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Proposed legislation on enduring powers of attorney for healthcare decisions and living wills: A legal lifeboat in a sea of uncertainty?

A Strode, S Bhamjee, S Soni, C Badul

Abstract


Medical advances have created a range of life-saving or life-prolonging treatments that enable life to be extended artificially. The South African National Health Act provides that a patient has the right to refuse treatment: therefore, in circumstances where they have capacity, they may refuse or request the withdrawal of treatment. Where they lack capacity, the decision will have to be made by partners or family members on their behalf. This raises complex ethicolegal questions around who may act on their behalf, the nature of the decisions they may take and how they should make such choices. In recent years, there has been advocacy for the signing of living wills (an advance health directive setting out a patient’s wishes should they lack capacity in the future). However, to date there is still no legal certainty regarding such documents. Recently, a draft private member’s Bill was gazetted for public comment. It is envisaged that the Bill will be introduced into the National Assembly at some point in 2019 as an amendment to the National Health Act. However, it is unclear when this will occur. If passed, it will ensure the full legal recognition of living wills, and enable patients to enter into a durable power of attorney for healthcare decisions, in terms of which they give another person the authority to make health decisions on their behalf. This article sets out the current ethicolegal position regarding decision-making on the withdrawing or withholding of patient care. It describes the contents of the draft Bill, and evaluates the extent to which it will address current gaps in the ethicolegal framework.


Authors' affiliations

A Strode, School of Law, College of Law and Management Studies, University of KwaZulu-Natal, Pietermaritzburg, South Africa

S Bhamjee, School of Law, College of Law and Management Studies, University of KwaZulu-Natal, Pietermaritzburg, South Africa

S Soni, School of Law, College of Law and Management Studies, University of KwaZulu-Natal, Pietermaritzburg, South Africa

C Badul, School of Law, College of Law and Management Studies, University of KwaZulu-Natal, Pietermaritzburg, South Africa

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Cite this article

South African Journal of Bioethics and Law 2019;12(2):79-84. DOI:10.7196/SAJBL.2019.v12i2.00687

Article History

Date submitted: 2019-12-17
Date published: 2019-12-17

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