National Health Amendment Bill, 2018 (Private Member's Bill)

In accordance with section 73(2) of the Constitution of, notice is given that Ms Deidre Carter, MP, intends to introduce the National Health Amendment Bill, 2018, in Parliament. An explanatory summary of the Bill has been published.

“Dying is a natural and inevitable part of life. Unless we die an unnatural death, we will go through a natural dying process. For some, it will be peaceful and dignified; for others it will be filled with pain, distress and suffering. We do not know which it will be.”

Any competent person may foresee the possibility of becoming incompetent when they enter the terminal phase of the dying process, and may wish to control their healthcare decision-making as they are able to do when they are competent. Advance health care directives are designed to enable competent persons to express their preferences and give instructions about such possible future situations.

The National Health Act, No. 61 of 2003, does, to an extent, contain provisions about advance health care directives in that in one provision of the Act, a “living will” is inferred and in another, provision is made for the appointment of a substitute healthcare decisionmaker. However, it is argued that these provisions, while a step in the right direction, are inadequate for a number of reasons. These reasons include that a “living will” is not expressly recognised; the purpose, scope and format of these advance health care directives are not explicitly set out; it is not clear whether they may, in certain circumstances, be overridden by family or medical practitioners; whether persons acting upon the directives are immune from civil and criminal prosecutions; and how to deal with a situation where two substitute decision-makers disagree about the treatment the patient should receive.

The National Health Amendment Bill will therefore provide for legal recognition, legal certainty and legal enforceability of advance health care directives such as the living will and the durable power of attorney for healthcare. The Bill will:
▪ provide for and clarify the legal status of two types of advance health care directives: 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

Interested parties and institutions are invited to submit written representations on the proposed content of the draft Bill to the Speaker of the National Assembly within 30 days of the publication of this notice.

Comments can be emailed to the Speaker of the National Assembly at [email protected] and copied to [email protected] by no later than Saturday, 24 August 2018.

Enquiries can be directed to Mr Rodger Ferguson on tel (021) 403 8898

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 1 Landman, WA “End-of-life decisions, ethics and the law: A case for statutory legal clarity and reform in South Africa”, Ethics Institute of South Africa, 2012.