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Ironically, as medical technology advances and becomes more life-prolonging, a growing number of people do not want to prolong their lives when they face a terminal prognosis. This phenomenon has led to an increasing popularity of living wills. Despite its growing popularity, living wills are not formally recognised as legal instruments in South Africa, and their legal enforceability remains debatable. This article will explore the concept of a living will, and its legal status in South Africa, and argue for the enforceability of living wills under the current South African jurisprudence.
A living will, also called an ‘advance directive’, is a written document in which a patient expresses the wish to refuse any medical treatment and not to be kept alive by artificial means when such a patient faces a terminal prognosis and is unable to competently express their wishes regarding medical treatment, and where medical intervention will only serve to artificially prolong their lives (see SA Strauss Doctor, Patient and the Law 3ed (Pretoria: Van Schaik 1991) at 344).
Living wills are not recognised per se as legal instruments by any South African statute or common law. In Clarke v Hurst NO and Others 1992 (4) SA 630 (D) the court had the opportunity to afford legal recognition to a living will, but it ultimately did not do so. In Clarke the applicant applied to be appointed as curator personae for the patient, seeking authorisation to discontinue the patient’s medical treatment, even though such discontinuation would likely hasten the patient’s death. The applicant tendered into evidence a document the patient signed and marked as ‘A Living Will’, in which he requested that in the event of there being no reasonable expectation of his recovery from extreme ptrhysical or mental disability, he be allowed to die and not kept alive by artificial means.
The court held that in our law the curator personae was under a duty to act in the best interests of the patient and not necessarily in accordance with their wishes. The court acknowledged the living will, but did not recognise it as a legal instrument nor did it give effect thereto. The court’s decision regarding the patient’s best interests aligned with his wishes expressed in the living will, yet this was purely incidental and not pursuant to a recognition of the living will’s legal authority. This decision supports the premise that the contents of living wills will have evidentiary value in any proceedings regarding the cessation or refusal of medical treatment. Given that the Clarke decision predates the National Health Act 61 of 2003 (NHA) and the Constitution of the Republic of South Africa, 1996, its reasoning does not fully conform to the current jurisprudence and it may not necessarily provide persuasive authority for the proposition that living wills are unenforceable per se. It is reasonable to assume that a court applying the current jurisprudence would likely adopt a different (more favourable) approach to the enforceability of living wills. This submission is supported by the reasoning adopted in Stransham-Ford v Minister of Justice and Correctional Services and Others 2015 (4) SA 50 (GP) where the court, in a fairly similar context, placed a high premium on an individual’s constitutional right to dignity and bodily integrity. (This decision was later overturned on appeal for unrelated reasons.)
Given the lack of legal recognition, the question thus arising is whether living wills can be enforced. It is submitted that a living will can be given force and effect under the auspices of the NHA despite not being recognised as a legal instrument in itself.
Section 7(1)(a) of the NHA provides that, ‘subject to section 8, a health service may not be provided to a [patient] without the [patient’s] informed consent, unless –
(a) the [patient] is unable to give informed consent and such consent is given by a person –
(i) mandated by the [patient] in writing to grant consent on his or her behalf.’
Section 7(1)(e) further provides that, ‘subject to section 8, a health service may not be provided to a [patient] without the [patient’s] informed consent, unless –
…
(e) any delay in the provision of the health service to the [patient] might result in his or her death or irreversible damage to his or her health and the user has not expressly, impliedly or by conduct refused that service.’
Section 7(2) imposes a duty on a medical practitioner to take all reasonable steps to obtain a patient’s informed consent.
Section 8(1) provides that ‘a [patient] has the right to participate in any decision affecting his or her personal health and treatment.’ Section 8(2)(a) further provides that ‘if the informed consent required by section 7 is given by a person other than the [patient], such person must, if possible, consult the [patient] before giving the required consent.’ These provisions of the NHA emphasise the legal requirement for informed consent, which lies at the core of a patient’s fundamental right to dignity, bodily integrity, and self-determination, as enshrined in the Constitution.
It is submitted that these provisions of the NHA, if interpreted purposively, provide the basis on which a living will can be enforced. A living will, by its nature, is a written document where a patient pre-emptively and conditionally provides (or refuses) consent to future medical treatment under specific circumstances. Such a will represents a direct exercise of a patient’s right under s 8 to decide on their future medical treatment. Where a patient has appointed a representative, it is submitted that s 8(2)(a) imposes a positive duty on such representative to consult the patient’s living will and act accordingly.
