By Amanda Ward

There is ambiguity to what extent Welfare Powers of Attorney (WPA) in Scotland can refuse or withhold consent to medical treatment. The primary legislation to be consulted is the Adults with Incapacity (Scotland) Act 2000 (AWIA).

A welfare power of attorney relates to decision making in relation to the granter’s personal and health care and can only come into effect on the onset of incapacity in relation to the powers granted.

In Scotland, no official record is kept of how many people are in a permanent or minimally conscious state, unable to consent to their own medical treatment, but drawing on figures from England and Wales, the number is likely to be in the thousands. It should be borne in mind that ‘medical treatment’ includes Artificial Nutrition and Hydration (ANH) as per Airedale NHS Trust v Bland [1993] where it was decided that ANH was not ‘basic care’.

The WPA has a duty to act according to the general principles of the AWIA. In England and Wales, the granter must explicitly indicate that the WPA has powers to refuse life sustaining treatment on their behalf. In Scotland, no such distinction is required.

Section 2.19 of the Scottish Government Code of Practice for Continuing and Welfare Attorneys states that WPA’s can ‘withhold consent’ to medical treatment being given. The language of ‘refuse’ does not appear in the Scottish Government document but does feature in Section 7.1 of the British Medical Association’s (BMA) ‘Medical Treatment for Adults with Incapacity Guidance on Ethical and Medico-Legal issues in Scotland’ where consideration is given to proxy decision making.

In addition to the safeguards set out in the general principles of the AWIA, regulations specify ‘irreversible or hazardous treatments’ that may not be provided under the general authority to treat or proxy consent provisions of the act and require approval by the Court of Session. These include sterilisation where there is no serious malformation or disease of the reproductive organs, and surgical implantation of hormones for the purpose of reducing sex drive. Other medical treatment such as abortion and electro-convulsive therapy for mental disorder require approval by a practitioner appointed by the Mental Welfare Commission.

Thus, it seems a WPA can refuse or withhold consent to medical treatment, except for those specified in the regulations.

The confusion arises where there is disagreement between the WPA and the medical practitioner and here, a not insignificant degree of power is given to the medical practitioner to attempt to rebut the WPA’s decision, as outlined at s50 (4-10) of the AWIA.

Section 5.48 of the Scottish Government Code of Practice summarises:

If you do not agree with the medical practitioner primarily responsible for the adult’s medical treatment, and the doctor does not accept your view, the doctor must request the MWC [Mental Welfare Commission] to provide a ‘nominated medical practitioner’, from a list held for this purpose, to give a further opinion as to the medical treatment proposed. The nominated medical practitioner must have regard to all the circumstances of the case and must consult you. The nominated medical practitioner must also consult another person nominated by you, if it is reasonable and practicable to do so. If after taking these steps the nominated medical practitioner certifies that in his or her opinion the proposed medical treatment should be given, then the medical practitioner primarily responsible may give the treatment, unless you or some other person with an interest in the adult’s welfare appeals to the Court of Session against this. The medical practitioner primarily responsible for the treatment also has a right of appeal to the Court of Session against the decision of the nominated medical practitioner.

Section 10 of the BMA guidance mirrors this, and Section 11 of the BMA guidance states:

Appeal to the court should be very rare. In all cases, doctors should seek prior legal advice. All decisions about medical treatment, under the general authority or where there is a proxy, are open to appeal to the courts. Any person with an interest in the personal welfare of an adult with incapacity may challenge a decision by appealing to the sheriff and then, by leave of the sheriff, to the Court of Session. This person may be the treating doctor, another member of the clinical team caring for the adult, a proxy decision maker, or a close relation…The courts can instruct that the patient should receive the treatment in question, but cannot instruct a particular doctor to provide treatment contrary to his or her professional judgement or conscience.

Thus, it appears WPA’s can refuse treatment on the granters behalf, but this right is not absolute by nature of the dispute resolution procedure at s50 (4) of the AWIA. Thus if the attorney refuses to consent to the medical treatment, but the treating physician (applying the principles of the Act) feels that treatment is still appropriate, the doctor can ask the Mental Welfare Commission to instruct an independent doctor to determine whether the treatment should be given. The view of that independent doctor is conclusive, unless one or other party decides to go to court.

Author: Amanda Ward

Affiliations: School of Law, University of Strathclyde

Competing interests: None.

Social media accounts of post author: @WARD_AJ1