bluuebunny/crossref_metadata_2025 huggingface dataset:
Assessment– Are Grade Descriptors the Way Forward?
Authors: Murray Victoria , Nelson Tamsin
Published: December 2015

The debate on how best to assess clinic, or indeed if it should be assessed at all has raged for decades and shows no sign of abating. The passage of time has been unable to resolve the question of assessment, no doubt due in part to the expansion and diversification of clinical legal education. The scope of clinic and its role in both society and as a teaching method is constantly evolving and assessment methods must develop to reflect the ever changing clinical profile. In an attempt to bring its assessment regime up to date, in 2007/2008 Northumbria University’s Student Law Office modified its assessment regime, replacing outmoded criteria with grade descriptors. This paper focuses on the use of grade descriptors and criterion referenced assessment in clinical legal education, addressing whether clinic should be assessed and which of the two methods is best suited to clinical legal education. The article draws on the experiences of clinicians and students to determine what issues this change in assessment regime has raised for the assessors and the student body. It concludes that it is appropriate to assess clinic by fully grading and suggests grade descriptors are the way forward.
A Medical/Legal Teaching and Assessment Collaboration on Domestic Violence: Assessment Using Standardized Patients/Standardized Clients
Authors: Sedillo Lopez Antoinette , Crandall Cameron , Campos Gabriel , Rimple Diane , Neidhart Mary , McCarty Teresita , Clark Lou , McLaughlin Steve , Martell Carrie
Published: December 2015

Assessment of skills is an important, emerging topic in law school education. Two recent and influential books, Educating Lawyers published by the Carnegie Foundation and Best Practices in Legal Education, published by the Clinical Legal Education Association have both suggested dramatic reform of legal education. Among other reforms, these studies urge law schools to use “outcome-based” assessments, i.e., using learning objectives  and assessing knowledge and skills in standardized situations based on specific criteria, rather than simply comparing students’ performances to each other. 
"Walking on two legs in Chinese law schools": A Chinese/U.S. Program in Experimental Legal Education
Authors: Landsberg Brian
Published: December 2015

Dong Jingbo, a young faculty member at the China University of Political Science and Law in Beijing, used to teach using only the traditional lecture technique which she had experienced in her own legal education in China and Korea.  Until, that is, Professor Dong attended summer workshops given by Pacific McGeorge, in partnership with American University’s Washington College of Law, and also earned an LL.M. at Pacific McGeorge, in the Teaching of Advocacy. Her classes no longer are limited to lecture.  She has developed a simulation to use in Chinese criminal law classes, has demonstrated it to other Chinese law professors and has written a law review article about it.2 The simulation is based on a news story about a man who used his wife’s ATM card to make two successive withdrawals of 10,000 RMB, while the receipts reflected a total withdrawal of only 2 RMB, and even though his wife had only 10,000 RMB in her account. The man was charged with theft. Professor Dong assigns students to play the role of the prosecutor, defense counsel and judge. They are given the definition of theft, and must argue and decide the case. She then provides a series of additional facts, requiring deeper analysis. Introduction of this role play into the class builds on learning theory to provide deeper understanding of the elements of the crime of theft than a student could obtain by listening to a lecture. Moreover, this learning by doing encourages analysis, fact development, understanding of the important role of the theory of the case, and independent thinking. For these reasons, and as our experience in China affirms, role play is a useful learning method in traditional, simulation, and clinical law courses.
Multidisciplinary clinics – broadening the outlook of clinical learning
Authors: Hyams Ross , Gertner Fay
Published: December 2015

Students exposed to the clinical legal education environment quickly acknowledge that clients’ presentation of their legal problems is much more complicated, subtle and multifaceted than they could ever have believed was possible. They regularly report to their clinical supervisors that their classroom experience has not adequately provided them with either the practical skills or legal knowledge that they need in order to deal confidently and competently with the many factors and complexities underlying clients’ legal problems. They report feelings of inadequacy in their dealings with issues that often form a deep-rooted subtext to clients’ legal problems. These issues may be a mixture of psychiatric, financial, social, educational and ethnic or language factors.

In recognition of this inadequacy reported by clinical students, this paper focuses on the necessity of developing multidisciplinary legal clinics - law students working in a clinic together with students from other disciplines, such as social work, financial counselling and psychology. Professionals across a wide range of fields have increasingly recognised the advantages of multidisciplinary practice in teaching, scholarship and service delivery to clients. A multidisciplinary approach to legal practice is becoming more relevant as legal systems change to encompass processes and procedures of justice delivery which deviate from the traditional adversarial paradigm.

