bluuebunny/crossref_metadata_2025 huggingface dataset:
The Development and Expansion of University-Based Community/Clinical Legal Education Programs in Malaysia: Means, Methods, Strategies
Authors: Lasky Bruce , Nazeri Norbani Mohamed
Published: December 2015

Beginning in 2003, the not-for-profit international human rights organization Bridges Across Borders Southeast Asia Community Legal Education Initiative (BABSEA CLE) began focusing on assisting in the development and expansion of university-based community/clinical legal education programs in the Southeast Asia region. Since that time, and as a result of this focus, university based CLE programs have been developed or expanded in Thailand, Malaysia, Cambodia, VietNam, Indonesia and Laos, with a continuously growing network of universities, both nationally and regionally. One of the flagship achievements of these activities has been the successful establishment of an accredited CLE program in Malaysia at the University of Malaya.

Finally the paper will identify strategic next steps in the development of this CLE movement within Malaysia, as well as its connection to institutions regionally throughout Southeast Asia and how the CLE movement intends to broaden its reach both within Malaysia
Clinique ToGo: Changing Legal Practice in One African Nation in Six Days
Authors: Rosenbaum Stephen
Published: December 2015

With honour and humility I accepted an invitation from the U.S. State Department to participate as a technical advisor in a weeklong rule of law2 seminar in Togo, with attorneys, judges, law professors and students. My mission was to explain various models for delivery of free legal services and assist in developing proposals for establishing a bar association pro bono3 programme in conjunction with the nation’s principal law school.

When the State Department first invited me to participate in its speaker specialist programme, I admit that for me it was all about having a glimpse of an otherwise inaccessible part of the world and the attendant cultural, professional and intellectual exchange. Only after my initial programme visit did I become familiar with the concept of “rule of law” (l’état de droit), as well as the related concepts of access to justice and the law and development movement. This was to be the focus of my journey to Togo.
Foreword
Authors: Hall Jonny
Published: December 2015

Foreword to Issue 18 of the Journal of Clinical Legal Education.
A Model for Interdisciplinary Clinical Education: Medical and Legal Professionals Learning and Working Together to Promote Public Health
Authors: Bliss Lisa , Caley Sylvia , Pettignano Robert
Published: December 2015

Interdisciplinary training for professionals is becoming more common in higher education. Educators are beginning to understand the benefit of jointly training students in complex and interrelated skills that improve and complement the primary skills needed to succeed in a particular profession. Legal educators have recognized the value of encouraging flexible, collaborative thinkers who become better problem-solvers through interdisciplinary learning. Many of these are also coming to realize the importance of interdisciplinary training as a component of readiness for professional practice. For many law students, law school clinics are the first opportunity they have to learn legal skills and to engage in problem-solving for real clients. This experiential learning opportunity is often powerful and transformative, and can imprint skills, values, and practice habits that stay with students throughout their professional careers. Incorporating interdisciplinary learning opportunities into the law school clinic experience affords opportunities for co-learning, holistic problem-solving, and community building during young professionals’ formative years. Learning to be a lawyer in the context of an interdisciplinary law school clinic combines the experience of working with real clients and academic inquiry into the nature of the lawyering process itself and the ethical and fundamental practices of other professionals. Clinics serve as incubators for professional development. They provide opportunities for reflection on the practice of law, professionalism, social justice, and countless skills that help ready students for the profession of law. The HeLP Legal Services Clinic at Georgia State University College of Law aims to create an interdisciplinary dimension to such practice and inquiry, and thus influence the way in which the professional students from the law and medicine disciplines work together as learners and future professionals.
Reflections Upon Transitions: An Essay on Learning How to Teach after Practicing Law
Authors: Lewis C. Benjie
Published: December 2015

Every academic year, new law school faculty enter legal academia. Many of these new teachers are practitioners with varying levels of legal practice experience. While the transition from practice to teaching is particular to each person, for clinical professors there are some specific challenges that transform our professional identity. Clinical professors wear many hats: teacher, lawyer, mentor, and scholar. Navigating those many hats and adjusting to various goals of teaching emerging attorneys is only a couple of challenges. Other challenges include changing the focus of our professional identity from career-centered, in its many facets, to student centered. 

