Adults with incapacity ( Scotland ) Act 2000: proposals for reform

Chapter Eleven

Advance Directives

An advance directive sets out a person’s wishes about future healthcare should he or she become incapable of taking decisions about treatment. A person who has legal capacity can accept and refuse any treatment, but an advance directive is a way of trying to ensure that doctors respect the wishes of the adult in the future, should he or she become incapable of taking such decisions.

An advance directive can be in writing, in a letter to a doctor or in a formal document signed and witnessed. A doctor may record the person’s wishes following discussions with the person and keep this with the patient’s records.

A person may make an advance directive in any area of medicine but only the Mental Health (Care and Treatment) (Scotland) Act 2003 ^[19] provides a legal framework for recognition of ‘advance statements’ where a patient is subject to a compulsory order.

For persons not subject to any orders under the 2003 Act, the common law prevails. Every competent adult is free to make decisions about his/her medical treatment, including the refusal of medical treatment even if to do so may result in death or serious injury. A person who is competent to take such decisions about treatment should also be able to make decisions about future treatment. Sometimes these decisions are referred to as living wills but generally in Scotland the term advance directive is used.

The English courts have recognised the validity of advance directives, ^[20] and the General Medical Council and British Medical Association both recognise the validity of advance directives. The Scottish Law Commission in its 1995 report recommended that the Adults with Incapacity Act should clarify the law, but the then Scottish Executive believed at the time that the courts should continue to develop the law in light of changes in medical practice and ethics.

Since that time, although there has been little by way of significant court decisions on these issues in Scotland, much guidance has been developed across the health sector in Scotland, to highlight the benefits of advance directives.

In particular, Healthcare Improvement Scotland, supported by the Scottish Government, provides guidance on anticipatory care planning and the use of advance directives. ^[21]

Although the AWI Act does not make any specific provision for advance directives, the principles of the Act should mean that any advance directive has considerable force as a doctor is bound by the principles to consider an advance directive as evidence of the person’s wishes and feelings.

But it has been suggested to us that there needs to be clear legislative provision for advance directives beyond the scope of advance statements in the 2003 Act. In particular the Essex Autonomy Project has recommended that advance directives should be recognised for their potential as instruments of support for the exercise of legal agency in circumstances where decision specific capacity is impaired.

And the Council of Europe has recommended, in principles concerning continuing powers of attorney and advance directives for incapacity, that states should promote self determination for capable adults by means of continuing powers of attorney and advance directives. ^[22]

In the rest of the UK, provision is made in statute for advance directives, but before any decision is made on the best way to proceed in Scotland, we would like your views on the issue.

Questions

Should there be clear legislative provision for advance directives in Scotland or should we continue to rely on common law and the principles of the AWI Act to ensure peoples’ views are taken account of?

If we do make legislative provision for advance directives, is the AWI Act the appropriate place?

Please give reasons for your answers.