Advance Choices and Medical Decision-Making in Intensive Care Situations

Abstract

We offer a basic formulation (previously lacking) of the doctor-patient relationship, and resulting obligations, responsibilities and potential liabilities, in any situation where medical decision-making cannot proceed at all, or sufficiently quickly, in accordance with the competent and informed consent of the patient. The formulation is derived from existing principles in Scots law and some similar legal systems. Adequate clarity and certainty are however at present lacking in Scots law. It is urgently necessary to provide it, in the interests of doctors, patients and all others who might be concerned. In the matter of withholding or withdrawing life-sustaining treatment, we have considered, commented upon and evaluated the 1995 proposals by Scottish Law Commission (which were never implemented), together with such case law as has developed, as a basis for formulating legislative provision that would provide the clarity, certainty and protections for medical practitioners acting properly, that is at present lacking in Scotland. Our recommendations include suggestions as to how both topics may be taken forward to the drafting, introduction and implementation of legislation, including suggestions as to further research, consultation, and – following upon the introduction of legislation – a coordinated approach to all aspects of its successful implementation.