A core component of clinical legal education is the reflective process. A reflective lawyer is one who thoughtfully digests information and thinks about how an experience affects his or her professional growth. A reflective teacher does the same. This article shares some of my reflections on becoming a clinician and what I learned through experiences about becoming a more effective teacher. 

In Part I, I reflect on my role as a supervisor of emergent attorneys and a goal facilitator for these same students who are exploring their educational and professional development. Part II includes lessons unique, I believe, to a clinician of color. Finally, Part III concludes with reflections on five core tools I have used that helped me in my transition; these tools, I believe, could be useful to new clinicians, especially those that have been practicing for a long time before teaching.
Models of Clinic and Their Value to Students, Universities and the Community in the post-2012 Fees Era
Authors: Bleasdale-Hill Lydia , Wragg Paul
Published: December 2015

The number of clinics in existence within higher education institutions has continued to proliferate in recent years. The 2011 LawWorks1 report examining the pro bono work undertaken within Universities in the United Kingdom found that at least 61 per cent of all Law schools now offer pro bono activities to their students,2 with 40 respondents offering clinic. This compares with 53 per cent of respondents offering pro bono activity and 11 respondents offering clinical activities in 2006. This evidence suggests that an increasing number of Law Schools recognise the benefits of clinic to students. However, the arrival of a new era in higher education funding arguably requires some reflection on (and perhaps greater articulation of) those benefits and the priorities of clinic activity overall, in order to ensure that the expectations of the key clinic stakeholders (the hosting institution, student volunteers and participating members of the public) are met. Concerns that the significant reduction in state funding for higher education will impact adversely on institutional resources is well-documented and at an institutional level there is likely to be increased scrutiny of the efficiency of devoting scarce resources to clinic activity in a climate of lower (or potentially lower) income streams and leaner budgets. Similarly, some students are likelyto exhibit a heightened sense of wanting value for money in their expectations of clinical education and may well demand greater input in the design of clinic activity. Against this, there has been a general and significant reduction in funding for the provision of free legal advice and an associated increased demand amongst the general public for quality free legal advice and access to justice. Therefore, for new and established clinicians alike, the post-2012 era provides the opportunity for, if not necessitates, reflection on the expectations and ambitions of the three key clinic stakeholders (the host institution, the student volunteers and the general public) and, particularly, the question of whether they are sufficiently aligned with each other and the priorities of the clinic activity in place. Arguably, the possibility of conflicting priorities for clinic originating from these key stakeholders and methods of resolving them has featured little in the academic commentary. This paper seeks to contribute to such a debate by offering some insights into resolving these tensions. Taking the interests of each stakeholder in turn, this paper discusses methods of maximising the efficiency of administering the clinic and managing student expectations.
Running drop-in advice services in a university setting
Authors: Russell John
Published: December 2015

In October 2011, London South Bank University (‘LSBU’) opened a new Drop-In Legal Advice Clinic where law student volunteers – working under the supervision of practising solicitors – provide free, on-the-spot, face-to-face legal advice to the general public. Our aim was to establish a drop-in advice service which would deliver a tangible benefit to the local community, develop students’ practical knowledge of the law in context, and provide a basis for developing a teaching and learning resource for other higher education institutions. In February 2012, we were highlighted in the Million+ think tank’s report on innovative teaching in modern universities, ‘Teaching that Matters’, as involving students in a valuable community service while gaining real-world legal experience, developing transferable skills and enhancing their employability prospects. In April 2012, we won a £5,000 LSBU Vice-Chancellor’s Enterprising Staff Award for our demonstration of enterprise in enhancing the student experience and employability, providing a significant benefit for the local community, and demonstrating a wider significance to other higher education institutions nationwide. The Legal Advice Clinic is now key to the marketing strategy for the Law Department. This paper describes our new service in its first year of operation.
Do moot courts belong to high schools? And if so, under what circumstances?
Authors: Krupová Tereza , Pošíková Lenka , Friedel Tomáš , Potucký Jan
Published: December 2015

