COMMENTARY

A worrying anomaly arose in English law some forty years ago which has never been remedied, namely, that no one—not even a court of law—can consent or refuse on behalf of an incompetent adult. The response of the English courts has been to turn to the practice of “declaring” the lawfulness (or otherwise) of particular courses of conduct—such as medical interventions or withdrawals of treatment—relating to such individuals. This has been, however, a heavy burden for the judicial system to bear, especially since the decision making authority of the medical profession has come under increased scrutiny in recent years. Scotland, for its part, was unaffected by such matters. Instead, it was challenged by an anachronistic system which permitted the court appointment of proxy decision makers, …