A “living will” is a declaration or an advance directive which will represent a patient’s wish to refuse any medical treatment and attention in the form of being kept alive by artificial means when the patient may no longer be able to competently express a view.
Any person may refuse medical treatment even if such refusal will result in irreversible harm or death, unless such treatment is sanctioned by law. To be able to make such a declaration such as the “living will”, a person must be over the age of medical consent and “compos mentis”. The declaration will remain valid even if the declarant later on becomes “non compos mentis”. This proviso is not the same for Powers of Attorney which loses its authority once the principal (declarant) becomes mentally incompetent.
The “living will” is not a will in the testamentary sense of the word. There is in South Africa at present no law regarding the validity or enforceability of “living wills”. These guidelines have therefore been designed to assist doctors who are confronted with a “living will”. Doctors are, however, advised to approach “living wills” with considerable circumspection and obtain advice from the South African Medical Association (SAMA) if necessary.
GUIDELINES 1. A doctor should offer to treat and to relieve suffering and should generally act in the best interests of his/her patients. This conforms with the ethical principle of beneficence. There shall be no exception to this principle even in the case of incurable disease or malformation.
The World Medical Association’s declaration on terminal illness should be borne in mind. This declaration recommends that: “A doctor may relieve suffering of a terminally ill patient by withholding treatment with the consent of the patient or his immediate family if the patient is unable to express his will. Withholding of treatment does not free the doctor from his obligation to assist the phase of his illness and a doctor shall refrain from employing any extraordinary means which would prove of no benefit for the patient.”
2. All patients have a right to refuse treatment, which right should be respected. This, however, does not imply or justify abandonment of the patient. Doctors should offer medical care in accordance with good medical practice. The medical care should also be acceptable to the patient and appropriate to the circumstances. Doctors are encouraged to raise the subject in a sensitive manner with patients who are anxious about the possible administration of unwanted treatment at a later stage.
3. A written advance directive, in the absence of contrary evidence, shall be regarded as representing the patient’s expressed wish. The drafting of an advance directive is the patient’s responsibility. It is, however, recommended that an advance directive should be drafted in conjunction with medical advice and counselling. It is further advisable that (C) SAMA Copyright 2012 patients discuss the specific terms of their advance directives on a continuing basis with their medical practitioner(s).
4. Patients frequently believe that advance directive to refuse life-saving or sustaining treatment will be honored under all circumstances. The reality of medical practices makes this impossible. If an advance directive is specific to a particular set of circumstances the directive will have no force when these circumstances do not exist. If an advance directive is so general that it applies to all possible events that could arise, it could be viewed as too vague to give any definitive direction to the doctor. In either case doctors will have to rely on their professional judgment to reach a decision.
5. It is the responsibility of a patient to ensure that the existence of an advance directive is known to his/her family and to those who may be asked to comply with its provisions. It is recommended that individuals who made an advance directive, should consider wearing on their person an indication as to the location of the document and lodge a copy thereof at their medical practitioner(s) and/or family member(s). Doctors who are aware of the existence of such an advanced directive, should make all reasonable efforts to acquaint themselves with its contents. In cases of emergency, however, necessary treatment should not be delayed in anticipation of a document which is not readily available.
6. It is strongly recommended that patients review their advance directives at regular intervals. It is further recommended that patients should rather destroy the existing advance directive documents if they so wish, instead of amending it. 7. Doctors with a conscientious objection to withhold treatment in any circumstances are not obliged to comply with an advance directive but should advise the patient of their views and offer to step aside or transfer treatment and management of the patient’s care to another practitioner.
8. Late discovery of an advance directive after life-prolonging treatment has been initiated is not sufficient grounds for ignoring it.
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