The Draft Bill is long overdue. In the late 1990s, President Mandela instructed the South African Law [Reform] Commission (SALC) to investigate, and make law reform recommendations regarding, end-of-life decision-making in all its forms. Among others, the SALC’s second or final report (1999) proposed that advance directives (a living will and a durable power of attorney for healthcare) be legalised.

For almost 20 years, Parliament failed to follow these recommendations despite advance directives being a legal instrument in many other jurisdictions, and despite medical decisions regarding withholding and withdrawal of life-sustaining treatment having to be made in conditions of uncertainty regarding criminal and civil liability. (Life-sustaining treatment would include a range of treatments, such as antibiotics, IV-tube feeding, dialysis or surgery.)

Quite simply, in carefully prescribed circumstances, South Africans’ right to make decisions about their own continued life should be explicitly and unambiguously recognised in law by affirming the legal status and force of advance directives.

Advance directives are decision-guiding instruments that come into operation when contemporaneous decision-making is no longer possible due to incapacity brought on by an accident, trauma or disease.

First, a living will is an instrument that enables a patient to refuse unwanted life-sustaining treatment – by withholding or withdrawing it – when they are no longer able to do so contemporaneously due to irreversible decision-making incompetence.

Second, a durable power of attorney for healthcare is an instrument that enables a patient to transfer their healthcare (including medical) decision-making to another person – a proxy or substitute – when they are no longer competent to do so contemporaneously, including decision-making about continued life and thus withholding and withdrawal of life-sustaining treatment.

There are several persuasive considerations – ethical, legal and professional – why a living will and a durable power of attorney for healthcare should be explicitly recognised in our law.

These considerations demonstrate why the answer by the Minister of Health, in response to a question put to him in Parliament, is wrong – in ethics and law – when he said that “withholding or withdrawing life-sustaining treatment is a decision taken by the treating doctor and must only be based on his or her clinical evaluation and not on anybody’s request”.

On the contrary, a living will and durable power of attorney for healthcare:
1. Are instruments that give expression to widely-accepted, basic medical ethics principles, such as respect for autonomy (self-determination), beneficence (doing good), non-maleficence (refraining from doing harm) and justice (fair or even-handed treatment), as well as virtues such as compassion and solidarity;

2. Are expressions of constitutional rights in the Bill of Rights, such as the rights to dignity (incorporated in the right to life – former Constitutional Court Justice Kate O’Regan), to freedom of bodily integrity, and to privacy;

3. Were proposed by the SALC, in 1999, following a thorough investigation of international practice and after wide consultation with the South African public;

4. Are actually already embedded – without being named, and all too vaguely in respect of specifically life-sustaining treatment – in the National Health Act 2003

a. Section 7(1)(e) affirms informed consent as a prerequisite for providing healthcare services and recognises the right to refuse such services;

b. Section 7(1)(a) and (b) allow for the appointment of substitute or proxy healthcare decision-makers, explicitly or by way of natural succession by family members;

5. Were confirmed – albeit not directly or by name, but in respect of the underlying principles at stake – by the Supreme Court of Appeal (SCA) in its judgment of 6 December 2016 in the Stransham-Ford case, where a full bench of five SCA judges stated the following: “[31] A person may refuse treatment that would otherwise prolong life. This is an aspect of personal autonomy that is constitutionally protected and would not ordinarily be regarded as suicide. Medical treatment without the patient’s consent is regarded as an assault so that the patient is always entitled to refuse medical treatment. In refusing treatment the patient is allowing the natural processes of the disease to take their course” (my italics).

6. Would guide medical practice in an area of ignorance, uncertainty, and even unnecessary fear for adverse legal consequences, should practitioners act according to directives in a living will or durable power of attorney for healthcare.

We have a moral and constitutional right to life. But we do not have an obligation to live irrespective of the quality of our lives, or regardless of the circumstances.

Willem Landman
Professor Extraordinaire, Department of Philosophy, University of Stellenbosch
Executive Committee Member, Dignity SA
Founding CEO and Non-Executive Director, The Ethics Institute (TEI)

6 August 2018

Dignity SA will be hosting the 22nd biennial conference of the World Federation of Right to Die Societies in September, with delegates from 23 countries attending and some of the world’s most distinguished thought leaders in the right to die movement – including ethicists, scientists, legal experts, and medical professionals – will grace the stage. The conference is open to the public (and the media) at the Cape Sun hotel on 7 and 8 September. The conference will end with what surely is to be a rigorous debate. For more information or to book (fewer than 30 seats left): www.assisteddying2018.com.