The aim of this paper is to investigate the challenges of establishing and working in such a clinic.
Interface of Law and Medicine in Clinical Legal Education: Success story of the Women’s Law Clinic in improving the health of women and ensuring women’s access to Justice in Nigeria
Authors: Omoragbon Kevwe
Published: December 2015

Specialist law clinics now operate both in the developed and developing world. The historical background of these specialist law clinics can be traced to the United States. They also abound in South Africa, Europe and are fast emerging in several African countries. It is however outside the scope of this paper to describe the wide variety of specialist law clinic models that exist in other countries.

At present in Nigeria, there are seven Nigerian Universities with law clinics. These law clinics in enhancing the social justice frontier have developed projects addressing specific problems; making them specialists in service delivery, but the Women’s Law Clinic, is the only gender specialist law clinic.
Street Law Based CLE: A Student-Impact-Assessment
Authors: Mohd Suhaimi Asnida , Mohd Zulkifli Nur Farzana
Published: December 2015

The term ‘Street Law’ authentically refers to the specially-created, experimental teaching syllabus developed by a group of students of the Georgetown University Law Center, Washington D.C., United States of America in 1972. The syllabus merged legal content together with unconventional teaching methods, taking the ‘law’ out of the typical lecture-classroom setting directly to its intended target audience: non-laywer members of society; aiming to educate them in basic legal principles in simple and practical ways so that it would be easier for the audience to comprehend. The defining character of the course, i.e. its straight-forward connection to its ‘on-the-streetlearners’ became its own name. In fact, it took on an identity of its own becoming a recognized part of the legal curriculum and the founding brand-name of a non-profit, non-governmental organisation known as Street Law Inc, based in the state of Maryland, USA as early as 1986.
Clinical legal education in Croatia – from providing legal assistance to the poor to practical education of students
Authors: Preložnjak Barbara
Published: December 2015

Although clinical legal education has a long tradition in common law countries, the countries of the continental European legal system, to which the Republic of Croatia (hereinafter Croatia) belongs, have recognized its importance in the last few years. The first established legal clinic in Croatia was the one of the Faculty of Law at the University of Rijeka. It has been implemented as part of the curriculum for the academic year 1996/1997 and offered to the fourth year students as an elective course entitled “Clinic for Civil Law”. Within the Rijeka Clinic, law students were able to acquire theoretical and practical knowledge, by resolving hypothetical cases, under the supervision and with the support of teachers, lawyers, judges, notaries public and state attorneys. In 2002, with the support of the Institute Open Society from Budapest, the Faculty of Law at the University of Osijek established a legal clinic in the form of practical training for students of the third and fourth year of legal studies. By participating in the clinic’s activity, students of Osijek Law Faculty helped provide legal aid to citizens of lower economic status. This included help in providing general legal information and legal advice, as well as help in covering procedural cost from the funds donated to the Clinic. The lack of financial means that were needed for daily expenditures meant that the Legal Clinic in Osijek was temporarily closed. Nowadays, faculty members of Osijek Law Faculty are trying to solve financial problems and to continue previous good practice in providing legal aid to the poor citizens.
Now with Added Technology: change and continuity for the IJCLE
Authors: Hall Elaine
Published: December 2015

An introduction to the first online edition of the International Journal of Clinical Legal Education.
Law student attitudes towards pro bono and voluntary work: The experience at Northumbria University
Authors: McKeown Paul
Published: December 2015

This study considers whether participation in pro bono legal work during a programme of academic study at Northumbria University increases the likelihood of future participation in pro bono activity amongst law students.

This was a quantitative study in which an online survey, measuring altruistic attitudes, was sent to students enrolled on the M Law Exempting degree programme at Northumbria University. The author analysed the data by comparing the attitudes of those students who had engaged in pro bono activity during the fourth year of the programme against those students who had yet to engage in pro bono activity, being those students in Years 1, 2 and 3 of the programme.

The data suggests that whilst the students value engagement in pro bono activity, this is principally due to the personal benefits which they gain. In particular, respondents reported improvement in legal skills and enhanced employability as a consequence of participation in pro bono work. The data indicates that there is an increased awareness of social and economic issues whilst engaged in pro bono work but this does not translate into a desire to continue pro bono work after graduation.
It was therefore concluded that participation in pro bono work during the course of academic study does not increase the likelihood of future participation in pro bono activity following graduation.
Specialist Legal Clinics: their pedagogy, risks and payoffs as externships
Authors: Evans Adrian , Hyams Ross
Published: December 2015

