living will,
ensure it is clear, precise, and regularly updated. Consider consulting with
medical professionals, legal experts, and if relevant, religious advisors to
ensure your document is comprehensive and reflects your true wishes. It is
advisable to review living wills regularly to ensure they reflect current
feelings and account for advancements in medical science and developments in
our law.
Summary
While living wills are not
legally recognized in South Africa, they serve as crucial documents expressing
an individual's wishes for end-of-life care. The legal landscape may change in
the future, but for now, living wills provide valuable guidance to medical
practitioners and family members. Despite their current non-binding status,
having a well-crafted living will can significantly influence medical decisions
when you're unable to communicate your preferences.
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