bluuebunny/crossref_metadata_2025 huggingface dataset:
A cultura Chinesa nos negócios na percepção de Brasileiros Expatriados
Authors: Scherer Laura Alves , Minello Italo Fernando
Published: December 2015

O objetivo deste artigo consiste em analisar a cultura chinesa relacionada aos negócios na percepção de brasileiros expatriados na China. Para este propósito, abordou-se sobre a literatura referente ao expatriado e às diferenças culturais entre Brasil e China. Como método de estudo, trata-se de uma abordagem qualitativa em que foram realizadas entrevistas semiestruturadas com doze profissionais brasileiros expatriados na China. Para a análise dos dados foi utilizada a técnica de análise de conteúdo, especificamente a análise categorial, sendo as categorias: guanxi, comportamento cultural padrão, especialização de função, salvar a face, e respeito à hierarquia. Como resultados, evidencia-se a dificuldade de compreensão do comportamento padrão dos chineses nas suas atividades profissionais por parte dos expatriados, como: os laços de relacionamento e confiança que os chineses priorizam ao fazer um negócio, denominados guanxi; a característica de o chinês executar somente a sua função de trabalho, ser um especialista; o fato de não conseguir responder ao seu chefe de uma forma direta, por vergonha ou constrangimento, que denomina-se “salvar a face”; e a hierarquia bastante respeitada pelos chineses.
Preços de transferência: uma análise bibliométrica da literatura internacional
Authors: Schäfer Joice Denise , Petri Sérgio Murilo , Gasparetto Valdirene , Mattos Lucas dos Santos
Published: December 2015

A descentralização da tomada de decisão com o intuito de tornar o controle dos processos mais rápido e eficiente tem se tornado algo comum nas empresas do mercado atual. Os centros de responsabilidade tendem a ter seus desempenhos avaliados periodicamente, sendo a correta definição dos preços de transferência de produtos e serviços um dos fatores decisivos para uma avaliação desses centros. Desta forma, o objetivo deste trabalho é a busca, seleção e análise de portfólio bibliográfico relacionado aos preços de transferência sob o enfoque da avaliação de desempenho, a partir de um processo denominado ProKnow-C (Knowledge Development Process – Constructivist) que tem como objetivo construir conhecimento a partir dos interesses e delimitações de um pesquisador, segundo a visão construtivista. Como resultado identificou-se o portfólio bibliográfico constituído por 15 artigos. A partir de análise do portfólio bibliográfico identificou-se a relevância científica dos artigos publicados, os autores que são referências e os periódicos que mais se destacam nas publicações sobre o tema pesquisado.
EDITORIAL
Authors: Schneider Marilda Pasqual
Published: December 2015

Editorial
REVISORES AD HOC - 2015
Authors: Diersmann Admin Débora
Published: December 2015

Revisores
Prospects of Saving Mobilization in Underserved Settlements of the City of Colombo
Authors: Chandrakumara D.P.S.
Published: December 2015

The urban poor in Sri Lanka have been deserted by the financial institutions of the country. They have been undervalued and excluded from the banking sector since they live in underserved settlements. However, evidence from other countries proves that the urban poor can be successfully mobilized and included in the financial sectors as valuable customers of the banking institutions. Mobilizing the savings from them is the first step in such a process. Hence, the aim of this study is to identify the saving potential of the urban poor in Sri Lanka. The study was based on primary data collected by a questionnaire survey conducted in a sample of underserved settlements within the Colombo city limits. The study used descriptive statistics for analyzing the saving potential of the people. The study revealed that some people of these settlements already have financial links with compulsory and voluntary societies. Furthermore, a number of indicators of hidden and disguised savings could be found. Finally, the study found that savings can be mobilized from the urban poor if the formal institutions can approach them in a more responsive way with effective techniques.
Effects of Brand Quality, Brand Prestige on Brand Purchase Intention of Mobile Phone Brands: Empirical Assessment from Kenya
Authors: Chepchirchir Josphine , Leting Mark
Published: December 2015

This study aims to empirically examine the relationship between Brand quality, brand prestige and brand purchase intention of mobile phone brands in Kenya. A survey was used to collect data from a sample of 322 respondents. Data were analyzed by employing correlation, Analysis of Variance (ANOVA) and multiple regression analysis. The results revealed that brand quality and brand prestige are positively associated with consumer brand purchase intention. The generalizability of the findings is limited as the study focuses only on Kenya. Based on the findings, companies involved in branding of mobile phones should focus on improving the usefulness of the brand quality and prestige. The study made a contribution in terms of allowing us to understand the factors that can contribute to the adoption of mobile phone brands.
Religious Roots of Innovative Thinking
Authors: Kucera Dusan
Published: December 2015