Moot courts are considered to be a common clinical legal education method. The purpose of the following article is to demonstrate advantages and disadvantages of using moot courts as a teaching method at high schools. This will be based on the experience of Street law assistants and their survey held among high school students. Gathered and analysed information will hopefully provide answers to the questions mentioned above. The article is divided into four parts. The first part introduces Charles University Law School Street Law course since it serves as prime source of our experience with high school students teaching and organising moot court. The second part deals with basic benefits and set backs of high school moot courts. The third part is dedicated to survey results presentation and the fourth part is composed of our experience of moot court organisation.

The purpose of our article is to offer basic information about the moot court simulation itself, present our survey research of high school students’ simulation perception and share our experience which might serve as encouragement for moot court organisation and also as basic advice on which common mistakes to avoid and what to pay close attention to.
Multi-disciplinary practice in a community law environment: new models for clinical legal education
Authors: Foster Richard
Published: December 2015

The Monash-Oakleigh Legal Service (MOLS) is a community legal service auspiced by Monash University, Melbourne Australia, and partly funded by Victoria Legal Aid. MOLS was principally established to provide practical legal education to Monash law students over 30 years ago, but has since evolved to focus also on serving community legal needs. Incorporated within MOLS is the Family Law Assistance Program (FLAP) which, as the name suggests, deals exclusively with family law matters. FLAP students attend the Family Court each week with lawyers who provide assistance to clients in a duty lawyer capacity, as well as operating four clinical sessions each week within MOLS.

Like many community legal services, most MOLS clients experience a form of disadvantage and resultant financial difficulty. Consequently, MOLS deals with a range of legal matters including: criminal law, family law, tenancy and neighbourhood disputes, and a number of credit, debt, and
bankruptcy issues.

In July 2010, the Multi-Disciplinary Clinic (MDC) was established at MOLS to provide a holistic service to clients by involving students from three academic disciplines to deal with client issues. Later, in December 2010 (the commencement of the university’s summer semester), students from one other discipline were included in FLAP and a third discipline was also adopted in the following semester.
Fighting Africa’s poverty and ignorance through clinical legal education: Shared experiences with new initiatives for the 21st Century
Authors: Iya Philip
Published: December 2015

This paper attempts to establish and analyse the role of African universities generally and their law schools in particular in their fight, if any, against poverty and ignorance. In that regard, the case of legal education and specifically its clinical programmes will be analysed, and the thrust of the discussion will be directed toward the following issues:

1. The backdrop of the debate: Universities and Community Outreach Programmes;
2. Understanding the genesis and application of clinical legal education in Africa;
3. Sharing experiences of clinical education in different countries in Africa; and
4. New challenges and initiatives for the 21st Century.
Each of these issues is discussed separately and seriatim in subsequent paragraphs.
Clinical Legal Education in the 21st Century: Still Educating for Service?
Authors: Dickson Judith
Published: December 2015

As a lawyer and clinical legal educator, I have direct experience of the ways in which clinical legal education programmes in Australia2 provide legal services to poor and disadvantaged people. In this context I recently began to wonder about the image of lawyers and of the legal profession, that other clinical educators and I portray in our work and about the values underlying clinical legal education.3 I began to think that despite a longstanding commitment to access to justice,4 clinical legal education in Australia might actually be acquiescing in a notion of professionalism that is counter to that commitment. 

