Advanced Directives

Yesterday my mum was picking my legal brain on the issue of Advanced Directives (living wills) and it has spurred this post.  In this post I will briefly explore the legal minefield of Advanced Directives.

What is an Advanced Directive?

An Advance Directive (AD) is a document that relates to the medical treatment you would or would not wish to receive, should you become seriously ill and were unable to state your wishes for yourself.

The Advance Directive is particularly relevant where degenerative diseases are concerned. For instance, if you developed cancer you may not wish to undergo chemotherapy even if it would prolong your life. On the other hand, you may wish to be provided with more effective pain relief, even if this would have the consequence of shortening your life.

The Legal Minefield

Readers south of the border who are familiar with ADs and English Law will not see any legal minefield existing today thanks to the Mental Capacity Act 2005.  However, the law in Scotland surrounding ADs is a lot less settled.

The Scottish Executive omitted any reference to ADs in the Bill that later went on to become Adults with Incapacity (Scotland) Act 2000 on the view that the proposals did not command sufficiently general support and that “attempts to legislate in this area will not adequately cover all situations which might arise, and could produce unintended and undesirable results”.

The issue again arose when the Mental Health (Scotland) Bill (now known as the Mental Health (Care and Treatment) (Scotland) Act 2003) was going through Parliament.  There was some passionate debate within the Parliament chamber.

It is largely being left down to the common law to deal with this area, but the problem is cases are not reaching the courts in order for the courts to consider the issue and give rulings on it.  However, the Mental Health (Care and Treatment) (Scotland) Act 2003 provides statutory provisions on ADs relating to Mental Health.  It is likely that the Scottish Courts will adopt a similar approach to the issue to the law in England and Wales on the matter.

Even if an AD was held to be legally binding would it be binding in all circumstances or just when the circumstances relate directly to the terminal/degenerative condition?  For example, if the AD was one of non-recitation in the event of the patient’s heart stopping would this apply also where the patient’s heart stops because of a car accident or other unrelated medical problem?

The answer seems quite obvious in common sense, but in law there is no answer to that question.

Should ADs even be allowed to exist in the first place?  The European Convention on Human Rights and Fundamental Freedoms 1950 gives an explicit right to life, but can this right to life extend to the right to decide when your life ends (and this applys equally to the question of Euthanasia).  Does the right to a private and family life afforded by the same convention cover this choice as well?  So many questions that cannot adequatly be explored in what is fully intended to be a brief examination of the topic.

So, in Scotland the law is still quite confused and is a minefield.