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5.1 This Chapter deals with the situation of mentally incompetent or permanently comatose persons for whom no hope of recovery or improvement exists who cannot take their own decisions and cannot therefore request cessation of treatment, assistance with suicide or active voluntary euthanasia. Some of these patients can be referred to as being in a permanently vegetative state. They are not brain dead, but they are in an irreversible, unconscious state. To keep the patient alive, he or she has to be fed artificially, and ventilated, if necessary. Some of the life functions have to be aided.
5.2 The factors that cause this condition are numerous: quite often it is the result of brain injury or asphyxiation as a result of which the blood supply and therefore also the supply of oxygen to the brain is shut off for such a long period that it results in irreversible brain damage. The condition is often the result of a serious stroke, but it can also be the result of brain damage during the birth process, with the result that the child born is in an unconscious, irreversibly vegetative condition for the rest of his or her life.
5.3 In discussing cessation of life-sustaining medical treatment two situations need to be considered separately. The one is where the patient concerned has indicated, before becoming incompetent, in a written and signed document, called a "living will" or "advance directive"[503] or in a power of attorney, his or her wishes regarding life-sustaining treatment. The other situation is where the patient has not indicated his or her wishes before becoming incompetent.
5.4 A so-called advance directive (living will) is drafted by a competent person who foresees the possibility that he or she may at some future date, as a result of physical or mental inability, be unable to make rational decisions as to his or her medical treatment and care. In this document the drafter therefore endeavours to make certain requests or issue directives to the people who would be responsible for his or her medical treatment. The underlying principle is that a patient has the right to refuse specific treatment, even life-sustaining treatment, and that medical staff are obliged to honour the wishes of a mentally competent patient. When a patient is no longer able to make decisions regarding his or her treatment and care, doctors are dependent on prior consent, directives by an agent or their own judgment, with due observance of the ethical code that binds them. The object of the advance directive (living will) is therefore to give guidelines to medical practitioners as to their conduct in circumstances where the patient is unable to do so himself or herself. It is a particular object of this document to absolve medical practitioners from liability should the treatment or the withholding of such treatment hasten the death of the patient.
5.5 The validity of the consent given and the directions set out in the document is, however, not without its problems. We must therefore determine whether the validity of advance directives (living wills) should be recognised by statute and, if so, what precautionary measures should be taken, if any.
5.6 The main clause of the English version of the Living Will, as made available by the South African Living Will Society to its members for signing, reads as follows:
If the time comes when I can no longer take part in decisions for my own future let this declaration stand as the testament to my wishes. If there is no reasonable prospect of my recovery from physical illness or impairment expected to cause me severe distress or to render me incapable of rational existence, I request that I be allowed to die and not be kept alive by artificial means and that I receive whatever quantity of drugs may be required to keep me free from pain or distress even if the moment of death is hastened.
5.7 As Professor Strauss[504] rightly observes, the advance directive (living will) is not a will in the technical, testamentary sense of the word. It is merely a standing request to medical staff to act in a specific manner in specific circumstances. Professor Strauss is of the opinion that, as far as the request not to be kept alive by artificial means is concerned, it constitutes a legitimate refusal of consent to treatment and that medical practitioners are accordingly obliged to comply with it. In respect of a clause in an advance directive (living will) that authorises the administering of drugs, even if its secondary effect is to hasten death, Professor Strauss[505] feels that complying with such a request would be lawful if the doctor acted in good faith and used the normal drugs in reasonable quantities with the object of relieving pain and not of causing death.[506]
5.8 Various legal systems also use a power of attorney to enable a principal to entrust an agent with the decision-making power regarding the principal's medical treatment and care. The agent is usually a family member or confidant of the principal. The circumstances in which the proxy will come into force are set out in the power of attorney. This happens should the principal no longer be able to make decisions or give instructions to medical practitioners as a result of an illness. Such a power of attorney may also embody the wishes of the principal not to be kept alive artificially in specific circumstances. A power of attorney may therefore often include a so-called "advance directive" or a "health care directive", which corresponds with the usual terms found in an advance directive (living will).
5.9 In our law a power of attorney lapses when the principal becomes mentally incompetent. An agent would therefore not be able to make decisions as to, for example, the performance of an operation or the discontinuation of artificial respiration or feeding on behalf of a person who is permanently unconscious. Legislation would be necessary to permit this.
5.10 During 1988 the Commission investigated the desirability of making provision for an enduring power of attorney in certain circumstances.[507] The investigation was concerned with decision-making in respect of a mentally incompetent person's property and not his or her person. The Commission proposed two Bills - one to make provision for enduring powers of attorney under certain circumstances and the other to make provision for a simpler, less expensive way of appointing a curator in respect of the property of a mentally incompetent person. Only the latter recommendation was accepted. This led to the Mentally Ill Person's Legal Interests Amendment Act, 1990.[508] It was said that the reason why the first-mentioned Bill was not promoted was because its application would have been very limited and that the legislature does not cater for exceptions.
5.11 We shall now briefly discuss the main developments regarding advance directives (living wills) in comparative perspective.
* The United States of America
5.12 California was the first state to accept legislation with regard to the advance directive (living will) by enacting the Natural Death Act, 1976.[509] Subsequently all states have adopted legislation pertaining to advance directives for health care including living wills, health care surrogate designations and durable powers of attorney.[510]
5.13 It has been found that the requirements and application of living will and health care agent statutes vary significantly from one state to another. In general all the states provide for a written document signed by the drafter or by someone on his or her behalf, as well as at least two witnesses. In some states people with an interest in the case are excluded as competent witnesses and a few other states provide for the document to be drafted by an attorney. In California an advance directive (living will) lapses automatically after five years.
5.14 Although health care agent statutes in 49 states permit an agent to make decisions when a patient is permanently unconscious, living will statutes in only 38 states include permanent unconsciousness as a qualifying condition. Similarly, only about two-thirds of the states have statutory language permitting living wills or health care agents to withhold or withdraw artificial nutrition and hydration. Also 34 states have living will statutes that explicitly forbid the withholding or withdrawal of life support from pregnant patients and 14 states forbid health care agents from making such a decision.[511]
5.15 In the case John F Kennedy Memorial Hospital Inc v Bludworth[512] the Supreme Court of Florida had to decide the following legal question:
In the case of a comatose and terminally ill individual who has executed a so-called "Living" or "mercy" will, is it necessary that a court appointed guardian of his person obtain the approval of a court of competent jurisdiction before terminating extraordinary life support systems in order for consenting family members, the attending physicians, and the hospital and its administrators to be relieved of civil and criminal liability?
5.16 The court held that such approval is not necessary. The court investigated the right of terminally ill patients to refuse to be kept alive artificially and found, on the basis of quoted authority, that such a right was not only recognised in the state of Florida, but also in other states of the USA. The court subsequently considered the question of who may exercise the right when a person is unable to do it himself or herself as a result of his or her comatose state. In this regard the majority of the court held as follows:[513]
We hold that the right of a patient, who is in an irreversible comatose and essentially vegetative state, to refuse extraordinary life-sustaining measures, may be exercised either by his or her close family members or by a guardian of the person of the patient appointed by the court. If there are close family members such as the patient's spouse, adult children, or parents, who are willing to exercise this right on behalf of the patient, there is no requirement that a guardian be judicially appointed. However, before either a close family member or legal guardian may exercise the patient's right, the primary treating physician must certify that the patient is in a permanent vegetative state and that there is no reasonable prospect that the patient will regain cognitive brain function and that his existence is being sustained only through the use of extraordinary life-sustaining measures. This certification should be concurred in by at least two other physicians with specialities relevant to the patient's condition.
5.17 Regarding the way in which a family member exercises the right on behalf of the patient, the court was of the opinion that conduct is based on the doctrine of "substituted judgment". In this respect the court observed as follows:[514]
Under this doctrine close family members or legal guardians substitute their judgment for what they believe the terminally ill incompetent persons, if competent, would have done under these circumstances. If such a person, while competent, had executed a so- called "living" or "mercy" will, that will would be persuasive evidence of that incompetent person's intention and it should be given great weight by the person or persons who substitute their judgment on behalf of the terminally ill incompetent.
5.18 It is worth noting that in this case the advance directive (living will) was only regarded as persuasive evidence of the wishes of the person concerned and would carry considerable weight with the decision-maker. However, it appears that the advance directive (living will) in itself could not authorise the discontinuance of artificial life-support systems even when the point had been reached where no recovery was possible. Consent was still required either from the family, the curator or the court.
5.19 Since State legislatures have enacted legislation that gives legal effect to appropriately expressed anticipatory expressed refusals of medical treatment by competent adults, in specified circumstances, US cases exploring the law relating to anticipatory refusals therefore have mainly arisen in States where there is (or was) no such legislation.[515]
5.20 The Patient Self-Determination Act, 1990[516] came into force on 1 December 1991. It provides that in all health care institutions receiving federal funding, the hospital staff must, on admission, specifically enquire from patients whether they wish to fill in a form stipulating which treatment they prefer or refuse and whether they wish to appoint a family member or friend to make decisions on their behalf if circumstances may arise in which they are unable to communicate their wishes themselves. The form is completed voluntarily and is regarded as valid and binding. This Act is a federal Act and is accordingly applicable to all the states in America.
5.21 In addition to advance directive (living will) legislation, some states have also made statutory provision for the appointment of agents by way of enduring powers of attorney, in terms of which decisions can be made on behalf of incompetent patients in respect of their medical treatment.
