Bill to end living will ambiguity

 …..article June 15 2019…

Living Will to be listed in Health Act….

A private member’s Bill has finally been tabled in Parliament  to amend the National Health Act which, if passed, will bring about more certainty on the legal status of living wills. It will provide health professionals, when presented with a living will representing the wishes of a patient under their care, with “the threat of fear of litigation removed” when making decisions to comply with such requests.

Parliamentary MP, Deidre Carter (COPE), has wanted living wills to be recognised for a number of years to assist terminally ill patients by allowing them to refuse medical treatment that could prolong their lives. Written representations on a draft bill were called for by the National Assembly six months ago.

Long time needed

Ms Carter told parliamentary journalists that National Health Act remained ambiguous on the subject pertaining to end-of-life decisions and dying with dignity.    Her Bill, she said, would ensure the recognition and enforcement of advanced healthcare directives, all in terms of the Act.

Such was the recommendation of the SA Law Commission put before Parliament nearly twenty years ago, she reminded her audience.

The Bill now before Parliament says explicitly that it will amend “the principal Act so that advance health care directives such as the living will and a durable power of attorney for healthcare are legally recognised, and that legal certainty and legal enforceability regarding these directives are provided for.”

Getting it right

DignitySA‚ who have been campaigning for a number of years for the right to assisted dying, worked with Ms Diedre Carter in drawing up the Bill.      Their Willem Landman said, “The principles at stake in the draft bill are already enshrined in the National Health Act and in court judgments.    It is just that they are not made explicit and nobody knew where they stood.”

“The right wording is now used to eliminate any uncertainty for patients and make it quite clear to medical professionals that they are not at risk if they wish to respect a living will or follow the wishes or a proxy decision maker”.     Both instances are covered, Landman said.

Suggested drafts

The Bill now tabled contains under its Schedule 2, a guideline of a “Durable Power of Attorney for Health Care”, in the case of the appointing of a “healthcare decision-maker” who is thus mandated for all any healthcare and medical decisions of the person drawing up the document.

Tabled under Schedule 3 is a guideline for a “Living Will” and Ms Diedre Carter was insistent that it be understood that the Bill does not address active euthanasia or assisted dying, but just the legal recognition of a person’s living will, or their proxy given to a decision maker.

Decision making

Janet Hugo says in Personal Finance, “One of the practical problems regarding living wills to date is that they are often not accessible to doctors when patients are admitted to hospital.  Doctors who intervene and decide to use life support equipment and may later need to make the very difficult decision to withdraw the support when a living will is subsequently presented to them.” By amending the National Health Act, the fear of litigation is removed from the equation, she adds.



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