Living Wills

by Gertruida Grové

The tremendous progress in medical science has brought about a dilemma, as it has become possible to prolong human life artificially by technical means, and it has also become possible to bring about death in a dignified and painless way by the administration or withholding of medicine.

A living will is an advance directive which represents a patient's end of life wishes to for example refuse medical treatment in order to not be kept alive by artificial means at a time when the patient may no longer be able to competently express such wishes. A living will is thus not a will in the technical testamentary sense of the word, but a document in which the drafter issues directives to the people who would be responsible for his or her future medical treatment.

Having a living will has many advantages. Living wills will ensure that patients’ right to reject medical treatment will be respected and aid medical professionals and comfort family members in taking difficult decisions regarding life and death.

The greatest problem when considering a living will is that it is extremely difficult for a healthy and mentally acute persons to foresee what they would really require at the time of terminal illness. In South Africa there is at present no law regulating the validity of living wills, but the South African Medical Association (SAMA) has published guidelines for medical practitioners on the implementation of living wills. The following are SAMA guidelines: doctors should generally act in the best interests of the patient and treat and relieve any suffering; all patients have a right to refuse medical treatment; and a written advance directive should be regarded as the patient's expressed desire unless proven otherwise. SAMA further recommends that an advance directive should be drafted in conjunction with appropriate medical advice. In reality a living will is not necessarily honoured in all circumstances. A living will should not be too vague, but drafted wide enough to cover you in times of need not just in a particular set of circumstances.

People with living wills must ensure that their family or other relevant persons are aware of the existence of their living wills. However, SAMA also prescribes that in emergencies vital treatment should not be delayed in anticipation of such a document which may not be readily available at the time of the emergency. Also doctors with a conscientious objection to withholding certain treatments are not obliged to comply with the contents of a living will and may transfer the treatment of a patient in such a case.

The South African Law Commission’s Draft Bill on End of Life Decisions, which is currently with the Minister of Health, provides a regulatory framework for the enforcement of living wills. The Draft Bill specifies the standards of conduct expected from medical practitioners in compliance with advance directives by or on behalf of terminally ill persons, and it also grants the court radical powers to for example terminate treatment, in the absence of an advance directive by or on behalf of the patient, in specific circumstances.

Even though living wills are not yet regulated by law, they have many benefits as they not only encourage people to face end of life decisions, but also provide guidance to family and medical personnel in this regard. A living will would probably also help in so far as palliative care is concerned.