Law Weblog
Living wills to be part of the law of England and Wales
Friday 8 April 2005 at 10:55 pm | In News | Post CommentThe Mental Capacity Act 2005 has received Royal Assent. The law which will cover England and Wales, provides a statutory framework for people who may not be able to make their own decisions for example because of a learning disability, an illness such as dementia or mental health problems. It sets out who can take decisions, in which situations, and how they should go about this.
The Acts key provisions are:
> Five key principles, which make it clear that a person should be assumed to have capacity unless proven otherwise.
> A best interest’s checklist for people acting on behalf of others. This includes consideration of the person’s wishes, feelings, beliefs and values (including any written advance statement made by them when they had capacity) and taking account of the views of their family and friends.
> Protection to carers and professionals, subject to rules and limitations, to lawfully care for someone who cannot consent without incurring liability.
> Lasting powers of attorney (LPA) – for people to appoint an attorney of their choosing to act on their behalf if they should lose capacity in the future.
> For the court to appoint deputies to make decisions on behalf of a person about matters in relation to which that person lacks capacity.
> Creation of Independent Mental Capacity Advocates to support and represent people lacking capacity who have no one else to speak for them when decisions need to be taken about serious medical treatment and long-term residential care.
> New safeguards controlling many types of research involving people who lack capacity.
> For a person whilst they have capacity, if they so wish, to make an advance decision to refuse treatment, known as living wills.
> The introduction of a criminal offence of ill treatment or neglect of a person who lacks capacity, with a maximum sentence of five years.
The Act creates two new public bodies:
1. Court of Protection – the new court will have jurisdiction in relation to the Mental Capacity Act. It will have special procedures and judges.
2. Public Guardian – This public official will take over from the current Public Guardianship Office. The Public Guardian will be the registering authority for lasting powers of attorney and deputies.
Link to the Act here
Don’t fall out with your relatives….
Sunday 30 September 2007 at 9:17 am | In News | Post CommentThe Mental Capacity Act 2005 comes into force on 1 October. It allows the ending of life of a patient by medical intervention. Bluntly, whilst euthanasia remains illegal it will be possible to kill patients by starving them to death or ceasing medical treatment.
“Living willsâ€, in which patients can set down what medical treatment they wish to be given, or not given, will be enforceable in law.
Many law students know of the House of Lords decision in Airedale NHS Trust v Bland [1993]. Anthony Bland was in persistent vegetative state from the age of 17 to 21, the hospital supported by his parents asked the court for permission to discontinue food and water, the House of Lords granted the request, and after a few weeks, he was dead.
The new Office of the Public Guardian will investigate complaints about the law. A Court of Protection has been set up to settle disputes.
If a doctor were to treat a patient against their wishes it will be an unlawful act and he/she could be prosecuted or face a claim for compensation.
The Islamic Medical Association has followed the Catholic Church’s earlier response in saying that its doctors should break the law, rather than comply with so-called ‘living wills’.
After the Bland case, Catherine Roberts was in a coma; doctors in Bournemouth were going to pull the plug of her breathing apparatus. Twenty-six-year-old Catherine blinked at her mother and poked her tongue out just one day away from her planned death.
Home disguised as hay barn unlawful
Friday 8 April 2011 at 7:25 pm | In News | 1 Comment
“Frankly, the dishonesty involved in this case is so far removed from almost anything else that I have ever encountered in this area of the law that it appears to constitute a category all of its own.”
Mr Beesley, a property developer who carried out a “deliberate, elaborate and sustained plan” to outwit planners has finally lost a legal battle over the £500,000 home he built disguised as a hay barn.
Mr Beesley was granted permission in 2001 to build a barn for agricultural use only, but fitted it out as a luxury house complete with three bedrooms – two with en suite bathrooms – a study, living room, a garage and gym.
From the outside, the property, North Brook Meadow, near Potters Bar, Hertfordshire, looks like any other hay barn with a curved roof, no windows, and surrounded by farmyard machinery.
Mr Beesley, 38, and his 35-year-old wife Sarah moved into the completed property in 2002 and applied for a certificate of lawfulness four years later on the basis that the time for enforcement action against the use of the building as a dwelling had expired.
Welwyn Hatfield Borough Council refused but an inspector appointed by the Secretary of State for Communities and Local Government allowed Mr Beesley’s appeal in 2008. This was reversed at the High Court the following year.