The study is based on the identifying religious (spiritual) factors important for innovative thinking in entrepreneurship and management. The author uses the Weber´s inspiring perspective analyzing the capitalism through the innovative religious concepts. It means that besides philosophical, sociological and psychological aspects there are very important and powerful religious roots which have a major impact on the emergence, development, and maintenance of the economic environment, business and management. These “self-transcendent” factors are described as fundamental roots used till today in the general spiritual concepts creating the needed frame and support of innovative thinking in entrepreneurial and managerial activities looking for any “new spirit of capitalism”. Identified spiritual character of business potentials is distinguished by positive and negative spiritual (religious) factors based on world’s religions. General religious (spiritual) factors are reflected on the background of basic selected religious systems Judaism, Christianity (Protestantism, Roman Catholicism and Eastern Orthodoxy) Islam, Hinduism, Buddhism and other Asian directions. The study culminates in the discovery of religiosity of the capitalism itself. All the above-mentioned points are important contribution for better understanding of current multi-cultural and multi-religious growing trends.
The Impact of Ownership Structure on Financial Performance; A Comparison Study of Two Chinese Banks
Authors: Stanley Isanzu Juliana
Published: December 2015

Interest on the effect of ownership structure and financial performance has grown much, yet researchers have provided mixed results. This study aims at investigating the relationship between state-owned and joint venture type of ownership structures by testing whether or not there is a difference in their performance. The study used quantitative methods to find out if there is a significance difference in performance of two types of firms namely State Owned and Joint venture. The variables used were Return on asset, Return on Equity, Capital Adequacy, Non-performing Loans and Earnings per Share. Further, T-test was used to test the difference in performance of the two types of firms. The results have revealed that there is no significant difference in performance between the two types of ownership structure. Statistically, the performance of state-owned and joint ventures is the same. This means the efforts to radicalize the state-owned companies have paid off by eliminating the impact of ownership structure on financial performance of the firm.
Characteristics and Critical Success Factors Prioritization of MSMEs in African Agribusiness: A Case of DR. Congo
Authors: Kabango Christian Mbayo
Published: December 2015

Due to the pertinent question of development of micro small and medium enterprises (MSMEs) and self food supply over the world and especially in Africa, this paper intends to analyze the key characteristics of the Congolese MSMEs, the identification of the perceived critical success factors and their prioritization for accurate and well-oriented performance action. To respond to the focus issues of this paper, an investigation on 259 enterprises was made in Kinshasa and the critical success factor methodology was used to cease and categorize all perceived factors from entrepreneurs. From this, 45 identified CSFs emerged throughout the operational channel of MSMEs and where categorized into four groups which are externalities, strategy, finance and organization. The Analytical Hierarchy Process is used to prioritize these CSFs per operational channel sections which are supply chain, production and distribution. And findings show that the most critical path is the supply chain while the highest critical axis is the finance area followed respectively by strategy, externalities and organization axes.
Leadership Traits and Business Sustainability in Ugandan SMEs: A Qualitative Analysis
Authors: Sejjaaka Samuel , Mindra Rachel , Nsereko Isa
Published: December 2015

The study examined the characteristics of business owners that enable them create sustainable businesses in emerging economy contexts where the dearth of SME’s is the norm. The study used a cross sectional design and qualitative approach to collect data from reputable businesses that had survived for more than 10 years. Data was analysed using a content analysis approach with NVivo software. Owner managers of sustainable businesses exhibited strong antecedents of resilience, social capital, resourcefulness, personal values and strategic flexibility. Successful business owners are created more by the environment they inhabit and their socialization context. The businesses they established were a result of an innate will to succeed and adaptability to overcome constraints. The research does not establish the empirical correlations between the different traits. This study used a qualitative and interactive approach to classify the traits of successful business leaders and develop a model showing the potential relationships and behaviours that breed sustainability or success.
Quality of Life as a Determinant of Poland Citizens Prosperity
Authors: Woźniak Marian , Woźniak Leszek , Chrzanowski Maciej , Ostasz Grzegorz
Published: December 2015

This work relies on desk research as well as authors’ own studies and it discusses selected aspects concerning the quality of life in Poland against the results presented by global organizations on the quality of life. According to our study, access to employment, social engagement and cultural offerings are the most problematic issues for people living in rural areas and among several factors studied; the highest rated ones are educational system and a sense of security. Comparison with the results of global research indicates that overall quality of life in Poland is still at a lower level than the quality of life in advanced countries. For this reason, as for the EU, for next financial perspective (2014-2020), it is very important to support activities in Poland aimed directly or indirectly at improving the quality of life of country’s citizens.
Variance Decomposition of Emissions, FDI, Growth and Imports in GCC countries: A Macroeconomic Analysis
Authors: Saddam Ahmed
Published: December 2015