Within clinical legal education there is a great deal of discussion at the moment about externships. Part of the motivation for all this conversation is the desire of law schools to get in on the clinical ‘act’ as inexpensively as possible. Some law Deans have the view that they can outsource clinics to firms and agencies and achieve reputable clinical outcomes with little or no expenditure. We beg to differ and in this article we explain why law school management of an externship experience is resource intensive and nearly as complicated as an in-house clinic. It may be less expensive, but an externship can never be set and forgotten.
We also discuss the peculiarities of specialist externships, since many externship sites are in fact specialist legal practices. In fact, the attraction of an externship is the access it provides for students to participate in a specialised area of law, while overseen by specialist lawyers. We set out in detail the advantages and disadvantages of operating such placements and connect these to the recent Australian Best Practices in clinical legal education. To begin with however, we need to define some terms as they are used in an Australian clinical setting.
Promoting Refugee Law as a Means of Challenging the Status Quo at University Level Education In Europe: The Role of the Refugee Law Clinic
Authors: Anagnost Stephan
Published: December 2015

The purpose of this paper is to provide a look into the state of the art of clinical legal education at select European universities, using refugee law clinics as a model.

In addition, this article will look into the work to date at refugee law clinics in the Central European and Baltic States (CEBS) and Western Europe and their prospects for the future.

Finally, it is the purpose of this article to explore a number of the trans-Atlantic initiatives between legal-aid and legal clinic programs.
Reflections on the Implementation of Clinical Legal Education in Moi University, Kenya
Authors: Ojienda T. , Oduor M.
Published: December 2015

In this work the author intends to examine the challenges faced by the faculty in its quest to incorporate the clinical based approach into its curriculum. In doing so, the author will have to examine the basis upon which the faculty’s CLE is grounded and the method used by the faculty implementing it. An assessment will be made of the specific successes and challenges faced by the faculty in implementing the programme and lastly recommendations to improve its operation will be made. Though references will be drawn from other jurisdictions in certain instances, the author will confine himself within the subject of this work, i.e, CLE in Moi University, Kenya.
Exchanging Places: Experiences of the First Irwin Mitchell International Clinical Scholar
Authors: Wilson Martin
Published: December 2015

What do most people think of a law degree – plentiful amounts of hard work, endless reading, an expensive Legal Practice Course or Bar Vocational Course followed by an extremely competitive application process to secure a job in the graduate’s respective field of work? What if students were given the opportunity to work in another jurisdiction, such as Australia, for one month in a student-run law office during the summer, with £1000 to get them on their way? ‘Sounds good’, I thought. ‘So what do I have to do to get the chance’? And then the one catch is divulged – the student must complete a compulsory piece of coursework and achieve one of the top 10 marks in their year. (The writer expects a few raised eyebrows at this stage!)
Political Interference in Clinical Programs: Lessons From The U.S. Experience
Authors: Joy Peter
Published: December 2015

This article reviews the history of political interference in clinical programs in the United States, considers the attacks on clinical programs in the context of attacks on other lawyers representing the poor or other marginalized clients, and draws lessons from the experience in the United States that may be helpful to clinical programs in other countries. With the spread of clinical teaching throughout the world, it is likely that law faculty teaching clinical courses in other countries may encounter the types of political interference with client and case selection experienced by their colleagues in the United States. 

Part I of this article examines the access to justice mission of clinical legal education in the United States and briefly traces the history and types of political interference in law school clinical programs. It also discusses the ethical obligations of lawyers to represent unpopular or controversial clients or causes, and considers how the attacks on clinical programs interfere with a lawyer’s ethical obligation to act independently of third-party interests. 

Part II examines the relationship between access to justice and the attacks on the major sources of public interest lawyers in the United States. Part II contends that access to the courts is a cornerstone principle for the rule of law, and access to the courts depends on having the assistance of a lawyer. Part II draws a connection between the political interference in clinical programs and other attacks on public interest lawyers.

Part III analyzes the legacy of political interference on clinical programs. It discusses the effects of both the highly publicized attacks on clinical programs and the more frequent questions concerning clinical programs’ choices of clients and cases. It argues that the breadth of political interference in clinical programs in the United States indicates that any clinical program may be targeted even if the clinical faculty believe that they are taking non-controversial cases. Part III also questions whether political interference in clinical programs will be as great an issue in those countries that make legal assistance in civil cases more available to persons who are unable to afford to hire a lawyer than does the Unites States.

The article concludes that law school clinical programs can model the highest ideals of the legal profession by evaluating potential cases on the legal merits and pedagogical value and not with a concern for whether or not the case or client may be controversial. 
How Should We Assess Interviewing and Counseling Skills?
Authors: Grosberg Lawrence
Published: December 2015

The need to teach interviewing and counseling skills has long been established among clinical legal educators. Even among our non-clinical colleagues, these skills are recognized as integral to competent lawyering. While there remains considerable difference of opinion within the United States as to whether teaching such skills should be in a required course or simply be available as an elective, there is no doubt that a twenty-first century American law school must include the teaching of these skills in its curricular array.

