Book Reviews: vulnerability in principle, law and practice

Adult Protection and the Law in Scotland (Nicola Smith and Nairn R Young, ed Hilary Patrick, Bloomsbury Professional, 2016, paperback/ebook: c£44), and Vulnerable Adults and the Law (Jonathan Herring, Oxford University Press, 2016, £70)

Two books that recently arrived for me to review make an interesting contrast in methodology, intended audience, and scope.   But both bring different perspectives to bear as to how to grapple with essentially the same problem – how to navigate in a principled fashion the Scylla of autonomy and the Charybdis of protection in the context of those whom we have labelled vulnerable.

Adult Protection and the Law in Scotland is more modest in scope.  Building on the extremely clear and helpful first edition (published in 2009), it sets out to provide an overview of the key statutory provisions in the area: the Adult Support and Protection (Scotland) Act 2007, the Mental Health (Care and Treatment) (Scotland) Act 2003 and the Adults with Incapacity (Scotland) Act 2007, as well as the role of specific bodies concerned with adult protection.  Its focus is unashamedly upon the practical issues that arise, and potential pitfalls for those seeking to deploy the various statutory provisions.  Importantly, however, it emphasises in stand-alone chapters the crucial role of principles (offering a useful comparison table between the differing and overlapping principles at play across each of the Acts), and also the wider context of human rights legislation.  It also – to this English lawyer (albeit one with a working knowledge of the area in Scotland) – strikes the right balance between authoritative identification of the position where it is clear, and crisp discussion of the position where there is doubt.  A very good example of this is in relation to deprivation of liberty, and the implications of the Cheshire West judgment for social work practice in Scotland.

Although it is a Scottish practitioner textbook, I would strongly urge anyone in England or Wales with an interest in developing the law in this jurisdiction to obtain a copy for the insights it sheds upon the approach taken in Scotland. I would particularly urge those with an interest in developing the inherent jurisdiction of the High Court to grant relief in respect of the so-called “Munby-vulnerable” category of individuals at the fringes of the MCA to get one to study how almost exactly this category of individuals is approached under the Adult Support and Protection (Scotland) Act 2007.   Some time ago, I provided an overview of these provisions, and their implications for the inherent jurisdiction in a paper which you can find here, but for a further consideration of the provisions of the Act and its wider context in Scotland, I could not recommend this book highly enough.

I was particularly struck by the potential insights that we could get from Scotland when reading the second book under review, Professor Jonathan Herring’s Vulnerable Adults and the Law.  This book is short in length (just under 270 pages), but amazingly rich and dense in content.  In many ways it provides a summary of the state of the art of the debate in this area, much of which has been framed by Professor Herring in previous books.   Although avowedly normative, not least in its argument that we should all be seen (and embrace) being seen as vulnerable, it also serves as a valuable descriptive function, including starting with perhaps the single best overview available of the debates surrounding the concept of vulnerability.    The book then goes on to discuss in succinct but penetrating terms how English law has responded to different conceptions of vulnerabilities in different contexts.  By giving a rapid tour d’horizon of how (for instance) the law of contract has developed such concepts as the “unconscionable bargain,” light is shone from different directions upon that elusive concept of the vulnerable person.  Importantly, all the way through Professor Herring both asks whether we should not reformulate that concept, and critiques the legal tools developed both by the courts and Parliament, often in haphazard and almost never in coordinated fashion.

It will come as no surprise to readers of his previous works that some of Professor Herring’s most sustained criticism is reserved for the concept of capacity contained in the MCA, based – he contends – on a flawed and unrealistic model of individual autonomy.  This leads him on to another argument which will be familiar, namely that the inherent jurisdiction of the High Court can and should be used creatively to address the real life problems caused by the fact that we do not make decision in a vacuum (i.e. that autonomy is relational).   This is the one area of the book where I wish that concision had been abandoned in favour of a greater development of the arguments.  In particular, it seems to me that Professor Herring glosses over a real issue of principle, namely whether it is right for the inherent jurisdiction to be used not just to grant relief against third parties, but to grant relief directed against the individual in question, in other words (at least in some circumstances) “forcing them to be free” (my words, not his).   Professor Herring allows for this possibility, relying on (in my view distinctly questionable) obiter observations of Parker J in NCC v PB and TB, but for my part I would have wished him to have spent more time on this issue.  Apart from anything else, if the inherent jurisdiction can be used either directly or effectively to make decisions on behalf of someone, one could very well ask as to the point of the MCA.  Further, whilst the flexibility of the inherent jurisdiction is frequently prayed in aid as a virtue, its very flexibility means it is not altogether obvious what principles are to govern its application. We have a very clear set of statutory principles set out in the MCA (even if sometimes they are honoured in the breach), and for my part allowing the inherent jurisdiction to be developed further without an equivalent set of principles is to me troubling.

This brings me back to Scotland. It seems to me that there is much to be learned from the Scottish experience in the Adult Support and Protection Act about how we might develop such a set of principles, not least it contains a ready made set in section 2.  Further, the Act is calibrated so as to ensure that there is only very limited scope for relief to be targeted against the individual themselves, the focus being far more on steps directed to ensuring that those who may be adversely affecting the individual and their potential to make decisions, if not in a vacuum, then at least in unpolluted air.   The ASP is not perfect (and Smith and Young’s book is eloquent as to some of the areas that have been found wanting in practice), but it does to my mind provide fertile ground for consideration of where the law might evolve in my home jurisdiction.

Indeed, if Professor Herring has made a convincing case that the MCA may not respond to the realities of human nature, and has also made an equally convincing case that we can ensure to look at least in part to the law to provide us with answers, for my part I would much prefer to look to the development of that law through the process of legislation and considered debate rather than through judges bouncing on the great safety net of the inherent jurisdiction.

[Full disclosure: I am grateful to the publishers for providing me with copies of the works reviewed here.  I am always happy to review works in the field of mental capacity (broadly defined).  I also commented upon certain parts of Smith and Young’s book in draft].


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