5.22 The first legislation establishing a mechanism for appointing an agent to make health care decisions under an enduring power of attorney was also enacted in California, in 1983.[517]
Again many other states enacted similar statutes. Currently more than 30 states have this kind of enduring power of attorney legislation. Many states have legislation combining living will provisions and enduring power of attorney provisions. In addition, 20 states have legislation giving a patient's family members power to make decisions about the life-sustaining medical treatment of a patient when the patient becomes incompetent and has not made an advance directive.[518]
5.23 The advance directive (living will) legislation has been criticised. The writer George D Pozgar holds the following opinion:[519]
Although many interest groups hailed the enactments of natural death or living will acts as providing the solution to the difficult problems inherent in euthanasia situations, the statutes present inadequacies that must be addressed. A person drafting a living will when healthy and mentally competent cannot predict how he or she will feel at the time of a terminal illness. Moreover, unless the document is updated regularly, how can it be ascertained that the document actually reflects what the patient wishes? If a proxy is used and that proxy is a close family member, there could be danger of a conflict of interest, emotionally or legally. Guidelines must be unified and tightened in order to offer better guidance to physicians and courts.
5.24 Recognising the benefits of more uniformity among state advance directive laws, the National Conference on Commissioners on Uniform State Laws[520] approved the model Uniform Health Care Decisions Act in 1993.[521] Although UHCDA has been adopted in only one state, New Mexico, many states have enacted laws containing substantially similar provisions.
* Australia
5.25 The question regarding the refusal in advance of consent to medical treatment and the artificial support of life is dealt with differently in the different states of Australia.[522] Mainly two approaches are adopted by the different states. Firstly, some states[523] give effect to the advance directive (living will) by way of legislation. Secondly, other states[524] make use of substituted decision-making by an agent appointed according to an enduring power of attorney or a curator appointed by the court.
5.26 South Australia was the first Australian jurisdiction to enact advance directive legislation with the Natural Death Act, 1983.[525] The Natural Death Act 1983 was recently repealed and replaced by the Consent to Medical Treatment and Palliative Care Act 1995 (SA) which came into effect on 30 November 1995. The new legislation makes provision in sec 7(1) for a person who has attained the age of 18 years and who is of sound mind to make a direction about the medical treatment that the person wants or does not want should he or she in future be in the terminal phase of a terminal illness, or in a persistent vegetative state, and should he or she be incapable of making decisions about medical treatment when the question of administering of treatment arises.
5.27 The Act also introduces a new regime for appointing agents to make health care decisions under enduring powers of attorney. This replaces the old regime established under the Guardianship and Administration Act 1993 (SA). The new legislation provides in sec 8 that a person who has attained the age of 18 years and is of sound mind can execute a 'medical power of attorney', appointing an agent with power to make decisions on his or her behalf about medical treatment. The agent must be over 18 years of age; be someone who has no interest under the principal's will or in the estate of the principal; and cannot be a person who, in a professional or administrative capacity, is involved in the medical treatment of the principal. More than one agent may be appointed, but the medical power of attorney must indicate the order of appointment and must not provide for joint exercise of decision-making power by the agents. If the principal has also made an anticipatory direction (under the living will provisions of the legislation), the agent must make decisions consistent with that direction. In sec 13 the Act also clarifies the circumstances under which medical practitioners must respect the anticipatory refusal of emergency treatment - defined as treatment that is necessary to meet the imminent risk to health by a patient who is now incapable of consenting to the treatment.[526]
5.28 In the Northern Territory the Natural Death Act, 1988 is modelled broadly on the now repealed Natural Death Act 1983. Under this Act a person of sound mind above the age of 18 years who desires not to be subjected to life-prolonging treatment in the event of a terminal illness, may make a directive to that effect in the prescribed form. The directive must be witnessed by two persons. A doctor responsible for the patient's treatment is obliged to act in accordance with the directive unless he or she has reason to believe that the patient has revoked it or was not, at the time of giving the directive, capable of understanding its nature and consequences.
5.29 The advance directive provisions in the state of Victoria are contained in the Medical Treatment Act, 1988.[527] This Act is premised on the basis that a patient's wishes with regard to the refusal of medical treatment should be complied with in terms of a refusal of treatment certificate. If a patient is unable to make a decision an authorised agent or appointed curator should be able to make the decision on the patient's behalf.
5.30 A person may also appoint an agent by way of an enduring power of attorney to make decisions on his or her behalf as to his or her medical treatment if that person is no longer able to do so. An agent thus appointed or duly appointed guardian of the patient may refuse consent to medical treatment on behalf of the patient if the medical treatment would cause unreasonable distress to the patient or if there are reasonable grounds for believing that the patient, if competent, would have considered the treatment unwarranted.[528] As in the case where the decision is made by the patient himself or herself, a medical practitioner and another person must jointly sign a certificate of refusal of treatment in respect of the refusal by the agent or guardian, if they are satisfied that the agent or guardian has been informed of the nature of the patient's current condition and that they understand the implications of such refusal. A refusal of treatment certificate in the prescribed form must be completed by the medical practitioner, the other person and the agent or guardian.
5.31 An enduring power of attorney is not revoked by the subsequent incapacity of the principal but can be revoked by the principal himself or herself. The Guardianship and Administration Board may suspend or revoke an enduring power of attorney in specific circumstances.[529] One of these circumstances would be if the Board was satisfied that refusal of medical treatment was not in the best interests of the patient.[530]
5.32 The presentation of the refusal of treatment certificate serves as evidence of the patient's refusal of treatment and a medical practitioner who acts in good faith and who refuses to administer or continue medical treatment in reliance on such certificate is not guilty of misconduct or liable in any criminal or civil proceedings.[531]
5.33 Western Australia does not have legislation recognising "advance directives" or "enduring powers of attorney" empowering an agent to make health care decisions. [532]
5.34 In 1991 the Western Australian Law Reform Commission recommended the introduction of legislation broadly modelled on the Medical Treatment Act 1988(Vic).[533]
5.35 The Law Reform Commission's report was submitted in February 1991. Its point of departure was:[534]
.... that persons have a right to self determination. This includes the right to choose whether or not to be treated, or to continue to be treated, and the right to determine the course of future treatment if their mental or physical condition makes them unable to exercise their right of choice at the time.
5.36 The Law Reform Commission was not in favour of a person stipulating his or her wishes in respect of future medical treatment by way of an advance directive (living will). It preferred an enduring power of attorney whereby an agent could be appointed to make decisions on behalf of the principal regarding his or her treatment according to the requirements that exist at that time.
5.37 The Law Reform Commission advanced the following reasons why it found the advance directive (living will) to be unacceptable:[535]
5.38 The Law Reform Commission favours a system similar to the one entrenched by legislation in the state of Victoria. This entails the competence to appoint an agent, by way of an enduring power of attorney, to make decisions regarding the medical treatment of the principal. The power of attorney takes effect only if the principal becomes incompetent. In cases where no agent has been appointed or where the appointed agent may be unwilling or unable to act, a guardian must be appointed for the incompetent person.[536]
5.39 The decision by the agent or guardian should be based on the decision that the patient would probably have taken in the circumstances, had he or she been able to do so. Where such substituted judgment is inappropriate, the decision should be based on what a reasonable person would probably conceive to be in the best interests of the patient, considering the circumstances.
The decision made by an agent or guardian on behalf of the incompetent person should be subject to review at the insistence of any interested party.[537] If an agent or guardian makes a decision in good faith, he or she should not be civilly or criminally liable for that decision. Certain formalities are prescribed to ensure the legality of an enduring power of attorney.
5.40 In order to facilitate proof of refusal of medical treatment, the Law Reform Commission suggests that use should also be made of the refusal of treatment certificate, as is the case in Victoria. Unlike Victoria, it is suggested that such refusal should also apply to palliative care,[538] which is defined as:[539]
the provision of reasonable medical procedures for relief of pain, suffering and discomfort; or the reasonable provision of food and water.
5.41 Finally, it is recommended that a doctor should escape liability if, in reliance on a refusal of treatment certificate, he or she refuses to perform medical treatment. No liability should furthermore result where a medical practitioner administers drugs for the purpose of controlling or eliminating pain and suffering even if the treatment shortens the patient's life, provided that the doctor acted with the consent of the patient, his or her agent or guardian or that the treatment was reasonable in the circumstances of the case.
5.42 In May 1995 the Hon Ian Taylor MP introduced the Medical Care of the Dying Bill 1995 (WA) into Parliament. The long title of this Private Member's Bill is 'An Act to affirm and protect the rights of terminally ill persons to refuse unwanted medical treatment, to protect medical practitioners and other health professionals and for related purposes'. At the end of 1996 the Bill entered the Committee stage and has not been finalised yet. [540]
5.43 In the Australian Capital Territory The Medical Treatment Act 1994 (ACT) was passed in 1994. It was initially part of a Private Member's Bill the Voluntary and Natural Death Bill 1993 introduced into the ACT Legislative Assembly in 1993 which aimed to make active euthanasia lawful in specified circumstances. The Bill also contained provisions enabling a competent adult to make advance directives and medical powers of attorney provisions. The Select Committee however decided that it was 'politically inopportune ' to proceed with the Bill in that form, resulting in the current act being passed. The Medical Treatment Act 1994 is broadly modelled on the Medical Treatment Act 1988 (Vic). It makes provision for both the advance directive and the enduring power of attorney.
5.44 On 2 February 1998 a new law entitled The Guardianship Amendment Act 1997 was proclaimed in New South Wales by which a person may appoint an "enduring guardian" who will have legal authority to refuse unwanted medical treatment on the person's behalf. Medical practitioners who override an enduring guardian's refusal to medical treatment will be committing an offence.