This paper first briefly describes the structure of legal education in the United States (insofar as clinical and skills teaching is concerned) and the almost total absence of any bar admission training or apprenticeship requirements. If the law schools are not required to fully train all future lawyers and the bar admission authorities likewise disavow responsibility for doing so, should clinical law professors assume the burden? I then go on to discuss the primary clinical evaluation technique of directly observing the student's performance, sometimes referred to as the gold standard method of assessment. Against the backdrop of the assertion that it is beneficial to use multiple methods of assessment, I then describe the several methods I have used to address the question of how best to assess interviewing and counseling skills. As an aside, it becomes clear that much more empirical analysis is in order.
Restricting Movement or Depriving Liberty?
Authors: Allen Neil
Published: December 2015

This judicial appeal for clarity exposes a jurisprudential problem which threatens one of our most fundamental human values; the right to liberty. For no-one really knows what it means to be “deprived” of one’s “liberty”. The extremities are straightforward. Prisoners are deprived; picnickers are not. But liberty deprivations may “take numerous other forms [whose] variety is being increased by developments in legal standards and in attitudes”. Technology, too, has played its part in such developments by introducing novel ways of restricting movement beyond the paradigmatic lock and key. The more expansive those other forms, however, the greater the risk of legal uncertainty.
The Deprivation of Liberty Safeguards – essential protection or bureaucratic monster?
Authors: Hargreaves Roger
Published: December 2015

The Deprivation of Liberty Safeguards ( DoLS), which came into force on the first of April 2009 as an amendment to the Mental Capacity Act 2005, are still commonly referred to as the “Bournewood safeguards,” but in fact the concern about the underlying issue long predates the final decision of the European Court of Human Rights on the Bournewood case. It goes back at least to 1983, when the new Mental Health Act brought in much greater protection for patients who were formally detained in hospital, and in particular for those who lacked the capacity to consent to treatment and who acquired additional safeguards under Part IV of that Act. However, this in turn highlighted the total absence of protection for those patients without capacity who were “de facto detained” under the common law.
‘Publicity v Privacy: finding the balance’ When and how to publish reports of mental health homicide independent investigations
Authors: Scott-Moncrieff Lucy , Marsden Ed
Published: December 2015

In 1994 the Department of Health published its guidance on the discharge of mentally disordered people and their continuing care in the community (HSG (94) 27) which established, for the first time, that when a mental health service user kills someone “it will always be necessary to hold an Inquiry which is independent of the providers involved”. The independent investigation (as these inquiries are now called) would take place after the completion of any legal proceedings and its purpose was stated to be: “To learn lessons for the future”. The independent investigation would be commissioned by the responsible strategic health authority, which would also decide on whether to publish it and, if so, in what form.
Preface
Authors: Richardson Genevra
Published: December 2015

The possibility of a single statue to replace our current dual approach must now be the most fundamental issue confronting mental health and mental capacity law reform. I was therefore delighted to be offered the opportunity to co-edit this Special Issue.
Response to the Commentaries
Authors: Szmukler George , Daw Rowena , Dawson John
Published: December 2015

We are immensely grateful to the commentators for their careful reading of the Model ‘Fusion’ Law (ML). The level of support for our proposal from most of the commentators is encouraging as is the news that Northern Ireland intends to introduce legislation along similar lines. The aim of the ML is to eliminate the unwarranted discrimination against people with mental disorder that is inherent in current mental health legislation in England and Wales and in many other jurisdictions. We remain convinced that the principles underlying the enterprise are right and that they can be translated into a practical form. At the same time, excellent points have been raised by the commentators that have stimulated us to think further and to propose a number of revisions.

The editors have invited us to respond briefly to the commentaries. We should have liked to engage with each of the commentators on a number of specific issues, but in our response we must focus on the major themes that have emerged.
The role of capacity in mental health laws - recent reviews and legislation
Authors: Gledhill Kris
Published: December 2015

The context in which the Szmukler et al proposal is put forward is the several reviews in the different jurisdictions in the United Kingdom and in Ireland, which have led to capacity becoming a central feature in relation to civil detention in Scotland and in Ireland, and which may well lead to it becoming a central feature in Northern Ireland, though efforts to achieve the same in England and Wales were rejected. For forensic patients, however, capacity is not prominent, and the proposal made goes further than recent legislative amendments and debates have contemplated. These are set out in the order in which they occurred: the Richardson Committee review of the English statute, then the amendments in Scotland, followed by those in Ireland (which pre-dated those in Scotland but came into effect later); next was the action that was eventually taken in relation to the English statute, and finally there are the proposals as to what to do in Northern Ireland. The latter is the only one that comes close to the proposals of Szmukler and others, which they acknowledge in their paper.
Foreword
Authors: Horne John
Published: December 2015

