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THE LIVING WILL

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HAVE
YOU
SIGNED
THE
LIVING
WILL?


The Living Will ...

SAVES Suffering and pain

SAVES Anxiety for loved ones

SAVES Valuless prolongation of terminal illness

SAVES Existence without quality of life

SAVES Spending life savings unnecessarily

SAVES - The Living Will Society

SAVES -The Living Will Society was formed in Natal in 1974 and now, with a membership of over 31 000 throughout the country, bases its operation on the following principles:-

  1. That death is inevitable for every human being. It is a natural consequence of life and ought to be as dignified and humane as possible.
  2. That in the event of terminal illness, or where there is no imminent and reasonable chance of recovery, the employment of artificial means to sustain life is pointless and only serves to prolong unnecessarily the distress of all concerned.
  3. That in such cases a humane and acceptable alternative should be sought, in the form of a declaration setting forth one's wishes with regard to the question of allowing death to occur naturally through the withholding of artificial life support systems which would otherwise sustain "Life" - but one of little or no quality.
  4. That every effort should be made to relieve the patient from any mental or physical pain and discomfort, even if medication administered exclusively for this purpose hastens the moment of death.
  5. That any life-support systems such as ventilators, respirators or other sophisticated and possibly costly medical techniques be used prudently to sustain life where there is a reasonable chance of recovery; not merely to postpone the moment of death and thereby prolong the agony and anguish where no reasonable chance of recovery exists.
  6. That a mentally competent adult patient has the legal right to refuse medical treatment should he so wish, and in such instance, the doctor is obliged in law, to honour the patient's wishes.

The Living Will

To this end, a document called 'The Living Will' was devised to stand as a testament to one's wishes, particularly in the event of one being unable to communicate at the time.

The Living Will states:-

"If the time comes when I can no longer take part in decisions for my own future, let this declaration stand as my directive.

"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 do not give my consent to be kept alive by artificial means, and I request that I receive whatever quantity of drugs and intravenous fluids as may be required to keep me free from pain or distress even if the moment of death is hastened. "

An optional codicil which reads "I do not consent to any form of tube feeding" is provided for signature and witnesses.

Three copies of The Living Will should be signed when of sound mind and after careful consideration, in the presence of two witnesses. It is advisable to share this decision with anyone who may have to implement The Living Will - family, close friends and one's doctor.

We suggest that these documents be lodged in the following manner:-
  1. Kept at home in a safe place for easy access in an emergency.
  2. Lodged with one's doctor, after full discussion of the contents, so that in advance of the possible need, the doctor understands the patient's wishes. Should there be no private doctor, arrangements can be made to have this copy filed in one's out-patient file at any hospital.
  3. Kept for inclusion in one's in-patient file should the need for hospital, nursing home or hospice ever arise. N.B.: An extra copy may be applied for should one be residing where there is a matron or sister in-charge.

    A Wallet Card incorporating the essentials of the Living Will is supplied. This should be carried on one's person at all times for use in an emergency.


How to Obtain The Living Will

Any person over the age of 18 years may join SAVES . The Living Will Society, regardless of race, colour or creed. A woman married in community of property does not need her husband's authority when signing a Living Will.

Complete the enrolment form set out below.

You will then receive 3 copies of The Living Will, a Wallet Card plus a Newsletter keeping you informed of the progress of this and similar organisations throughout the world.
Donations are always very gratefully accepted and will be acknowledged.

Should you have any further queries the Director can be contacted telephonically on telephone number


Date: ............

To: The Director
SAVES - The Living Will Society
P.O. Box 1460
WANDSBECK 3631

Please enrol me as a life member of the Society. I enclose my Membership Fee. See Fees
  • per Person
  • per Married Couple
  • per Social Pensioner
    (Please give OAP, DG or WV number) .................
PLEASE PRINT

Surname (Mr) :

...........................................

First Names :

...........................................
and/or
Surname (Mrs / Ms) :

...........................................

First Names :

...........................................

Address :

...........................................

...........................................

...........................................

Cheques/Postal Orders to be made payable to
SAVES - The Living Will Society

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SAVES - THE LIVING WILL SOCIETY
- DIE LEWENDE TESTAMENT VERENIGING

P.O. Box/Posbus WANDSBECK 3631 Telephone number

GUIDELINES FOR MEDICAL PRACTITIONERS ON LIVING WILLS PREPARED BY THE MEDICAL ASSOCIATION OF SOUTH AFRICA


A "living will" is a declaration or an advance directive which will represent a patient's wish to refuse any medical treatment and attention in the form of being kept alive by artificial means when the patient may no longer be able to competently express a view.