5.45 Tasmania and Queensland do not have legislation recognising "advance directives" or "enduring powers of attorney" empowering an agent to make health care decisions.[541]
* Canada
5.46 In 1992 the Canadian Province of Ontario [542] enacted legislation giving legal effect to living wills and enabling the appointment of an agent under an enduring power of attorney to make health care decisions. Enduring power of attorney legislation in Nova Scotia and Quebec allows an agent to make health care decisions on behalf of the incompetent principal.[543]
5.47 In 1993 the province of British Columbia enacted the Representation Agreement Act 1993 to enable adults to arrange in advance how and by whom decisions about their health care, personal care or financial affairs will be made should they become incapable of making decisions independently. One key objective is to create a new legal document called a representation agreement in which the adult may name as his representative another adult, a Public trustee, and for specific purposes a credit union or trust company. The representation agreement will avoid the costly process of applying to court for the appointment of a person to make decisions for an adult who is unable to make decisions independently. A novel approach is to provide an adult who grants decision making authority to another person with protection should the other person misuse this authority. This is done by naming as monitor another adult who must make sure that the representative complies with his or her duties.[544]
5.48 In Alberta the Alberta Law Reform Institute initially[545] recommended that the advance directive (living will) should not be used exclusively. In the report the problems that were foreseen with this document were stated as follows:[546]
The living will concept has a number of inherent problems, the most significant of which is that it involves the individual having to anticipate what medical condition he or she may be faced with in the future, and what treatment options may be available at that time. This inevitably leads to difficulties of interpretation. ... Most standardized or prescribed forms of living will attempt to overcome the problem of anticipation by resorting to generalized and imprecise language, employing such terms as "heroic measures" and "extraordinary treatment". However, this merely exacerbates the problem, because these terms are capable of a wide range of interpretations. In the end, the attending physician may find that the living will is simply too vague and ambiguous to provide any useful guidance as to the patient's wishes.
5.49 The principal recommendation in the Alberta Report and the Joint Report was that legislation be introduced to give legal effect to health care directives. The Alberta Law Reform Institute and the Health Law Institute argued that a health care directive would enable individuals to exercise control over future health care decisions in a number of ways.[547] Firstly, it could be used to appoint someone as a health care agent, who would have legal authority to make health care decisions on behalf of the individual in the event of his or her becoming incapable of making these decisions personally. Secondly, the health care directive could identify anyone whom the individual does not wish to act as his or her health care proxy. Thirdly, it could be used to provide instructions and information concerning future health care decisions, for example, instructions as to what types of medical treatment the individual would not want in certain circumstances. If these advance instructions were unambiguous and relevant to the health care decision being considered, they would be legally binding and would have to be followed.[548]
5.50 The Alberta Law Reform Institute identified a need to create a system of substitute decision-making for those patients who have no guardian and who have not appointed a health care agent.[549] It recommended that this be done by way of a statutory list of proxy decision-makers. In the event of a patient being mentally incapable of making a health care decision, the first available person on the statutory list would have the legal authority to make the decision on the patient's behalf. It was recommended that the statutory list be as follows:[550]
(a) A guardian appointed under the Dependent Adults Act (or the equivalent legislation) with authority to make health care decisions on behalf of the patient;
(b) a health care agent appointed by the patient pursuant to a health care directive;
(c) the patient's spouse or partner;
(d) the patient's children;
(e) the patient's parents;
(f) the patient's siblings;
(g) the patient's grandchildren;
(h) the patient's grandparents;
(i) the patient's uncle and aunt;
(j) the patient's nephew and niece;
(k) any other relative of the patient;
(l) the patient's healtcare practitioner.
5.51 Another key recommendation of the Alberta Law Reform Institute concerned the criteria for substitute decision-making.[551] As we have seen,[552] the view was taken that if the patient's health care directive contains instructions which are unambiguous and relevant, these should be legally binding. What happens if there are no such instructions? In the Alberta Report it was proposed that, where possible, proxies should apply a substituted judgment test - that is, they should decide according to what they believe the patient would have decided if competent, rather than according to what they consider to be in the patient's best interests. This view was affirmed in the Joint Report.[553]
5.52 In December 1991 the Law Reform Commission of Saskatchewan published a report recommending the enactment of legislation giving legal effect to advance health care directives.[554] However, the Saskatchewan recommendations are much narrower in scope than those of other Canadian provincial law reform agencies. In particular, the Saskatchewan Commission took the position that advance directives (living wills) should be limited to cases of "last illness". Thus, the Commission recommended that an advance directive (living will) should be given recognition "if it is intended to take effect when the maker is suffering from a condition that is terminal, or will result in a significant diminished quality of life."[555]
5.53 It is further important to take note of the following conclusion of the Saskatchewan Commission:[556]
But whether the Living Will is drafted in broad or narrow terms, in detail or in generalities, it can take effect in Canada only as a manifestation of a refusal to consent to medical treatment ... At present, most physicians are more apt to regard a living will as a "guide or a framework for patient management" than as a legally binding document. Under current practice in Saskatchewan hospitals, when an advance directive is known to attending physicians, a psychological assessment of the patient and involvement of family members is often given equal weight with the patient's expressed wishes in determining a course of action.
5.54 In January 1992 the Newfoundland Law Reform Commission published a discussion paper on advance directives and attorneys for health care.[557] Its recommendations on health care directives are very similar to that of the Alberta Law Reform Institute and the Health Law Institute[558] and to those of the Manitoba Law Reform Commission.[559] The basic position adopted by the Newfoundland Discussion Paper is that individuals should be able to use a health care directive to appoint a health care proxy, and also to provide information and instructions which would be binding on the proxy. As with the Manitoba Report, the focus of the Newfoundland Discussion Paper is limited to health care directives. It does not consider the additional issue of whether there should be a statutory list of proxy decision-makers, so as to deal with the situation where the patient has not appointed a health care agent.
5.55 Against this background, we take a detailed look at some of the recommendations made in the Newfoundland Discussion Paper. Firstly, the Newfoundland Law Reform Commission submitted that the Canadian Criminal Code should be amended to make it clear that criminal law imposes no duty on a medical practitioner to initiate or maintain medical treatment contrary to the instructions of the patient.[560] Legislation should furthermore be enacted to recognise the patient's common law right to refuse medical treatment by granting a competent individual the opportunity to give advance instructions regarding his or her medical treatment and/or to delegate decision-making powers to his or her nominated agent.
5.56 It is further recommended that it should be possible for an individual to use a health care directive or to authorise an attorney to make health care decisions on that person's behalf. A health care decision should include the giving, refusal or withdrawing of consent to any and all types of medical care, treatment, diagnostic procedures, palliative care, medication as well as non-medical matters which are necessarily incidental to medical care. This should include life-prolonging treatment, psychiatric treatment, the administration of nutrition and hydration and admission to medical or psychiatric treatment facilities or removal from such institutions.[561]
5.57 The Newfoundland Law Reform Commission further recommends that a health care directive should be in writing and signed by the person making it.[562] Neither the agent appointed in that health care directive nor the spouse of that agent should be qualified to witness the execution of the directive. A signed, handwritten health care directive of the maker should be valid without any necessity of witnessing, but where the maker signs it with a mark other than his or her signature the execution should be attested by two witnesses.[563]
5.58 It is also recommended that health care facilities (such as hospitals) should be required to enquire, upon admission, whether the patient has made or revoked a directive and to request a copy of the directive, if any.[564]
5.59 The Newfoundland Law Reform Commission believes, however, that the responsibility for communicating the contents of a health care directive should remain with the maker.[565] Where the patient is incapable (unconscious) the medical practitioner should be required to ensure whether such a directive exists or whether an authorised agent has been appointed to attend to the patient's interests. These requirements should also be applicable in emergency situations.
5.60 It is recommended that a health care provider who has been furnished with a copy of a directive should be required to include it in the patient's medical record in such a way that it is brought to the attention of other members of the medical staff.[566]
5.61 Such a directive should only become effective upon a determination that the maker is not mentally capable of making or communicating with respect to medical treatment.[567]
5.62 The legislation should specify that a person who is mentally capable of taking a decision with respect to treatment is also able to understand the information that is relevant to the decision and is able to appreciate the reasonable foreseeable consequences of such a decision. The legislation should specify that a principal who has drawn up a valid health care directive is presumed to be capable of doing so unless the contrary is proved.[568]
5.63 The Newfoundland Law Reform Commission feels it should be possible to revoke a health care directive by -
(i) a subsequent validly executed healthcare directive;
(ii) a declaration in writing that revokes the directive and that is executed in the same manner as a directive;
(iii) the burning, tearing up or other destruction of the directive by the principal (or by some person in his or her presence and by his or her direction) with the intention of revoking the directive.[569]
5.64 It is recommended that a medical practitioner who fails to comply with the valid instructions of a health care agent should be subject to the charges of battery and negligence and to administering treatment without the patient's consent.[570]
5.65 Any person who, without the principal's consent, wilfully conceals, cancels, alters, falsifies or forges a health care directive or any amendment or revocation of such directive or who wilfully withholds any personal knowledge thereof, should be guilty of an offence and liable for damages in a civil action.[571]
5.66 Lastly, the Newfoundland Law Reform Commission recommends that the statutory provisions concerning such directives should be accompanied by an educational campaign to ensure that the general public is aware of the availability of the mechanisms. Health care facilities and professional medical associations should also be encouraged to provide educational support to their members and staff regarding health care directives.[572]
5.67 After due research the Manitoba Law Reform Commission brought out a report in June 1991 entitled Self-determination in health care (living wills and health care proxies). Extensive legislation was suggested in the report in order to make provision for health care directives. Again the point of departure was that individuals should have a free choice in making provision for:[573]
... health care directives in which they can set out their wishes respecting future health care and can appoint health care proxies to make future decisions on their behalf. The decision contained in health care directives or made by health care proxies should be legally binding; the failure to respect them should have the same consequences as the failure to respect a direction concerning current medical treatment. No one should incur liability simply because they honestly gave or followed such a decision. Finally, the making of health care directives should entail only as much formality as is manifestly necessary to protect the maker from fraud and undue influence.
5.68 In the report the following warning was however issued regarding the use of health care directives:[574]
Persons considering the use of a health care directive should not, of course, overlook its possible drawbacks. Personal circumstances and medical technology change and a direction given today may not reflect a maker's wishes ten or twenty years later; a maker who fails to review and update a health care directive may face very serious and unwanted consequences indeed. A vague or imprecise health care directive may also pose problems: the making of a health care directive that refuses "heroic treatment" may give psychological comfort to a maker, yet prove meaningless to physicians. Makers must be made aware that they should avoid ambiguous language in their health care directives and that the assistance of a physician in making one may be helpful; where precision is not possible, the appointment of a health care proxy should be seriously considered.
5.69 The recommendations of the Manitoba Law Reform Commission have now been embodied in the Health Care Directives Act.[575] The Act received Royal Assent in June 1992.[576]
5.70 Following the 1993 decision of the Supreme Court of Canada in the Rodriguez case, [577] in February 1994, a Special Committee of the Senate of Canada was set up to examine and report on the legal, social and ethical issues relating to euthanasia and assisted suicide. The report of this committee - entitled Of life and death[578] - was tabled on 6 June 1995. The report's recommendations include inter alia the following:
* United Kingdom
5.71 In the United Kingdom there is at present little doubt as to the legal right of a patient of sound mind to refuse medical treatment.[579]
5.72 The effect of advance directives (living wills) or the appointment of an agent has, however, not been expressly tested by the English courts and no legislation in this regard has yet been proposed.
5.73 The English Enduring Powers of Attorney Act, 1985, does not provide for medical control of an incompetent patient (unlike recent similar legislation in the USA and Australia). Neither does the Scottish legislation on this point, the Law Reform (Miscellaneous Provisions) Scotland) Act, 1990, bring any relief.
5.74 As far as the English courts are concerned, attention can be drawn to the recent Airedale NHS Trust v Bland-case[580] in which the court on several occasions[581] referred approvingly to the usefulness of such an advance directive (living will). This was done despite the fact that consent as such was not raised. Lord Goff,[582] for instance, held that a patient's right to refuse medical treatment could be extended to incompetent patients in cases where they had expressed their wishes at an earlier date. He warned, however, that special care should be taken to ensure that such consent is still applicable at the time when the medical decision has to be taken.
5.75 In 1993 after the House of Lords handed down its decision in the Bland-case a Select Committee was established to investigate the legal, ethical and social issues surrounding medical treatment decisions at the end of life. In the Report of the Select Committee[583] the following recommendations are made with regard to advance directives (living wills) and powers of attorney:
296. We recommend the development of advance directives, but conclude that legislation for advance directives generally is unnecessary.
297. We recommend that a code of practice on advanced directives should be developed.
298. We do not favour the more widespread development of a system of proxy decision-making.
5.76 The British Government issued a document responding to the recommendations of the House of Lords Select Committee on Medical Ethics in May 1994.[584] The Government agreed with the Select Committee's support for the right of a competent patient to refuse to consent to any medical treatment. The Government also stated that it agrees generally with the Select Committee's conclusions about the value of advance directives. It agreed that the development of a professional code on advance directives would be valuable. It noted however that the Law Commissions of England/Wales and Scotland were considering the issue of advance directives and that any professional code would need to take into account any decisions made by the Government in response to the Law Commissions' recommendations.
5.77 Athough the usefulness of advance directives (living wills) is acknowledged by writers,[585] the validity of a directive will eventually depend on the extent to which the courts are prepared to recognise the previously expressed wishes of the patient as indicative of his or her intention at the time when the medical decision has to be made. Until the validity of advance declarations is settled in English law by court decision or statute, doctors are advised by legal scholars to treat such declarations with caution.[586] This is not to say that advance declarations should not be taken into account in determining treatment, but the overriding consideration must be what is in the best interest of the patient.[587]
5.78 Certain writers argue that certainty as to the legal position will only be attained through legislation. In this regard it is recommended that the advance directive (living will) should be a combination of the written instructions regarding medical treatment and the appointment of an agent.[588]
5.79 The Law Commission of England and Wales [589] published a discussion paper in 1991 providing an overview of the entire field of mentally incapacitated adults, but without making specific recommendations, with the object of providing a basis for discussion and possible legislation. In February 1995 it issued its report on the law relating to the way decisions may be made on behalf of mentally incapacitated adults. In this report, the Law Commission recommended that legislation be introduced to-
The Law Commission included draft legislation, the Mental Incapacity Bill, as an appendix to this report to give effect to its recommendations.[590]
5.80 In January 1996 the Parliamentary Secretary of the Lord Chancellor's Department made the following statement in Parliament:
The Government have considered the Law Commission report on mental incapacity very carefully and are grateful on this subject. The Government appreciate that this is an important and sensitive subject raising moral and ethical issues on which many people will have strong views.
The Government have decided not to legislate on the basis of the Law Commission's proposals in their current form and have also concluded that it would be inappropriate to make any proposals to Parliament in the absence of full public consultation. The Government propose to issue a consultation paper on mental incapacity in due course.[591]
5.81 On December 10, 1997 the Lord Chancellor released on behalf of the Government a Green paper (Consultation Paper) Who decides?. It was based on the Law Commission study, lasting five years, into all aspects of running the affairs of mentally incapacitated adults. The Government's Green paper asked for views on these proposals. A decision is expected later this year.[592]
5.82 Professor Strauss[593] defines a "Living Will" as follows:
Legally it is a declaration in which a person in anticipando by way of an advance directive refuses medical attention in the form of being kept alive by artificial means.
5.83 In principle every person of sound mind is legally entitled to refuse medical treatment. In this sense it can be said that the individual has a right to die. The refusal of treatment should however be clearly stated. Professor Strauss argues that if a person in a specific situation is entitled to refuse specific medical treatment at that moment, there is no reason why he would not be entitled at an earlier stage to express a standing refusal of specific treatment. This argument would of course also apply to refusal of any treatment at all. Professor Strauss is of the opinion that medical practitioners would be obliged to give effect to such explicit statements and that they could even expose themselves to liability should they disregard the patient's wishes.
5.84 On the other hand, Mr Dörfling[594] is of the opinion that there should be a weighing up of the right of members of the community to refuse treatment, or the so-called right to die, and the medical practitioner's moral duty to treat.
5.85 The idea of the living will has been criticised for linguistic and medical vagueness, potential legal unenforceability and lack of attention to patients' underlying values and beliefs. The reliance of patients on their physicians to comply with the preferences stated in these documents may be misplaced due to physicians' lack of knowledge about the documents' legal reliability and physician anxiety relating to potential civil and criminal liability. Several writers have questioned the assumption inherent in advance directives that individuals, while competent, can determine what their values and preferences will be once their abilities and capacities have diminished. Mr Dörfling foresees the following problems regarding the use of the advance directive (living will) if it is not regulated by statute:
(a) It is doubtful whether it could be expected of medical staff to comply with the living will - their moral and ethical codes could compel them to act.
(b) It is not certain whether a medical practitioner who complies with the living will could be subject to criminal or even civil prosecution.
(c) There is no criminal sanction for the abuse of such a living will through destruction, concealment or fraud, for instance.
(d) The question remains as to whether the cessation of life-supporting treatment is punishable.
5.86 Mr Dörfling mentions that the legal persuasions of the community as well as medical and ethical standards change continually and that the law would therefore have to adapt continually. He also foresees problems concerning the possible revocation of the document at a later stage.
5.87 There is at present no judgment on record in which the matter of the advance directive(living will) has specifically been discussed. It was however stated in Clarke v Hurst NO[595] that effect should be given to a patient's wishes as expressed when he was in good health. In this case the court decided the question of whether the patient's artificial feeding should be discontinued with reference to the convictions of the community as interpreted by the court. The patient's wishes as set out in his "Living Will" were not used as the only criterion. Nevertheless the court remarked as follows:[596]
It is indeed difficult to appreciate a situation, save where the patient is suffering unbearable pain or is in a vegetative state, where it would be in his best interests not to exist at all. The patient in the present case has, however, passed beyond the point where he could be said to have an interest in the matter. But just as a living person has an interest in the disposal of his body, so I think the patient's wishes as expressed when he was in good health should be given effect. (Our emphasis)
5.88 When a purpose-made document (an advance directive (living will) or power of attorney) contains requests or instructions to medical practitioners, staff or other persons as to which treatment the drafter consents to or which he or she refuses, such requests or refusals are just as legally valid as they would have been had the person given them orally, provided of course that the person was competent to make such requests or issue such instructions. Certain questions, however, may arise for the person who has to act on this request or instruction. Firstly, the validity of the document may be questioned. Furthermore, the possibility may always exist that the document may have been revoked. There may also be a dispute as to the interpretation of the contents of the document. Finally, medical staff could face difficult choices should the family of the patient issue different instructions to those contained in the document. It should also be remembered that an instruction given in a written document will not be legally valid if it would not have been legally valid had it been given orally. As the law stands at the moment, a deliberate act that causes the death of a patient would still be unlawful, except in exceptional circumstances, notwithstanding the authorisation contained in the document. Doctors are not jurists and they would therefore not always be able to judge out of hand whether requests and instructions contained in an advance directive (living will) are legally valid.
5.89 As can be seen from the comparative legal study above, some jurisdictions rely on enduring powers of attorney, sometimes combined with an advance directive (living will), whereby decisions as to the application, refusal or cessation of treatment are left to an agent who is usually a family member or confidant. Even if enduring powers of attorney were to acquire validity, there would still be other problems to consider. The central question is still whether the death of the patient can be brought about legally. By implementing the enduring power of attorney the decision-making is simply shifted from the doctor to the agent. The agent would still not be able to consent legally to action or treatment causing death if the patient would not have been legally able to do the same if he or she had been in a position to do so. The problem is aggravated where the death of the patient may be of pecuniary interest to the agent. Inevitably, a principal will not readily entrust decisions concerning his or her life or death to a total stranger.
5.90 It would appear that the ordinary case regarding consent to medical treatment, without the possibility of the termination of life, does not really cause problems. It is seldom, if ever, necessary to appoint a curator in order to get authorisation for an operation or other medical treatment.
