SCOTTISH legislation on living wills is “ambiguous and incomplete” and risks putting patients' “human rights in jeopardy,” according to a damning new report from the Law Society of Scotland.

The working group of legal experts, medical practitioners and academics behind the review have called for urgent reform in Scots law in relation to both advance choices and medical decision-making in intensive care situations.

The authors say there is a "lack of clarity" around the legality of instructions made by capable adults concerning issues that may arise in the event of their incapacity. 

Currently, they're encouraged to make instructions on health, welfare and other personal matters, including economic and financial.

Adrian Ward, convener of the Law Society of Scotland's Mental Health and Disability Sub-Committee, said: “Members of the public have been encouraged to make ‘advance directives’, but there is no statutory provision for them in Scotland beyond those limited to mental health matters. 

“Nor is the law clear about how to ensure maximum effectiveness of decisions that they might wish to make in advance of incapacity.

“Such decisions can cover a wide range of matters, such as what to do with the house and contents, where they would - and would not - wish to be placed in a care home, what to do with a pet they can no longer look after, and so on – as well as medical matters, but going far beyond medical matters.

“The significant characteristic of ‘advance choices’, as we call them, is that people make their own decision in advance. 

“They do not entrust decisions to someone else and they can cover the situation where there is no-one whom they would wish to make those difficult decisions on their behalf.

“The failure of Scots Law to provide adequate mechanisms and clarity may amount to non-compliance with European and international human rights requirements, and it is imperative that this issue is addressed as a matter of urgency.”

Responding to the report, Kevin Stewart, the Minister for Mental Wellbeing said: “Advance directives are widely used by healthcare professionals and are recognised by the General Medical Council of Scotland and British Medical Association.

“The Adults with Incapacity (Scotland) Act 2000 provides a system of safeguards for adults who lack capacity to make some or all decisions for themselves. The Act ensures that when making a decision about medical treatment, healthcare professionals must take into account the past and present wishes of the person.

“The Scottish Government has commissioned the Scottish Mental Health Law Review to undertake a review of mental health and incapacity legislative framework and views of patients, those with lived experience and those that care for them will be central to the work being taken forward.”