Adult Protection and the Law in Scotland

Reviews / Votes

Adult protection is an important topic for an increasing number of people if for no other reason that we are living longer but often with diminished mental ability and increased vulnerability. This can give rise to serious issues. I know this, having recently had to give evidence as a Crown witness where a court appointed guardian had embezzled funds from his own incapax parent. The law affects many, and this book is an essential guide to its current state. The last edition of Adult Protection and the Law in Scotland was published in 2016 but, as is often the way, has been superseded by developments in law and practice. Three years ago the Scottish Ministers issued a revised Code of Practice. Reflecting changing perspectives, this highlighted the need for a trauma informed approach, a subject which is yet to make its full impact not only on this but on many other legal topics.

Both authors are solicitors. Nicola Smith is in private practice and has specialised in incapacity law for over twenty years. Nairn Young, at Renfrewshire Council, advises local authorities on adult protection.
Their book covers a topic which is in effect governed exclusively by post War legislation. Indeed, the earliest Act referred to in the Table of Statutes is from 1968. With the exception of a Court of Session report from 1851 (dealing with doctor-patient confidentiality) the earliest authority in the Table of Cases is from 1979.
The National Assistance Act 1948 was intended, inter alia, "to terminate the existing poor law" and to provide for "the assistance of persons in need ... by local authorities" That Act is still in force (as anyone who has had to investigate the payment of care home fees will know) but key parts were repealed by the statute which is now one of the key measures in adult protection, namely the Adult Support and Protection (Scotland) Act 2007. It, together with the Mental Health (Care and Treatment)(Scotland) Act 2003 and the Adults with Incapacity (Scotland) Act 2000 are the most important of the current statutes and they are all examined in this work. So too are others relevant to adult protection, such as the Protection of Vulnerable Groups (Scotland) Act 2007 and the Social Care (Self-directed Support)(Scotland) Act 2013.

Although this is essentially a work about legislation and the many obligations imposed by it upon local authorities, it is not restricted to examining the duties and roles solely of councils. Chapter 4 covers the key players in adult protection. These are principally local authorities, of course, but they also include Health Care Providers, The Care Inspectorate, Healthcare Improvement Scotland (the successor to the Care Commission), the Public Guardian, the Mental Welfare Commission. attorneys and guardians.
The book is divided into fourteen chapters, with tables of cases, statutes, statutory instruments and conventions. Chapter 8 explores local authorities' duties to investigate harm. Chapter 12 covers court measures of protection and deals with guardianships and interventions but also banning and anti-social behaviour orders. Chapter 14 relates to human rights.
In contrast to the dense sprawl of legislation, there is a dearth of reported caselaw in this area. The Table of cases encompasses 49 cases, and some unfamiliar (to me at least) acronyms to denote where they are to be found. These include HRLR Human Rights Law Review, EWCOP England and Wales Court of Protection, BHRC Butterworths Human Rights Cases and EHRR, European Human Rights Reports. Many concern courts, persons and institutions outwith Scotland.
Where books of this type are invaluable is in that they enable the time pressed practitioner to find solutions to real problems. The work will also provide invaluable assistance to non lawyers working with vulnerable adults, however. The note that caution "is pronounced to rhyme with "nation""appears to be a nod to that element of the readership. This book is thoroughly recommended.
The law is stated as at 1st September 2024. -- Andrew Stevenson * The Journal of the Law Society of Scotland *