5.91 There was a minority view to the effect that the Living Will should not become legally binding. It was felt that the terms of the advance directive as laid out in the proposed legislation are too vague and open to abuse. [597] Patients may be unable to make decisions due to the fact that they may be affected by medication, overwhelmed or depressed by problems, suffering from various degrees of senility, temporarily unconscious or comatose, or suffering from Alzheimers.[598] The question should then be asked when the directive comes into operation. Should it be at the onset of incompetence or at a later date; who should make the decision. The directive may furthermore be drawn up while the person is well (and possibly young) and when his or her outlook may be different to what it might be when he or she is faced with the actual situation. Where communication with a patient is difficult, doctors may be tempted to rely on the directive rather than make the effort to communicate with the patient. Advance directives indicate a lack of trust in the doctor and this "vote of no confidence" does not encourage either party in the doctor-patient relationship to communicate. The advance directive should not be totally binding on the physician but should be given serious consideration.[599]
5.92 The majority of respondents however felt that the validity of the Living Will or the Enduring Power of Attorney, or both, must be recognised by statute[600] and should be accorded the same value and be as legally binding as the expressed will of a competent patient.[601] It will prevent a third party from imposing his or her will on that of the patient.[602] The five-year National AIDS Plan for South Africa, which was drawn up by the National AIDS Convention of SA (NACOSA) and accepted by Cabinet in mid 1995 highlights as a priority the necessity to secure the legal status of the living will and to establish inclusive guidelines around physician assisted suicide. [603] Respondents were of the opinion that the Living Will could safeguard medical practitioners provided that such advance directives are free from ambiguity or their intention is interpreted by a proxy duly appointed by the patient.[604] An advance directive merely serves as an instrument which expresses the patient's exercise of his or her right to die as a logical extension of his or her right to refuse treatment. [605]
5.93 There were a few specific recommendations:
1. A medical practitioner should consult with any partner of the terminally ill person, and not only relatives, before giving effect to the document. Consultation with the terminally ill person's legal practitioner may safeguard the medical practitioner against any possibility of effecting an advanced directive which has already been revoked.[606] In addition to informing the interested relatives and family members of the patient, the medical practitioner should be required to obtain their consent(sec7(3)).[607]
2. Include "or should not be instituted" before "should be discontinued" in sec 6(1).[608]
3. The advance directive should enable a terminally ill patient to state his or her wishes and not only to provide for the withdrawal of treatment, therefore making provision for a wish to continue treatment, where available. [609]
4. The condition of the patient should be confirmed by two medical practitioners[610] and a member of the multi-disciplinary team.[611] On the other hand it was stated that the possibility of having access to a "second opinion" by another competent medical practitioner is problematic since such competency might not always be readily available in the given circumstances of time and place.[612]
5. To prevent health care providers from interpreting what the patient might have meant in his or her Living Will, it is recommended that certain minimal requirements be spelled out in a specific document, allowing for additional specifications to be added.[613] With regards to format, it should be flexible in the interests of promoting the validity of such documents. Since clear and unambiguous statements are a necessity for ensuring validity of the documents, legislation should make provision for the development of draft documents as a matter of urgency. [614]
6. A Treatment Refusal Form should be developed for inclusion in the medical records of the patient when he or she is admitted to hospital. It should also be established at that point if the patient has a Living Will. This will give certainty to the health care personnel.[615] This idea was supported strongly [616] and it was recommended that the American "Self-Determination Act of 1990" be studied in order that similar regulations pertaining to the "Admittance or consent to treatment" forms used by hospitals and all health care institutions be incorporated within the draft bill. It was felt that it is of the utmost importance that all hospitals, nursing homes, hospices, frail care centres and other health care institutions should make provision on each specific admittance form for the question:"Have you signed a Living Will or advance directive?" and if the answer is in the affirmative, regulations should instruct that the Living Will is kept in the patient's "In-patient" File for the duration of his or her stay in the given health care institution. Members of the Living Will Society are advised that when signing the hospital consent form, the words....'subject to the directions as stated in my Living Will' should be written immediately before their signature.
7. There should be a conscientious clause for doctors who do not see their way open to consider such requests. Practitioners should be obliged to refer such patients to another practitioner.[617]
8. Wide scale paralegal training on such documents should take place in order to increase access to advance directives and power of attorneys in the country. [618]
9. Witnesses should not be named in the directive, not be related to the patient and not be the patient's health care providers.[619]
10. Consideration to be given to the issue of verbal 'advance directives' and whether there may be certain circumstances under which such directives could be recognised as an indication of the wishes of the terminally ill person.[620]
i) It was noted that should assisted suicide and euthanasia be legalised, it may be argued that the logical conclusion would be that advance directives should, on grounds of consistency, make provision for a lethal injection in cases of, for example, a patient in a permanent vegetative state.[621]
5.94 As stated in Discussion Paper 71 and supported in the majority of submissions it seems desirable to gain statutory recognition for advance directives and enduring powers of attorney, provided that compliance with the wishes set out in the document would not be unlawful. It is, however, questionable whether it is necessary to prescribe rigid requirements in this regard, such as the use of a specific form of document or a refusal of treatment certificate as is prescribed in some other jurisdictions. It would also be necessary to afford medical practitioners and persons acting under the direction of the medical practitioners, legal protection against any civil or criminal liability if life-sustaining treatment is suspended. It is equally important to offer these medical practitioners and their assistants an escape mechanism to refuse to do anything in terms of this Act if this would be in conflict with their moral or ethical codes.
5.95 Although the point was discussed, it should be noted that not one commentator requested that the Living Will should be able to legalise active euthanasia. Furthermore, the possibility of abuse of such a provision in a Living Will is an important factor mitigating against legalising such a provision. The Commission is therefore of the view that a Living Will should only be recognised as valid and legally enforceable in so far as it requests a passive form of cessation of life.
5.96 After due consideration of the proposals and recommendations put forward in the submissions the Commission proposes the following clauses:
Directives as to the treatment of a terminally ill person
6. (1) Every person above the age of 18 years who is of sound mind shall be competent to issue a written directive declaring that if he or she should ever suffer from a terminal illness and would as a result be unable to make or communicate decisions concerning his or her medical treatment or its cessation, medical treatment should not be instituted or any medical treatment which he or she may receive should be discontinued and that only palliative care should be administered.
(2) A person as contemplated in subsection (1) shall be competent to entrust any decision-making regarding the treatment as contemplated in that subsection or the cessation of such treatment to a competent agent by way of a written power of attorney, and such power of attorney shall take effect and remain in force if the principal becomes terminally ill and as a result is unable to make or communicate decisions concerning his or her medical treatment or the cessation thereof.
(3) A directive contemplated in subsection (1) and a power of attorney contemplated in subsection (2) and any amendment thereof, shall be signed by the person giving the directive or power of attorney in the presence of two competent witnesses who shall sign the document in the presence of the said person and in each other's presence.
(4) When a person who is under guardianship, or in respect of whom a curator of the person has been appointed, becomes terminally ill and no instructions as contemplated in subsection (1) or (2) regarding his medical treatment or the cessation thereof have been issued, the decision-making regarding such treatment or the cessation thereof shall, in the absence of any court order or the provisions of any other Act, vest in such guardian or curator.
Conduct in compliance with directives by or on behalf of terminally ill persons
7. (1) No medical practitioner shall give effect to a directive regarding the refusal or cessation of medical treatment or the administering of palliative care which may contribute to the hastening of a patient's death, unless-
(a) the medical practitioner is satisfied that the patient concerned is suffering from a terminal illness and is therefore unable to make or communicate considered decisions concerning his or her medical treatment or the cessation thereof; and
(b) the condition of the patient concerned, as contemplated in paragraph (a), has been confirmed by at least one other medical practitioner who is not directly involved in the treatment of the patient concerned, but who is competent to express a professional opinion on the patient's condition because of his expert knowledge of the patient's illness and his or her examination of the patient concerned.
(2) Before a medical practitioner gives effect to a directive as contemplated in subsection (1) he shall satisfy himself, in so far as this is reasonably possible, of the authenticity of the directive and of the competency of the person issuing the directive.
(3) Before giving effect to a directive as contemplated in subsection (1), a medical practitioner shall inform the interested family members of the patient of his or her findings, that of the other medical practitioner contemplated in paragraph (b) of subsection (1), and of the existence and content of the directive of the patient concerned.
(4) If a medical practitioner is uncertain as to the authenticity as regard to the directive or its legality, he shall treat the patient concerned in accordance with the provisions set out in section 8 below.
(5) (a) A medical practitioner who gives effect to a directive as contemplated in subsection (1) shall record in writing his or her findings regarding the condition of the patient and the manner in which he implemented the directive.
(b) A medical practitioner as contemplated in paragraph (b) of subsection (1) shall record in writing his findings regarding the condition of the patient concerned.
(6) A directive concerning the refusal or cessation of medical treatment as contemplated in subsection (1) and (2) shall not be invalid and the withholding or cessation of medical treatment in accordance with such a directive, shall, in so far as it is performed in accordance with this Act, not be unlawful even though performance of the directive might hasten the moment of death of the patient concerned.
5.97 In this case the question - whether the patient should be kept alive indefinitely by artificial means - has to be answered with reference to objective, legislative or judge-made rules.
5.98 The traditional view of our courts with regard to euthanasia in respect of an incompetent person is perhaps best reflected in the judgment of De Wet J P in S v De Bellocq.[622] In this case the mother, who had some medical knowledge, killed her child who had suffered brain damage at birth and who would have been an imbecile for the rest of his life. De Wet J P states as follows:[623]
The law does not allow any person to be killed whether that person is an imbecile or very ill. The killing of such a person is an unlawful act and it amounts to murder in law.
The Court did however describe the case as very tragic and handed down a sentence which can effectively be regarded as a dismissal.
5.99 In the last few decades a turnabout has been observed in the traditional view of the law in these areas and in several countries judgments can now be found indicating that although euthanasia is not allowed, cessation of treatment may be permissible under specific circumstances and subject to certain conditions.
5.100 This means that the patient cannot be actively killed (as was the case in S v De Bellocq).[624] The life-sustaining mechanisms may however be withdrawn from the patient. The patient then dies of natural causes, for example cessation of one or other of his life-functions, infections that are not treated or, eventually, from thirst or hunger.
