Lawyer of the month: David Cobb
The Scottish Government’s renewed attention to mental health law meet again under John Scott QC makes David W Cobb’s new book particularly timely.
Posted this month, A practical guide to the Sheriff Court and the protection of vulnerable adults in Scotland not only provides an overview of how current Scottish law applies to adults with disabilities, but also examines how this law is likely to change once the Scott Review is completed and the United Nations Convention on the Rights of Persons Disabled Persons (HCR) will be incorporated into Scottish law.
The interest of Arnot Manderson’s lawyer in the subject is however long standing. After starting his career in local government as an apprentice lawyer, Mr Cobb later became Chief Legal Officer at Central Lothian Council, during which time the Mental Health Act 1984 (Scotland) has been presented. “The local authority had certain responsibilities in terms of obtaining prescriptions under this law,” he explains, “and I mainly piloted that. “
After being fired in 1996 to qualify for the Faculty of Lawyers, Cobb wrote a commentary on the Mental Health (Care and Treatment) Act 2003 (Scotland) – a considerable undertaking, given that it “started as a bill of 222 articles, [and expanded] exactly 50 percent at 333 sections, ”Cobb recalls. “At the same time, I had taken CPD courses on the topic of adult disability, and that is really the foundation of the book.”
Mr Cobb – who is also a director of the Edinburgh-based mental health charity Partners in Advocacy and in 2019 provided advice to the Scottish Government’s Independent Review of Learning Disability and Autism in the Mental Health Act – is long aware of the relationship between mental health legislation and human rights. He discusses this interaction in his new book, noting the “critical question” of the extent to which adults with disabilities remain able to control decision-making in their day-to-day lives. In Scotland, is there room for improvement in this area?
“There should be,” said Mr Cobb, “as the Scottish government has indicated it will incorporate the United Nations Convention on the Rights of Persons with Disabilities. It is a comprehensive document – some of the provisions are ambitious, but it comes at the right time, with the Scott review underway. But they don’t expect this work to be completed until September 2022. Yes, there is room – the balance within legislation is going to have to change if we are to properly reflect the UN Convention, and there may be ways to reduce restrictions and allow people to make their own decisions on their own.
While Cobb says the end goal is always to allow adults with disabilities “maximum autonomy and control over their lives,” there is a limit to what he can provide. “Where that line is drawn will be a political question at the end of the day,” he admits. “It will be up to Holyrood to decide how much they are willing to allow. But certainly, autonomy and decision-making are recognized as very important elements of the CRPD and in particular of article 12 thereof.
“One thing that definitely concerns me is the issue of restricting the liberty of an incapable adult. In 2012, there was a case in the Supreme Court of the United Kingdom which is commonly referred to as ‘Cheshire West’, which basically meant anything that met the description of ‘deprivation of liberty’ – which has been defined in such a way. very broad by the Supreme Court – required some form of authorization.
“The Scottish Law Commission has looked into the matter, made proposals, but nothing has happened – in part because the Scott Review is going to deal with it. But in England since 2014, they have a legal mechanism to authorize deprivation of liberty. Somehow in Scotland we got by without it happening.
“What you can do, potentially, is interfere with people’s freedom and their human rights. There is a loophole in the law there, ”argues the lawyer. “There is a chapter in the book that examines this in detail, but it’s pretty amazing in some ways that it didn’t become problematic.”
These issues of individual autonomy and the legal restrictions that can be placed on it have been at the center of the recent controversy surrounding Britney Spears, who spoke publicly last month about the details of the guardianship which has largely reduced her ability to make decisions at his subject. own life over the past 13 years.
“The funny thing is,” Cobb observes, “when you look at the restrictions that have been placed on Britney Spears, these are almost all restrictions that you could apply under the Disabled Adults Act. ” Therefore, these questions concern us all.
This relevance is only reinforced by the likelihood that during their lifetime the majority of people will know someone with an illness that can lead to disability. Mr Cobb is no exception – his late stepfather suffered from vascular dementia, and it was during his care that he gained an unexpected perspective on the kind of legislation he became an expert on.
“He was going to a day clinic,” Mr. Cobb recalls, “and because of the way he behaved one day, he was effectively kicked out. So we arranged a meeting with the welfare service to get him readmitted and I took my friend – who was, at the time, Deputy Director of Social Services in the Scottish Government.
“About ten minutes into the discussion she and a rather pompous social worker started arguing over terminology that I didn’t recognize, but it was about the Adult Support and Protection Act. In the end, the social worker played what he thought was his trump card: “Well, you have to understand, this is very complex legislation. To which he got the answer, in a pretty West Highland way, “No it’s not – I wrote it.”
“I don’t know what his reaction was,” adds Cobb, “because I had to spend the next thirty seconds looking at my notes to stop laughing.”
A practical guide to the Sheriff Court and the protection of vulnerable adults out this month from Law Brief Publishing, priced at £ 49.99