RESOURCES

Patient and family rights about withholding or withdrawing life-sustaining care

According to section 8 of the National Health Act of 2003, a health service may not be provided to a user without the user’s informed consent. Section 6 details that, if a user is capable of understanding they should be informed of their health status, treatment options and procedures,the degree of risks and likelihood of benefits, as well as their right to refuse treatment and the implications of refusal. If the user is not capable of understanding, they must be informed afterwards, if possible. Section 6 (1) (d) of the Act makes it clear that refusal is a legitimate choice and that the user has the right to refuse health services.

According to the Act, a user is defined as ‘a person receiving treatment in a health establishment, including blood or blood products, or using health services’. If this person is under the age of 12 (the age specified in the Children’s Act of 2005) then the user includes the person’s parent or guardian or another person authorised by law to act on the first-mentioned person’s behalf. 

If the user is unable to give informed consent, then this may be given by a person who is 

(i) mandated by the user in writing to grant consent on his or her behalf or 

(ii)  authorised to give such consent in terms of any law or court order. 

If a user is unable to give informed consent and no person is mandated or authorised to give such consent, then consent is given by the spouse or partner of the user. Or, in the absence of such a spouse or partner, a parent, grandparent, an adult child or a brother or a sister of the user, in the specific order as listed.

NB: It is therefore clear in the law that mandated persons or next of kin are legally empowered to make medical decisions on a user’s behalf and doctors must comply with their decisions about withholding or withdrawing life sustaining treatment. Their preferences should be respected AS IF the patient is making their own decisions and overriding the decisions of the mandated persons or next of kin is not ethically and legally permissible.

This is supported by the HPCSA’s Guidelines For The Withholding and Withdrawal of Treatment:

https://www.hpcsa-blogs.co.za/guidelines-for-the-withholding-and-withdrawing-of-treatment/#9