Every person may refuse medical treatment even if such refusal will result in death, unless such treatment is sanctioned by law. To be able to make a declaration such as the "living will", a person must be over the age of medical consent and "compos mentis". The declaration will remain valid even if the declarant later on becomes "non compos mentis",

The "living will" is not a will in the testamentary sense of the word. There is in South Africa at present no law regarding the validity of "Living Wills". These guidelines have therefore been designed to assist doctors who are confronted with a "living will". Doctors are, however, to approach issues surrounding "living wills" with considerable consideration and obtain advice from the Medical Association of South Africa if appropriate.

  1. A doctor should offer to treat and to relieve suffering, and should generally act in the best interests of his patients. There shall be no exception to this principle even in the case of incurable disease or malformation. The World Medical Association's declaration on terminal illness should be borne in mind. This declaration recommends that:
    "the doctor may relieve suffering of a terminally ill patient by withholding treatment with the consent of the patient or his immediate family if the patient is unable to express his will. Withholding of treatment does not free the doctor from his obligation to assist the dying person and give him the necessary medication to provide relief in the terminal phase of his illness and the doctor shall refrain from employing any extraordinary means which would prove of no benefit for the patient."
  2. All patients have aright to refuse treatment, which right should be respected. This, however, does not imply or justify abandonment of the patient. Doctors should offer medical care in accordance with good medical practice. The medical care should, however, be acceptable to the patient and appropriate to the circumstances. Doctors are encouraged to raise the subject in a sensitive manner with patients who are anxious about the possible administration of unwanted treatment at a later stage.
  3. A written advance directive, in the absence of contrary evidence, must be regarded as representing the patient's expressed wish. The drafting of an advance directive is the patient's responsibility. It is, however, recommended that an advance directive should be drafted in conjunction with medical advice and counseling. It is further advisable that patients discuss the specific terms of their advance directives on a continuing basis with their general medical practitioners.
  4. Patients frequently believe that an advance directive to refuse life-saving or sustaining treatment will be honoured under all circumstances. The reality of medical practice makes this impossible. If an advance directive is specific to a particular set of circumstances the directive will have no force when these circumstances or ones essentially similar to them do not exist. If an advance directive is so general that it applies to all possible events that could arise, it is usually too vague to give any usable direction to the doctor. In either case doctors will have to rely on their professional judgement to reach a decision.
  5. It is the responsibility of a patient to ensure that the existence of an advance directive is known to his family and to those who may be asked to comply with its provisions. It is recommended that individuals who made an advance directive, should consider wearing on their person an indication as to the location of the document. Doctors who are aware of the existence of such an advance directive, should make all reasonable efforts to acquaint themselves with its contents. In cases of emergency, however, necessary treatment should not be delayed in anticipation of a document which is not readily available.
  6. It is strongly recommended that patients review their advance directives at regular intervals. It is further recommended that patients rather destroy than amend the existing advance directive.
  7. Doctors with a conscientious objection to withhold treatment in any circumstance are not obliged to comply with an advance directive but should advise patient of their views and offer to step aside, transferring management of the patient's care to another practitioner.
  8. Late discovery of an advance directive after life prolonging treatment has been initiated is not sufficient grounds for ignoring it.
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SAVES - THE LIVING WILL SOCIETY