The gestation period of this issue of the Journal has been the longest in its 12 year history, and for that, as Editor, obviously I must – and do – take responsibility and apologise.
This strange republic of the good: Community treatment orders and their conditions
Authors: Hewitt David
Published: December 2015

The Community Treatment Order (CTO) was introduced by the Mental Health Act  2007, and from the start, it was controversial. There is evidence that even the principle of community compulsion was opposed by a majority of psychiatrists, and it was said that many would resign rather than implement CTOs. Happily, that prediction has not been realised. In fact, it seems that many psychiatrists, and more than one Approved Mental Health Professional (AMHP), have seized upon CTOs with something approaching alacrity.
Mental Health and Compulsion
Authors: Pedler Margaret
Published: December 2015

This article looks at the role of compulsion in mental health law as it applies to civil patients. It starts by setting out the existing position and the Government’s proposals for reform as set out in the current Green Paper “Reform of the Mental Health Act 1983”. It goes on to consider principles which might be relevant to this area of law and the application of these to the Government proposals. Finally, it looks at the relevance of the European Convention on Human Rights.
The new Mental Disorder Tribunal
Authors: Mullins Mark
Published: December 2015

In its final report the Expert Committee on reform of the Mental Health Act 1983 chaired by Professor Genevra Richardson proposed a new Mental Disorder Tribunal. This tribunal would have fundamentally different functions, composition, procedure and powers to the present Mental Health Review Tribunals (MHRTs). The Committee’s objective was not merely to repair the failings of the present MHRT system but to replace it with a new structure promoting the principles of patient autonomy and non-discrimination. Reading the Committee report and the Government’s Green Paper proposals in response together it soon becomes clear that the Government has rejected the recommendation that the new mental health law should be based on principles of autonomy and nondiscrimination. In their place the Green Paper puts “safety” and “risk”. While it will incorporate safeguards to ensure compliance with the Human Rights Act 1998, the “dual aims” of the new Mental Health Act are to be to ensure the health and safety of patients and safety of the public. Whereas the Committee saw the new tribunal as an active guarantor and promoter of individual rights the Green Paper recasts it as a body preoccupied with risk and safety, stating as a fundamental “principle” that: “Issues relating to the safety of the individual patient and of the public are of key importance in determining the question of whether compulsory powers should be imposed”
Achieving Human Rights for People who Lack Capacity
Authors: Bingley William
Published: December 2015

This is the text of the Lydia Sinclair Memorial Lecture delivered by William Bingley at the November 1999 conference "Mental Incapacity. New Millennium - New Law".
Unfitness to Plead, Insanity and the Mental Element in Crime
Authors: Kerrigan Kevin
Published: December 2015

Whenever a person is found to be unfit to plead at the time of his or her trial, a jury must determine whether s/he “did the act or made the omission charged as the offence”. Similarly, when a court decides that a person was insane at the time of an offence being committed, part of the jury’s task is to determine whether s/he “did the act or made the omission charged”. In either case, if the jury is not so satisfied then it must return a verdict of acquittal. An issue that has caused the courts some considerable concern recently is the extent to which, if any, the mental element of the crime is relevant to the question of whether the accused “did the act”. This article reviews the existing authority and concludes that, although the courts have imposed a uniform test and may thus be said to have achieved consistency between the two situations, this may result in considerable injustice in some cases.
Discrimination in Employment on Account of Mental Illness
Authors: Griffiths Elisabeth
Published: December 2015

Leonard v Southern Derbyshire Chamber of Commerce [2001] IRLR 19
Employment Appeal Tribunal (10 October 2000). Nelson J, Mrs R A Vickers, Mr G H Wright MBE
Mental Incapacity: An Overview
Authors: Ashton Gordon
Published: December 2015

Our legal system is still much admired by those who can gain access to it, but what about those who can’t? Our courts present physical barriers to people in wheelchairs, but today I am not talking about the logistical problems of people with physical disabilities – I am concerned about the jurisdictional problems of individuals who lack mental capacity.
Mental disability law in central and eastern Europe: paper, practice, promise
Authors: Lewis Oliver
Published: December 2015

This paper explores socio-legal issues within mental disability systems in central and eastern Europe, focusing on the ten countries which have entered into an accession partnership with the European Union (EU) and will become members within the next few years, namely (starting from the north): Estonia, Latvia, Lithuania, Poland, Czech Republic, Slovakia, Hungary, Slovenia, Romania and Bulgaria, countries with a combined population of almost 100 million people. These EU accession countries share a recent history of either being parts of the Soviet Union (Estonia, Latvia, Lithuania), part of the Socialist Republic of Yugoslavia (Slovenia) or ruled from communist Moscow (the others).
Responses to the Draft Mental Health Bill
Authors: Contributors Various
Published: December 2015

Responses and comments on the Draft Mental Health Bill are provided by:

The Law Society

The Royal College of Psychiatrists

Liberty

Guy Otten, Regional Chair for Trent, Yorkshire and Northern Region

Robert Brown, Independent Trainer of ASWs and MHA Commissioner
Capacity-based mental health legislation and its impact on clinical practice: 1) admission to hospital
Authors: Bellhouse John , Holland Anthony , Clare Isabel , Gunn Michael , Watson Peter
Published: December 2015

In this study, as capacity is ‘decision-specific’, we have assessed the capacity of men and women to make decisions about admission and treatment separately, using the Law Commission’s definition of incapacity. In this paper, we focus on a person’s capacity to consent to admission. Surprisingly, the courts in England and Wales have not directly explored the nature of the information relevant to a decision about admission to hospital. Admission without consent constitutes false imprisonment, which is both a civil tort, and a crime.
Capacity-based mental health legislation and its impact on clinical practice: 2) treatment in hospital
Authors: Bellhouse John , Holland Anthony , Clare Isabel , Gunn Michael , Watson Peter
Published: December 2015

In this paper, the second of two, we consider the capacity of those assessed with respect to their ability to consent to admission to also consent to their treatment with medication. The results of our assessment of capacity to consent to admission are described in our first paper along with the policy background to the study. In comparison to admission decisions, for treatment decisions there is an extensive body of literature and case law that provides guidance on the key principles. In English law (i.e. the law in England and Wales) the wishes of a competent adult offered treatment for a physical disorder must be respected. However, with treatment for a mental disorder the decision of a competent person to withhold consent can still be lawfully overridden using mental health legislation if the health or safety of the person concerned is at risk, or if it is necessary for the protection of others. At present for those detained under the Mental Health Act 1983 capacity has only to be considered in two situations. First, when psychosurgery or the surgical implantation of hormones to reduce male sexual drive is proposed (section 57 of the MHA), and secondly, when treatment for a physical disorder is required. However, treatment for a mental disorder has been increasingly widely defined, for example, to include forced feeding.
Scottish Parliament acts on Mental Health Law Reform
Authors: Patrick Hilary
Published: December 2015

The Mental Health (Care and Treatment) (Scotland) Act was passed by the Scottish Parliament on 20 March 2003 and received Royal Assent on 25 April 2003. The largest piece of legislation to pass through the Scottish Parliament, the Act represents a major reform of mental health legislation in Scotland. This article offers a short introduction and will serve as yet another example of how devolution is leading to major divergences in welfare law and practice north and south of the border.
Judicial recognition of the status of the Code of Practice
Authors: Harding Anna
Published: December 2015

R (on the application of Colonel Munjaz) v Mersey Care NHS Trust; S v Airedale NHS Trust

Interested Parties: 1) Secretary of State for Health; 2) Mind

[2003] EWCA Civ 1036 Court of Appeal (16th July 2003) Lord Phillips MR, Hale LJ, and Latham LJ

This is the Court of Appeal decision in two cases which raised questions about the status of the Mental Health Act Code of Practice. Although both cases concerned the use of seclusion, the judgment is likely to have a significant impact on any matter covered by the Code. At first instance Stanley Burnton J and Sullivan J had each held that the Code was merely guidance to which Trusts should have regard but from which they could depart. Such departure would only be unlawful if it was Wednesbury unreasonable.
Psychiatric advance decisions – an opportunity missed
Authors: Exworthy Tim
Published: December 2015

After a very long gestation the Mental Capacity Bill was published earlier this year. Among its proposals was the incorporation into statute of advance decisions. These are devices whereby a person, while retaining capacity, can make certain decisions regarding their future treatment for such a time as they have lost capacity and so are unable to make legally binding decisions about their own treatment. As the Bill is phrased, advance decisions only permit a person to refuse treatment. There is no provision for that person to use ADs to express a positive preference for particular forms of treatment. It will be argued this represents a missed opportunity to allow patients and clinicians to engage in a more constructive approach to treatment planning. Experience from the USA demonstrates psychiatric advance directives have a role to play in engaging psychiatric patients and promoting adherence to their treatment plans.

