Advance statements or living wills are currently not legally binding on doctors In Scotland. This means that while advance statements can be useful to doctors in telling them the wishes and preferences of their patient, the doctor is not required to act in accordance with the advance statement if it would violate good medical practice and his patient’s best interests.

The dangers of making advance statements legally binding include:

• The decisions we make when we are ill are often different from the decisions we make when imagining any hypothetical situation/illness
  
• If we do become ill we may be incapable of communicating any change of mind that we have about the treatment that we would prefer. Advance statements are not flexible enough in that they cannot be tailored to meet the specific circumstances in which the patient presents
  
• Advance statements are unnecessary – patients already have the power of autonomy and doctors are unable to treat a patient without their consent. Where a patient cannot give consent a doctor must treat a patient’s illness according to his clinical judgement about the condition. Advance statements can in fact limit patient autonomy by limiting the available treatment options
  
• If a doctor does act in the best interests of an incapacitated patient and applies his clinical judgement against the wishes of the advance statement he could be prosecuted for assault. Doctors are therefore unlikely to act against advance statements even if they feel this will harm the patient
  
• No one can predict future medical advances – an advance statement may therefore deny a patient the right to life-saving or life-enhancing treatment that had not previously been foreseen
  
• When a patient becomes terminally ill or incurably disabled a doctors’ duty to his patient is based on providing palliative care rather than treatment aimed at cure – advance statements may prevent a doctor from providing simple pain relief due to a complete refusal of treatment
  
• If a doctor wishes to challenge a legally binding advance statement he would have to do so in a court of law, which is not qualified to make medical judgements. Doctors are unlikely to challenge advance statements in this way due to the volume of patients in their care
  
• Advance statements are difficult to apply in emergency situations where time may be wasted trying to establish if one in fact exists and what it says

As a result of the Mental Capactiy Act 2005 for England and Wales advance directives are now legally binding documents which doctors must adhere to. This Act does not apply to Scotland.

Jacqueline Dalrymple Revised June 2005

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