A profession driving change

In this retrospective piece, Adrian D. Ward MBE, a recognised international expert in adult incapacity law, reflects on the significant developments in legal practice over the years. Adrian discusses how the profession has adapted to societal changes and championing the rights of vulnerable individuals.

Starting out

When I studied law at university, and even when I became an enrolled solicitor in 1976, I could not have known that adults with incapacity law would feature substantially in the course of my career, for the simple reason that it did not exist as a subject at all!  I know that my length of time as an enrolled solicitor is not the longest, but in this piece I’ll describe some major changes that I have experienced, largely driven – or even created – by the Society, its committees, and its members. 

We all went straight from graduating into apprenticeship, as there was no training in legal practice between the two.  A highlight of apprenticeship was to be entrusted with the settlement of transactions, all taking place at in-person settlement meetings: great for catching up with former classmates, but enriched by meeting some most senior solicitors who were continuing to look after their long-standing clients and for whom each settlement had a ceremonial quality – in one case accompanied by a mandatory glass of sherry (please don’t ask how many settlements he did in an average week!).  We learned much about the experiences of solicitors through both World Wars, and professional practice back to before the first of them.  More efficient ways of taking transactions and required documentation to settlement have been developed by the Society and its members ever since. 

During the three-day working week that accompanied the miners’ strike half a century ago, solicitors (and indeed other professionals) demonstrated that we did not need electricity to operate our offices: shorthand dictation and manual typewriters, carbon copying, gas heating, and (in my case) caravan-style lighting fed from a Calor gas cylinder, phone lines switched through direct to individual extensions – everyone just got on with their tasks.  The recent few hours’ crash of the internet for many users showed that, to put it mildly, it might be challenging to turn the clock back to those days – but in times of cyber and drone attacks targeting internet connections and power supplies, it may be wise for those concentrating on navigating the road ahead not to neglect the rearview mirrors.

Reforming the law

But what about AWI and mental health law?  When I started studying law, the Mental Health Act 1960 had been passed but did not enter into force until after the end of my first year, when we covered relevant areas of law. Adult guardianship was still governed by the Mental Deficiency and Lunacy (Scotland) Act 1913, the purpose of which, according to the 1908 Report of the Royal Commission on the Care and Control of the Feeble-Minded, was to remedy the perceived “lasting injury to the community” resulting from the presence of many “mentally defective persons” who were “at large in the population”. 

The Act established a regime under which they were “placed” in institutions or in guardianship, and the guardianship provided for was plenary guardianship which entirely and permanently incapacitated everyone placed under it, on the basis of medical diagnosis, regardless of individual capabilities.  Legal practice has had to adapt to the huge journey from that world, to one predicated on the principles of the UN Convention on the Rights of Persons with Disabilities, preceded by our world-leading AWI legislation of 2000, recognising the full rights and status, and in that sense the full legal capacity, of all persons regardless of disabilities and their severity. Its purpose was not to protect society from them, but to protect them from the barriers and often prejudices of society, to ensure full “exercise of legal capacity” by them or on their behalf, minimising potentially discriminatory disqualifications, and enhancing support and necessary protections. 

The AWI Act of 2000 was substantially the work of the Society and its members.  Much of the detailed hard work towards producing the text of the Act was done by them, and members of the Society formed the majority of the steering group of the alliance of over 70 voluntary, professional and other organisations, including over 30 national organisations, that successfully campaigned for the Act to become the first substantial legislation of the then brand-new Scottish Parliament. 

The next wave of reform towards greater human rights compliance is underway, the major part of mapping out the route ahead having formed part of the continuing work and influence of the Society’s Mental Health and Disability Committee in responses to consultations from 2016 onwards, and two members of the committee were selected to provide professional experience on the five-person Executive Team for the recent massive review of relevant areas of law – mental health, incapacity and adult support and protection – carried out by what became known as the “Scott Review”.

A changing profession

In my first ever debate I found myself opposed by senior counsel, with the then mandatory accompaniment of junior counsel, and instructing solicitor.  The difference in functioning between the two branches of the legal profession was clearcut.  Solicitors acting full-time as procurators in our sheriff courts and below was well established, but above that the function of solicitors was to instruct counsel.  It is perhaps yet another sign of how much has changed, and in my view improved, now we not only have solicitor advocates, but shortly before the Scott Review completed its work and reported the eponymous chair of the Review, John Scott KC was the first solicitor to become a Senator of the College of Justice –in other words, and for the non-lawyers among us reading this, a judge in our highest civil and criminal courts.

There have been enormous changes in my chosen area of law over the years and I’ve been proud and privileged to have played a part in helping people to understand the law and to use the law, as well as working to improve the law in Scotland and elsewhere across the world.