Abstract
The concept living will generally refers to a clause in a will stating that, if the testator is in a permanent vegetative state and dependent on a ventilator to remain alive, the ventilator should be switched off. In theory, the concept of a living will is not recognised in South African law. In practice, however, the situation appears to differ. Both the legal and medical professions appear to support living wills and recognise their value for individuals. There is currently no legislation in South Africa that regulates the legality of living wills. It is of the utmost importance that legal certainty relating to the legality and enforceability of living wills is reached. A person suffering from a terminal illness may have a living will stating that medical treatment must be ceased or that a ventilator must be switched off. Technically, the medical practitioner who switches off the ventilator as well as the person who authorises this action, can both be charged with murder if it is found that the deceased was, legally speaking, still alive when the ventilator was switched off.
This article examines the theory behind living wills and considers the perspectives of both the legal and medical professions regarding their legality. Some legal practitioners support the legality of living wills and even provide guidelines on the necessary requirements for such documents to have legal force. As for the medical profession, the South African Medical Association (SAMA) advises medical practitioners to approach living wills with caution and to consult with SAMA in cases of uncertainty. SAMA has issued guidelines intended to help protect medical practitioners against the possibility of medical malpractice and possible legal consequences if a person dies as a result of compliance with a living will. In this regard, the customs and practices of the medical profession can be useful guidelines in determining whether living wills should be regarded as valid and enforceable.
Legal academics such as Strauss and McQuoid-Mason argue that, should a person die as a result of the cessation of medical treatment, the withdrawal of artificial feeding or the switching off of a ventilator – all in accordance with the wishes expressed in a living will – the person has, in fact, died of natural causes. They maintain that in such cases, neither the medical practitioner nor any other involved party should be held legally liable, as the death was caused by the underlying terminal illness, not by an unlawful act. This argument reflects academic support for the legality and enforceability of living wills. The determination of the time of death however remains a crucial factor, and this issue is briefly discussed in this article.
Furthermore, the article also examines the legal position in selected foreign jurisdictions. The legal positions of the Netherlands, Canada and New Zealand, all of which allow for the existence of living wills through legislation, may offer valuable insights for South Africa.
In this article, it is submitted that a person’s fundamental human rights play a significant role in the determination of the validity of a living will. These rights enshrined in the Constitution – the supreme law of the country – must be respected. Any law inconsistent with the Constitution is invalid to the extent of the inconsistency. The fundamental rights, relevant to the arguments in this article, include the rights to life, equality, human dignity, and freedom and security of the person. Some of these rights are intertwined and should be respected collectively, such that a person’s wishes, as contained in a living will, are honoured and given effect to. For example, the right to equality may be undermined if one patient is permitted to refuse medical treatment in person, while another is not allowed to do so through a living will. Furthermore, while the right to life is fundamental and respected by the law, a person’s right to dignity must also be considered. Thus, their wishes – even if contained in a living will – should be respected.
It is evident that both the legal and medical professions respect these fundamental rights and, for that reason, tend to regard living wills as legally enforceable. It is expected that the legal convictions of the community, or boni mores, will be influenced by these rights to the point that living wills are regarded as valid and enforceable.
It will be argued that South African law must be developed, either through a landmark court decision or, preferably, through dedicated legislation. Legislation would create legal certainty and reduce unnecessary litigation and concomitant legal costs. Such development of the law will bring about transformation, replacing the uncertain legal position of the past with greater clarity. If a person has the right to refuse medical treatment, such a person must surely be allowed to stipulate such a desire in a living will. This would provide assurance to both the medical practitioner carrying out the person’s wishes and any family member granting such proxy consent, that they will not attract any legal liability upon the person’s death.
It is unclear why the law has not yet developed in this regard. The South African Law Commission has already drafted concept legislation in 1997 to regulate euthanasia, palliative care and living wills. More recently, the National Health Amendment Bill of 2018 proposed clear guidelines for the validity of living wills. However, none of these has been enacted into law. As far as case law is concerned, legislation is preferable, as there is no guarantee that the courts will adopt a similar perspective on issues relating to euthanasia, palliative care and living wills.
A living will featured prominently in Clarke v Hurst 1992 2 SACR 676 (D), although the court never pronounced on its validity. Since then, no other court decision has dealt with the issue of living wills. However, the inconsistency of the courts’ perspectives in this area of the law is evident from decisions in Stransham-Ford v Minister of Justice and Correctional Services and its appeal, Minister of Justice and Correctional Services v Estate Late Stransham-Ford. The question remains: Why has legal certainty not evolved since the decision of the court in Clarke? It is submitted that little has changed. However, it must be noted that the Interim Constitution came into effect in 1994, followed by the final Constitution in 1996, ushering in a democratic dispensation with the Constitution as supreme law of the country.
On the face of it, this shift should make it easier for living wills to be recognised as legal and enforceable, given the constitutional rights discussed above. However, the task may also be more complex, especially where the death of person can ensue, as the right to life remains deeply significant and the most important of all fundamental rights.
Whatever the case may be, the formal recognition and enforceability of living wills is desirable. It would provide legal certainty and peace of mind to terminally ill individuals, as well as to their families and loved ones. These individuals are already facing the trauma of illness – they should not also be burdened by uncertainty over whether their living will shall be respected.
Keywords: Constitution; fundamental rights; legal certainty; legal profession; living will; medical profession; South African Law Commission; terminal illness; ventilator
- This article’s featured image was created by Tima Miroshnichenko and obtained from Pexels.
Lees die volledige artikel in Afrikaans
Die lewende testament – Is daar regsekerheid in die Suid-Afrikaanse reg?
The post The living will – Is there legal certainty in South African law? first appeared on LitNet.
The post The living will – Is there legal certainty in South African law? appeared first on LitNet.