There cannot be many lawyers whose career path has been steered, successively, by doing a favour for a friend, reviving concepts of ancient Roman law, the collapse of communism in Eastern Europe, and the arrival of the Scottish Parliament. But that, somewhat crudely, is the story of Adrian Ward, who has become synonymous to Scots lawyers with the law affecting people with intellectual disabilities.
Recently retired after 48 years in practice, Ward is showing no sign of losing his interest in the field in which he made his name, as he embarks on further significant projects at home and abroad to advance his adopted cause.
It has been an unlikely career path for someone who, for nearly all that time, has operated a small high street practice in Barrhead. In fact, Ward tells me, he has spent more time acting for local commercial clients, and became involved in incapacity issues quite by chance.
“Could you help...”
An “old style generalist”, he would look into odd areas of law, such as mining and quarrying, if a client had a particular requirement. So when a family friend, who assisted a small group of parents of children with significant disabilities, was looking for someone to give a presentation about the law as it affected the children growing up, and told Ward they couldn’t find a lawyer who knew anything about the subject, he pulled together a little talk based on what he could cull from standard textbooks, and thought no more about it.
A second group heard about it and invited him, and then another, “and I suddenly found myself getting drawn in”. Then the Scottish Society for the Mentally Handicapped (now Enable) became interested and he began advising it; the Society’s next idea was that he write a book on the subject and it would publish it. “I thought, ‘Splendid, I can just write this book and then get back to the rest of what I do.’ So I wrote Scots Law and the Mentally Handicapped, and of course the requests doubled. And it just built from there. After my second book for them I was getting drawn into law reform issues; by then I had already done the revival of tutors dative.”
That last comment illustrates the second of Ward’s career shapers. “Each of my books would have a few suggestions for going ahead, and every time somebody would pick up on that,” he tells me. The standard practice until the 1980s was to have a curator bonis appointed; but when the Morris family had to make decisions for their newly adult son and wanted to be recognised in doing so, while not taking any more powers than were needed, Ward’s researches – which went back to Justinian’s Institutes – uncovered tutors to adults as a possible solution. “We went along to the Inner House and counsel explained the position and what my researches had turned up, and they granted it. That development really carried right through into the Incapacity Act.”
What also emerged was that the curator bonis first evolved as an interim measure due to the cumbersome procedure for appointing a tutor at law, but the latter appointment displaced any other type – a point that Ward used to advantage in another case, where a curator was allowing a ward minimal subsistence from a large sum of damages. “I tried to get her father as tutor at law; the curator bonis opposed it but it’s in the law reports now: we were successful.
“But these were stopgap measures, doing the best we could with the law as it was,” Ward continues. “What we needed was law reform.” The Scottish Law Commission took up the challenge, producing a report in 1995 that ultimately led to the Adults with Incapacity etc (Scotland) Act 2000.
New Parliament, new law
Naturally Ward was closely involved in the evolution of that groundbreaking statute, beginning with the Commission’s researches, for which he was engaged as an external expert. When legislation failed to appear, about 70 national and local voluntary organisations formed a campaigning alliance and Ward was asked to be their spokesperson. Touring the party conferences ahead of the Scottish Parliament’s first elections, he won a common commitment, so that legislation was likely irrespective of the result. Following the bill was “a rather interesting experience” also: “It’s not many lawyers who can say they helped steer the first major legislation through a brand new parliament, and by chance I had that experience.”
Despite a further review and legislation in 2007, Ward regards Scots law as falling behind again. “We were world leading when we passed the 2000 Act, but the international scene has been moving on and we now urgently need to update to comply, not only with the European Convention on Human Rights, but with the United Nations Convention on Persons with Disabilities. Right now this subject is in a state of rapid development such as I’ve not experienced since I was doing my initial research, my tutor dative revival and that sort of thing.”
As the Journal goes to press, a Scottish Government consultation on the next round of reforms has just been published. While it focuses on the 2014 Scottish Law Commission report on incapacity and dealing with deprivation of liberty, with attendant human rights issues, a final question asks for suggestions on other key areas for reform. In addition to matters where practice has shown the current legislation to be inadequate, Ward would argue for compliance with the UN Convention, and action on the growing issue of cross-border recognition of measures under incapacity provisions. On this last, Scotland is one of the few jurisdictions to have yet ratified the Hague Convention on the International Protection of Adults. “That’s now a major issue for the EU,” Ward explains. “The EU Legal Affairs Committee is now taking an interest and their angle is that where someone with an intellectual disability runs into difficulties with a cross-border situation, that’s fundamentally contrary to the EU principle of free movement.”
The “best interests” trap
What I think I am taking from Ward’s account, and put to him, is that the essential change in the law has been to recognise that persons with incapacity may still have some ability for self-determination, whereas under the curator bonis system everything was taken away from them.
“There’s a basic tension,” he replies. “You can put it in various ways. I say it’s balancing protection against autonomy. As soon as you start protecting someone in a way you don’t protect others, you are discriminating. They may need that protection, but to the extent that they have some autonomy, if that is limited, it’s all the more important to recognise it. Historically, and still in some jurisdictions, people with significant intellectual disabilities almost become non-persons.”
Debate continues on how to formulate that recognition while still providing suitable protection for those who need it. Here a General Comment from the UN Committee on the Rights of Persons with Disabilities has provided “a really strong blast, totally in favour of the autonomy end of the spectrum”, which initially caused huge concern to Ward and many others as effectively meaning that guardianship regimes were wrong in principle and should be abolished. Now he tends to the view that the UN Committee is taking a perhaps overstated line in order to make a point: “They’re saying substitute decision-making regimes on a best interests principle should be abolished, and of course best interests is the basis in England & Wales, but we explicitly rejected it in Scotland in favour of supported decision making.”
He continues: “That’s fine for someone who can make a decision with support. What about somebody who can’t – someone in persistent vegetative state, or a coma? Their answer is you look for the best interpretation. In my book Adults with Incapacity (2003), the last chapter was called ‘Constructing decisions’, the methodology for creating a decision for somebody who couldn’t tell you what their decision was, from what you knew about them, which I think is what the UN Committee is now also looking for. It’s a push towards recognising the personality, including in the technical legal sense that everybody, however disabled, has personality, and getting this balance.”
Scots lawyers may do a double take on being told that the law rejects a “best interests” approach for those with incapacity, but Ward explains that our courts sometimes lose sight of the crucial distinction between best interests: “This is what’s best for you; I will decide it”, which was explicitly rejected by the Scottish Law Commission report; and supported decision making: “You can’t really tell me what you want, only little bits and pieces, but I will try to construct what really your decision would be, very much focused on you.” The problem may lie in sheriffs, versed in family law matters dealing with children, tending to default to best interests. “We are not dealing with big children; we are dealing with adults,” Ward points out. “Even if we are talking about young learning-disabled people, they are adults and the law should see them that way: they should have all the rights of an adult. The issue is not their actual status and rights in law; they can own property and everything. It’s how to make decisions, how decisions can be made, how legally valid acts and instructions can take place and so on.”
Although “best interests” was adopted in England & Wales, the trend of judicial thinking is now to pull back from that. “Sadly, Scottish decisions are going in the other direction, and a recent decision I criticised suggested that in our Incapacity Act principles, the benefit principle overrode all the others. So in a way we’ve had England & Wales starting on the wrong side of the fence but getting as far as they can in interpreting the law the right way, and Scotland rejecting best interests but tending to see the law that way. The reason for that, I think, is that we don’t yet have a specialist judiciary – I would like to see that and I’ve been arguing for it.”