But the next twist in the legal battle came last year when a panel of three appeal judges ruled immunity from enforcement had been established. The council then appealed to the Supreme Court and the seven justices unanimously ruled in its favour, setting aside the certificate of lawfulness relating to the property.
The justices ruled that there had been no change of use within the section of the Town and Country Planning Act which imposes a four-year time limit for taking enforcement action against breaches of planning control, and that, in any event, Mr Beesley’s “dishonest” conduct meant he could not rely on the section.
Lord Brown said:
“On any possible view the whole scheme was in the highest degree dishonest and any law-abiding citizen would be not merely shocked by it but astonished to suppose that, once discovered, instead of being enforced against, it would be crowned with success, with Mr Beesley entitled to a certificate of lawful use to prove it.
Investigatory Powers Tribunal hears its first case (after 10 years)
Tuesday 10 August 2010 at 10:13 am | In News | 1 Comment
It ruled that it was not a proper purpose and not necessary to use surveillance powers to spy on a Dorset couple who were thought to be living outside the catchment area for the over-subscribed Lilliput First School, which they wanted their child to attend.
The IPT further found that the surveillance breached the family’s right to privacy under Article 8 of the Human Rights Act.
Section 65 of the Regulation of Investigatory Powers Act 2000 set up the Investigatory Powers Tribunal, which exists to investigate complaints about conduct by various public bodies.
Jenny Paton and partner Tim Joyce took Poole Borough Council (PBC) to the tribunal because the council had used the Regulation of Investigatory Powers Act (RIPA) to spy on her family 21 times.
Almost 800 public bodies – including 474 local councils – under RIPA assumed powers to snoop through covert surveillance, phone records and private correspondence. It is argued that councils need the powers to target “serious criminals such as fly tippers, rogue traders and benefit fraudsters”.
National Minimum Wage from 1st October 2010
Wednesday 4 August 2010 at 9:42 am | In News | Post Comment
* the principal rate of the national minimum wage increases from £5.80 to £5.93 per hour;
* the age at which this rate becomes payable is reduced from 22 to 21;
* the rate paid to workers aged between 18 and 20 increases from £4.83 to £4.92 per hour;
* the rate to be paid to workers aged below 18, who have ceased to be of compulsory school age, increases from £3.57 to £3.64 per hour;
* apprentices who (i) are employed under a contract of apprenticeship, or who are engaged under Government arrangements in England, Scotland, Northern Ireland and Wales, (as specified in the NMW Regs 1999 Reg 13(6)(b)), and (ii) are within the first 12 months of that employment or engagement or who have not attained the age of 19, will receive a national minimum wage of £2.50 per hour;
* the per day value of the accommodation amount, which is applicable where an employer provides a worker with living accommodation, increases from £4.51 to £4.61 for each day that accommodation is provided.
Although there is a separate 25p increase in the London living wage to £7.85 per hour, there is no compulsion on London employers to pay more than the national minimum wage.
The Solicitors Regulation Authority has announced that the minimum salary level for trainee solicitors is to remain at the level set last year (£18,590 for those working in Central London – £19,040 recommended – and £16,650 for those working elsewhere in England and Wales – £16,940 recommended.
National Court to have final say on EU law
Friday 17 July 2009 at 8:14 am | In News | Post Comment
The effect would be to allow Germany’s highest Court to overturn judgments by the European Court of Justice (see Frei für den nicht gewerblichen Gebrauch. Kommerzielle Nutzung nur mit Zustimmung des Gerichts. 30th June 2009).
A translation of the accompanying Press Release includes (at para c) the following:
“The authorisation to transfer sovereign powers to the European Union …… is …… granted under the condition that the sovereign statehood of a constitutional state is maintained on the basis of a responsible integration programme according to the principle of conferral and respecting the Member States’ constitutional identity, and that at the same time the Federal Republic of Germany does not lose its ability to politically and socially shape the living conditions on its own responsibility”.
The European Commission fears the judgment could undermine “the European project” as it raises the issue of the competence of the European Union and principle of subsidiarity (EU Observer, 16th July 2009 “Brussels expresses concern at Germany’s court judgement”).
How much do barristers earn?
Saturday 11 June 2005 at 10:05 am | In News | Post CommentMany barristers earn less than plumbers and teachers. Rates of pay for barristers doing legal aid work are £0 – £33.50 per hour before deductions.