5.101 We will now briefly discuss the main features of the development in comparable legal systems:
* The United States of America
5.102 The first and best-known judgment in this respect is the case of Karen Quinlan[625] that was decided in 1976 in the state of New Jersey. Karen Quinlan was in a persistent vegetative state and there was no hope of her recovering. Her father sought to be appointed as her guardian. He also applied for the power to authorise the cessation of all further extraordinary medical treatment that would prolong her life functions in an artificial manner. The Supreme Court of New Jersey granted the application and furthermore stated that should her father authorise the cessation of artificial preservation of life functions and Karen should die as a result, he would not be criminally liable for her death.
5.103 The judgment of the court was based on her constitutional rights to privacy and self-determination. The reasoning of the court appears from the judgment of Hughes C J:
Having concluded that there is a right of privacy that might permit termination of treatment in the circumstances of this case, we turn to consider the relationship of the exercise of that right to criminal law. We are aware that such termination of treatment would accelerate Karen's death. The County Prosecutor and the Attorney-General maintain there would be criminal liability for acceleration. Under the statutes of the State, the unlawful killing of another human being is criminal homicide. NJS 2A: 113 - 1, 2, 5. We conclude that there would be no criminal homicide in the circumstances of this case. We believe, firstly, that the ensuing death would not be homicide but rather expiration from existing natural causes. Secondly, even if it were to be regarded as homicide, it would not be unlawful.
These conclusions rest upon definitional and constitutional bases. The termination of treatment pursuant to the right of privacy is, within the limitations of this case ipso facto lawful. Thus, a death resulting from such an act would not come within the scope of the homicide statutes proscribing only the unlawful killing of another. There is a real and, in this case, determinative distinction between the unlawful taking of the life of another and the ending of artificial life-support systems as a matter of self-determination.
Furthermore, the exercise of a constitutional right such as we have here found is protected from criminal prosecution. See Stanley v Georgia (supra, 394 US at 559; 89 S Ct at 1245; 22 L Ed 2d at 546). We do not question the State's undoubted power to punish the taking of human life, but that power does not encompass individuals terminating medical treatment pursuant to their right of privacy. See id at 568; 89 S Ct at 1250; 22 L Ed 2d at 551. The constitutional protection extends to third parties whose action is necessary to effectuate the exercise of that right where the individuals themselves would not be subject to prosecution or the third parties are charged as accessories to an act which could not be a crime. Eisenstadt v Baird (supra, 405 US at 445-6; 92 S Ct at 1034-5; 31 L Ed 2d at 357-8). Griswold v Connecticut (supra, 381 US at 481; 85 S Ct at 1679-80; 14 L Ed 2d at 512-13). And, under the circumstances of this case, these same principles would apply to and negate a valid prosecution for attempted suicide were there still such a crime in this State.
5.104 This matter was taken further in three more decisions of the Supreme Court of New Jersey. In the case of In re Claire Conroy[626] the court furthermore explained why a person should be allowed to take a decision on behalf of an unconscious patient in the said circumstances:
.... on balance the right to self-determination ordinarily outweighs any countervailing State interests (in preservation of the individual's life) and competent persons generally are permitted to refuse medical treatment even at the risk of death. ... In view of the case law, we have no doubt that Ms Conroy, if competent to make the decision and if resolute in her determination, could have chosen to have her naso-gastric tube withdrawn. Her interest in freedom from non-consensual invasion of her bodily integrity would outweigh any State interest in preserving life or in safeguarding the integrity of the medical profession. In addition, rejecting her artificial means of feeding would not constitute attempted suicide, as the decision would probably be based on a wish to be free of medical intervention rather than a specific intent to die, and her death would result, if at all, from her underlying medical condition, which included her inability to swallow.
5.105 In the case of In re Nancy Ellen Jobes[627] it is further explained why a person should be allowed to take the said decision on behalf of an unconscious patient:
We state again that the fateful decision to withdraw life-supporting treatment is extremely personal. Accordingly, a competent patient's right to make that decision generally will outweigh any countervailing State interests. See Farrell (supra, 108 NJ at 354; 529 A 2d at 414). An incompetent patient does not lose his or her right to refuse life-sustaining treatment. Where such a patient has clearly expressed her intentions about medical treatment, they will be respected. See Peter (supra, 108 NJ at 378; 529 A 2d at 425).
Where an irreversibly vegetative patient like Mrs Jobes has not clearly expressed her intentions with respect to medical treatment, the Quinlan 'substituted judgment' approach best accomplishes the goal of having the patient make her own decision. In most cases in which the 'substituted judgment' doctrine is applied, the surrogate decision-maker will be a family member or close friend of the patient. Generally it is the patient's family or other loved ones who support and care for the patient, and who best understand the patient's personal values and beliefs. Hence, they will be best able to make a substituted medical judgment for the patient.
This approach was confirmed in In re Hilda M Peter.[628]
5.106 In the Jobes case[629] the court said that there was a precognition for the execution of the decision by the surrogate-guardian. The guardian had to obtain statements by at least two medical practitioners who were qualified neurologists, in which they declared that the patient was in a persistent vegetative state and that there was no possibility that the patient would ever recover to a state of intellectual consciousness.
5.107 In 1990 the case of Nancy Cruzan was heard before the Supreme Court of America.[630] Nancy was involved in a car accident as a result of which she was in a persistent vegetative state for six years.[631] Her parents sought a court order authorising the removal of her gastrotomy feeding tube, but this was refused. On appeal to the Supreme Court the decision was affirmed as it was found that the court a quo was constitutionally justified in requiring that a patient's wishes be proved by clear and convincing evidence. The reason for this is that the state has an unqualified interest in the preservation of human life and that it has a duty further to guard against potential abuse in such situations. An erroneous decision could furthermore not be rectified. The court a quo was therefore entitled to make a finding on the facts that clear and convincing evidence of the patient's wishes did not exist. (Before the accident Nancy had merely indicated to friends in an informal manner that she would not wish to live in such a state.)
5.108 Although the US Supreme Court therefore acknowledged the patient's constitutional right to refuse treatment, it was not required to accept the substituted judgment of family members in the absence of evidence that the wishes of the family and those of the patient corresponded. A court of lower jurisdiction did, however, subsequently consent to the removal of the gastrotomy feeding tube on the basis of new evidence.
* The United Kingdom
5.109 The position concerning cessation of life-sustaining treatment (or selective non-treatment as it is known in England) was to a large extent resolved when this question was addressed by the House of Lords in February 1993 in the case of Airedale NHS Trust v Bland.[632] In this case the applicant health authority sought a declaratory order to the effect that, despite the inability of the patient to give consent, his life-sustaining treatment should be discontinued and that no further medical treatment should be furnished except for the purpose of enabling him to die peacefully with dignity and the minimum of pain, and that if death should occur then the cause of death should be attributed to the original cause of his condition and not to the cessation of medical treatment. The termination of medical treatment should therefore not give rise to any civil or criminal liability on the part of any person. The application was supported by the family of the patient.
5.110 The respondent, the 21-year-old Anthony Bland, had been in a persistent vegetative state for 3½ years after suffering a severely crushed chest injury which caused catastrophic and irreversible brain damage. Although not brain dead, he had to use a nasogastric tube, catheter and enemas for normal bodily functions and he had no cognitive function. The unanimous opinion of all the doctors who examined him was that there was no hope of recovery or improvement.
5.111 In these circumstances it was thought appropriate to cease further treatment (artificial feeding and furnishing of antibiotic treatment). It was conceded that this would probably result in the patient's death from starvation within one to two weeks. At no stage did Bland give his consent in this regard.
5.112 The application was opposed by the Official Solicitor (acting as guardian ad litem), who claimed that the proposed action would amount to murder.
5.113 The judge granted the order as requested, whereupon the Official Solicitor appealed to the Court of Appeals and thereafter to the House of Lords. In both these instances the original order was affirmed.
5.114 The House of Lords held that a doctor, who has in his or her care a patient who is incapable of consenting to treatment, is under no absolute obligation to prolong the patient's life regardless of the quality thereof. The court referred with approval to the 'best interest' condition as set out in F v West Berkshire Health Authority[633] and held that medical treatment (which includes artificial feeding) may be withheld if it is in the patient's best interest not to be treated any further (since such treatment is futile and do not confer any benefit on the patient).[634]
5.115 To determine what course of action would further the best interests of the patient, the court used the test laid down in Bolam v Friern Hospital Management Committee,[635] namely whether the proposed conduct would be in accordance with the opinion of a large informed and responsible group of medical practitioners.
5.116 As the cessation of life-supporting treatment in this case was in accordance with the criteria set out in a discussion paper by the British Medical Association,[636] the court found that the Bolam requirement had been complied with.
5.117 The court stated, however, that similar cases should be referred to the court on an ad hoc basis and furthermore that the issue should be referred to Parliament for consideration of possible legislation in this regard.
5.118 It is generally accepted that a patient's stated will should be respected.[637] In Airedale NHS Trust v Bland[638] Lord Goff of Chieveley stated:
[I]t has been held that a patient of sound mind may, if properly informed, require that life support should be discontinued ... the same principle applies where the patient's refusal to give his consent has been expressed at an earlier date, before he became unconscious or otherwise incapable of communicating it.
5.119 The next question which was also argued in the British courts was whether cessation of treatment should also be allowed in cases where persons are not in a vegetative state, but have no normal brain function, and where this condition is irreversible. One thinks here of the child who is born as an imbecile as a result of a serious brain defect.
5.120 In the case of Re J (a minor)[639] J, an infant, had suffered serious brain damage at birth. Large areas of his brain where there should have been brain tissue had become fluid-filled. He often suffered convulsions and there were episodes during which he stopped breathing. He was twice linked to a ventilator for fairly long periods. Chances were good that he would develop spastic quadriplegia. It was debatable whether he would ever be able to sit up or hold his head upright. He was unlikely ever to be able to speak. He would, however, be able to feel pain to the same extent as a normal baby and it was possible that he would achieve the ability to smile or to cry. His life-expectancy was limited. The question arose whether J should again be ventilated in the event of his again stopping to breathe. Two medical practitioners submitted a report which indicated that it would not be in J's interest to be ventilated again. The court issued an order in accordance with the experts' report. The argument raised against the issuing of the order was that the court was not in a position to evaluate the consequences of death and that respect for the sanctity of human life and the requirements of public policy precluded attempts by the court to evaluate the quality of life of a disabled person. This submission was rejected by the Court of Appeal.