This paper provides an empirical evidence of the variance decomposition of carbon dioxide emissions, FDI inflows, GDP per capita and imports in GCC countries; UAE, Bahrain, Saudi Arabia, Oman, Qatar and Kuwait. The method adopted is based on the Vector Error Correction Model (VECM). It examined a 256 observation for the duration 2000 – 2010. We found that FDI inflows have a significant variance to GDP. And the increase of level of carbon dioxide emissions is highly related to FDI and commodity imports in which GCC economies have not taken into account in their environmental consideration. The study is valuable for organizations and government policy-makers given that the importance of industry engagement for organizational outcomes has been confirmed. Correspondingly, significant implications for organizations exist, as they are aware of which parts of their operations and conditions will drive relevant talent to engage in the organizations’ work. This paper provides an empirical evidence of the variance decomposition of carbon dioxide emissions, FDI inflows, GDP per capita and imports in GCC countries; UAE, Bahrain, Saudi Arabia, Oman, Qatar and Kuwait. The method adopted is based on the Vector Error Correction Model (VECM). It examined a 256 observation for the duration 2000 – 2010. We found that FDI inflows have a significant variance to GDP. And the increase of level of carbon dioxide emissions is highly related to FDI and commodity imports in which GCC economies have not taken into account in their environmental consideration. This paper provides an empirical evidence of the variance decomposition of carbon dioxide emissions, FDI inflows, GDP per capita and imports in GCC countries; UAE, Bahrain, Saudi Arabia, Oman, Qatar and Kuwait. The method adopted is based on the Vector Error Correction Model (VECM). It examined a 256 observation for the duration 2000 – 2010. We found that FDI inflows have a significant variance to GDP. And the increase of level of carbon dioxide emissions is highly related to FDI and commodity imports in which GCC economies have not taken into account in their environmental consideration.
Impact of Selected Economic Indicators on Foreign Investment Inflow in Nigeria and South Africa: Optimal Indicators Search
Authors: Anastasia Chi-Chi Onuorah , Samuel Mbadike Nzotta , Benedict Anayachukwu Ozurumba , Emmanuel Ezeji Chigbu
Published: December 2015

Search for ways of attracting foreign investment into developing countries raises great interest among researchers and therefore, there is a search for the economic indicators affecting foreign investment appeal in Africa. This study focuses on the impact of economic indicators of Banking Sector Development Model on foreign investment inflows in Nigeria and South Africa. Various data on banking sector; economic indicators of the classified model were sourced from state statistical bulletins as well as World Bank for the year of 1980-2013. The analysis employed several econometric tools: Unit root, Co-integration, VAR estimates of relative and global statistics to measure the impact and significance of economic indicators attracting/repelling foreign investments. Akaike information criteria for best model selection results showed that economic indicators of Banking Sector Development Model in Nigeria attracted more foreign investment than it did in South Africa. The study concluded that the optimal economic indicators attracting foreign investment are domestic credit and inflation rate. Therefore, the study recommended that effort is highly needed by the government to promote sustainable domestic credit facilities to local industries to attract foreign investment and there should be proactive efficient interest rate control to encourage loans and advances in these two countries.
Reviewing the Concept of Brand Equity and Evaluating Consumer-Based Brand Equity (CBBE) Models
Authors: Farjam Sanaz , Hongyi Xu
Published: December 2015

The purpose of this paper is to explore the concept of brand equity and discuss its different perspectives, we try to review existing literature of brand equity and evaluate various Customer-based brand equity models to provide a collection from well-known databases for further research in this area.
Developing Decision Support Capabilities through Use of Management Information Systems
Authors: Mashli Aina Ahmed Abdulatef
Published: December 2015

Management Information Systems (MIS) are widely used in big corporations to collect, organize, filter and present data, resulting in more effective decision-making. Through use of MIS, individuals shape the way how they make decisions. In our study, we posit that utilization of MIS in the decision-making process impacts the decision support capabilities of systems. The use of MIS develops speed, quality, and other features of decision-making. Moreover, improvement in decision-making is aimed to ensure customer satisfaction and good business results. All MIS strategies should therefore be tailored in a way that the all business goals are achieved.
Does ecosystem sensitivity to precipitation at the site‐level conform to regional‐scale predictions?
Authors: Wilcox Kevin R. , Blair John M. , Smith Melinda D. , Knapp Alan K.
Published: December 2015

Central to understanding global C cycle dynamics is the functional relationship between precipitation and net primary production (NPP). At large spatial (regional) scales, the responsiveness of abovegroundNPP(ANPP) to interannual variation in annual precipitation (AP;ANPPsens) is inversely related to site‐levelANPP, coinciding with turnover of plant communities along precipitation gradients. Within ecosystems experiencing chronic alterations in water availability, plant community change will also occur with unknown consequences forANPPsens. To examine the role plant community shifts may play in determining alterations in site‐levelANPPsens, we experimentally increased precipitation by ~35% for two decades in a native CentralU.S.grassland. Consistent with regional models,ANPPsensdecreased initially as water availability andANPPincreased. However,ANPPsensshifted back to ambient levels when mesic species increased in abundance in the plant community. Similarly, in grassland sites with distinct mesic and xeric plant communities and corresponding 50% differences inANPP,ANPPsensdid not differ over almost three decades. We conclude that responses inANPPsensto chronic alterations in water availability within an ecosystem may not conform to regionalAP–ANPPpatterns, despite expected changes inANPPand plant communities. The result is unanticipated functional resistance to climate change at the site scale.
THE THEORETICAL ARGUMENTATION FOR SPECTROPHOTOMETRIC IDENTIFICATION METHOD OF COMMON DENTAL MATERIALS
Authors: Kostenko S. B. , Klevno R. V.
Published: December 2015

