The ‘living will’ law is different in Scotland

YOU probably saw the reports recently about the case of Brenda Grant, an 81-year-old woman whose family received a £45,000 payout after her life had been artificially prolonged against her wishes.

It was a tragic case and will have made many people think about their own arrangements and feelings on what might happen if they were in the same situation.

However, she lived in Nuneaton in Warwickshire, England, and everyone should be aware that the law on living wills is different in Scotland.

Three months after a severe stroke, Mrs Grant was fitted with a stomach peg, which kept her alive for another 19 months.

What we now know, and what the hospital should have known from the outset, is that Mrs Grant had made and signed a living will clearly stating her refusal of this type of treatment.

A living will is a document that lists specific types of medical treatment a person would and would not want to receive if they became seriously ill, with no prospect of recovery, and they are no longer able to make their wishes known.

It usually acknowledges that refusal of treatment may shorten their life, but states they “fear degradation and indignity more than death”.

Such a document can also be a comfort for your family, as it may avoid disagreements about what they believe you would have wanted, and relieve them of the burden of making important medical choices which may conflict with what other members of the family interpret as your choices.

This is often the cause of bitter disagreements between brothers and sisters.

Mrs Grant had signed a living will after watching her own mum’s health and independence decline through dementia. But her hospital misplaced that document, so continued to sustain her life by feeding through the stomach peg.

Unfortunately, Mrs Grant hadn’t told her family about the living will, so they couldn’t challenge the treatment until her GP became involved.

Living wills are legally binding in England, which is why the hospital’s temporary loss of Mrs Grant’s document led to the £45,000 settlement to her family.

But, north of the border, the difference is that a living will is not legally binding.

In Scotland it is only “taken into consideration” if someone cannot make their wishes known.

If you become no longer able to give or refuse consent and don’t have a living will, then it might be medical staff who have the final say when deciding what life-sustaining treatment you receive – or do not receive.

It is therefore vital that, if you live in Scotland, that you make your intentions known and, while not legally binding, it will still be clearer for all if this is done formally and on paper.

Every Scot over 16 can and should grant a welfare power of attorney, which would give people they trust the legal authority to consent or withhold consent to proposed medical treatment if they lose capacity to make such decisions themselves.

The medics are still in a tricky position, though, if a welfare attorney is seeking to prevent treatment that would clearly be in the patient’s best interests. So it could still end up in court – but at least, if you’ve made a will, your own wishes could be heard, written in your own words.

Donald Winskill, of law firm Gillespie Macandrew, told Raw Deal: “We are seeing an increasing number of clients who want to put these documents in place.

“A living will should give peace of mind that you’ve done what you can to ensure all your wishes will be respected.

“If you do put a living will in place, it is important to inform your family, your GP, and any attorneys (if you have a welfare power of attorney in place), so that a situation like Mrs Grant’s will not arise – where her family had no idea about the lost document.”

If you are interested in learning more about living wills, you should speak to your GP or a solicitor.