It could further be argued under the auspices of s 7(1)(e) that a medical practitioner must refuse to follow instructions that contradict the provisions of the living will, even if such instructions are contrary to the patient’s best interests and would hasten death. The rationale is that any form of medical treatment administered without informed consent or contrary to the consent provided is unlawful/wrongful assault and may subject a medical practitioner to civil and criminal liability. In such cases, the defence of volenti non fit iniuria would not apply.
It is generally permissible for a medical practitioner to ‘comply with a living will where the patient is in a permanent vegetative state’ or has no prospects of making a recovery or regaining consciousness (Nicolene Schoeman ‘The distinction between living wills and powers of attorney’ (https://cisp.cachefly.net, accessed 22-11-2024)). ‘The Health Professions Council of South Africa (HPCSA) have both issued guidance stating that all patients have a right to refuse treatment. These guidelines also state that patients who have advance directives [living will] in place have constitutional rights to expect their living wills to be honoured’ (Dignity South Africa ‘Advance Directive: Living Will Planning Guide’ (https://knowledgehub.health.gov.za, accessed 22-11-2024)). (See The Healthcare Professions Council of South Africa – Guidelines for Good Practice in the Healthcare Professions Council of South Africa ‘Guidelines for Good Practice in the Healthcare Professions – Seeking Patients’ Informed Consent: The Ethical Considerations’ Booklet 4, December 2021). It thus follows that a living will be given effect in certain circumstances, such as where a patient is unable to make or communicate their wishes and their prognosis is terminal. An example would be where a patient is in a coma, unconscious and terminally ill with no chances of recovery and medical intervention will only serve to prolong their life.
It is important to note that while the NHA provides a basis for arguing the enforceability of living wills, this is not the same as formal legal recognition. The enforceability is contingent on interpretation and may not be absolute or uniformly upheld across cases.
The National Health Amendment Bill, 2019 (the Amendment Bill) aims to afford legal recognition to a living will under the auspices of the NHA. The Amendment Bill proposes the introduction of s 7B(1) into the NHA, which will provide that for purposes of s 7(1)(e) of the NHA, any person who is 18 years or older and of sound mind, may express his or her refusal for any future potentially life-sustaining medical treatment or procedure when such person may no longer be competent to express such refusal, in a living will. The Amendment Bill further proposes s 7B(3), which will provide that a treating medical practitioner must, before giving effect to the living will, be satisfied that the medical condition of the patient is terminal and incurable, that the patient is no longer competent to make or communicate decisions concerning their medical treatment or refusal thereof; that the patient is in a permanent vegetative state; or that the patient is completely and irreversibly unconscious. The medical practitioner must further be satisfied, in so far as is reasonably possible, of the authenticity of the living will and inform, where practicably possible, the patient’s next of kin of the existence and content of the living will.
While there is the argument that a living will can be enforced under the existing jurisprudence, the Amendment Bill, if passed, would bring about legal certainty by recognising living wills as an independent legal instrument and give effect to a patient’s fundamental right to dignity, bodily integrity, and self-determination in the context of life-ending decisions. Unfortunately, the legislature has yet to table the Bill for consideration and approval.
Despite the enforceability of living wills, there are no formal legal requirements for their validity. The South Africa Living Will Society and the South African Medical Association suggest four criteria for a living will to be ethically valid:
These criteria conform with the common law position that only legally competent patients may refuse medical treatment or other procedures, even if their refusal will result in death. It is proposed that an additional requirement be added, requiring a living will to be issued in the presence of two competent witnesses. This requirement will eliminate disputes over the authenticity or validity of the living will.
Where there is no living will and a patient is in a vegetative state or otherwise lacks decisional capacity regarding their medical treatment, an application to the High Court to appoint a curator is necessary. Alternatively, an administrator could be appointed under the Mental Health Care Act 17 of 2002. In the premise, legal practitioners would be well-advised to ensure that living wills drawn for their clients comply with the above criteria to ensure that same is honoured by a medical practitioner and to avoid the costs of having to apply for the appointment of a curator or administrator.
The enforceability of living wills in South Africa remains a debated issue. While living wills are not yet formally recognised as independent legal instruments, their importance cannot be overstated. Individuals should consider drafting a living will, as it not only serves as a clear expression of their medical preferences, but it also provides vital guidance to loved ones and medical practitioners in making difficult life-ending decisions. The provisions of the NHA, coupled with the guidance from the HPCSA, provide a strong foundation for the enforcement of living wills under current jurisprudence, thus ensuring that a patient’s fundamental rights to dignity, bodily integrity, and self-determination in their final moments. Legal practitioners should ensure that these documents meet the suggested ethical criteria to enhance their validity and likelihood of being honoured.
Alno Smit LLB (Stell) is a practicing legal practitioner (advocate) in Cape Town.
This article was first published in De Rebus in 2025 (Jan/Feb) DR 48.
