Scotland is lagging behind England in legislation over following the wishes of an incapacitated patient, says Lorna Goodfellow
‘Nothing, they say, is more certain than death, and nothing more uncertain than the time of dying”, said author Thomas Paine in the 18th century.
Such a statement, to an extent, still holds true today and reminds us all why making a will, at the soonest opportunity, is of such huge importance.
However, in more recent years, much has also been written about the “living will” and the need to have one in place too, should we lose capacity during our lifetime and be unable to communicate our specific wishes concerning certain medical treatment.
The name living will is in fact a misnomer as it is neither dealing with a person’s wishes after death nor dealing with the property of that person.
Indeed, the correct term for such a deed is an advanced medical directive (AMD).
Such a document details the circumstances in which a person does not wish to receive certain medical treatments, should they be unable to communicate their wishes due to physical or mental incapacity, at some point in the future.
As medicine develops, so too does the ability to prolong life by artificial means. Machines to enable a person to breathe and feed them intravenously and resuscitating a person or administering drugs can all prolong life, even if these actions themselves can no longer aid recovery.
Sadly it took the tragedy of Hillsborough and the case of Tony Bland before the courts began to focus on such issues.
Mr Bland was diagnosed as being in a persistent vegetative state, having suffered head injuries at the Hillsborough Stadium. It was widely acknowledged that there was no chance of recovery. His family and doctors wished to remove his feeding tube to allow him to die but at that time it was illegal to do so without the consent of the courts. The courts eventually ruled that it could be done and, at the same time, expressed views that seemed supportive of advance directives.
In reaction to this the Medical Treatment (Advance Directives) Bill was introduced to parliament in 1992. Then in 1993, the Law Commission in England declared that the refusal of an advance directive should carry the same weight as refusing a request of a patient who had full capacity.
Further court decisions in England and Wales seemed to uphold the validity of AMDs until finally in April 2007, the Mental Capacity Act 2005 came into force and put AMDs in England on a statutory footing and confirmed their legality, provided that the terms of any deed drawn up in this connection complied with the provisions laid down in the act.
Unfortunately, there is no such corresponding statutory provision in Scotland, at present, with Scotland appearing to lag behind England on this front.
In a green paper in 1999, the Scottish Government rejected the Scottish Law Commissioners’ recommendations that Advance Directives should have statutory force in Scotland saying: “We have examined carefully a number of other proposals made by the Scottish Law Commission… and by others. Such proposals have included legislation to give clear legal force to Advance Statements (living wills)… Although such proposals have the sincere support of particular interest groups, we do not consider that they command general support. Attempts to legislate in this area will not adequately cover all situations which might arise, and could produce unintended and undesirable results in individual cases.”
Despite this, the general view is that although AMDs are not covered by Scottish legislation or by any case law in Scotland, since there has been case law in England and also English legislation, any AMD is most likely to be binding in Scotland too, at common law. Should there still be any remaining doubt as to whether AMDs are legally binding in Scotland, the position, we believe, is clarified by the Adults with Incapacity (Scotland) Act 2000.
The 2000 Act states that any medical treatment administered to an adult with incapacity must take account of the adult’s ‘past wishes and feelings’. It is therefore likely, in our opinion, that this would include an AMD.
Whilst an AMD cannot nominate someone to make a decision on treatment on a person’s behalf, it is possible, as an alternative, for a person to grant a Welfare Power of Attorney appointing someone to decide on welfare matters in the event that they are unable to do so themselves. The powers conferred on an attorney could include the power to withhold consent to medical treatment, if so desired.
Whatever route is taken, the fact remains although nothing is more certain than death itself, it could just be argued that in the 21st century it might now be a little less uncertain.
• Lorna Goodfellow is a Private Client Solicitor with Russel + Aitken