Treatment Decisions Approaching the End of Life

Question 1

What is the law about decision making capacity in Scotland?

Answer 1

In Scotland, anyone over the age of 16 is to be regarded as competent / have capacity to make decisions for themselves unless proven otherwise.

Question 2

What is incapacity?

Answer 2

• Incapacity means being incapable of:
  
  • Acting; or
  • Making decisions; or
  • Communicating decisions; or
  • Understanding decisions; or
  • Retaining the memory of decisions

Question 3

Describe ageism in healthcare.

Answer 3

• There is a tendency for people to assume that older people are less likely to have capacity than younger people, and so things are done ‘for’ them, rather than ‘with’ them, contrary to law and common decency.
• Treatment rates drop disproportinately for people >70-75 in areas such as surgery, chemotherapy and talking therapies.
• This is ageism - decisions are being made not based on the person, but on one characteristic which is peripheral to the decisions being made.
• All adults have autonomy and it denies their basic human dignity to remove this without good reason - it is a moral wrong.
• It is also unlawful.

Question 4

Describe autonomy.

Answer 4

• Any competent adult has the right to make any decisions regarding their health, including refusing treatment.
• Consent is vital in providing medical treatment, and it is a criminal offense (assult) to treat a competent person in the absence of consent.
• The decision does not have to make sense to anyone else, or even be explained.
• Healthcare staff tend to assume that an older person refusing treatment ‘irrationally’ or without giving a reason is incompetent simply because they are making this decision.
• This is wrong - incompetence is a legal term with specific criteria to be met.
• Incompetence is not global - someone who is incompetent in one area may be perfectly competent in another.

Question 5

What are advanced directives for?

Answer 5

• Advanced directives, regardless of their exact formulation in law, constitute indication of past wishes of the person.
• They are a way for a person to state, while they are competent, what treatments they would or would not want in the event that they become incompetent to make or unable to communicate treatment decisions.
• Adults with Incapacity (Scotland) Act 2000 says that healthcare professionals must take into account the past and present wishes of the person.

Question 6

What is the purpose of a welfare POA?

Answer 6

• Rather than have a single document that might not fully reflect the person’s wishes as time goes on, some choose to appoint a welfare attorney.
• A welfare attorney can make decisions on behalf of the person in the event of incapacity / loss of communication.
• In general, the person will have made it clear that a POA exists to the GP / emergency contacts etc.
• However, since POA documents need to be registered, the Office of the Public Guardian Scotland has a record if necessary.

Question 7

What is the doctrine of double effect?

Answer 7

• It may be that, to maintain a person’s dignity, you need to do something that might kil them.
• This may be risky surgery, or it may be giving a dose of analgesia so high that it will have the effect of significantly shortening the person’s life.
• This is known as the doctrine of double effect, and, as long as the intent was to treat the person, death is counted as an unwanted side-effect, and therefore blameless.