What is an Advance Directive & how does it work in SA
What is an Advance Directive & how does it work in SA
An Advance Directive is a document detailing your wishes and medical preferences in the event that you have a medical crisis and decisions must be taken without your direct input.
In South Africa, as in most other parts of the world, an advance directive helps to take care of eventualities such as future treatment and the kind of treatment preferred. These could be related to resuscitation (CPR: cardiopulmonary resuscitation), life support such as ventilators or nasal tubes, intravenous feeding and nutrition, pain medication and other medical procedures. If you’ve heard about a “DNR” in movies or tv, that is a form of advance directive.
An advance directive may also empower someone to make such decisions in the event of such a medical crisis. Each advance directive should have two representatives that are nominated and agree to make such decisions on your behalf. This invests the nominees with a “medical power of attorney” or “healthcare proxy”. In simple terms, the nominee(s) is empowered in trust to make health decisions in the future for the person who filed the directive.
Any person drafting an advance directive files the document prior to their death and the document comes into effect when the person no longer has the capacity to make decisions about their life or death, treatment or non-treatment, etc. It is a simple document that helps to avoid confusion that could arise later.
Two main types of advance directive exist. These are;
- Living Will
- Directives to accept or refuse life-sustaining measures if you become terminally incapacitated.
- Directives to accept or refuse dialysis, medical ventilation, or tube feeding.
- Whether or not you would donate your organs or entire body for medical use and research.
Note that you may have your doctor include a “Do Not Rescucitate” (DNR) order in your medical records and it will take effect when you become terminally incapacitated whether there is a living will or not. Some other extremely specific directives may also be given in a Living Will.
- Medical Power of Attorney (Durable/healthcare Power of attorney)
The Medical Power of Attorney is another very common form of Advance Directive. Here, you simply grant another person the right to make decisions about your health in the event that you become terminally incapacitated. A member of your family or close friend can be given the power of attorney to make such decisions regarding the type of medical care you would want or whether or not you would want life-sustaining measures.
This form of Power of Attorney must specifically state that it is a “Durable Power of Attorney” even if the conferrer is not capable or competent to make decisions at the point that it is required.
We often advise that you choose a person whom you trust to properly execute your wishes, or whom you believe will do what is best for everyone when that moment approaches. Your values and those of the person you’re naming must be in sync. This requires careful consideration.
You may revoke your Medical Power of Attorney at any time as long as you are mentally stable and medically fit. However, once you become incompetent to make such decisions, the power of attorney comes into effect.
Why would anyone need an advance directive?
Think of any family that has a loved one who has a terminal illness and has to be placed on life support? How might they feel when having to make a decision on whether they should get him/her off life support and let them pass away peacefully or whether the person would rather prefer to be supported by machines? This decision is exceptionally difficult because the person can neither speak, hear nor write and can’t communicate what their own decision would be. For some families, this trauma endures for years after the decision was made as they will never know what the right decision was. An advance directive solves this problem.
The individual files the document prior to their death and the document comes into effect when the person no longer has the capacity to make decisions about their life or death, treatment or non-treatment, etc. An Advance Directive helps to avoid confusion that could arise later.
Legal standing of an advance directive:
The guidance issued by the Health Professions Council of South Africa (HPCSA) and the South African Medical Association (SAMA) provide some assistance by stating that a patient has a right to accept or refuse treatment. The guidelines also strongly state that the constitutional rights of patients who have advance directives in place should be upheld and arrangements like Living Wills and Durable Power of Attorney should be honoured.
It is important to note that in South Africa, Advance Directives are considered ethical guidelines as they are not yet supported by law. So, while medical doctors in South Africa can comply with an advance directive, it is not possible to go to court in a bid to enforce an advance directive. You are always able however, to request that another healthcare practitioner, able to comply with the directive, step in to take over treatment.
Drafting an Advance Directive
Whether a patient with a terminal illness is looking to draft an advance directive or revise an existing one to suit the current situation, we recommend consulting a doctor and a lawyer to provide guidance and advice. The doctor should offer sufficient medical advice and counselling, The lawyer will be able to ensure the directive or Durable Power of Attorney is suitably drafted. In the event of a revision, the previous version of the Advance Directive must be destroyed to avoid confusion. Other considerations include;
- The drafter must be of age and mentally competent to make a decision about their potential treatments.
- The document must be specific and provide definitive instructions, as vague documents may be rendered invalid.
- Where the document is found to be too vague or too specific, doctors will have to rely on their discretion and professional judgment.
- Although not enforceable, it is an agreement and should be done in the presence of witnesses.
- Where no other document or evidence is presented to prove that a patient changed their mind, a written advance directive should be accepted as the wish of the patient.
More information and a sample living will are available at: