Book Review: Adult Protection and the Law in Scotland - Smith & Young

Published in 2024, the third edition of this key text by Nicola Smith and Nairn R Young is essential reading on incapacity law and adult protection today, for lawyers and non-lawyers alike, writes Andrew Stevenson.

Adult protection is an important topic for an increasing number of people, if for no other reason than 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 previous edition of Adult Protection and the Law in Scotland was published in 2016 but, as is often the way, it has been superseded by developments in law and practice.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.

Expert voices

Both authors are solicitors. Nicola Smith is in private practice and has specialised in incapacity law for more than 20 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Act is still in force (as anyone who has had to investigate the payment of care home fees will know) but key parts were repealed by the statute that is now one of the key measures in adult protection: the Adult Support and Protection (Scotland) Act 2007.

Alongside the 2007 Act, 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 all three are 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.

Broad scope

Although this is essentially a work about legislation and the many obligations imposed by it upon local authorities, this book 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 healthcare 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 14 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 case law 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 enabling the time-pressed practitioner to find solutions to real problems. The work will also provide invaluable assistance to non-lawyers working with vulnerable adults. 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.

Adult Protection and the Law in Scotland (3rd edition) by Nicola Smith and Nairn R Young

Published by Bloomsbury, 2024. Click here to order your copy directly from Bloomsbury Professional.

Written by Andrew Stevenson, Secretary, Scottish Law Agents’ Society. The law is stated as at 1 September 2024.