Focusing on reform in Scotland overlooks Ward’s activities abroad, which date from soon after the breakup of the Soviet bloc, again very much by chance. “Among other things the countries of that region wanted to establish human rights credentials to gain access to the Council of Europe, their ultimate aim being to join the EU, and they were looking for accessible material in an accessible language,” he recalls. “My first two books, particularly the first one, were about the law but were written for parents and families, for non-lawyers, so were written deliberately in a fairly simple style. Out in Eastern Europe they somehow came across these, and because their own languages didn’t give them what they wanted, I was invited out. I did seminars in Estonia and it just galloped away from there. Again I was asked, would you write it down, in another book – and it was translated into five other languages, particularly the Russian edition which went all over the place, and we know that book has been used in at least 30 countries.”
He has just been engaged by the Council of Europe as consultant on another project close to his heart, the enabling of continuing powers of attorney or their equivalents, through a country by country review of the current state of the law. On this subject Scotland remains in the forefront: even some normally progressive jurisdictions such as the Nordic and Benelux countries have yet to recognise the concept, or have only recently done so. Ward has visited and advised on law reform projects in both regions. This issue too is very much in accordance with modern thinking on principles of autonomy and self determination: better to have in place the regime that a person thought about when they had capability, rather than impose a guardianship on them.
Here in Scotland, Ward reports, the number of registrations of powers of attorney year on year has increased every year since the legislation was introduced, though there is still a long way to go. He was involved a couple of years ago in a TV advertising campaign to promote powers of attorney, funded by Greater Glasgow Health Board and Glasgow City Council as a cost effective way to try and reduce bed blocking, as compared with having to start guardianship proceedings; the campaign is now being repeated.
With so many pioneering moments to his name, which achievement over the years has given Ward the greatest satisfaction?
“You can pitch it in two ways,” he replies. “Getting the Incapacity Act onto the statute book, yes, that was very grand, but if you ask me purely personally, I’m doing all this as a practising lawyer and I would think of individual cases where I felt I’d done something innovative which really made life better for somebody. I’ve had that experience a number of times and probably professionally that has been the most rewarding. The more general changes have really been driven by and based on such experiences. It’s all about understanding, using and developing the law.”
There have, though, been other occasions not strictly involving legal work. When he began working in Eastern Europe, he found little in the way of support for parents who wanted to look after a disabled child in their own home. Through his Rotary connections he helped raise money for parents in Tartu, Estonia, to found and equip a day centre, which is now seen as a pioneering example in the region and has spawned an adult centre as the children grew older. In that region there have been some of the worst experiences too,” he observes.
Finally retired as a partner in practice, Ward is still in the office one day a week as a consultant to TC Young; he still (after 26 years) convenes the Law Society of Scotland’s Mental Health & Disability Subcommittee – though is pleased to see many talented younger lawyers developing expertise in the subject – and of course his European work will also keep him occupied for some time yet. “Way back, the subject became a work related hobby, and now I suppose it’s my number one retirement hobby,” he comments. Having made the advancement of the law his mission over so many years, it is difficult to imagine him willingly giving it up.
In this issue
- Cutting the RoS bouncebacks
- Landlords still?
- Split parenting: fewer tears
- Brussels briefing
- Reading for pleasure
- Opinion: Frankie McCarthy
- Book reviews
- President's column
- DPA: one year on
- People on the move
- Team building
- Ward's words
- The end of deeds of conditions?
- Human rights and land reform: unanswered questions
- Aye to Brussels
- Appeals: the new landscape
- The 2015 Act: some more thoughts
- Three months in planning
- Buy-to-let: no longer a good bet?
- Scottish Solicitors Discipline Tribunal
- What is ScotLIS?
- Energy input
- Law firms help students' business skills
- Paralegal pointers
- Law reform roundup
- CML Handbook amended
- Service eases stress of separating parents
- Appreciation: Tahir Elçi
- The rocky road to good intentions
- Risk review 2015, risk forecast 2016
- Ask Ash
- What's in store for SYLA in 2016?
- Reflections from the Commission