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Book reviews

18 May 09

Reviews of The Rule of Law (ed Neate); Adults with Incapacity Legislation (Ward); Medical Law Essentials (Earle)

by Norman Macfadyen, Colin McClory, John Keir

The Rule of Law

Perspectives from Around the Globe

General Editor Francis Neate

PUBLISHER: LexisNexis Butterworths
ISBN: 1 40573 699 2
PRICE: £59.95

Francis Neate, a past President of the International Bar Association, and the IBA itself are to be congratulated for this collection of papers and for convening the various symposia on the rule of law which provide much of the content.

This is not a collection of learned essays – although there are valuable examples, notably in Lord Bingham’s Sir David Williams Lecture and the paper on “The Rule of Law in a Globalising World” by Judge Hisashi Owada of the International Court of Justice, as well as the substantive contributions of Francis Neate himself.

One consequence of drawing heavily from presentations to symposia is variability of depth of research and analysis: some contributions perhaps played better to an international convention centre audience. Attendees of conferences will not be surprised by such titles as “The World Rule of Law Movement and the Moscow City Chamber of Advocates”, or “How the Nigerian Bar Association Promotes and Defends the Rule of Law in Nigeria”, but it would be very wrong to assume that these papers are parochial or self-congratulatory.

Indeed, the strength of this collection is in the sharing of experience – often frightening – and the acceptance by almost all contributors of the challenge presented. The Russian papers, in particular that of Valery Zorkin, President of the Constitutional Court of the Russian Federation, give a fascinating, if sometimes chilling, but disarmingly frank insight into what lawyers and judges are doing to promote the rule of law in a country whose soil, as Zorkin puts it, “is barely suitable for the cultivation of a ‘fragile flower’ like the rule of law”.

Equally, the African contributions, including the short Nigerian paper already mentioned, repay study. Indeed, the highlight of the collection is “Tales of Terrorism and Torture” by Justice Albie Sachs of the South African Constitutional Court. His life story will be known to many, but for those to whom it is unfamiliar I will not spoil the opportunity to read his powerfully direct and humbling prose.

Lawyers and judges can sometimes sound a bit smug on their own role in promoting human rights and the rule of law, but while that is not wholly absent from this collection, essays such as those of Sachs and Zorkin have none of that and underline the challenge of nurturing this fragile flower.

Events since the beginning of this year demonstrate the resilience and fragility of that flower: these include President Obama’s determination to close Guantanamo Bay, incoming US Attorney General Eric Holder’s acceptance that waterboarding is torture, the publication of the legal advice which justified that practice, confirmation by the Appeal Chamber of the International Criminal Tribunal for the Former Yugoslavia in the case of Karadzic that political negotiation cannot ground immunity for crimes against humanity, and the International Criminal Court’s issue of a warrant for the arrest of the President of Sudan. Yet that ruling has been ignored by Sudan; its President has been able to travel freely to a number of countries and even appear in the same conference room as the Secretary General of the United Nations. It has still to be established whether recent developments in South Africa, including the removal of the National Director of Public Prosecutions and the dropping of criminal proceedings against presidential candidate Jacob Zuma, enhance or weaken the rule of law. And Somalia has slid so far into lawlessness that piracy is able to flourish in and from its ports – giving the international community a whole new set of rule of law challenges.

This is a timely and, at times, stimulating collection.

Norman McFadyen

 

 

Adults with Incapacity Legislation

Adrian D Ward

PUBLISHER: W Green
ISBN: 0 414 01580 7
PRICE: £54

As the author says in his preface, “this book sets out, with annotations, the text of the Adults with Incapacity (Scotland) Act 2000 with all amendments up to and including those made by the Adult Support and Protection (Scotland) Act 2007”. The author has also included as an appendix a text of s 13ZA of the Social Work (Scotland) Act 1968, which has been in force since 22 March 2007. He has included with that a very detailed general note.

The blurb on the back cover tells us that this book is principally intended as a stand-alone volume but is also a supplement to the author’s book Adult Incapacity, which was published in 2003 after the 2000 Act came into force, together with the first draft of the regulatory review.

