National Health Amendment Bill

BACKGROUND: What is the cause about?

During July 2018, COPE MP, Deidre Carter, published an Explanatory Summary on the proposed National Health Amendment Bill, 2018, requesting public comments on the intended legislation. The Bill seeks to (amongst other proposals):

  • provide for and clarify the legal status of two types of advance health care directives, namely, a “living will” and a “durable power of attorney for healthcare”;
  • set out the purpose, scope and format for these advance health care directives and provide for the resolution of disputes related to these directives;
  • clarify whether a “living will” or a substitute decision-maker’s decision may be overridden by a medical practitioner or family members in any circumstances; and
  • clarify whether someone acting upon these directives is immune from criminal and civil prosecutions.

INJUSTICE: WHY we must act and WHAT is at stake?

The inherent worth of human life

Section 10 of the Constitution, the right to human dignity, protects and promotes the pre-eminent and inherent worth (dignity) of human life. The objective worth of a human life should not be diminished by subjective and individualistic determinations of the value of human life. The value of human life is far more than the subjective experience of enjoyment/quality of life or the value of someone’s contribution to society.

The Bill seeks to provide legal recognition and protection for living wills and durable powers of attorney (“advance health care directives / AHCD”). These documents are used by some patients to pre-record their end-of-life healthcare decisions before becoming legally incompetent to do so due to the progression of their illness.

Current law

Currently, AHCD are not legally enforceable. Whether or not a patient’s wishes are adhered to, depends on the specific wording of the documents and the surrounding circumstances. Medical practitioners and family members may contribute to healthcare decisions pertaining to the patient, or make such decisions on behalf of the patient, if legally appointed as curators. The law however places a high burden on curators, requiring them at all times to act in the best interest of the patient (i.e. an objective standard).

The dangers of changing the law

A change in the law to make AHCD legally unchallengeable will however be detrimental to the health care of legally incompetent patients, as their medical practitioners and families’ ability to play a role in determining what actions are in their best interest, will be taken away. The risk of harm to these extremely vulnerable persons by isolating them from those persons who care most about their well-being, is immense.

By denying such persons the right to partake in the healthcare decisions of incompetent/unconscious patients, the best interest of the patient will be supplanted by and subjected to the contents of a document, with no recourse whatsoever in case the content of ACHD is clearly not in the best interest of the patient. This will open the door to abuse and undue influence of persons in need of protection and support.

It is quite possible that AHCD could even be abused to circumvent the law or perform illegal acts, by instructing that someone may perform, request or give consent to physician assisted suicide (PAS) or active voluntary euthanasia/physician assisted euthanasia (AVE/PAE) on behalf of the patient.

These are grave concerns which should be properly considered, debated and guarded against by Parliament.

CFJ’s INVOLVEMENT: What can be done & what will we do?

CFJ delivered written submissions to Parliament during August 2018 to highlight the risks inherent in the proposed legislation and entreat Parliament to act in the best interest of vulnerable persons by protecting them from abuse and undue influence in times of their greatest need.

We continue to monitor the progress of the Bill. Should the Bill be brought to Parliament, we will participate in the public consultation process that will follow.

STATUS UPDATE: Where do things stand and what will happen next?

The drafters of the Bill are working through all the submissions that have been received in order to finalise the wording of the draft Bill. Thereafter, the Bill will most likely be tabled in the National Assembly and be referred to the Portfolio Committee on Health for consideration and deliberation, including public consultation.

WHAT YOU CAN DO: How can you make a difference?

You can support this cause by:

  • Contributing financially to enable our legal team to do the work necessary to protect vulnerable individuals from harm and exploitation (Donate)


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