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Moral Issues It may be, on reflection, that it is impossible to do what the Executive claims to be doing here, ie to provide a means of dealing with the affairs of an "incapable" adult without getting involved in difficult moral areas. Any procedure that allows one person to make important decisions about the life of another (on the basis that the person is "incapable" of such decisions) raises important moral issues (even in terms of the definition of "incapable"). The Bill seeks to maximise the involvement of the "incapable" adult in taking as much control of his/her own affairs as possible, and to ensure that his/her present and past wishes and feelings are taken account of. The Policy Memorandum which accompanies the Bill therefore indicates that the Executive does not see any difficulty in meeting the standards of the European Convention on Human Rights, and that they see the Bill as enhancing equal opportunites for people with an incapacity. While the framing of the Bill is oriented towards the business affairs of adults with incapacity, questions about medical treatment are clearly the most crucial decisions for the life and welfare of the "incapable" adult; the issues, then, are about who makes these decisions and within what legal framework. [The Bill proposes that "In determining if an intervention is to be made and, if so, what intervention is to be made, account shall be taken of (a) the present and past wishes and feelings of the adult so far as they can be ascertained; (b) the views of the nearest relative and the primary carer of the adult in so far as it is reasonable and practicable to do so; (c) the views of (i) any guardian, continuing attorney or welfare attorney of the adult who has powers relating to the proposed intervention ; and (ii) any person whom the sheriff has directed to be consulted,] Protecting Incapable Adults In that light it is surprising that the Bill establishes no duty of care for welfare attorneys and other proxy decision makers. The Scottish Law Commission, in the report from which the original proposals came, said "We think that granters are best protected against inaction by choosing people who can be relied on to take appropriate action rather than the imposition of any statutory duty", but vulnerable people may need more substantial protection than that. The SCHB propose a new clause as follows "A guardian, a continuing attorney, a welfare attorney, a person authorised to act under an intervention order, a withdrawer and the managers of an establishment, in addition to any other fiduciary duty or duty of care shall owe a duty of care to the incapable adult to act reasonably and in good faith and in accordance with this Act." Others have argued that this would be covered by the statement of general principles in s1 of the Bill, which provides that "there shall be no intervention in the affairs of an adult unless the person responsible for authorising or effecting the intervention is satisfied that the intervention will benefit the adult and that such benefit cannot reasonably be obtained without the intervention". However, the definition of "benefit" may be problematic here, and there is also concern about a decision not to intervene, eg by giving food or fluid artificially, which may not be covered by this section. At present an incapable adult would be protected by criminal law should a doctor deliberately harm or cause the death of that adult. Civil law also offers protection against medical neglect and finally professional guidelines and clinical standards within the medical profession safeguard against abuses. The Bill will remove much of this protection in that it will confer (s47) on a person acting on behalf of an incapable adult the power to refuse consent for medical treatment. Doctors cannot be forced to carry out a particular treatment which they believe to be medically inappropriate but can be prevented (by the person appointed as welfare attorney) from carrying out treatment which in their professional opinion is necessary. In such circumstances the burden falls on the doctor to apply to the Court of Session to overturn the decision of the welfare attorney. The path of least resistance is therefore for the doctor to comply with the welfare attorney. Under pressure, a doctor might simply acquiesce in the view of the attorney that treatment should not be given, and bring about the death of the adult by the omission of treatment. Such a case would not apparently be subject to court scrutiny under this legislation.
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