Article represents a theoretical argumentation for light absorption spectra and spectrophotometry measuring methods that can be used in forensic dentistry during identification of major dental materials, including filling materials which classified into the specific structure groups, such as macrofilling, microfillfing, and hybrid nanocomposites.
“How do you feel about this client?” – A commentary on the clinical model as a vehicle for teaching ethics to law students
Authors: Kerrigan Kevin
Published: December 2015

This article explores why law clinics can be the most creative, exciting and productive way of inculcating knowledge and understanding of ethical issues and why sometimes they are not. I am concerned to understand what methods can be employed to successfully engage students with ethical questions in the context of their clinical case work. I am also concerned to avoid the complacent view that simply by exposing students to real or realistic cases we can ensure deep appreciation of ethical concerns. By ethics here I mean not only understanding of the relevant professional lawyer codes but also a broader and deeper engagement with what it means to be a lawyer and the moral attitudes, decisions and outcomes implicit in legal practice.
“The Lord Speaks Through Me”: Moving Beyond Conventional Law School Pedagogy and the Reasons for Doing So
Authors: Schehr Robert
Published: December 2015

Maintenance of status quo law school curricular design and delivery, along with the continued marginalization of live client clinic programs, and the discordant objectives of law schools as compared to the expectations of Bar passage, serve to stifle the role of juridic practitioners in the service of justice. Decades of careful scholarship regarding the problems associated with the quality of legal education have repeatedly called for curricular revisions that should enhance the knowledge and skill base of graduates, develop their level of preparedness to actually serve in the profession, and demonstrate care for students. And while there has been a commitment on behalf of law schools to establish experiential educational opportunities through participation in live client clinics, far too often these clinics appear as appendages to the core curriculum and are marginalized as a result. This essay has two objectives – to address the serious and well-known shortcomings associated with law school pedagogy, and to stimulate consideration of alternate pedagogical methods that draw upon student development theory to enhance what education scholars know about cognition.
Why not an International Journal of Clinical Legal Education?
Authors: Gold Neil
Published: December 2015

Jerome Frank may have suggested the term Clinical Legal Education (CLE) first when he asked “Why Not a Clinical Lawyer School?”2; but, it was not until the New York City based Council on Legal Education for Professional Responsibility (CLEPR), funded by the Ford Foundation, took the pre-eminently active role in promoting and supporting law school-based experimentation in the 1970s and 1980s that CLE truly had an opportunity to develop. Over the past thirty plus years CLE has become more and more central to legal education, especially in the United States; innovations elsewhere have been fewer, more modest, and slower to develop, but of significance to the shifting culture of law learning, wherever they have taken place. The inception of the Journal3 marks an important milestone in the continuing development of CLE; for with this volume, we formally recognise that CLE is a vitally important and diverse phenomenon with a global reach.
The Rise and Rise of Tribunals – Engaging Law Students in Tribunal Advocacy
Authors: McCarthy Shaun
Published: December 2015

Over the past 30 years there has been a rise in the determination of legal disputes in non-adversarial and less adversarial forums such as tribunals. Tribunals deal with an increasing diversity of legal matters including cases of anti-discrimination, consumer claims and reviewing executive governmental decisions. Traditionally, Australian law schools and higher education practical legal training providers focus on the development of advocacy skills in an adversarial context set in a courtroom. Law students often study compulsory doctrinal courses solely from an adversarial court perspective. Little emphasis is placed on developing skills and knowledge in the practice and procedure of tribunals despite entry level lawyers appearing more frequently in such forums. This paper argues that there is a need for law students to engage in advocacy experiences in tribunal settings as distinct from the courtroom so they can acquire and foster skills to appear in such non-adversarial and less adversarial forums when in legal practice. By engaging expert witnesses, such as medical experts, in simulated tribunal hearings the realism of the advocacy experience for the student is heightened.
Transferring Power: a reflective exploration of authentic student-centred small group work in clinical legal education
Authors: Campbell Elaine
Published: December 2015

Researchers use self-reflection and personal narrative as a lens through which to identify thoughts and feelings about lived experience.  This article uses reflexivity in order to capture, critique and develop small group work practice in clinical legal education.  It draws on the concept of constructivism and queries whether small group work in a clinical setting can truly be a paradigm of student-centred teaching.  At its core, it argues that an authentic student-centred approach is best achieved when power is transferred to clinic students and they are given the opportunity to lead their own group work.
Clinical Legal Education: Bridging the gap between study and legal practice
Authors: Kaczmarek Jessica , Mangan Jacquie
Published: December 2015

