A Commentary on Q

Jankovic et al (2010, this issue) discuss the role of advance statements in England and Wales as introduced in the Mental Capacity Act 2005. My article comments on their views from the different legal position in Scotland. This requires some description of the position of advance statements as introduced in the Mental Health (Care and Treatment) (Scotland) Act 2003. Scotland is unusual, and possibly progressive, in having advance statements for mental health embedded in its mental health legislation and not as part of a more generic capacity legislation or introduced as an independent piece of legislation (Atkinson 2006). The Mental Health (Care and Treatment) Act also requires a person to have significantly impaired ability to make medical decisions before they become subject to the Act. The review of the mental health act in Scotland has to be seen in the context of pre-existing capacity legislation, the Adults with Incapacity (Scotland) Act 2000, which does not deal with advance directives or advance decisions (Patrick 2006; Atkinson 2007). These remain a matter for common law in Scotland