The right to die: Bill tabled to clarify legal status of living wills

06 August 2018 - 18:03 By Andisiwe Makinana
Deidre Carter drafted her private member’s bill with the help of DignitySA‚ a lobby group campaigning for the right to assisted dying.
Deidre Carter drafted her private member’s bill with the help of DignitySA‚ a lobby group campaigning for the right to assisted dying.
Image: Gallo Images/iStockphoto

Congress of the People (COPE) MP Deidre Carter is planning to introduce a bill to parliament that will explicitly allow for living wills to be recognised and allow for terminally ill patients to refuse medical treatment that could prolong their lives.

Carter told parliamentary journalists on Monday that while the National Health Act provides for the right of a user to refuse health services and that a health service may not be provided to a user without the user’s informed consent‚ it is still ambiguous and health professionals were uncertain and feared adverse legal consequences.

She said the objective of her draft National Health Amendment Bill is to ensure the recognition and enforcement of advance healthcare directives within the National Health Act. This was one of the recommendations of the SA Law Commission put before parliament for consideration back in 1999‚ when the commission looked into issues pertaining to end-of-life decisions and dying with dignity.

Carter drafted her private member’s bill with the help of DignitySA‚ a lobby group campaigning for the right to assisted dying.

DignitySA's Willem Landman told parliamentary journalists on Monday that the bill was about 20 years overdue‚ since the Law Commission's 1999 report recommended advance healthcare directives that enable competent people to express their preferences and give instructions about such possible future situations through a living will or a durable power of attorney for healthcare.

Landman explained that the living will and durable power of attorney for healthcare are two instruments that enable a patient to make certain decisions when life is no longer worth living.

“There are specific instruments that come into operation when a patient no longer has the ability to make contemporaneous decisions because of incompetence - decisions relating to the end of life or termination of life by simply refusing treatment‚” said Landman.

“It's very important to bear in mind that for any treatment we need to give informed consent. To be treated against our will is recognised in our law‚ confirmed by the Supreme Court of Appeal‚ to constitute assault‚” he explained.

Landman said the two instruments would come into operation when people reached a stage where they could no longer be able to take decisions about their continued life.

He described a living will as an instrument that enables a patient to refuse life-sustaining treatment. This would be expressed in a living will drafted when a patient was still competent to make that call.

“It comes into operation in particular circumstances‚ like when we no longer would want to live - if we are able to make that decision. It is usually when we are in a state of pain‚ when we are in an eternal state of disease‚ or when we are in a coma or a permanent vegetative state‚” he said.

The durable power of attorney for healthcare is also an instrument that comes into operation when a patient no longer has the ability to make contemporaneous decisions because of incompetence. It is different in the sense that it is a power of attorney‚ where a proxy or substitute decision maker is empowered by the patient (while still competent) to make decisions on the patient's behalf should the patient become incompetent to make those decisions.

It includes all healthcare decisions‚ but Carter and Landman want the law to be more explicit on the proxy decision maker's powers to refuse life-sustaining treatments.

“The principles at stake in the draft bill are already enshrined in the National Health Act and in court judgments. They are just not made explicit. The right terminology is not used to eliminate any uncertainty for patients and it is not clear for medical professionals whether they would be at risk if they respected a living will or the wishes or a proxy decision maker‚” said Landman.

Landman said while the National Health Act affirms that informed consent is a prerequisite for providing health services and recognises the right to refuse such services‚ it was not explicit on life and death decisions. He said it was also not clear whether a proxy can take the decision to discontinue life-sustaining treatment as the law was too broad.

Carter said her bill does not address active euthanasia or assisted dying but just the legal recognition of a person's living will. She has written to Health Minister Aaron Motsoaledi to discuss her proposals.

  • Interested parties and institutions are invited to submit written representations on the proposed content of the draft bill to the speaker of the National Assembly by August 22.

 


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