For a law student, the academic study of the law and the actual practice of its principles seem worlds apart. With our desk piled high with books, case reports and legislation, the opportunity to experience and reflect upon the human interaction that underpins legal practice is notably lacking. While good lawyer client relationships are vital to successful legal practice, at present, a law student can obtain their law degree without ever interviewing a client or managing a case file. It was with this paradox in mind that during 2000 we embraced the opportunity to be a part of a clinical legal education program run by La Trobe University’s School of Law and Legal Studies.
Ethical Practice and Clinical Legal Education
Authors: Duncan Nigel
Published: December 2015

This article is designed to explore a variety of ways in which clinical methods can achieve the goals of educators and the professions in the preparation of student lawyers. In particular I intend to show how clinical methods assist in the development of: 

• a deeper understanding of the law, and the law in context;

• general transferable skills;

• legal professional skills;

• a sound values basis for ethical practice.

In addition, I hope to show that there are ways of using clinical methods which may also assist us to meet other social concerns such as the extension of legal services and individual knowledge of rights, throughout the community. 
The Necessity of Clinical Legal Education in University Law Schools: A UK Perspective
Authors: Marson James , Wilson Adam , Van Hoorebeek Mark
Published: December 2015

This paper proposes that the expansion and subsequent unbridling of the provision of a law clinic in the sector will provide the students with the skills necessary of graduates in the increasingly corporate, commercially motivated, UK university sector. Secondly, it provides a basis for the rationale of a movement in funding bands, a study which is being undertaken by the Higher Education Funding Council for England over the proceeding three years, in consequence to the increasing costs involved to the institutions. This increase in funding, coupled with a determination from the institution and case study evidence as presented in this paper, will hopefully propel clinical legal education to the forefront of undergraduate legal studies in the UK. Clinical legal education is a method of improving the student experience and offers various advantages if integrated fully into the university administrative set up. Such views have been given rigorous academic coverage, however this paper further analyses the academic benefits passed on to the student populace, in relation to the potential advantages to UK universities.
The Best is the Enemy of the Good: The Mental Health Act 2001 (Part 2)
Authors: Eldergill Anselm
Published: December 2015

This is the second of two articles examining the Mental Health Act 2001, the main piece of mental health legislation in the Republic of Ireland. The first article, published in the previous edition of the journal, dealt with the new admission, detention, leave and transfer provisions2. This concluding article examines the new safeguards: the Mental Health Commission and the new tribunal and consent to treatment procedures.

Contents
§1 Consent to treatment
§2 Mental Health Commission
§3 Mental Health Tribunals
§4 Concluding remarks
The use of section 136 to detain people in police custody
Authors: Docking Maria
Published: December 2015

There has been some research into the police use of section 136, the profile of those detained, and the outcome of the assessment across different types of places of safety, but these studies have tended to focus on London. The aim of the study, which is the subject of this article, was to therefore provide a picture of section 136 usage across England and Wales to detain people in police custody. It sought to identify the demographics of those detained, the length and outcome of the detention and the reasons for variation in the use of police custody across different police force areas.
Nearest Relative Consultation and the Avoidant Approved Mental Health Professional
Authors: Davidson Laura
Published: December 2015

This article examines three recent cases involving habeas corpus ad subjiciendum applications arising out of alleged failures to comply with the provisions relating to nearest relatives within the Mental Health Act 1983 (‘MHA’). One of these cases assists with the establishment of the identity of a nearest relative, and the two others consider the requirements of the consultation process to be carried out by an Approved Mental Health Professional (‘AMHP’) (formerly Approved Social Worker ‘ASW’). The important implications of these decisions for patients, nearest relatives and hospitals are discussed in detail.
Taking Stock
Authors: Hale Brenda
Published: December 2015

We shall be reflecting on the experience of the three recent upheavals in mental health and mental capacity law – the Mental Capacity Act 2005, most of which came into force on 1 October 2007, accompanied by a Code of Practice; the Mental Health Act 2007 amendments to the Mental Health Act 1983, most of which came into force on 3 November 2008, accompanied by its two Codes of Practice; and the Mental Health Act 2007 amendments to the Mental Capacity Act 2005, bringing in the so-called deprivation of liberty safeguards or DOLS, on 1 April this year, together with another Code of Practice. That is a huge amount of new law for us all to get to grips with. Things have changed a great deal since I first started teaching Mental Health Law to social workers and psychiatrists in this very City in 1971 – nearly 40 years ago.
Harnessing the power of fusion? A valiant but flawed effort to obviate the need for a distinct mental health law
Authors: Appelbaum Paul S.
Published: December 2015

When it comes to involuntary interventions, the notion that people with mental disorders should be treated identically to persons with general medical disorders has an undoubted appeal. As Dawson and Szmukler have argued previously, principles of fairness and non-discrimination would appear to be well served by basing involuntary hospitalization and treatment in both contexts on incapacity to provide consent. In this commentary, I take note of some of the intellectual forebears of the Szmukler, Daw, and Dawson proposal, and ask why – despite the formidable intellects that have lined up behind similar approaches in the past – they have not been adopted. I also consider some aspects of the current proposal itself, including the unresolved tensions between equal and differential treatment of persons with mental disorders, and the potential practical consequences, especially for persons with general medical disorders. I conclude that the rationale for fusing two disparate bodies of law may itself be irremediably flawed, and the undesirable consequences significant.