This is an explanation of "Informed Consent" which is Common Law in South Africa


A patient has the right to the following: -
  1. You have the right to refuse specific medical treatments. A treatment given by a doctor or nurse against your wish constitutes a common law assault. If a nurse overrules you send for the sister in charge: if still overruled send for your doctor. If you receive no support from your doctor send for your attorney.
  2. You have the right to countermand treatments which you have previously sanctioned. And you can expect to be informed of the consequences.
  3. You have the right to expect treatment and care (within the limitations of any refusal of treatment) which will keep you comfortable and mitigate pain.
  4. Your own wishes override those of your next of kin. Your next of kin cannot legally order t which you wish to be discontinued. A claim that your death would harm your next of kin would need to be re-enforced by a court order before your wishes could be overridden. No one has legal powers of guardianship over an adult person who is compose mantis.
  5. You have the right to full and current information from your physician on his diagnosis, suggested treatment, and prognosis (forecast of course of disease). You have the right to information on prescribed drugs and possible side effects. In other words, your doctor must obtain from you "informed consent" before he undertakes any treatment whatever. You also have the right to be informed as to fees for professional services of whatever kind, and for hospitalisation (this letter must be obtained from the hospital or clinic to which you are to be admitted).
  6. When significant alternatives for treatment and/or care exist, or when you request information on medical alternatives, you have the right to expect such information in language you can understand.
  7. You have the right to a second opinion if you are not sure that the diagnosis of your illness, or the suggested treatment, or the prognosis, is correct. Always bear in mind that correct diagnosis may be extremely difficult, particularly in an older person who may be suffering from several degenerative diseases.
  8. You have the right to change the doctor you employ in private if you are not satisfied with any aspect of his professional service. The correct procedure is to ask for a referral letter. You .are under no obligation to name the doctor to whom you intend to go. Although your medical records are regarded as being the property of the doctor (or hospital) who has recorded them, they are invariably made available when your new doctor asks for the.
  9. On discharge from hospital you have the right to expect adequate instructions in self care to ensure maintenance of health and prevention of disability.
  10. You have the right to discharge yourself from a hospital or nursing home. The hospital or nursing home may ask you to sign a release, stating that you are leaving against the medical judgement of the medical staff, (There is no legal compulsion to sign a release.) Exceptions to the right to discharge yourself will occur if you have an infectious disease or if you have been declared mentally incompetent.
  11. You have the right to have your case history kept confidential except where you consent to have such information divulged or where it is required by law to be divulged.
  12. A public patient has the same right to privacy as to his person as a private patient. You have the right to privacy during medical examinations and you have the right to ask anyone not involved in your care to leave during such examinations. Remember that your co-operation may be valuable in a teaching hospital.
  13. As a patient you have the right to be informed before you are included in any medical research programme. You have the right to refuse to take part in a research programme.
  14. As a public patient you have the right to know by name and consult with the medical officer responsible for your medical programme. You possess the rights set out above except that you do not have the right to choose or change the physician appointed to attend you while in hospital.
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Informed Consent

Informed consent by a patient is required for any treatment a doctor considers advisable, either for purposes of diagnosis or treatment, except in exceptional cases, such as unconscious accident cases. Patients who have executed the Living Will have, in their right minds, given definite instructions regarding the type of treatment to which they will not consent, thereby exercising their legal prerogative to lay down limits to what may be done to them. This is binding in law, and a doctor who disregards this instruction by a patient, is legally in the wrong.

No matter how sincerely he may believe himself to be acting in the patient's best interests, or according to moral principles, if a patient does not consent to treatment, then, with certain exceptions of which the Living Will is not one, the doctor's act is unlawful, and may render him liable to damages. It should be noted that in South African law it is the patient's informed consent, not the doctor's motive, which makes the latter's act lawful.

Firstly, a doctor has no legal duty in general to accept a patient. Secondly, normally the doctor's right to treat is based on the patient's informed consent. Subjecting a patient to medical treatment against his express will may indeed be legally tantamount to assault.

Professor SA Strauss, professor of Criminal law at UNISA, and author of the book, "Doctor, Patient and The Law", states:

"I have authorised my wife to apply to the Supreme Court for an interdict (prohibitory court order) against medical staff should they refuse to give effect to my own Living Will".

Professor Strauss also advised SAVES - The Living Will Society to place a footnote to the Living Will stating as follows:-

"Should they wish, any person has my concurrence to apply for a court order to insure compliance with this directive should any medical practitioner or health authority refuse to give effect to it".

Professor David McQuoid-Mason, Dean of Natal University Faculty of Law, outlined the patient's legal right and the problem a doctor may face if he/ she disregards the Living Will.

"It is the duty of medical personnel to obey a patient's wishes if he does not want life-sustaining treatment and has signed a Living Will ( which must obviously be brought to the doctor's attention). If a doctor then does not obey the patient's wishes he has in fact perpetrated an assault against the patient and can be sued".

Professor McQuoid-Mason said the law recognized the patient's right to decide whether he wanted to live or die, accept treatment or deny it.

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