5.121 The Court of Appeal based its decision on the best interests of the child. Balcombe L J stated:[640]
I have already cited the passage from the speech of Lord Hailsham LC in Re B (a minor) (wardship: sterilisation) [1987] 2 All ER 206 at 212; [1988] AC 199 at 202 which established that issues of public policy, as such, cannot prevail over the interests of the ward. In my judgment there is no warrant, either on principle or authority, for the absolute submission. There is only the one test: that the interests of the ward are paramount. Of course the Court will approach those interests with a strong predilection in favour of the preservation of life, because of the sanctity of human life. But there neither is, nor should there be any absolute rule that, save where the ward is already terminally ill, i e dying, neither the Court nor any responsible parent can approve the withholding of life-saving treatment on the basis of the quality of the ward's life. (For my part I would not accept that the so-called "cabbage" cases could be treated as an exception to this suggested rule, since in deciding that a child whose faculties have been destroyed is a "cabbage" of itself involves making a judgment about the quality of that child's life.) I say that there is no such rule because there is no authority to that effect: indeed the judgments in Re B (a minor) (wardship: medical treatment, 1981) [1990] 3 All ER 927; [1981] 1 WLR 1421 are consistent only with there being no "absolute" rule. I say that there should be no such rule because it could in certain circumstances be inimical to the interests of the ward that there should be such a requirement: to preserve life at all costs, whatever the quality of the life to be preserved, and however distressing to the ward may be the nature of the treatment necessary to preserve life, may not be in the interests of the ward.
5.122 It was also submitted that the court could not issue a life-ending order unless it was absolutely certain that the quality of the child's subsequent life would be intolerable to the child and demonstrably so awful that in effect the child must be condemned to die. Balcombe L J expressed his rejection of this argument as follows:[641]
Here again I cannot accept the submission in the terms in which it was framed, which treats the language used by Templeman and Dunn L J J in Re B (a minor) (wardship: medical treatment) [1990] 3 All ER 927 at 929 - 30; [1981] 1 WLR 1421 at 1424 as if they had intended to lay down a test applicable to all circumstances, which clearly they did not. Further, I would deprecate any attempt by this Court to lay down such an all-embracing test since the circumstances of these tragic cases are so infinitely various. I do not know of any demand by the Judges who have to deal with these cases at first instance for this Court to assist them by laying down any test beyond that which is already the law: that the interests of the ward are the first and paramount consideration, subject to the gloss on that test which I suggest, that in determining where those interests lie the Court adopts the standpoint of the reasonable and responsible parent who has his or her child's best interests at heart.
5.123 It was clear that the court was prepared to evaluate the quality of life of the patient and that considerations of public policy would not get in the way of such an evaluation.
5.124 In Clarke v Hurst NO[642] no criticism was raised against Re J (a minor).[643] As a matter of fact the court based its decision on the principles stated.
5.125 The question whether a court may order the cessation of life-sustaining mechanisms with regard to a patient in a permanent vegetative state on the application brought by an interested person was first discussed in Clarke v Hurst NO.[644]
5.126 The patient had had a heart attack during 1988 as a result of which his heartbeat and breathing ceased. Resuscitative measures restored his heartbeat, but only after he had suffered serious brain damage. He became deeply comatose and never regained consciousness. His swallowing mechanism was not functioning and he had to be fed by means of a nasogastric tube. He was in what is commonly known as a persistent vegetative condition. He had been in this condition for about four years without any sign of improvement.
5.127 He was a member of SAVES The Living Will Society. He had signed a so-called "Living Will", the essential clause of which reads as follows:[645]
If there is no reasonable expectation of my recovery from extreme physical or mental disability ... I direct that I be allowed to die and not be kept alive by artificial means and heroic measures. I ask that medication be mercifully administered to me for terminal suffering even though this may shorten my remaining life ...
The court's order was, however, not founded on Dr Clarke's directive as expressed in the Living Will.
5.128 As the Living Will did not have accepted legal status, his wife applied to the court for a declaratory order whereby she would be appointed curatrix personae to her husband's person with powers in that capacity to authorise the discontinuance of any further medical treatment or feeding to her husband. This in fact amounted to an application for a declaratory order to the effect that the discontinuance of her husband's artificial feeding regime, which would inevitably lead to his death, would not be unlawful - a case therefore of cessation of treatment. The Attorney-General of Natal, who was cited as respondent, opposed the application on the grounds that the proposed action would be prima facie unlawful and that the court did not have the authority to tie his (the Attorney-General's) hands with an order as proposed as to the question of whether prosecution should be instituted.
5.129 The court found that in determining legal liability for terminating a patient's life, there was no justification for drawing a distinction between the omission to institute life-sustaining treatment and the discontinuation thereof. Just as in the case of an omission to institute life-sustaining procedures, legal liability would depend on whether there was a duty to institute such procedures, so in the case of the discontinuance of such procedures liability depends on whether there is a duty to continue such procedures. A duty not to discontinue life-sustaining procedures could not arise if the procedures instituted have proved to be unsuccessful. The mere maintenance of certain biological functions such as heartbeat, respiration, digestion and blood circulation, without the functioning of the brain, cannot be equated with life. It would therefore not be unlawful to discontinue the artificial maintenance of that level of life.
5.130 The court further held that it would not be contrary to public policy if a court would in cases of this nature make an evaluation of the quality of life in order to determine whether life-sustaining measures should be discontinued.
5.131 The court held that the decision as to whether the discontinuance of artificial feeding of the patient and his resultant death would be wrongful depended on whether, judged according to the boni mores of the community, it would be reasonable to discontinue such feeding. The boni mores in turn depended on the quality of life that remained to the patient - in other words, the facts of the particular case.
5.132 In the present case, after extensive medical evidence was placed before the court, it was decided that the applicant would not act unlawfully by authorising the cessation of the artificial feeding of the patient, even though this would hasten the patient's death.
5.133 In our opinion there is a clearly distinguishable trend in Western legal systems, as confirmed in the judgments of the courts, that in suitable cases and subject to suitable precautions, the life of a patient who is in an irreversible vegetative state, may be ended by cessation of life sustenance mechanisms and means.
5.134 In light of the judgment in Clarke v Hurst NO[646] the confirmation of the said principle in legislation will not be a revolutionary step. Legislation can, however, establish specific guidelines and set the conditions for such a step to be allowed. If legislation is deemed necessary or advisable to end the use of life-sustaining mechanisms where a patient is kept alive by artificial means, guidelines could be laid down.
5.135 Although the majority of respondents agreed with the procedure set out in sec 8 of the Bill, dealing with the conduct of the doctor in the absence of a directive where the patient is incompetent, there were respondents who did not agree. The main problem identified was the inclusion of the words "maintenance of artificial feeding" in the definition of "life-sustaining medical treatment".[647] They asked for a greater recognition of the ethical distinction between ordinary and extraordinary means of sustaining human life.[648] The respondents held that a patient should always receive nutrition and hydration since that constitutes ordinary care.[649] Removal of extraordinary means is permissible. This would for instance apply to a patient who would need to be in the ICU indefinitely. Removal of ordinary means is not permissible, unless that applies to means that are death-delaying rather than life-supporting.[650] It cannot be said that a person who dies of hunger or thirst in a hospital or similar institution has died a natural death.[651] In the absence of a directive the medical practitioner should be guided by the Court's opinion.[652]
5.136 The greater majority of commentators agreed in principle [653] that nutrition and hydration should form part of medical treatment[654] but had recommendations on points of detail. The following comments were made:
1. In so far as the confirmation of the condition of the patient is concerned it was held that it is essential that the second medical practitioner be from a totally separate institution. [655] If the second medical practitioner mentioned in sec 8(1) is linked to the same hospital, clinic or similar institution as the chief medical practitioner, he may have a vested economic interest which could influence his views. Some respondents furthermore wanted two medical practitioners to confirm the opinion not one[656] whereas others felt that confirmation of the condition of the patient should only be provided where reasonably possible.[657]
2. Secondly it was contended that it should be a medical practitioner and not the chief medical officer of the hospital who gives the authorisation for cessation of treatment. [658] The withdrawal of treatment may be desirable in respect of patients outside institutions where there is no 'chief medical practitioner' and a medical superintendent is furthermore in general not concerned with the clinical management of the patient and should not be given any authority in making or implementing this sort of clinical decision.[659]
3. The Chief Medical Officer should consult with a Hospital Ethics Committee if it exists.[660] A member of the multi-disciplinary team should be involved in the decision making process.[661]
4. Under no circumstances should the court be empowered to override the wishes of the interested family members or close family of the patient especially if family members hold strong religious or moral views opposing the cessation of life-sustaining medical treatment.[662] It was also recommended that any legislation which confers rights and decision-making powers on the families of terminally ill people should include the rights of other committed partners. This would include the partners of homosexuals who may be dying of a terminal illness as well as those cohabiting with the patient in a situation which is not legally recognised as a marriage. These people may in fact be in the best position to give evidence regarding the wishes of the terminally ill person.[663] There was agreement that such decisions should be made in consultation with the patient's partner, family members and relatives. [664]
5. The legislation grants a wide range of duties and powers to medical practitioners. It will therefore be necessary to ensure that mechanisms are created to review discretionary powers of medical practitioners in terms of the Act. It was therefore recommended that the nature, duties and procedures of the SA Interim Medical and Dental Council be reviewed in order to ensure that this body is able to respond to complaints, queries and reviews. The present capacity of this body to do so is inadequate. Alternatively other more speedy and accessible means of review should be enacted in terms of the legislation, or by means of regulations in terms of the legislation. Extra-legal education is imperative to inform both medical practitioners and communities of their rights and obligations in this respect.[665]
6. The importance of enacting safeguards to ensure that decisions regarding the withdrawal of life-sustaining treatment, which are made on the basis of resource constraints, are made in a manner which is just and fair and non-discriminatory was emphasised.[666]
7. Where there is no advance directive and the wishes of the patient have to be determined from surrounding circumstances, factors that may be taken into account are the following: previous declarations, religious affinity, personal views on life, life-expectancy, and the amount of pain the patient has suffered.[667]
5.137 There are always cases in which the person concerned has neither drafted a document nor authorised any person to make decisions on his or her behalf. The same questions concerning the termination of life will however be raised in these cases. Where the patient is terminally ill as defined in this legislation and furthermore unable to make or communicate decisions concerning his or her medical treatment, it would appear desirable to empower the medical practitioner treating the patient to authorise the cessation of treatment, subject to the provision that the interested family members agree with the decision. In such cases it would appear unnecessary to burden those involved with the costs that would be incurred in a court application. Any interested party is of course free to approach the court in this regard if this is deemed necessary.