This paper will only address the use of AD in relation to mental health treatment, although it is recognised they have an application far wider than this, including decisions regarding life-sustaining treatment.
What can the Human Rights Act do for my mental health?
Authors: Hale Brenda
Published: December 2015

This is the text of the Paul Sieghart Memorial Lecture delivered for the British Institute of Human Rights at King’s College, London, on 7 July 2004.
Decision-Making in Mental Health Law: Can Past Experience Predict Future Practice?
Authors: Peay Jill
Published: December 2015

The short answer to this is no. Whilst it may be possible to be certain about the occurrence of some events, the prediction of decision-making requires caution and qualification. Yet past practice can be a good guide to making informed guesses about the future. Accordingly, this article addresses the question of whether what we know about how practitioners make decisions in respect of current mental health law can help us to understand how the government’s latest proposals for reforming mental health law are likely to fare. Two main issues are discussed: first, the nature of the proposed criteria; and second, the nature of the process, who will get involved with whom? The article concludes with some miscellaneous observations and engages in some autopoietically inspired kite-flying.
The Law Society’s Response to the Draft Mental Health Bill
Authors: Society Law
Published: December 2015

The Law Society has long campaigned for reform of the Mental Health Act 1983 (‘the 1983 Act’), which is widely recognised as out of date and not fully compatible with the Human Rights Act 1998. However the Law Society believes that the proposals contained in the Draft Mental Health Bill 2004 (‘the Bill’) are misconceived and fail to provide adequate safeguards to protect the rights of people with a mental disorder.
A Private Function
Authors: Hewitt David
Published: December 2015

R (Mersey Care NHS Trust) v Mental Health Review Tribunal; Ian Stuart Brady (First Interested Party) and Secretary of State for the Home Department (Second Interested Party)

Queen’s Bench Division (Administrative Court), Beatson J, 22 July 2004 EWHC (Admin) 1749

A MHRT may sit in private even though a patient requests a public hearing and the ECHR presumes in favour of such a course
Protection! Protection! Protection! Déjà vu all over again. The Government Response to the Parliamentary Scrutiny Committee
Authors: Fennell Phil
Published: December 2015

This article discusses the Government’s Response to the Joint Parliamentary Scrutiny Committee Report on the Draft Mental Health Bill, from the bias of someone who served as the specialist legal adviser to the Committee. 
An Inconvenient Mirror: Do we already have the next Mental Health Act?
Authors: Hewitt David
Published: December 2015

The Government intends to replace the Mental Health Act 1983, and the most recent of its proposals were contained in the Draft Mental Health Bill published in June 2004.

The 1983 Act is now very different to the statute introduced at the end of 1982. Parliament and the courts have made a number of significant changes over the last 20-odd years, and they have brought us a lot closer to the next Mental Health Act than many people – and possibly even the Government – suppose. In fact, those changes may have brought us rather close to the Draft Mental Health Bill. That will be an uncomfortable thought for many people.

This paper will consider five key aspects of the Draft Mental Health Bill:

• the provisions dealing with risk and treatability;

• the notion of compulsion in the community;

• the status of the Code of Practice; and

• the abolition of the Approved Social Worker.

The paper will ask whether, because of the changes of the last two decades, the current Mental Health Act has already arrived at much the same point. In addition, the paper will consider the position of incapable patients. Although the Draft Bill contains precious few proposals about them, the paper will ask whether recent developments have made a broad definition of mental disorder all but essential.
Reflections from Scotland: Difficult Decisions Ahead
Authors: Patrick Hilary
Published: December 2015

This article looks at recent developments in Scottish mental health and incapacity law. Whilst Scotland clearly leads the way in mental health and social care law reform in the UK, its incapacity legislation is under strain. Scotland is struggling with the implications of HL v UK which, because of problems with the Adults with Incapacity (Scotland) Act 2000, appear even more complex than in England and Wales. Scotland is consulting on new laws to protect vulnerable adults, but lags behind England and Wales in its use of appropriate adults when people with mental disorders are interviewed by the police.
One Code to rule them all, one code to bind them: the seclusion of detained patients
Authors: Foster Simon
Published: December 2015

R v Ashworth Hospital Authority (now Mersey Care NHS Trust) ex parte Munjaz

[2005] UKHL 58 (On appeal from [2003] EWCA Civ 1036)
A Nasty Act?
Authors: Patel Kamlesh
Published: December 2015

In this article, Lord Patel considers the Mental Health Bill from the perspective of parliamentary procedure and misadventure.
Developing a capacity test for compulsion in mental health law
Authors: Heginbotham Chris , Kinton Mat
Published: December 2015

Concepts of mental capacity are taking on an increased importance in the mental health law of the United Kingdom. For England and Wales, the proposal to introduce a threshold requirement of ‘impaired decision-making’ into the criteria for detention under sections 2 and 3 of the Mental Health Act 1983 was the first amendment to be voted upon in the House of Lords’ reading of the Mental Health Bill. Despite its emphatic (and whipped) resistance to this amendment, Government lost the vote by a wide margin, although it seems possible, at the time of writing, that the Government will seek to overturn their defeat in the Commons.

