In many Ancient Greek and Roman tragedies, the dramatist introduced a “god” to resolve complicated or seemingly hopeless situations.
In a play called Andromache, for example, Thetis, who was the sea goddess (the Deus), dramatically enters the stage via a backstage crane device (the Machina). She appears to Peleus – her husband – to come home to her ocean home and the play ends with Peleus and Thetis lovingly disappearing into the ocean.
And so deus ex machina (god out of the machine), was introduced into our language to explain a situation where an unexpected intervention is introduced onto a seemingly hopeless situation.
In our modern times, when faced with the seemingly hopeless situation of pending death, a Living Will is like the goddess of the sea coming onto the scene to take her loved one back to her to disappear peacefully together into death.
However, for many of us, the machine needs to be turned off through a wish expressed in a Living Will.
A Living Will is an instruction in which a person refuses any future medical treatment or procedure to be kept alive by artificial means.
As one would expect, the legality of a Living Will is a very emotive subject. How enforceable and valid is the use of a Living Will in South Africa?
Unlike in the UK, there is no specific legislation in South Africa yet that governs the validity, applicability, and effect of Living Wills. It is also not clear if family members and your doctor may override the terms of your Living Will; or if there are any legal consequences for following your wishes, i.e., civil or criminal prosecution.
Both the Health Professions Council of South Africa (HPCSA) and the South African Medical Association (SAMA) have issued guidelines to assist doctors who need to consider withholding or withdrawing medical treatment according to the wishes in terms of a Living Will.
According to the HPCSA’s guidelines, patients should be given the opportunity to indicate their wishes regarding treatment. A doctor may not act on own accord, but should seek advice from other health care practitioners, the family, and a person with a background in ethics before any action is taken. Doctors should ensure that all decisions are fully documented and if there is a crucial disagreement about the patient’s best interest, the doctor should seek further advice.
Similarly, the SAMA states that all patients have a right to refuse treatment and that right should be respected. It further mentions that if an advance directive (or Living Will) is specific to a certain situation, it will have no force when the specific situation does not exist. On the other hand, if it is too general, it may be regarded as vague. Therefore, your wishes in terms of your Living Will may not necessarily be honoured. Doctors with a conscientious objection to withhold treatment are not obliged to comply with your wishes, but would need to advise your family and transfer you to another doctor.
The National Health Amendment Bill, 2019 was introduced to bridge the gap and uncertainty around Living Wills. It aims for the legal recognition and enforcement of Living Wills. It further provides direction to doctors as to what is required from them and indemnifies them from criminal and civil action should they adhere to the terms of the Living Will. The Bill has, however, not been approved yet.
Arguments in favour of the legal enforceability of a Living Will include the following:
- It provides certainty and direction to your doctor and your family when you are no longer able to express your wishes.
- It takes the burden away from your family members to have to make the decision.
- It preserves your right to a decent quality of life, not just to be reduced to being kept alive by artificial means; and
- It avoids the cost of being kept alive where there is no hope left.
Practically, although it is not expressly recognised and enforceable in terms of South African law, your doctor will respect your wishes and refrain from any positive action to keep you alive artificially if you have expressed your wish in a clear and unequivocal manner.
Therefore, it is still recommended that a Living Will be signed to spare loved ones the agony of making such a difficult decision.
As the Greek and Roman tragedy writers illustrated, sometimes the tragedy lies in living with the fate of hopelessness and pending death with a god appearing to take you home as the salvation to the hopelessness.