In modern society there is an increasing recognition that people should be allowed to choose how to die.

Every adult with mental capacity has the legal right to agree or refuse medical treatment if they wish. If someone wanted to make their wishes known and clear in advance, they might create a living will. This will acts as an instruction to the medical profession of the patient’s wishes in the event that they become incapacitated and therefore unable to provide instructions.

Not to be confused with assisted dying, whereby someone helps someone else to end their life when they are no longer capable of doing so, a living will is simply an advance refusal of medical treatments. For example, a person might give instructions that they do not wish to be resuscitated, especially if they suffer from a particular medical condition where this could be a possibility. Having a living will can spare relatives or loved ones of having to make a difficult decision.

In England and Wales, Advance Decisions that meet certain requirements must be followed. Living wills are recognised in one of the guiding principles under the Mental Capacity Act 2005 (E&W), which came into force in October 2007; individuals retain the right to make whatever decision they wish even if their decision could be viewed as unwise.

This is not the case in Scotland; while Advance Directives can still be recognised and used, there are gaps in the law. The result is a lack of certainty for individuals, their relatives and the supporting medical professionals.

The Scottish law has been criticised recently by the Law Society of Scotland in a report. While the Mental Capacity Act has provided a level of clarity in England and Wales, the Law Society of Scotland described Scots Law as ‘ambiguous and incomplete’ by comparison.

The report itself discusses the deficiencies in Scots law around advance choices and medical decision-making in intensive care situations, it accuses the ambiguous law of putting ‘human rights in jeopardy’. The report highlights the need for amendments and provides recommendations to the legislation.

The authors of the report are made up of a group of legal experts, medical practitioners and academics, they have called for urgent reform in Scots law in relation to both advance choices and medical decision-making in intensive care situations.

This isn’t the first time the legislation has been criticised, in 2019 John Kerrigan wrote an article for the Law Society of Scotland, concluding that:

“Appropriate policies and strategies for better palliative care are of great importance for those who wish it, but not for those to whom it may be administered against their expressed and clear wishes.”

More recently Adrian Ward, convener of the Law Society of Scotland’s Mental Health and Disability Sub-Committee, said:

“Members of the public have been encouraged to make “advance directives”, but there is no statutory provision for them in Scotland beyond those limited to mental health matters. Nor is the law clear about how to ensure maximum effectiveness of decisions that they might wish to make in advance of incapacity.

The significant characteristic of ‘advance choices’, as we call them, is that people make their own decision in advance.

The failure of Scots Law to provide adequate mechanisms and clarity may amount to non-compliance with European and international human rights requirements, and it is imperative that this issue is addressed as a matter of urgency”