It has been revealed that the hourly rate for junior barristers is £33.50 gross.
Out of this they have to deduct their costs, such as tax, insurance, chambers rent and books. Travel time to court is £15 an hour. Some work, such as advising defendants that they have no grounds for appeal, is not paid at all.
In a survey by the Criminal Bar Association in May 2005, one barrister calculated his pay in a three-day drugs case, including 60 hours’ preparation, at £26 an hour. Rates of pay include payment of £1,000 for a one-week rape trial.
It is estimated that it costs £40,000 in professional studies to become a barrister.
The Department for Constitutional Affairs says that the average yearly payment to criminal barristers was £62,000. Simple mathematics shows that those at the bottom end of the scale are therefore poorly paid. The Criminal Bar Association has 2,500 members and the top 9 per cent of barristers earn more than £100,000 leaving very little for those at the bottom.
The “average pay” of barristers is hardly relevant to a newly qualified advocate who is not paid enough to make a living.
Civil partnerships
Saturday 16 April 2005 at 12:52 pm | In News | Post CommentThe Civil Partnership Act 2004, comes into force on 5 December 2005. It will give same-sex couples many of the rights and benefits opposite-sex couples have already. Lesbian and gay couples who register as civil partners will have formal legal recognition of their relationships, and will have rights and duties to each other and to third parties and the state.
Civil partners must be:
Of the same sex,
Not in an existing civil partnership or marriage,
Old enough to marry (i.e. 18 without permission, 16 with permission),
Not ‘within the prohibited degrees of relationship’, as with marriage.
Civil partnerships will be introduced throughout the UK, and there will be a registration process, like civil marriage, and a dissolution process, similar to divorce. Civil partners will be treated like married partners for the purposes of tax, nationality and immigration, inheritance, liability for maintenance and child support, tenancies, employment and pension benefits and protection from domestic violence.
There are benefit implications, Tax credit implications, living together and benefit implications many of which have yet to be worked out.
Causing or allowing the death of a child or vulnerable adult
Thursday 24 February 2005 at 6:44 pm | In News | 1 CommentWhilst it is not explicitly part of the specifications these changes are highly significant and plug a loophole that has vexed lawyers and critics of the current state of the law of murder and manslaughter.
Introduction
1. The Domestic Violence, Crime and Victims Act 2004 is the biggest overhaul of the law on domestic violence in the last 30 years. It contains a wide range of reforms in the three distinct areas; domestic violence, crime and victims. Its provisions will be commenced in stages.
2. Sections 5 and 6 introduce a new offence of causing or allowing the death of a child or vulnerable adult and new procedural measures linked to the offence. The offence will come into force in England and Wales on 21st March 2005.
3. The new offence and procedural changes form a package of measures which are intended to solve the problem that arises when a child or vulnerable adult suffers an unlawful death and it can be proved that one or more of a small group of people living in the same household as the victim caused the death, but not which of them. In such circumstances there may be no case to answer against any member of the household for murder/manslaughter. Until now this loophole in the law has enabled those co-accused of the death of a child or vulnerable adult to escape justice by remaining silent or by blaming each other. However it is also a serious stand-alone offence which puts a new legal responsibility on adult household members who could be charged with the offence even for example where there is no charge of murder/manslaughter or where evidence suggests that the defendant could not themselves have committed the criminal act which killed the victim.
4. The offence provides that members of a household who have frequent contact with a child or vulnerable adult will be guilty if they caused the death of that child or vulnerable adult or three conditions are met:
- they were aware or ought to have been aware that the victim was at significant risk of serious physical harm from a member of the household; and
- they failed to take reasonable steps to prevent that person coming to harm; and
- the person subsequently died from the unlawful act of a member of the household in circumstances that the defendant foresaw or ought to have foreseen.
be applicable in two different circumstances – the defendant may have caused or allowed the death of a child or vulnerable adult. The prosecution do not have to prove which of the two circumstances apply to the defendant. The maximum penalty is 14 years.
5. The text of the Act including the new offence and procedural measures can be found on http://www.hmso.gov.uk/acts/acts2004.htm.
6. The ‘allowing’ element of the offence will generally be continuous rather than a single event, but for the offence to apply some failure to take reasonable steps to protect the victim, or continuation of a failure to take steps, must have taken place after the commencement of the provisions in the Act.
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