 

 
The model law fusing incapacity and mental health legislation – a comment on the forensic aspects of the proposal
Authors: Gledhill Kris
Published: December 2015

The proposal by Szmukler and others for a law that fuses mental health law and mental capacity law in England and Wales, both in the context of civil admissions to hospital based on the mental disorder of the patient and the making of orders by the criminal courts, can be summarised in the following quotes from their paper. They suggest:

“a legal regime that … relies squarely on the incapacity of the person to make necessary treatment decisions as the primary justification for intervention in their life.”

By intervention is meant both detention and treatment under compulsion: so, rather than separate criteria for detention (based on the risk of harm) and treatment (based on capacity, at least in part), there would be a single incapacity test “that specifies the conditions for both treatment under compulsion and treatment under circumstances amounting to a ‘deprivation of liberty’.”

What is meant by ‘incapacity’? It is an “inability to understand, recall, process, use or weigh relevant information; inability to communicate a decision; or inability to reach a decision that is sufficiently stable for it to be followed.”

There would be a requirement that there be no less restrictive option available than intervention; for emergency situations, there would also be a safeguard for intervention based on a reasonable belief as to a lack of capacity.
The model law of Szmukler, Dawson and Daw – the next stage of a long campaign?
Authors: Holland Anthony
Published: December 2015

Except for the criminal justice system, the Mental Health Act 1983 (as amended by the MHA 2007) is the most significant Statute in England and Wales that can be used to challenge a central principle of democratic society, that of the right of an adult to self-determination. Such legislation is considered necessary as there are circumstances when it is right and appropriate to admit individuals to hospital and
to treat them for their mental disorders in the absence of their consent. The need for an option of nonconsensual treatment for a physical illness is also apparent, such as in the case of unconsciousness where, for example, treatments without consent for diabetic coma or cerebral haemorrhage are likely to be lifesaving.
Whether the treatment is for a mental or physical disorder, the question is the same – when is it appropriate for someone else to take a decision on behalf of another? The paper of Szmukler et al and their proposal for what they refer to as ‘fusion’ legislation goes to the heart of the issues. What are mental health and mental capacity legislation there to do? What are the principles that should underpin such legislation? What safeguards should there be? In this paper the Szmukler proposals as set out are considered from a clinical perspective in the light of studies that have examined model capacity-based mental health legislation, internationally-based principles that should guide mental health law, and other proposals such as those of the Bamford report in Northern Ireland. Whilst the approach that is proposed is non-discriminatory and ethically defensible and desirable, the difficult issue is the balancing of the need for such legislation to be both versatile and non-bureaucratic and the need for an appropriate hierarchy
of safeguards that protect the vulnerable from unnecessary or inappropriate interventions. The proposed Bill put forward moves away from the thinking behind the Mental Capacity Act 2005 and is closer in its thinking to an expanded and capacity-based Mental Health Act. This requires further consideration.
Is There a Burden of Proof in Mental Health Cases?
Authors: Cooper Jeremy , Davis Howard
Published: December 2015

This article examines the concept of the burden of proof in the context of the First-tier Tribunal (Mental Health). Whereas it is well established that in an adversarial system the burden of proof in a case will always rest with the party bringing the action, the position in an inquisitorial system is far less clear. At least 4 positions have been competing for supremacy on this issue for over 30 years.
The Case for “Good” Legal Representation: Is it worth fighting for?
Authors: Veitch Paul
Published: December 2015

The legal representation of patients detained under the Mental Health Act 1983 (the Act) by way of public funding is very recent. Prior to the Act legal representation was not commonplace and was not seen as desirable. A Royal Commission report in 1957 commented that “As the proceedings on applications to Mental health Review Tribunals will usually be informal and neither the patient nor the hospital or local authority will usually need to be legally represented...”5 It was the Legal Aid Act 1974 that granted public funding for a solicitor to prepare a case for a Mental health Review Tribunal under the Legal Advice Scheme (the Green Form, remember those uncomplicated days!). This was means-tested but did not grant funding for actual representation. Public funding for representation at the hearing was only granted on 1st December 1982 under ‘Assistance by Way of Representation’. A time span up until today’s date of only 28 years!
The Nearest Relative and Nominated Person: A Tale of Parliamentary Shenanigans
Authors: Spencer-Lane Tim
Published: December 2015

The nearest relative (NR) has proved to be a resilient feature of mental health legislation. The powers and the rules for the identification of the NR remain largely unchanged since the role was introduced in the Mental Health Act 1959, with the Mental Health Acts 1983 and 2007 only having made relatively minor modifications. The NR has even survived two attempts to abolish it, in the draft Mental Health Bills of 2002 and 2004.