It is therefore timely to re-examine the role of such capacity tests in mental health legislation dealing with detention and treatment. This paper describes as yet unresolved definitional questions that must be encountered when concepts of mental capacity operate as a threshold for coercive psychiatric detention and/or treatment.
Sexual Predators, Extended Supervision, and Preventive Social Control: Risk Management Under the Spotlight
Authors: Brookbanks Warren J
Published: December 2015

The purpose of this article is to assess the legitimacy of the preventive detention model represented by New Zealand's Parole (Extended Supervision) Amendment Act 2004 in light of the legislative response to sex offenders in other jurisdictions, notably the United States and England. It is argued that the growing legislative practice of imposing administrative detention post-sentence represents a dangerous trend in criminal justice and disguises a largely undeclared agenda to isolate and demonise sex offenders as a class. It also has implications for other offender groups who may be targeted because the particular class is perceived as presenting a particular type of risk. Since the empowering legislation is often passed in haste and without due consideration of its long term impacts, it bears the hallmarks of a pre-reflective, “at least we’re doing something,” response to the problem of sex offending. It also provides a context for pretextual and sanist judicial values to operate, permitting distorted and illinformed judicial decision-making, particularly where judges’ thinking is infected by populist punitive approaches. Invariably, such legislation and the policy surrounding it, fails completely to address fundamental causal patterns underlying sex offending phenomena.

It is suggested that in order to address these phenomena squarely, it will be necessary to abandon the current tendency towards isolating sex offenders and refocus our energy on traditional responses of retribution, reform and rehabilitation within conventional principles of criminal process.
Mental health, community care and human rights in Europe: Still an incomplete picture?
Authors: Stavert Jill
Published: December 2015

Mental health issues are increasingly finding their way onto national, European and international agendas. Moreover, the term ‘mental health’, though sometimes difficult to define with precision, has been taken to include not only mental ill health but also the maintenance of good mental health in general.

This article examines progress in the field of human rights recognition as it pertains to mental health, in a European and a wider context.
Casenotes: Human Rights and the Provision of Residential Care under the National Assistance Act 1948
Authors: Sandland Ralph
Published: December 2015

YL v Birmingham City Council and Others

House of Lords 20 June 2007

[2007] UKHL 27
Casenotes: The Re-call of Conditionally Discharged Patients – the breadth of the Secretary of State’s discretion
Authors: Pezzani Roger
Published: December 2015

R (on the application of ‘MM’) v Secretary of State for the Home Department

Court of Appeal; 6 July 2007

[2007] EWCA Civ 687
Towards an Understanding of Supervised Community Treatment
Authors: Kinton Mat
Published: December 2015

I intend here to look at two related areas: first, the actual powers that supervised community treatment provides to clinicians, especially in relation to the administration of treatment, and, second, the relationship of SCT with the other community powers of the Mental Health Act, especially the power under s.17 to allow detained patients leave from hospital. Whether such a focus will enable us to be “sure of the thing” that is SCT is perhaps doubtful, and we obviously cannot resolve the question of how (or indeed if) the SCT regime will be operated in practice across England and Wales, but it may help us to think more clearly about the possibilities and prepare ourselves to untangle some of the knots established in the primary legislation. I will conclude with some comments on the potential numbers of patients involved and whether Scotland’s experience of community treatment orders tells us anything about the likely implementation of powers in England and Wales.
The Best is the Enemy of The Good: The Mental Health Act 2001
Authors: Eldergill Anselm
Published: December 2015

This article examines the Mental Health Act 2001, which is now the main piece of mental health legislation in the Republic of Ireland. The new Mental Health Tribunal system came into force on 1 November 2006, and the Act is now fully in force. The article is being published in two parts. This part deals with the new admission, detention, leave and transfer provisions. The second part, in the next issue of the Journal, examines the new safeguards: the Commission and the tribunals, and the consent to treatment procedures.
Audit of Statutory Urgent Treatment at a High Security Hospital
Authors: Bickle Andy , Abdelrazek Tarek , Aboaja Anne , Page Kim
Published: December 2015

The aim of the audit which is the subject of this article was to measure the use of statutory urgent treatment at one of England’s three high security hospitals (Rampton Hospital) against the standards set out in the Code of Practice (2008) and by the Mental Health Act Commission. Rampton Hospital is a large hospital which averaged around 400 beds during the audit period and has a catchment area of approximately one third of England. The hospital accommodates patients who suffer from a wide range of mental disorders, having directorates for mental illness, learning disability, personality disorder, women and (from 2004) ‘Dangerous and Severe Personality Disorder’. All patients are detained under the Mental Health Act 1983. It was submitted that the proper use of statutory urgent treatment is important to Rampton Hospital as an institution which accommodates patients presenting with the highest security needs owing to their risk to others.
Capacity, Best Interests and Sex
Authors: Bartlett Peter
Published: December 2015

In the Matter of MM: Local Authority X v MM and KM.

[2007] EWHC 2003 (Fam)