The legal validity of an advance refusal of medical treatment in South African law (part 2)

Abstract

Advance directives enable people to refuse medical treatment in future when they no longer have the capacity to make healthcare decisions.  An advance directive is a “living will” whereby the author refuses to undergo medical treatment in specific circumstances that may arise in the future. An advance directive may also be expressed in a lasting power of attorney (also referred to as a “proxy directive”) whereby an individual appoints someone else to refuse medical treatment in future on his or her behalf. There is no clarity in South African law whether an advance refusal of medical treatment is a legally enforceable instruction. In the first part of this contribution which appeared in 2011 De Jure 32, the current legal position in South Africa was discussed.  The ethical norms that apply in the medical profession were considered and compared with the current legal position. The relevant constitutional values were considered contextually and balanced against certain values of the community. This exercise has led to the conclusion that advance directives should be recognized as legally enforceable instruments in South African law.

In the second part of this contribution the ethical considerations that should play a role in determining whether an advance directive should be enforced in particular circumstances are considered.  The developments in foreign legal systems are discussed and empirical research undertaken in these legal systems to evaluate the efficacy of advance directives in practice are critically analysed.  The study leads to the conclusion that the South African parliament should consider the previous recommendations of the South African Law Commission in this regard.   It is recommended that advance directives be recognized as legally enforceable instruments in legislation.  But the experience elsewhere has shown that mere statutory recognition of the legal validity of advance directives does not bring about any significant change in practice. Changes in perceptions can only be achieved by proper education and the introduction in healthcare institutions such as hospitals and clinics of training programmes and support systems.  It is suggested that an holistic approach be adopted and that  the state itself should initiate and implement efficient strategies to instil a better understanding  of patient autonomy in healthcare workers as well as in the broader public.