All serious practitioners in the area of adults with incapacity will already have a copy of the earlier volume. This text will be a valuable supplement, including as it does all relevant regulations brought into force up to the end of October 2008. For those only with a need to make casual reference to the 2000 Act, this volume will probably suffice.

As well as detailed annotations for each section, there is an expansive introduction giving the history of the provenance of the legislation, with a comparison between the situation prior to the enactment of the 2000 Act and the principal provisions of that enactment. There is a general overview of each part of the Act, and even a section headed “Matters not covered by this Act”. This is a reference to the Scottish Law Commission report published in September 1995 which generated the legislative process. The annotations to the sections of the Act are particularly detailed, and general notes explaining the meaning of all key sections abound throughout the text. There is also a useful index.

Practitioners will find this addition to the canon of texts in this area of law to be invaluable. The author has also made reference to other texts and sources of information, including the Public Guardian’s website and the Scotcourts website with which all court practitioners will be well familiar.

The author also recommends reference to Hilary Patrick’s Mental Health, Incapacity and the Law. Notwithstanding this reference, he contends that adults with incapacity is now a discrete area of law. It is a recognised specialism for which accreditation by the Law Society of Scotland may be sought. If the author’s contention is correct we can look forward, as we do in all devolved areas of legislative competence, to exponential developments. Hopefully there will be further contributions from Mr Ward to assist us in making sense of what the legislature may produce.

Priced at £54.00, this book represents good value for money and, in these uncertain times, a safe investment.

Colin McClory

 

 

Medical Law Essentials

Murray Earle

PUBLISHER: DUNDEE UNIVERSITY PRESS
ISBN: 1 84586 035 6
PRICE: £20

The subject matter of this book is more an eclecticism than a discipline in its own right. However, in collating a number of topics of interest to those who work within the medical world or who have connections to it, it is very welcome.

The target readership is students, legal practitioners and health professionals. This is as diverse as the subjects covered, and rather difficult to reconcile in terms of what each of these groups will look for. The matters covered include the professional structure and discipline of medical and allied professions, confidentiality, consent, fertility, transplantation, negligence, death, and aspects of criminal law (my summary). While many of these areas are governed by complex statute law and difficult case law, the author makes a pretty good attempt at identifying the issues and making them understandable. I liked the essential facts and case summaries which conclude each chapter.

There are some quibbles. The proofreading has allowed occasional references to the “action injuriarum”. The author correctly indicates that there is no statutory definition of death, but that brain stem death is the definitive medical usage (pp 152 and 165). I was surprised not to see reference to the Department of Health Code of Practice for the Diagnosis of Brain Stem Death 1998 (amended 2008, subsequent to date of publication). The author also makes a reference to the crime of “reckless endangerment” in his treatment of active euthanasia (pp 163-164). There is no such crime known to the law of Scotland. The only reference to the term reckless endangerment I could find was in the index to McCall Smith and Sheldon’s book on criminal law, which leads back to a discussion of culpable and reckless conduct. I also found some of the narrative on e.g. the claim for psychiatric injury under English law (p 144), the tort of breach of confidence (p 114), and other discussions of English law where it proceeds upon its own distinct basis a bit unnecessary. My final quibble is the occasional lack of clarity as to whether Scots or English law was under discussion, which might be a bit confusing to the medical practitioner and some lawyers too!

Having said all that and with the general caveat that the author may be trying to appeal to too wide an audience, I found this book quite valuable. It is well set out and logically divided in terms of topic. It directs one to the appropriate statutory provisions and considerations that a medical practitioner may have to consider especially in relation to incapacity and confidentiality, and gives good guidance. The same applies to the practitioner in what has become something of a maze of legislation. I was similarly pleased to see the clear account of the circumstances under which a post mortem examination can be carried out, and the role of the procurator fiscal is clearly explained.

I certainly learned a lot from reading this book and at the end of the day, for a textbook, that is the point after all.

John Keir
(The reviewer is a senior procurator fiscal depute and would like to stress that the opinions here are his personal views.)


 

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