The Mental Welfare Commission for Scotland (the Commission) will be holding an advance statements campaign launch event on 17th March 2016 at the Royal College of Surgeons of Edinburgh14.
Advance statements, or advance directives as they are alternatively known, are widely acknowledged as a means of enhancing respect for individual patient autonomy and choice. Studies have reportedly found that the making of advance statements/directives has numerous therapeutic benefits including empowering the individual, enhancing capacity, improving the patient/clinician relationship and, most significantly, reducing the need for involuntary detention.
The Mental Health (Care and Treatment)(Scotland) Act 2003 (the 2003 Act)15 requires that medical staff and the Mental Health Tribunal for Scotland must have regard to a patient’s wishes expressed in a psychiatric advance statement or, alternatively, record the reasons for overriding such wishes and inform a number of people and bodies (including the Mental Welfare Commission for Scotland (the Commission)). Indeed, unwarranted overriding of such wishes may constitute human rights violations16. Moreover, it is also hoped that confidence in psychiatric advance statements will be increased when amendments to the 2003 Act (made by the Mental Health (Scotland) Act 2015) come into force. These will require health boards to ensure that psychiatric advance statements are placed in patient records and notified to the Commission (which will maintain a central register) and require health boards to account for steps, monitored by the Commission, that they take to promote advance statements.
The UN Committee on the Rights of Persons with Disabilities in its General Comment No 1 on Article 12 UN Convention on the Rights of Persons with Disabilities (the right to equal recognition before the law)17 refers to advance planning – which includes advance statements - as an important form of support in the exercise of legal capacity. Whilst psychiatric advance statements as recognised by the 2003 Act may not pass muster with the committee, in that they become relevant when the patient lacks mental capacity and relate to those with mental disorder only, their ability to keep the will and preferences of a patient at the centre of care and treatment decisions should not be underestimated.
The Commission launch campaign therefore comes at an opportune time.
Advance statements concerning physical health cannot be used to force certain treatment to be provided and aside from psychiatric advance statements there is no case law or legislation that recognises advance refusals relating to physical health. However, it is likely that the Scottish courts will follow the English courts and uphold wishes expressed in such advance refusals18. The English and Welsh Mental Capacity Act 200519 also recognizes advance refusals. It is suggested that a similar provision be legislatively adopted in Scotland.