Considerations for the legal recognition of advance directives: a comparative analysis.

Abstract

An advance directive1 refers to a document drafted by a person in his2 full senses and who foresees that due to some physical or mental disease, he may fall into a state where he will no longer be able to make rational decisions on his medical treatment or care3. Within this document, he purports to make requests or give orders to those who will be responsible for his medical care or treatment4 when he is rendered unable to do so himself.However, South African Law has no clear legal guidelines or any definite statutes or legislation regarding advance directives5 except for the Health Professions Council of South Africa Guidelines6 and the South African Medical Association Guidelines7. The National Health Act8 does however to some extent mention and provide for the appointment of proxies and substitute healthcare decision makers which provides for an effective way for patients to appoint another to make treatment and consent decisions on their behalf when they can no longer do so themselves There is also no specific and direct case authority at common law to provide clarity10. The only case relating to Advance Directives and which was heard in a South African Court was the case of Clarke NO v Hurst11 which influenced the introduction of the Health Professions Council of South Africa Guidelines12 and the South African Medical Association Guidelines13. The only draft legislation in relation to advance directives in South Africa is the, South African Law Commission Report Project 86: ‘Euthanasia and the Artificial Preservation of Life’14 as well as the National Amendment Bill, 2018, (Private Member’s Bill)15. The Constitution16 is the supreme law of the land and the state has a duty to ensure that all rights are not violated or infringed against, at all costs17. However, Section 36 of the Constitution18 provides for a General Limitation Clause which provides for all rights within the Bill of Rights to be limited in terms of general application and states that any limitation must however, be reasonable and justifiable made with good cause. The right to dignity19, the right to life20, the right to privacy21 and the right to security and control over one’s body22 is of vital importance in relation to advance directives. These aforementioned rights affirm the rights of individuals to refuse treatment evenif it may result in their death23. Thus, this dissertation will argue and motivate that valid refusals of treatment or procedures contained in advance directives should be honoured and further given legal credence. Notwithstanding the existence of draft legislation, advance directives has not been implemented and introduced in South Africa, hence advance directives are not legally binding documents24. The physician’s liability also remains unclear if they comply with such directives without a court granting an order.This dissertation seeks to explore the different types of advance directives and the position in South Africa. It also compares and contrasts the position to other like-minded jurisdictions. Namely, Canada and the United Kingdom (UK). Canada will be focused on largely as many provinces within Canada have implemented legislation regulating the use of advance directives and which gives legal recognition to said advance directives26. The UK will be discussed as numerous case authorities exist favouring the use of advance directives27. Important to note is that, the UK does not only have case authority which deals with advance directives and end of life decisions but also respects and honours valid refusals of treatment as long as they were made in accordance to the requirements of the relevant legislation.