5.138 These principles will also be applicable in the treatment of severely disabled babies[668] who are terminally ill.[669] Where a hopeless prognosis is clear and cannot be improved with treatment, there is neither a moral nor a legal obligation to impose (or continue) treatment of the baby. [670]
5.139 In our opinion there is a need to ensure legal certainty as regards the problems now under discussion. Legislative confirmation and clarification of the position where there is no advance directive (living will)or power of attorney (i.e. to confirm and clarify Clarke v Hurst NO)[671] are necessary. Taking into consideration all the proposals and recommendations made the Commission proposes the following clause:
Conduct of a medical practitioner in the absence of a directive
8. (1) If a medical practitioner responsible for the treatment of a patient in a hospital, clinic or similar institution where a patient is being cared for, is of the opinion that the patient is in a state of terminal illness as contemplated in this Act and unable to make or communicate decisions concerning his or her medical treatment or its cessation, and his or her opinion is confirmed in writing by at least one other medical practitioner who has not treated the person concerned as a patient, but who has examined him and who is competent to submit a professional opinion regarding the patient's condition on account of his expertise regarding the illness of the patient concerned, the first-mentioned medical practitioner may, in the absence of any directive as contemplated in section 6(1) and (2) or a court order as contemplated in section 9, grant written authorisation for the cessation of all further life-sustaining medical treatment and the administering of palliative care only.
(2) A medical practitioner as contemplated in subsection (1) shall not act as contemplated in subsection (1) if such conduct would be contrary to the wishes of the interested family members of the patient, unless authorised thereto by a court order.
(3) A medical practitioner as contemplated in subsection (1) shall record in writing his findings regarding the patient's condition and any steps taken by him in respect thereof.
(4) The cessation of medical treatment as contemplated in subsection (1) shall not be unlawful merely because it contributes to causing the patient's death.
Powers of the court
9. (1) In the absence of a directive by or on behalf of a terminally ill person as contemplated in section 6, a court may, if satisfied that a patient is in a state of terminal illness and unable to make or communicate decisions concerning his or her medical treatment or its cessation, on application by any interested person, order the cessation of medical treatment.
(2) A court shall not make an order as contemplated in subsection (1) without the interested family members having been given the opportunity to be heard by the court.
(3) A court shall not make an order as contemplated in subsection (1) unless it is convinced of the facts as contemplated in that subsection on the evidence of at least two medical practitioners who have expert knowledge of the patient's condition and who have treated the patient personally or have informed themselves of the patient's medical history and have personally examined the patient.
(4) A medical practitioner who gives effect to an order of court as contemplated in this section shall not thereby incur any civil, criminal or other liability whatsoever.
5.140 In conclusion the question should also be discussed with regard to the nature of the life-ending behaviour. In all the decisions discussed above, it is the consent to cessation of life-sustaining mechanisms and measures that is at issue. In the end the patient dies a natural death, either from an illness like pneumonia left untreated, or as a result of hunger or thirst.
5.141 The following question is frequently posed in the euthanasia debate: why can't a person's life be ended actively in such circumstances by administering a lethal substance?. Why should the patient have to keep suffering until he or she eventually dies of hunger or thirst?
5.142 This question was also stated and discussed in Clarke v Hurst NO.[673] For the sake of completeness the question and answer suggested by Thirion J is quoted in full:[674]
But now, if it would be reasonable for the applicant in the present case to discontinue the artificial nutritioning of the patient knowing that such a step would result in the death of the patient, why would it not be reasonable for someone to simply suffocate the patient to death? The deprivation of food would as assuredly kill the patient as the deprivation of oxygen. I think the distinction is to be found in society's sense of propriety - its belief that things should happen according to their natural disposition or order. The person who pre-empts the function of the executioner and kills the condemned man while he is taking the last few steps to the gallows, acts wrongfully irrespective of his motive for killing the condemned man. He acts wrongfully because he has no right to meddle in the matter.
In my view the distinction between the act of the doctor who, while following the precepts and ethics of his profession, prescribes a drug in a quantity merely sufficient to relieve, and with the object of relieving, the pain of his patient, well knowing that it may also shorten the patient's life, and the act of the doctor who prescribes an overdose of the drug with the object of killing his patient, is that the former acts within the legitimate context and sphere of his professional relationship with his patient while the latter does not act in that context. Consequently, society adjudges the former's conduct justified in accordance with its criterion of reasonableness and therefore not wrongful, while it condemns the conduct of the latter as wrongful.
The distinction between what is wrong and what is right cannot always be drawn according to logic. Logic does not dictate the formation of society's legal or moral convictions.
The distinction can also be justified on rational grounds. The doctor who brings about the death of his patient by prescribing an overdose of the drug with the object of killing the patient, causes the death of the patient in a manner which is unrelated to his legitimate function as a doctor. He changes not only the course but also the cause of his patient's death. To allow conduct of this nature would open the door to abuse and subject people to the vagaries of unauthorised and autocratic decision-making.
5.143 For many there may be persuasive force in the arguments quoted above. But for others to allow the removal of the life-sustaining apparatus, but not to allow active euthanasia does not seem to be logical. The opinion as set out in Clarke v Hurst NO[675] may, so it is argued, also result in serious suffering. One is inclined to take the patient in a persistent vegetative state, who cannot really express pain and suffering, as the point of reference and example. However, the argument is that one should take the example of a person bitten by a dog with rabies, who is in the final stages of an irreversible and unbearable state of pain and suffering. Such a patient is apparently legally and mentally totally incompetent; according to all medical knowledge it is an irreversible state; but what is more, the patient may be experiencing unbearable pain and suffering and if he could have talked, it would only have been to beg for the hastening of his death. Should the line be drawn right through? [676]
5.144 In so far as the court's powers are concerned it was clear from submissions dealing with this question that Option 1 (sec 9) dealing with cessation of treatment was mostly supported and preferred to option 2 (sec 10) dealing with active euthanasia.[677] One view was that no court should be allowed to order the performance of any medical procedure which would have the effect of terminating a patient's life.[678] The court should furthermore not be empowered to make an order which is in conflict with the wishes and convictions of the close family. There were however respondents who indicated that they were divided within their organisations in their preference for Option 1 or 2. They said that they would however prefer that all forms of treatment should be withdrawn rather than that active steps be taken to hasten death.[679]
5.145 The Commission does not recommend any legislation in this regard.
[503]This is the preferred term. The term "living will" can create the impression that one is dealing with a valid will, which is not the case.
[504]Strauss Doctor, patient and the law 344.
[505]Strauss Doctor, patient and the law 345.
[506]See Ch 4, par 4.34 and further for a discussion of the so-called " double effect".
[507]South African Law Commission Report Enduring powers of attorney and the appointment of curators to mentally incapacitated persons October 1988.
[508]Act 108 of 1990.
[509]Pozgar, G D Legal aspects of health care administration 4th ed Maryland Aspen Publishers 1990 195 (hereinafter referred to as "Pozgar Health care administration").
[510]As of March 1995, 46 states had laws providing for both living wills and appointments of health care agents. Of the remaining five states, two have laws providing only for living wills and three only for appointments of health care agents.
[511]GAO Report of 9/01/95.
[512]452 So 2d 921 (Fla 1984) at 922.
[513]John F Kennedy Memorial Hospital Inc v Bludworth supra at 926.
[514]Op cit 926.
[515]Cica N Euthanasia - the Australian law in an international context Part I:Passive voluntary euthanasia Research Paper 3 Department of the Parliamentary Library, Australia 1996-97 (hereinafter referred to as Cica 3) at 6.
[516]This Act was enacted as sections 4206 and 4751 of the Omnibus Budget Reconciliation Act of 1990.
[517]The Durable Power of Attorney Health Care Act 1983 (California); currently California Civil Code, sections 2430-2445.
[518]Cica 3 on 19 and the references made therein.
[519]Pozgar Health care administration 196.
[520]Established in 1892, the Conference has a dual identity as an organisation closely affiliated with the American Bar Association, representing the legal profession, and the original state government association predating the National Governers Association. The purpose of the Conference is to provide uniform model laws for the states to enact; each state is represented by an average of six commissioners, typically appointed by the governor.
[521]UHCDA supercedes earlier, less comprehensive model acts related to advance directives.
[522]Western Australia Report 7-8.
[523]South Australia, Victoria, The Northern Territory and the Australian Capitol Territory.
[524]South Australia, Victoria and Australian Capitol Territory, New South Wales.
[525]Western Australia Report 8.
[526]Position as set out in Cica 3 on 10-12.
[527]Western Australia Report 21.
[528]Sections 5B(1) and (2).
[529]Section 5C.
[530]Section 5C(3).
[531]Section 9.
[532]Cica 3 on 18.
[533]Cica 3 on 18.
[534]Western Australia Report 9.
[535]Western Australia