Reviews of Adult Protection and the Law (Smith and Young); Common Law and Feudal Society in Medieval Scotland (MacQueen)

Adult Protection and the Law in Scotland

2nd edition

Nicola Smith and Nairn R Young; edited by Hilary Patrick

ISBN: 978-1780438719
PRICE: £44

This reviewer welcomed the first edition of this readable book for taking a broadly interpretative approach to its subject of adult protection. He recommended that readers take up the author’s modest suggestion that it was “short enough to be read from start to finish”, and do just that. It is not surprising that the first edition was well used and led to demand for a second edition, which has now appeared.

The second edition retains all the commendable advantages of the first. The text is interspersed with helpful tables, for example comparison of the principles in the various main Acts, and short sections on “Principles and practice”.

The authorship has moved on, and where appropriate the book has been restructured, not simply updated. The authors of the first edition were Hilary Patrick and Nicola Smith. This time, Nicola is lead author, joined by Nairn R Young, and the book is edited by Hilary Patrick. Particularly welcome are the new separate chapters on “Financial harm and abuse” (chapter 7), and the constantly challenging area of “Transition from child to adult protection” (chapter 11). The separate chapter on the criminal justice system has been dropped (though relevant material is retained), as has – rather puzzlingly – the previous glossary of commonly used terms.

While it continues to offer valuable insights, the book remains principally practical rather than academic, a balance perhaps emphasised by the reduction in the number of cases cited from 61 in the first edition to 39 in the second. It is perhaps a reflection of the energetic development of the equivalent jurisdiction of the dedicated Court of Protection in England & Wales, compared with the lack – still – of effective equivalent specialisation in Scotland, that of eight new cases cited only one is Scottish.

Admitting to the characterisation “pernickety lawyer” by one of his early mentors in the field, this reviewer identified some blemishes in the first edition. It is pleasing to note that they have been rectified. Whether or not that is the reason for acknowledgment of assistance provided towards the second edition, that involvement must be disclosed in this review.

Ever “pernickety”, and in any event following the convention of picking up blemishes to prove that he has in fact read the book, this reviewer would query the omission of “nearest relative” under the Incapacity Act from the section on “Individuals supporting an adult” (commencing p 44); the role of independent advocates under s 3(5A) of the Incapacity Act is not mentioned in conjunction with the Act’s principles on pp 52-53, the section on “Advocacy” on pp 119-120, or the index entry for “Independent Advocacy” on p 223; chapter 10 on “Supporting the adult” could perhaps have mentioned the role of solicitors, several of whom nowadays are highly skilled in supporting people with intellectual disabilities; on pp 75 and 130 it is implied that the Law Society of Scotland has issued combined guidance on powers of attorney and vulnerable clients when these are in fact separate items; and on p 207, referring to ratification of the UN Convention on the Rights of Persons with Disabilities, it might have been appropriate to mention also ratification of the Protocol under which complaints can be brought to the relevant UN Committee. It is interesting to note that para 10.26 appears to accept without comment that an attorney may be authorised “to amend a will”, though this reviewer is not aware of any authority for that proposition, and none is cited.

A few blemishes are attributable to the publishers: the case of RM and JM in 2009 is listed under “JM” (and thus difficult to find). The layout of the table of contents on page xvi implies that adult support and protection orders should come under the heading of “Guardianship and intervention orders”. The entry on p 219 of the index is to para 10.30, when it should be 10.29.

All of these are however minor blemishes in a book which can be recommended without reservation to all working in this broad field.

Common Law and Feudal Society in Medieval Scotland

Hector L MacQueen

ISBN: 978-1474407465
PRICE: £19.99

This book, first published in 1993, now appears in paperback in an "Edinburgh Classics Edition". It features a new preface by the author and a foreword by Andrew Simpson of the University of Aberdeen which presents a useful overview of developments in scholarship on medieval Scots law since the text originally appeared.

While, as Simpson points out, in certain regards some of MacQueen’s arguments have been superseded, he is quite right to conclude that Common Law and Feudal Society merits the description of a classic text; it remains a book of fundamental importance for anyone interested in the mechanics of medieval Scots law.

The main focus of the book is on jurisdiction, pleading, and the major medieval brieves, with a chapter each devoted to novel dissasine, mortancestry and the brieve of right. While modelled on English writs, the characteristics of these brieves in Scotland were distinctive and they are discussed with a lucidity of writing which makes the book as a whole a pleasure to read. Its reprinting, which happens to coincide with the publication of Alice Taylor’s much anticipated new book, The Shape of the State in Medieval Scotland, is both welcome and timely.  

The Author
Adrian D Ward, consultant, TC Young LLP Professor John Finlay, School of Law, University of Glasgow
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