Review of Mental Health, Incapacity and the Law in Scotland (Patrick and Stavert)

Mental Health, Incapacity and the Law in Scotland

Hilary Patrick; 2nd edition by Jill Stavert

ISBN: 978-1847667243
PRICE: £98

When I reviewed the first edition of Hilary Patrick’s Mental Health, Incapacity and the Law in Scotland I predicted that, within much of its extended area of coverage, “This book will be the authoritative starting-point for lawyers and non-lawyers alike for some years to come”. I was right.

This second edition, a decade later, is to be welcomed for several principal reasons. It has been thoroughly updated. It displays the same encyclopaedic mastery of a huge area of law, and the same clear exposition – accessible to a wide intended readership. Above all, it answers concerns about the huge gap left when the apparently irreplaceable Hilary Patrick supposedly retired from mental health law in 2011. The irreplaceable has been replaced. Patrick’s decision to invite Professor Jill Stavert to write this second edition, and Stavert’s generous acknowledgment of Patrick’s contribution to some parts of the new volume and her “wholesale editing” of the book, confirm that this has been a smooth transition. Stavert’s own contribution to her chosen subject has been massive, characterised by her founding and leadership of the Centre for Mental Health & ncapacity Law, Rights & Policy at Edinburgh Napier University, and the excellent ongoing work of the Centre.

The scope of the second edition is substantially the same as of the first, if changes in the meantime are taken into account. A full and authoritative exposition of mental health law, and a somewhat shorter but fully adequate account of the Adults with Incapacity (Scotland) Act 2000, take up about half of the text. These are followed by a multi-dimensional coverage of an impressively wide range of topics.

As a generalisation, lawyers will find that topics for which substantial other modern coverage is already available receive relatively brief treatment. Thus the arrival on the scene of the Adult Support and Protection (Scotland) Act 2007 is covered mainly by reference to Nicola Smith and Nairn Young’s Adult Protection and the Law in Scotland, now also in its second edition, a “younger sister” volume from the same publishers. However, for many topics where there is not any other modern coverage, or at least any coordinated coverage such as is offered here, this book as now updated will continue to be authoritative.

It also remains multi-dimensional in not only addressing the interactions between different areas of law, but also in that as well as addressing the law topic by topic, it approaches its subject matter from the point of view of people with dementia, people with learning disabilities, refugees and asylum seekers, children and young people, and carers.

Also to be welcomed is that Stavert has, where appropriate, adopted the same collaborative team approach as did Patrick. The team is new, ranging from the highly experienced Nicola Smith to an impressive first venture into authorship at this level by Rebecca McGregor, research assistant at Edinburgh Napier University. Smith covered financial management, and McGregor refugees and asylum seekers, as well as providing research assistance. Also recruited from Stavert’s university was Douglas Maule, to cover consumer rights. May Dunsmuir’s unique status as President of the Additional Support Needs Tribunal for Scotland and an in-house convener at the Mental Health Tribunal for Scotland allowed her to contribute on representation at the latter tribunal and tribunal procedure, and to provide input also on children and young people. Katherine Bolt, solicitor and mediator, covered protection against discrimination and respect for diversity.

Patrick returned in the role of team member in updating the chapters on patients’ rights, consent to treatment and people at risk, as well as in the editing role mentioned above. That such a team has been brought together is tribute to the impressively growing quality of Scotland’s leading-edge capability in this whole field. Pride of place must go to Stavert’s own massive contribution. For a flavour of it, read chapter 1 – then put the book on a nearby shelf for ready reference, if you can manage to put it down at that point!

It is remarkable that this substantially revised and updated edition is almost exactly the same length as its predecessor, and that the structure devised by Patrick has stood the test of time and is only minimally changed. Examples of change range from a significant new section on “Human Rights and Community Care” to subtle but significant changes such as “access to justice” in place of “civil rights”, and “financial powers of attorney” in place of the often confusing statutory description “continuing powers of attorney” (the latter having now entered the European vocabulary for any power of attorney, welfare or financial, that continues in force or enters into force in the event of the granter’s incapacity).

The tables in the first edition were poor, and are much improved in the second. Criticisms of the indexing remain: for example, the entry for trusts refers only to para 42.23, not mentioning the principal section on wills and trusts in paras 34.10-34.13, the section on “establishing a trust” in para 38.5, the section on discretionary trusts in paras 42.24-42.25 and the description of liferents in the last paragraph of 42.26. Beyond that, I have struggled to fulfil a reviewer’s duty to find other blemishes: one is that none of the sections on advocacy, even in the coverage of the 2000 Act, mention the specific role allocated under s 3(5A) of that Act. Also worthy of mention might have been the unique limitation on the responsibilities of attorneys under s 17 of that Act. To counterbalance those criticisms, while reading for review I found an answer that had previously evaded me to a question that had hitherto niggled.

It is significant that this new edition states the law at 31 March 2016. That was the closing date for responses to the Scottish Government consultation which has led to current major coordinated review of mental health, incapacity and adult protection law, which will in course of time be likely to lead to significant reform. Implementation will be some years ahead. This volume covers the position thoroughly in the meantime.


The Author
Adrian D Ward, consultant, TC Young LLP, Glasgow
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