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JGM
JGM, Solicitor
Category: Scots Law
Satisfied Customers: 11423
Experience:  30 years as a practising solicitor.
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If an individual has CAPACITY is it illegal for a medical practitoner

Resolved Question:

If an individual has CAPACITY is it illegal for a medical practitoner to withold life supporting intervention based on HIS assessment alone without discussion or consent from that individual or the individuals' nominated next of kin. If the individual dies as a result of this, would the medical practitioner be in breach of the law, because this could be classed as passive euthanasia, ie: assisting death by witholding treatment or would this action contravene a different law, such as a human rights law?
Submitted: 3 years ago.
Category: Scots Law
Expert:  JGM replied 3 years ago.
Thank you for your question.
A doctor's first duty is to his patient and if possible to the preservation of
life. This is not a human rights issue. Humans rights are concerned with the relationship between an individual and the state. This issue is one of private law and whether the doctor was negligent. If no other similar doctor of ordinary competence would have acted in the way that this one did then there is a prima facie case of negligence.
However the passage of time is such that the remedies which were available are no longer available.
Happy to discuss further.
I hope this helps. Please leave a positive response so that I am credited for my time.
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Customer: replied 3 years ago.

Thankyou for your response. Can you explain the term prima facie and whether a case of negligence could be pursued because the medical practitioner failed to involve the patient and/or his next of kin in a decision-making process which resulted in witholding active treatments that potentially may have been life-saving. In other words, the decision of whether to preserve life has been considered by the medical practitioner in isolation. This practice is, as I understand, unethical, even illegal? as it denies the patient their fundamental right to be involved in life/death decisions. Preservation of life is currently paramount, even if suffering ensues (assisted dying bill questions this premis) however is this dliberate omission in itself enough to pursue a case of negligence? As I understand current law states that a medical practitioner is not required to decide whether a life is worth saving instead he should do everything he can to save life and if this is not possible ease suffering and preserve dignity in death. Are you able to clarify if failure to discuss this fundamental right amounts to negligence?

Expert:  JGM replied 3 years ago.
Prima facie means at first instance, ie, solely from what you say and not having had the chance to look at all the papers in the case.
In my opinion, from what you say a failure to examine all available treatments is negligence. However, any case would have to be raised within three years and as I understand it the case is now time barred.
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