In this article I explore the connection between the continuing commitment of clinical legal education to the provision of legal services to those unable to otherwise afford them and the notions of professionalism traditionally adopted by the organised legal profession. In doing so I focus on the Australian legal environment as the one with which I am most familiar. However, I believe the issues I raise are relevant for other legal educators concerned about the state of the legal profession in their jurisdictions and about the values which clinical legal education imparts to law students.
Ensuring Basic Quality in Clinical Courses
Authors: Stuckey Roy
Published: December 2015

This article describes some of the features of clinical course design that are essential for ensuring basic educational quality. It does not attempt to be thorough. A number of years ago, I served on a committee that began discussing whether it is possible to come up with “indicia of quality” that could be used to measure the quality of a clinical program or course. The question that framed the issue was “If someone wanted to determine whether one school’s professional skills program is likely to be better than another school’s program, what elements should be examined?” The committee not only guessed that it was possible to define those elements, we also believed that it could be accomplished without a great deal of trouble. Though I still think it is possible to define indicia of quality, we were wrong that it would be easy. Our initial effort foundered fairly quickly. From time to time others renewed the effort, only to abandon the project, with one exception. Sandy Ogilvy, a law professor at Catholic University School of Law in Washington, D.C., is making the most serious effort to date to describe “indicia of quality” for clinical programs.
Integrating Two Measures of Quality Practice into Clinical and Practical Legal Education Assessment: Good client interviewing and effective community legal education
Authors: Curran Liz , Foley Tony
Published: December 2015

This paper will examine, through two case studies (an undergraduate clinical program and a Practical Legal Education (PLE) advice clinic) the scope for indicators developed by Curran to assess the outcomes, effectiveness and quality of legal assistance service in Australia to be used in clinical assessment. This article will explore how two particular indicators evaluated as fundamental in that research might be utilised to assess students so as to enhance the quality of their clinical participation.

Clinical Legal Education is seen by its adherents as ‘a premier method of learning and teaching. Its intensive, one-on-one or small group nature can allow students to apply legal theory and develop their lawyering skills to solve client legal problems. Its teaching pedagogy is distinguished by a system of self-critique and supervisory feedback enabling law students to learn how to learn from their experiences’. In many senses it is a form of experiential learning through engagement with the practice of law.It aims to contextualise the study of law and draw on student learning in other courses to guide and support them in identifying, developing and applying ethical legal practice skills. But its scope is much wider than simply ‘skills’, it also aims to develop students’ critical understanding of approaches to legal practice, to their understanding of the roles of lawyers in relation to individual clients and social justice issues and to encourage and as a means to validate student aspirations to promote access to justice and equality through the law.

We suggest ways to assess the quality of such engagement by clinical students, focusing on Curran’s core quality measures of ‘a good client interview’ and ‘quality community legal education’. The value of utilising these two indicators to assess the quality of student engagement is that they themselves are core to the activities in which students are involved in clinic.
Community Projects: Extending the Community Lawyering Model
Authors: McNamara Judith , Campbell Catherine , Hamman Evan
Published: December 2015

Law schools in Australia and the United Kingdom are increasingly adopting clinical legal education (CLE) as an important part of their curriculum.  Models of CLE are emerging in those jurisdictions which draw on local experience and the strong tradition of CLE and community lawyering in the United States. The purpose of this article is to examine the pedagogy that underlies CLE and to consider how it can be applied to newly emerging models of CLE.
Book Review - 'Learning in Landscapes of Practice: Boundaries, Identity, and Knowledgeability in Practice-Based Learning'
Authors: Lofthouse Rachel
Published: December 2015

Etienne Wenger-Trayner, Mark Fenton O'Creevy, Steven Hutchinson, Chris Kubiak, Beverly Wenger-Trayner (eds.)
Law School Based Public Interest Advocacy: An Australian Story
Authors: Watterson Ray , Cavanagh Robert , Boersig John
Published: December 2015

This article presents a case for law schools to undertake public interest advocacy. It argues that incorporating public interest advocacy into curricula and research enhances clinical legal education and enables law schools to make a distinctive and valuable contribution to justice and law reform. The article outlines an integrated model for law school based public interest advocacy based on the experience of one of Australia’s newest law schools at Newcastle in the Hunter region of New South Wales. The article then describes a recent public interest case undertaken by academics, clinicians and students at Newcastle law school, explaining their participation in the case and exploring the contributions made by the case to legal education, the correction of injustice and reform of the law.

