Euthanasia and the Artificial Preservation of Life
Discussion Document 71

1. Background/Introduction

The ‘Euthanasia and the Artificial Preservation of Life’ Discussion Document was released by the South African Law Commission on 11 April1997. The issue of the legality of a ‘living will’ was first raised by SAVES The Living Will Society, in a letter to the Law Commission in October 1991. Following a process of consultation, including two workshops, the Law Commission decided to broaden the discussion to include decisions pertaining to the right to terminate life.

In 1994 the South African Law Commission published a working paper on euthanasia and the artificial preservation of life. Given the paucity of public debate on this matter, and the confusion with regards to the terminology used, the purpose of the working document was to focus public attention and to evoke discussion and debate. It is hoped that these discussions will assist the Law Commission in deciding whether these issues must be formalised in legislation or not. In order to stimulate informed and comprehensive debate, a draft bill was included in this document.

2. The Situation Currently Obtaining

Throughout the world increasing importance is being attached to the rights of the individual patient. Advances in medical sciences and medical technology have resulted in patients living longer. For many patients and their families this signifies a welcome extension of a meaningful life, but for others the result is a poor quality of life. This inevitably raises the question whether the continued application of treatment, under certain conditions, is in the best interest of the patient or whether it is in fact a burden. The critcial question then arises as to who, when and under which circumstances the decision is made to terminate the life of a terminally ill patient.

The Commission identified 3 broad areas within which the preservation of life and actions that hasten death should be discussed. They are:

• the artificial preservation of life of a patient who is considered to be clinically dead.
• the protection of a mentally competent, but terminally ill patient’s right to refuse treatment and to receive assistance to end his/her suffering; and
• the position of the incompetent terminally ill patient;

3. A Summary of Proposals for Possible Legal Reform

The South African Law Commission is considering proposals for possible reform in the following areas:

• The circumstances in which it would be lawful for a medical practitioner to cease or to authorise the cessation of life-sustaining treatment of a patient who has no spontaneous respiratory and circulatory functions or whose brainstem does not register any impulses.
• The right of a mentally competent person to refuse any life-sustaining treatment, even though such refusal may cause or hasten his/her death.
• The right of the medical pratitioner responsible for the treatment of a terminally ill patient to increase the dosage of medication, with the object of relieving pain and distress, even if the secondary effect of this may be to hasten the patient’s death.
• Whether it would be lawful for a medical practitioner to act on the request of a well-informed, mentally competent, and terminally ill patient to end his/her suffering by administering or providing a lethal agent.
• The recognition of a written directive or ‘living will’ regarding the cessation of medical treatment in cases of terminal illness.
• Recognition and validity of a power of attorney, particularly after the patient has become mentally incompetent.
• Those instances in which the chief medical practitioner of a hospital or clinic may, in the absence of a directive of the patient or his/her agent decide to discontinue the treatment of the terminally ill patient.
• The circumstances in which a court may order the ceessation of medical treatment or the performance of any medical procedure which would lead to the termination of a patient’s life.

4. Some of the Main Considerations in the Draft Bill

4.1 The Cessation of Treatment where the Patient is Clinically Dead

To date no consensus has been reached in medical science on the question as to precisely when death sets in. There are currently two dominant approaches as to determining when death occurs. The first view asserts that death occurs with the irreversible cessation of spontaneous circulatory and respiratory functions. The other view contends that death occurs with irreversible brain-stem death.

In January 1994, the British House of Lords published the Report of the Select Committee on Medical Ethics. According to this report, there is broad agreement by the medical profession that brain death equals death. The report recognises that the legal definitions of brain death and the criteria for diagnosis still vary from country to country.

According to South African law the generally accepted test is still the irreversible loss of spontaneous circulatory and respiratory functions. This approach is consistent with the Human Tissue Act of 1983.

Notwithstanding these contending positions, the central question is: If, according to the above tests it can be proved that a person is clinically dead, but kept alive by a heart-lung machine or ventilator, is the medical practitioner entitled to disconnect the life-sustaining system?

Present legal rules in South Africa tolerate such practices. The matter which needs to be addressed though is whether the current common practice needs to be formalised in legislation or not. The advantage of legislation could serve to remove legal uncertainty, particularly where it could guide the conduct of the doctors, the patient and his/her family. This, however, could be a lengthy and costly exercise. Could the necessary understanding of , and clarity be achieved through the introduction of extra-legal education?

According to the draft bill, a person is considered to be dead when two doctors agree and confirm in writing that there is:

a) irreversible absence of spontaneous respiratory and circulatory functions; or
b) the persistent clinical absence of brain-stem function.

In such instances the doctor may withdraw or order the withdrawal of all forms of treatment.

4.2 The Continuation of Palliative Care

Many patients with terminal cancer, people with Aids and persons with other chronic and untreatable diseases often suffer unbearable pain and indignation. In many instances these patients’ lives are prolonged, by for example intravenous or nasogastric feeding, the administering of antibiotics to inhibit the spread of secondary infections or the administering of oxygen. It may happen that such a patient requests the discontinuation of such life-prolonging treatment, and instead asks for palliative care only. The question then arises whether the patient has the right to refuse any treatment, even if such refusal would hasten death.

In South African law the rule is acknowledged that where a patient has ‘the necessary mental capacity’, he/she may exercise the right to refuse medical treatment. Furthermore, it would be a prerequisite that the patient be informed fully of consequences of his/her refusal, including the consequences of the discontinuance of the life-prolonging treament. In such circumstances our courts would acknowledge the doctor’s obligation to comply with such a request, even if such an action would have the effect of hastening death.

