[Review published in "Addiction" June 2001, Vol 96 number 6]
Community Care and the Law, 2nd edition
London, Legal Action Group, 2000
xlvi + 529pp., £27, ISBN 0 905099 94 x
The legal profession is only beginning to address alcohol and drug addiction as a legal subject in its own right. The "A" word will often not even be mentioned in the index of textbooks devoted to, for instance, family, employment or even medical law, much less have a chapter devoted to it. This attitude of denial is general within the legal profession worldwide, although it is perhaps particularly strong in England, where medieval traditions still exercise a powerful influence.
It is therefore a matter worthy of mention in an international journal of addiction when a textbook is published in the birthplace of the Common Law, written by a lawyer rather than a doctor, which includes coverage of the legal aspects of drug/alcohol and HIV/AIDS services as part of its mainstream subject matter. It is essential reading for UK lawyers representing clients in the criminal courts who rely on their addiction as a basis for avoiding custodial sentences. It will also be of interest to other professionals who may have been unable to persuade public authorities to fund the treatment for such clients, and who wish to consider the possibility of a legal challenge. In the UK most private health insurance excludes treatment for alcohol and drug dependence. Such dependence is not treated for legal purposes as a "disability" and most such treatment is publicly funded.
Effective legal representation of such clients may require their lawyers not only to put forward a case in mitigation, but to prepare the ground by obtaining reports from the client's doctor, psychiatrist, therapist and/or probation officer. Lawyers also need to work with those professionals with a view to motivating the client towards treatment and recovery, rather than mere denial of the consequences of the client's addiction. In appropriate cases legal representation may need to cover challenging, by way of judicial review proceedings, any refusal of such funding by the relevant public body or other administrative obstacle to appropriate care.
The author, a senior research fellow at Cardiff Law School as well as a solicitor in private practice, is a rare example of a lawyer who takes an active interest in providing such help to his clients and has given careful study to the implications of such representation (Clements & Rhead 1997). His approach is to this subject is sufficiently radical to be of potential interest to practitioners in other Commonwealth jurisdictions.
This work, of course, covers community care law in general, the drug and alcohol element of which is only part. It guides the reader through the confusing web of legislation, regulations and directions. Its approach is critical rather than descriptive. The emphasis is on challenging public authority decisions where the legal basis for doing so can be found, with extensive reference to relevant case law, policy statements and information available on the Internet (a bibliography would have been useful).
Some controversial legal propositions are put forward, for instance, that public authorities who are only prepared to fund services which aim at "detox" and "rehab" are unlawfully fettering their discretion and thus inviting judicial review proceedings (page 364), and that where such authorities combine into consortia in order to purchase services in bulk (as happens particularly in London) they may be operating in such a way as to give rise to oppressive trade practices contrary to articles 81 and 82 (ex articles 85 and 86) of the EC Treaty (page 361).
Of particular interest is the chapter on remedies, which covers judicial review procedure and the European Convention on Human Rights. That convention will feature increasingly in community care litigation since the Human Rights Act 1998 came into force in October 2000. English law will be subject to increasing influence, not only from Europe, but also from other Common law jurisdictions with human rights statutes or constitutions which protect fundamental freedoms. Some of these jurisdictions (for instance, Germany, the United States and Canada) have less stuffy attitudes than do most English lawyers towards addiction issues.
ReferenceCLEMENTS, L. & RHEAD, A. (1997) Community care assessments and criminal law, Legal Action, July 1997, 10-12.