Scottish Churches Parliamentary Office, Edinburgh - Briefing Document Eight

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Parliamentary Officer:Rev Graham Blount
Phone:
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Briefing Document No 8 - Page 3 of 4

Adults with Incapacity - Continued.

Euthanasia by Stealth?

At present, the practice of doctors in dealing with patients who are dying or who are in a persistent vegetative state (PVS) is subject to the jurisdiction of the courts, and it has been argued that there is no intention to change this in a direction that would open doors towards euthanasia.

The main purpose of the Bill in this respect is to clarify the question of authority for doctors giving treatment to adults who cannot give consent to such treatment. A representative of the Mental Welfare Commission has told Parliament's Justice and Home Affairs Committee that "The basic principle is that treatment should be for the benefit of the person. It could be argued, in certain drastic situations, that the maintenance, with food and hydration, of a person's existence is not to that person's benefit, as they have no prospect of recovery. An intervention, under the bill, might not be appropriate in such a situation."

If it is accepted that there are difficult decisions to be made here, the question is who should make them, and in what legal framework (eg a duty of care, an obligation to act in good faith, or a complete legal prohibition on withdrawing treatment).

The wishes of the person concerned (if expressed before the onset of incapacity) must have a place; to give them absolute priority (including a refusal of treatment) is to go down the road of "living wills" which have been dropped from the proposals in the Bill.

Clearly, co-operation among relatives, any partner or primary carer, welfare attorney and doctors, taking account of what is known about the patient's wishes, is the best way for these decisions to be made. However, legislation has to cover the situation in which there is disagreement among these and may also have to define these in difficult areas such as who constitutes a "partner" in the complex web of current relationships. (The Parliamentary Committee has already voiced concerns about possible conflict between a "same sex" partner and relatives from whom the patient may have been estranged.)

The Bill (as indicated above) gives priority to the welfare attorney, with the doctor having the right to go to the Court of Session when the attorney refuses to sanction treatment against medical advice. In their evidence to the Committee, the SCHB argued that it should be the other way round, with a welfare attorney having to make a case to the Court for rejecting medical advice.

Supporters of the Bill have argued that it simply codifies existing practice in the treatment of terminally ill patients or those in PVS. Others have said that it crucially extends the ruling in the recent Law Hospital case (authorising removal of treatment from a patient in PVS as being for the "benefit" of the patient in these circumstances) to all incapable adults.