Few would doubt that the NR provides an important legal safeguard for the rights of mental health patients. However, the rules for establishing the identity of the NR relative are, by common consent, deeply flawed. The identification rules are rooted in the 1950s and reflect many of the assumptions about the structure and role of the family that were prevalent in the immediate post-war period. As such, they fail to reflect the lives and circumstances of mental health patients in the twenty-first century.

This paper outlines, briefly, the role of the NR and the changes introduced by the Mental Health Act 2007, and the main criticisms of the rules for identifying the NR. Its main purpose, however, is to set out the reforms to those rules that were nearly achieved by the Mental Health Alliance during the passage of the Mental Health Bill 2006 and to document the ensuing Parliamentary debates. The paper concludes by considering the future of the NR.
The Convention on the Rights of Persons with Disabilities and the social model of health: new perspectives
Authors: Weller Penelope
Published: December 2015

Contemporary mental health laws are embedded in basic human rights principle, and their ongoing evolution is influenced by contemporary human rights discourse, international declarations and conventions, and the authoritative jurisprudence of the European Court of Human Rights (ECrtHR). The Convention on the Rights of Persons with Disabilities (CRPD) is the most recent expression of international human rights applicable to people with disability including people with mental illness.3 It provides a fresh benchmark against which to assess the human rights compatibility of domestic mental health laws.
Reform of the Mental Health Act 1983: Squandering an Opportunity?
Authors: Peay Jill
Published: December 2015

This article compares and contrasts two recently published documents: the Report of the Expert Committee (chaired by Professor Genevra Richardson) entitled ‘Review of the Mental Health Act 1983’, and ‘Reform of the Mental Health Act 1983 - Proposals for Consultation’.

Whilst both documents were published in November 1999 under the remit of the Department of Health, the Richardson Report preceded the Green Paper. It was delivered in July 1999 to the Parliamentary Under Secretary of State for Health, John Hutton. The Richardson Committee had been established in September 1998 by the DoH in order to provide them with expert advice. The Committee was serviced by the DoH. Accordingly, the contents of the final report would have come as no surprise to them, since they had themselves been fully exposed to the developing reasoning of Richardson. In publishing their own Green Paper some four months later, the DoH had had an opportunity to reflect upon the final Richardson Report. Nonetheless, some might argue that, given the time-scale involved in the production of other similar documents in the field, this rush to a Green Paper was unseemly and unwise. Moreover, since it departs markedly from the recommendations of Richardson, one might argue that the pressure to produce has been, and will prove, counter-productive.
Reform of the Mental Health Act 1983 – Convention Implications of the Green Paper
Authors: Bowen Paul
Published: December 2015

Assessing the Convention compatibility of the Government proposals for reform of the Mental Health Act 1983 set out in the Green Paper1 is largely an exercise in speculation, for three reasons.First, the proposals are very broad; the detail, where the devil may be found, is yet to come.Second, the Convention does not permit the Strasbourg authorities to review the legality of national legislation in the abstract, but only with reference to particular cases after the proceedings are complete2. Although that will not necessarily preclude a domestic court from reviewing the lawfulness of any provision of the new Mental Health Act after incorporation of the Human Rights Act 19983, the comments that can be made in this article are necessarily confined to the
general rather than the specific.Third, and perhaps most significantly, it is impossible to predict the impact of the Convention following the coming into force of the Human Rights Act 1998 on 2 October 2000.
Incapacitating the Dangerous in England and Wales: High Expectations - Harsh Reality
Authors: Prins Herschel
Published: December 2015

This presentation offers some brief comments on the socio-historical concept of ‘dangerousness’, legal and sentencing issues in contemporary context, problems of definition and, finally, some clinical considerations in the light of the foregoing discussion. A number of these issues are discussed more fully in my book ‘Will They Do it Again?’
Independent Advocacy: A brief look at its past and present. Is its future under threat?
Authors: Dalton Sinead , Carlin Peter
Published: December 2015

The need, in mental health care, for advocacy which is independent of the health care provider is clear and acknowledged but the existence of the schemes which provide it might be seriously threatened by PALS. Principles of independent advocacy have been developed over the last twenty five years. Unfortunately many advocates are unfamiliar with the law affecting their practice and its impact upon those principles, especially in respect of confidentiality. The advocate is the client’s agent, owing a duty of care but unable to guarantee confidentiality. It is likely that most independent advocacy schemes have wholly inaccurate and inadequate confidentiality policies and guidelines. If these inadequacies are not addressed independent advocacy will not be able to compete with rival systems and it will be in danger of disappearing.
Psychiatric detention and treatment: a suggested criterion
Authors: Buchanan Alec
Published: December 2015