Another dilemma revolves around the request for the continuance of palliative care. Palliative care by definition includes the administering of pain-killing drugs. It is widely acknowledged that the effect of large dosages of pain-killers may hasten death. As a result, many doctors fail to supply an adequate dosage that would relieve the pain and suffering, for fear of being held criminally liable should the dosage be found to have hastened the patient’s death. In our situation, the hastening of a person’s death, ‘if it was done unlawfully and with the necessary intention’, would constitute murder.

The Report of the South African Law Commission proposes in its draft bill that the doctor may, ‘in accordance with responsible medical practice:

a) with the object to provide relief of severe pain and distress; and
b) with no intention to kill

increase the dosage of medication (whether analgesics or sedatives) to be given to the patient, even if the secondary effect of this action may be to shorten the life of the patient.’

4.3 Active Euthanasia

In some instances patients may request not only the cessation of life-prolonging treatment, but additionally also ask that legal drugs be made available to them for self-administration. The South African legal position is that the ‘person who knowingly supplies a drug to a patient for use in a suicide is guilty of aiding and abetting a suicide and can accordingly be found guilty of murder.’

The Commission proposes in its draft bill that a doctor should not act on such a request unless he/she is convinced that:

a) the patient is suffering from a terminal illness;
b) the patient is subjected to extreme suffering;
c) the patient is 18 years or older and mentally competent;
d) the patient has been fully informed of his/her diagnosis, the prognosis and the available treatment and care;
e) the request of the patient is based on an informed and well considered decision, has had the opportunity to re-evaluate his/her request, but has persisted; and
f) euthanasia is seen as the last resort to relieve the patient from his/her suffering.

In addition, the doctor concerned will be obliged to consult with an independent medical practitioner who is knowledgeable about the specific terminal illness, and who has personally checked the patient’s medical history and examined the patient.

Further, both the doctor concerned and the independent medical practitioner consulted will be required to record in writing, and independently of each other, their findings.

5. Some Issues Raised by the Document

• Throughout the document emphasis has been placed on the role of the medical practitioner in relation to the subject under discussion. The reality is, however, that increasingly more community-based and home-based care is administered. Would the proposed regulations apply to primary health care nurses and community health workers?
• The National Health System is based on the Primary Health Care approach. Some of the changes envisaged in this debate presuppose that health facilities are adequately staffed and resourced. What are the budgetary implications of these proposed changes on the health system, particularly in the less developed provinces or at the district level?
• It is not clear how some of the proposed procedures would be conducted within the public health system. Given the scarcity of doctors in some situations, would the senior nurse, for example, be able to make decisions? What is the envisaged chain of command, particularly in small, remote health facilities?
• The vast majority of patients are from a complex cultural mileau where members of the extended family often have considerable decisionmaking power. In such situations, when, how and with whom will decisions be negotiated? What are the strategies envisaged to provide emotional/psychological support and/or counselling to affected families? What are the strategies envisaged to inform individuals and families about their rights, responsibilities and choices? Should an individual or family member feel that his/her rights have been violated, what mechanisms to lodge complaints or to seek redress will be put in place?
• What mechanisms are envisaged to ensure ethical and safe conduct of health personnel?
• It is not clear how and where this discussion document locates the debate within the context of the new Constitution. Concepts such as ‘consent to injury’, ‘right to refuse treatment’, ‘right to life’, etc. relate very directly to values enshrined in the Bill of Rights. How does the proposed application of these concepts align with the Constitution?

6. The Way Forward

The purpose of this Discussion Document was to solicit the views and values of the public at large. Several issues have been raised which could either be legislated or could be accommodated within extra-legal educational programmes. Discussants are invited to indicate the issues they feel should be formalised in legislation. Based on the outcome of these discussions the South African Law Commission would determine whether a bill must be drafted for submission to the Minister of Justice.

Comments on this document can be forwarded to The Secretary, South African Law Commission, Private Bag X668, Pretoria, by 30 June 1997.

For more information, please contact Bea Abrahams by telephone @ 021-6964954 or by fax @ 021-6969308 or by e-mail at philaw@wn.apc.org . The PHILA programme is funded by a grant from the Henry J. Kaiser Family Foundation.

APPENDIX
Definitions of terminology used in this document.

Legal Competency

If a person has the ability to enter into legal transactions. She/he should be able to understand the nature and implications of the legal transaction concerned.

Consent to Injury

The consenting person has to have had full knowledge of the extent of his/her rights and the nature of the injury.

Court

A provincial or local division of the High Court of South africa within whose jurisdiction the matter falls.

Life-sustaining Medical Treatment

This includes the maintenance of artificial feeding.

Medical Practitioner

a medical practitioner registered as such in terms of the Medical, Dental and Supplementary Health Professions Act of 1974. (Currently under review)

Palliative Care

Treatment and care of a terminally illl patient, not with a view to cure the patient, but rather to relieve suffering and maintain personal hygiene.

Terminal Illness

An illness, injury or other mental or physical condition which:

a) will inevitably resullt in the death of the patient concerned within a relatively short time and which is causing the patient extreme suffering; or

b) is causing the patient to be in a persistent and irreversible vegetative condition with the result that no meaningful existence is possible for the patient.

Competent Witness

A person over the age of 18, who is able to give evidence in a court of law, and who derives no financial benefit from the death of the person on whose behalf he/she witnesses.

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