"Adult Incapacity Law: Visions for the Future Drawn from the Unfinished Story of a New Subject with a Long History"

Abstract

In 1961 Adrian Ward was one of the first intake for the first full-time law degree in Scotland. He was enrolled as a solicitor in 1967 and practised for approximately 50 years. From 1976 he was gradually drawn into the subject of what is now known (in Scotland) as adult incapacity law, in which he became a national and then international expert. As his interest and involvement developed, so did the subject. However, although it is still a new subject, its history in law goes back to Roman law, and concepts from Roman law were central to leading cases in the development of the subject in which Adrian was involved. Attempts to protect the human rights of defined groups go back in Scotland to the 7th century, but there is fundamental conflict between the concept of universality of human rights, and according particular rights to defined groups. Violations of human rights often start with putting people into categories seen as “other”. A deliberately personalised lecture confronted the audience with personally witnessed human rights violations. Of the concepts defined in the UN Convention on the Rights of Persons with Disabilities, “reasonable accommodation”, though it attracts more attention, is always second-best to non-discriminatory solutions offered by “universal design”. Human rights must be translated into law, and law into practice. Existing law should be understood, used to maximum effect, and then if necessary improved. Measures for the exercise of legal capacity can be categorised as voluntary, involuntary, and third party, but need to recognise the reality that “capability” and “incapability” are the extreme ends of a wide spectrum. Such variations, and individual progressions through them, must be accommodated in general provision and in individual measures. Fundamental concepts of human rights and their progressive developments have driven progress to date, and enabled probable future trends to be identified.