Calls for a new Mental Health Act for England and Wales, and the government’s response to those calls, raise the question of why we have mental health legislation. One answer is that we wish to provide criteria for psychiatric detention and compulsory treatment. It is argued that we are willing to coerce some people with mental disorders in this way when we conclude that their ability to make a proper choice is impaired. Mental health legislation could and should be designed to take this into account.
Re-admission under the Mental Health Act following discharge by a Mental Health Review Tribunal
Authors: Stern Kristina , Hewitt David
Published: December 2015

There is continuing confusion over the precise effect and force of Mental Health Review Tribunal (‘MHRT’) decisions and the extent to which they may be lawfully overborne. That confusion has not been alleviated by the Court of Appeal judgment in the Von Brandenburg case, and it may even have been exacerbated by the case of H v Ashworth Hospital. Now that the latter decision has been considered by the Court of Appeal, and before the former decision comes before the House of Lords, this may be an opportune moment to place both cases in their true context and to attempt
to distil some definitive guidance on this troublesome point.
Deferred Conditional Discharges – The New Regime
Authors: Mylan David
Published: December 2015

R (on the application of IH) v Secretary of State for the Home Department (1)
Secretary of State for Health (2)
-and-
Mental Health Review Tribunal (1) Nottinghamshire Healthcare NHS Trust (2) Appellant C
(3) (Interested Parties)
[2002] EWCA Civ 646
Court of Appeal (15th May 2002) Lord Phillips MR, Dyson LJ, and Jonathan Parker LJ
Confidentiality and Patients’ Rights
Authors: Foster Simon
Published: December 2015

R (on the application of Ann S) v Plymouth City Council and C (Interested party) [2002]
EWCA Civ 388
Court of Appeal (26th March 2002) (Kennedy, Clarke and Hale LJJ)
Should we allow compulsory mental health treatment in prisons?
Authors: Kinton Mat
Published: December 2015

I have a tip for the future scholars who unearth dusty copies of this journal. Assuming that future generations remember that one of the best ways to examine a society is through its treatment of its most vulnerable members, they could do worse than to turn their attention to one report, already two years old, called Nursing in Prisons.
Charging for After-care Services under Section 117 of the Mental Health Act 1983 – The Final Word?
Authors: Priaulx Nicolette
Published: December 2015

R v Manchester City Council, ex parte Stennett, R v Redcar and Cleveland Borough Council, ex parte Armstrong, R v Harrow London Borough Council, ex parte Cobham [2002] UKHL 34; [2002] 3 W.L.R. 584; [2002] 4 All E.R. 124.

House of Lords (13, 14 May, 25 July 2002) Lord Slynn of Hadley, Lord Mackay of Clashfern, Lord Steyn, Lord Hutton and Lord Millett.
The Ghost of the Nearest Relative under the Mental Health Act 1983 – past, present and future
Authors: Rapaport Joan
Published: December 2015

The 1990s have been characterised by an emphasis on public protection in response to high profile psychiatric homicides. This has led to greater use of compulsion and community controls and hence an increased need for civil liberties safeguards. This paper examines the background and safeguard potential of the nearest relative and its relationship with the Approved Social Worker. It further considers the implications of findings of the most wide-ranging in-depth research into the nearest relative against proposals to replace the designation with two new roles in anticipated legislative reform.
There is no magic in a bed – The renewal of detention during a period of leave
Authors: Hewitt David
Published: December 2015

R (on the application of DR) v Mersey Care NHS Trust
CO/1232/2002
Administrative Court (7 August 2002) Mr. Justice Wilson.
Mental Health Inquiries – Views from the Chair
Authors: Prins Herschel
Published: December 2015

The data to be presented in this contribution form part of a more detailed account which will appear as a Chapter in a book entitled ‘The Age of the Inquiry’ edited by Nicky Stanley and Jill Manthorpe of Hull University, for Routledge (April 2004). The material is produced here with their kind permission. My brief from the editors was to write about my experiences of chairing mental health inquiries since hardly anything seemed to have been written about how those who chair inquiries and their colleagues viewed the problems they encountered. Although I had chaired three mental health inquiries I considered that my own responses might be seen as somewhat idiosyncratic and partial. I therefore decided to solicit the views of a small number of those who had also chaired such inquiries in the mental health field, including, in the main, homicide inquiries.
Is this a revolution? The impact of the Human Rights Act on Mental Health Law
Authors: Bowen Paul
Published: December 2015

In ‘Almost a Revolution: Mental Health Law and the Limits of Change’, Prof. Paul Applebaum, writing in 1994, describes a period of tumultuous change in the United States during the late 1960s in civil rights and mental health law and which lasted nearly three decades. At the end of that period, he concluded, there had been little real and substantial change to mental health law in the United States. This article looks at some of the changes to mental health law that have already been wrought in England & Wales by the Human Rights Act 1998 and briefly considers its potential for creating real and substantial change in the longer term.