AA Legal Documents

Living Wills - Scotland


Every adult with mental capacity has the right to agree or refuse medical treatment. To make your wishes clear in advance, you can use a Living Will. When you are ill, you can usually discuss treatment options with your doctor and then jointly reach a decision about your future care. However, you may be admitted to hospital when unconscious or unable, on a temporary or permanent basis, to make your own decisions about your treatment or communicate your wishes. This may happen, for example, if you are suffering from mental illness. To use the technical term – you would 'lack mental capacity' to make an informed decision and /or communicate your wishes. In such situations, doctors have a legal and ethical obligation to act in your best interests.

It is possible to make an advance statement of your wishes in relation to treatment for mental illness which are generally legally binding in Scotland. If you subsequently became ill those treating you will have regard to it, but these wishes can be overruled where those determining your care are of the view that you are at risk and where grounds for compulsory treatment apply.

It is also possible to prepare an advance directive regarding medical treatment for other types of illness or disability, but at the moment in Scotland the position with respect to these is uncertain. While there is no guarantee that they will have effect, however they may be very persuasive and you may still want to make one to leave a record of your wishes to guide those deciding upon your care.