The case, one of Australia’s most controversial deaths in custody, concerned the fatal shooting on Bondi Beach in Sydney in June 1997 of French photographer Roni Levi. The article examines the shooting, its investigation by police, a coroner and an independent commission of inquiry. It analyses the flaws in these legal investigations, considers their justice implications, and outlines the legal and policing reforms achieved through the case.

The article concludes with the suggestion that changes in law school culture as well as curriculum are needed to ensure that law schools embrace public interest advocacy and other forms of clinical legal education for the future benefit of the law and its students.
Enhancing the Teaching of Human Rights in African Universities: What Role for Law School Clinics?
Authors: Iya Philip
Published: December 2015

This Paper aims at exploring the weight accorded to the teaching of human rights in law schools generally and in particular it will attempt to examine the status of human rights in clinical legal education (herein after referred to as “CLE”) in law schools in Africa, with a view to recommending more emphasis in the teaching of human rights and the establishment of specialist human rights clinics as a viable growth initiative for CLE, especially in Africa. Concerns over similar issues were seriously debated during the last conference on Educating Lawyers For Transnational Challenges held from 26–29 May 2004 in Hawaii, USA, (herein after referred to as the “Hawaii Conference”) just as much as they formed a serious bone of contention during the design and implementation of the new LL.B curriculum for South African Universities especially in 1997 and 1998. Because of the intricate issues involved, the emerging concerns are likely to continue. The purpose of raising the concerns here is to increase awareness, provoke more discussion and encourage empirical research on a subject matter considered to be of absolute importance for legal education generally and in Africa in particular.
Jusshjelpa i Nord Norge – a Legal Advice Clinic in Northern Norway
Authors: Robson Lancelot , Hanssen Christian
Published: December 2015

The area covered by the Clinic must be one of the largest and most remote in the world. It covers the whole of northern Norway from Bodo in the south to Kirkenes near the Russian border, and includes the “counties” of Nordland, Troms and Finnmark. All of it lies within the Arctic Circle, which brings special challenges from the climate and thinly spread population. The permanent base is in Tromso, in offices behind the port loaned from Tromso University. From there student volunteers travel to visit most communes in the area, including Norwegian Lapland. Volunteers attempt to visit clients in each major commune at least twice a year, (cases came from 78 communes in 2003), either upon request, or by advertising a clinic session in the local commune building. Sessions in 28 major communes outside Tromso were held in 2003.

The clinic is one of five similar clinics covering the whole of Norway, all founded upon operational and management principles pioneered by law students at Oslo University in the early 1970s. The Oslo JussBuss (literally the “law bus”) has passed into Norwegian legal legend.
Pushing The Boundaries or Preserving the Status Quo? Designing Clinical Programs to Teach Law Students a Deep Understanding of Ethical Practice
Authors: Curran Liz , Dickson Judith , Noone Mary Anne
Published: December 2015

The clinical legal education environment is one that is ripe with professional and ethical situations. Students involved in this educational experience inevitably are exposed to ethical dilemmas and choices. In this paper we examine the role played by clinical legal education programs in the development of ethical awareness among those law students. Within the context of the well documented concerns in the wider legal profession as to the standard of ethics teaching and ethical practice we assert that the clinical environment provides a rich opportunity for a deep learning experience about the nature and extent of a legal practitioner’s professional and ethical responsibilities.
Expanded Liability for Psychiatrists: Tarasoff Gone Crazy?
Authors: Thomas Michael
Published: December 2015

This paper is intended to serve as an update for psychiatrists on notable developments of the Tarasoff doctrine in the United States and United Kingdom. Most clinicians will be familiar with the basic Tarasoff doctrine. However, the author suspects that many clinicians will be troubled to learn the extent to which Tarasoff liability has extended in some jurisdictions.

