Can Doctors Ignore an Advance Directive in Scotland?

The Short Answer: No — With Important Caveats

Under Scots common law, every competent adult has an absolute right to refuse medical treatment, even if that refusal results in death. An advance directive is a written exercise of that right, made in advance while you have capacity so it takes effect when you do not. Doctors cannot simply choose to ignore it.

But "cannot ignore" is not the same as "must always follow." There are specific circumstances where a medical team may lawfully set aside an advance directive — and understanding those circumstances is the difference between a document that protects you and one that gets shelved during a crisis.

When a Doctor Can Legally Override an Advance Directive

The main situations where a Scottish clinician may decide not to follow an advance directive are:

1. The document is ambiguous. If the directive does not clearly cover the clinical situation that has arisen, the medical team has discretion. A directive that says "I do not want to be kept alive by machines" does not tell a doctor whether you are refusing mechanical ventilation specifically, or also CPR, dialysis, and feeding tubes. When the wording is open to interpretation, clinicians will typically default to treatment.

2. The circumstances have changed. If the directive was written before a new treatment became available that the person could not have anticipated, or the medical situation is materially different from what the document describes, the clinical team may argue it no longer applies. For example, a directive refusing "all cancer treatment" written before a breakthrough immunotherapy might be considered in light of whether the person would have made the same decision with access to a treatment that did not exist when they wrote it.

3. There are doubts about capacity, information, or coercion at the time of signing. If evidence suggests the person lacked decision-making capacity when the directive was created — if they were under the influence of medication, in the early stages of undiagnosed cognitive decline, or were pressured by a family member — the document can be challenged. A refusal made without full information about its medical consequences can also be challenged. This is where having a GP or solicitor witness the signing makes a material difference: their contemporaneous confirmation of capacity is difficult to overturn.

4. The directive lacks the sanctity-of-life clause. When a directive refuses life-sustaining treatment without explicitly stating "even if my life is at risk," clinicians have legal cover to treat. Their default obligation is to preserve life, and without that explicit override, they can argue the refusal was not intended to extend to life-or-death situations.

The Common-Law Position Is Strong

None of these exceptions means doctors can casually disregard an advance directive. The AWI Act's Section 1 principles require any intervention in the affairs of an incapable adult to take into account "the past and present wishes and feelings of the adult." A signed, witnessed advance directive is the most authoritative evidence of those wishes.

The General Medical Council and British Medical Association both recognise that a valid, applicable advance directive should be followed. If a doctor overrides one, the decision may be challenged where the directive was valid, clear, and applicable.

In practice, the cases where directives are genuinely overridden — rather than simply not found in time — almost always involve ambiguity in the document itself. A directive that is specific about treatments, specific about scenarios, explicitly addresses life-sustaining treatment, and is properly witnessed is extremely difficult for a medical team to set aside.

The Emergency Exception

There is one scenario where the directive may not be followed regardless of how well it is drafted: a genuine emergency where there is no time to locate or verify the document and immediate treatment is required to prevent death or serious harm.

Under Scots common law, doctors hold a general authority to provide life-saving treatment in an emergency when the patient's wishes are unknown. This is not the same as "ignoring" a directive — it is a time-limited authority that applies only until the medical team can establish what documentation exists.

This is why getting your advance directive onto the NHS Key Information Summary (KIS) database matters so much. The KIS is the first thing emergency doctors and the Scottish Ambulance Service check. If your preferences are on the KIS, the emergency exception shrinks dramatically because the team can access your documented wishes within minutes.

How to Reduce the Risk of Being Overridden

Five things make an advance directive difficult for Scottish doctors to set aside:

1. Specific treatment refusals — name exact treatments, not categories
2. Specific clinical scenarios — describe the medical situations where the refusals apply
3. The sanctity-of-life clause — "I maintain these refusals even if my life is at risk"
4. A GP or solicitor witness — contemporaneous capacity confirmation
5. KIS registration — so the directive is electronically accessible in emergencies

A directive that meets all five criteria aligns with the BMA's ethical guidance and NHS Scotland's anticipatory care planning framework. Overriding it would require an extraordinary justification.

The Scotland Advance Directive Planning Kit provides the exact clinical wording templates and sanctity-of-life clause that meet these standards, along with the GP letter template for KIS registration.

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