Advance Directives and Medical Decision-Making in Intensive Care Situations

The Adults with Incapacity (Scotland) Act 2000 does not set the patient’s ‘best interests’ as the ‘benchmark’ justifying non-consensual medical intervention. Rather, the legislation enjoins (inter alia) that ‘the present and past wishes and feelings of the adult so far as they can be ascertained by any means of communication’ must be taken account of in determining what, if anything, is to occur. This approach ostensibly has the benefit of according with the requirements of the UN Convention on the Rights of Persons with Disabilities (CRPD) and is consistent with a ‘negotiorum gestio model’ which fits with the framework of Scots common law. The full-scale, conscious adoption of this model has the potential to ensure that ‘the fundamental inquiry [in medical decision-making should] become, “Do we know or can we find out what the patient would want done under the circumstances at hand?” Not, “What do we think is ‘best’ for the patient?”’. Since the decision of the UK Supreme Court in Montgomery v Lanarkshire Health Board in 2015, there is a real impetus to move towards this approach insofar as medical decision-making is concerned. Accordingly, this article aims to provide a clear and comprehensive picture of Scots law in this area, with comparative reference to the law of Germany which has also extended a negotiorum gestio model alongside rules on so-called 'living wills' (Patientenverfügung), and to critically discuss the desirability (or otherwise) of introducing a framework of 'binding' advance directives into Scots law.