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Living Wills

Issues Related to Patient Directives in Living Wills

Living wills contain advance directives about the wishes of patients regarding future medical treatments when they are not able to make decisions or provide consent for such decisions regarding their medical care. As with the requirement for all wills, persons must be over 18 and able to understand the implications of their wishes and directives for drawing up living wills.

Currently, no legislation is in place in South Africa to govern the validity and enforceability of living wills. The person appoints someone to consent to or decline medical treatment on his or her behalf if the person is no longer able to make the decision. This can be the case where a person is in a coma or where such a person has suffered brain injury, leaving him or her without the capacity to make an informed decision about their medical care.

At present, patients can refuse medical treatment, unless legislation dictates that the medical professional must provide treatment. However, even with a directive in place to not treat the patient, if the directive is too vague or general in terms, the medical professional must still treat the patient.

To this end, it is important to ensure that living wills adhere to the guidelines of the South African Medical Association (SAMA) regarding directives. Though such directives may be the final wishes of a person to refuse treatment even if such refusal means that the person will die, if another law is in place stating that the doctor must treat the person, then the directives do not matter.

Due to the lack of legislation on the matter, SAMA has given guidelines for what doctors can do when treatment is refused also by means of a directive. Accordingly, the doctor should act in the best interest of the patient, and this means to respect the patient’s wishes. As such, the doctor should offer pain relief treatment even if the patient is terminally ill. Where a doctor has to deal with such a situation, it is best to seek guidance from an experienced medical law attorney or from SAMA.

A doctor can, for instance, hold back treatment if the terminally ill patient consents to such or where the patient’s immediate family or nominated person consents. The doctor, however, is still obliged to assist the patient according to the phase of the illness and cannot take any extraordinary steps in prolonging the life of the patient if not consented by the patient or family, and if not to the benefit of the patient.

Even with the provision for directives in living wills for non-treatment if terminally ill, the doctor cannot abandon the patient and must provide treatment appropriate for the particular situation and in line with an acceptable standard of care in the specific situation.

Patients have the responsibility to make known to their family members if they have directives regarding medical treatment or the withholding of such. SAMA recommends that where patients have such advance directives that they wear some kind of indication regarding the location of the written directives.

If a doctor is aware of an advance directive by a patient, the doctor should make every reasonable effort to become familiar with the contents thereof, as to ensure he or she acts ethically, within the limits of the law, and according to good medical practice in the best interest of the patient.

Ensure correct and legally valid procedure regarding patient directives. Call Adele van der Walt Incorporated for legal guidance in drafting or interpreting living wills in South Africa.

Disclaimer: This article is for information purposes only and does not constitute legal advice. Call on our attorneys for legal advice, rather than relying on the information herein to make any decisions. The information is relevant to the date of publishing – July 2019.

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