The Law Society of Scotland has published on 19 May 2022 a detailed report considering and addressing current deficiencies in Scots law in relation to advance choices, and medical decision-making in intensive care situations. It advocates the need for Scots law adequately to address those deficiencies, and formulates and offers proposals for legislative provisions for that purpose. The background to the project (full disclosure, I was a member of the group) is best set out in the executive summary:
While the Covid-19 emergency has focused attention upon the shortcomings of existing Scots law in relation to both topics, both topics have become gradually more important over the years, as the human rights environment has developed and – in the medical sphere – with developments in medical knowledge and practice. Strong emphasis is now placed on the principles of autonomy and self-determination. The failure of Scots law to provide adequate mechanisms and clarity probably amounts to non-compliance with European and international human rights requirements.
Scots law in these matters is different from the law of England & Wales, but confusion and uncertainty is caused by the frequency with which propositions and advice based on English law are promulgated in Scotland without regard to the differences, leading to inappropriate practice and wrong assumptions. These include failure by medical practitioners in Scotland to realise that they do not have legal protection in some situations where their colleagues in England & Wales do.
This paper is based upon research and consideration of relevant human rights provisions, ethical considerations, existing Scots law, experience in England & Wales and elsewhere (including from the background to developments in England & Wales and elsewhere), and existing proposals for reform, clarification or creation of Scots law.
The proposals set out in the report are developed in the context of the ongoing Scott review of mental health law in Scotland, and will no doubt by considered by that review. They are developed within the context of Scots law, but are of wider relevance for (at least) two reasons:
(1) the report and (in particular, the supporting material, available here) will be useful for anyone wishing to understand how Scots law in the context of incapacity differs to the law in England & Wales and other common law jurisdictions influenced by England & Wales;
(2) the report and (again, the supporting material) addresses problems of principle, as well as law, in relation to advance decision-making, which are of equal relevance no matter the jurisdiction.
I hope to be able to do an ‘in conversation’ about the report soon – watch this space.