Alex RKEditorial Note
It must be a rare book upon the law that includes epigraphs from Harry Potter and South Park. This is, however, no ordinary legal textbook. Rather, it is a compendious and above all practical guide to almost every conceivable legal issue that can could arise from the perspective of either those in or concerned with the welfare of that somewhat nebulous but extremely important group of ‘the elderly.’ The first edition of this book was published in 1995, in an almost entirely different legal world, and so this second edition is very welcome indeed.
The chapter headings give an idea of the book’s scope: starting with the role of the law, the book moves on to consider the mental capacity jurisdiction; the older person; family and carers; housing; residential care: regulation, choice and contracts; community care; health care; challenging the authorities; financial affairs; financial affairs and incapacity; and testamentary provision and death. The appendices contain directories of useful resources – but in an indication of the depth and breadth of the text, the appendices run to only some 20 odd of its 672 pages. The authors do not then seek to include relevant legislation – a sensible decision given how wide a terrain is covered.
Each chapter stands as a mini-textbook upon the relevant area and, despite its name, the book would serve as a useful primer for anyone wishing a broad overview of the core components of the law relating to adults of any age with potential vulnerabilities. Some chapters also include helpful practical examples of the steps that should be taken to ensure that that the law serves rather than the hinders the interests of the elderly person in question: I would single out, in particular, the discussion in the chapter on financial affairs and incapacity as to what should be done where it appears that a person is starting to lose the capacity to manage their own affairs.
Inevitably in this area, the law continues to evolve – whilst the key provisions of the Care Bill are highlighted in the chapter on Community Care, and the decision of the Supreme Court in Cheshire West is anticipated, there will be a need for a third edition before very much longer, especially if (as is fervently to be hoped) the post-legislative scrutiny report of the House of Lords Select Committee generates real action in relation to the better implementation of the MCA 2005. Alternatively, if Gordon and Caroline can be persuaded, perhaps they can provide ‘rolling’ updates of its e-book version.
If I had a criticism, it would be that from the perspective of a particularly enthusiastic mental capacity nerd, the chapter on the mental capacity jurisdiction could perhaps have done with a little more citation from the authorities that have been decided since the MCA 2005 came into force. The essential judicial task (at least in cases concerning the assessment of capacity) has been held to be, wherever possible, to apply the plain words of the Mental Capacity Act 2005 directly to the facts of the particular case, avoiding complicating factors such as case-law pre-dating the statute: RT v LT and A Local Authority [2010] EWHC 1910 (Fam) paragraphs 49-50 per Sir Nicholas Wall, P. But even in that case, Sir Nicholas acknowledged that there would be cases in which it would be necessary to look to pre- and/or post-Act authority, and the bones of the Act have now been fleshed out in some important (and occasionally surprising) ways by judges from the Court of Protection to the Supreme Court.
This is, though, a very minor criticism. The book’s primary purpose is not to serve as a mental capacity law handbook; in any event, what it has to say about mental capacity law comes with the authority of a (recently retired) judge truly specialist in the area, a judge, moreover, who has a real understanding of the point of the MCA 2005 and the tension it enshrines between autonomy and protection. I have already whilst writing this review fired off several emails to myself with thoughts generated by the book, and I know that I shall be regularly consulting it in the months and years ahead. I would unhesitatingly recommend that this book should take up an immediate place on the bookshelf of advisers (both in the private and public sectors) concerned with this vitally important area.
[1] Full disclosure: (1) I am very grateful to Jordans for providing me with a copy of this for purposes of this (unpaid) review; (2) Gordon Ashton edits the annual Jordans’ Court of Protection Practice textbook to which I contribute.