Accordingly, the first part of this paper addresses notable judicial treatment of Tarasoff in several state jurisdictions within the United States. The second part discusses the more conservative approach of the United Kingdom, which affords clinicians discretion to warn potential victims in certain circumstances. The United Kingdom has struggled with, and so far rejected, the imposition of a Tarasoff-duty. However, a recent decision of the European Court of Human Rights opens the door for something comparable to Tarasoff in the United Kingdom. The final part offers a critique of the Tarasoff doctrine and suggests that other jurisdictions, including the United Kingdom, may be wise to avoid this problematic doctrine.
Is Capacity “In Sight”?
Authors: Allen Neil
Published: December 2015

Convicted of rape, Mr B was sent to Broadmoor. His psychiatrist diagnosed bipolar affective disorder and wanted, if necessary, to compulsorily treat him with anti-psychotic medication. In his professional opinion, Mr B lacked insight into his condition and lacked the capacity to refuse the treatment. Baroness Hale once remarked that “psychiatry is not an exact science”. If there was ever a case to confirm that view, this is it.
Policing Care in the House of Lords
Authors: Sandland Ralph
Published: December 2015

The rights and interests of carers, and those in receipt of care, are related, directly and indirectly, in myriad, complex and contradictory ways. For example, poor pay and working conditions for carers is more likely than otherwise to lead to demotivated staff, with a corollary negative impact also on the rights and interests of those in receipt of care. Likewise, a carer working in good conditions for good pay is more likely than otherwise to provide a better quality of care. Sometimes, however, it is not the case that what is good for the care recipient is good for the care provider; and when decisions as to what constitutes the ‘good’ are made by third parties, such as governments, there is always the possibility that the balance between the rights and interests of the two groups will be inappropriately drawn.
First Do No Harm. Second Save Life?
Authors: Allen Neil
Published: December 2015

Some 50,352 people killed themselves in England and Wales between 1997 and 2006. Reducing this human toll of inner turmoil has long been a key national priority for health services. But protecting us from ourselves is no easy task when the apparent benefits of escaping life outweigh the agony of having to endure it. Often it is too late for someone’s suicidal ideation to come to the attention of the authorities. Sometimes, however, the risk to life is more readily apparent: on average, 1300 patients already known to mental health services commit suicide every year.

The European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 is slowly realigning the moral and legal obligations of public bodies to protect life, with Article 2 imposing three duties upon the state. Firstly, a negative duty to refrain from taking life, save in prescribed exceptional circumstances. Secondly, a procedural obligation to investigate deaths for which it might bear some responsibility. Finally, there is a positive obligation to take steps to protect our lives which is the exclusive focus of this paper.
The mental capacity tribunal under the model law: what are we arguing about?
Authors: Robinson Robert
Published: December 2015

It would be a mistake to think of mental health law as a generic form of law directed at a particular class of people, those described as suffering from mental disorders. If a person who has a mental disorder will accept treatment, whether or not they have the capacity to consent to it, there is in general no need to have recourse to mental health law. The Mental Health Act 1983 (‘MHA’) exists for the specific purpose
of regulating, and ultimately adjudicating upon, the conflict between a person who objects to receiving psychiatric treatment and the professionals on whom the law confers powers of compulsion. But, as advocates of a capacity-based legal framework would surely agree, it is not the existence of mental health law that gives rise to this conflict. That we have a Mental Health Act but not, say, a Dental Health Act is explained by features characteristic of serious mental illnesses which are not, by and large, found in other medical conditions.
Outline of The Model Law
Authors: Szmukler George , Daw Rowena , Dawson John
Published: December 2015

Part I Principles
Part II General provisions
Part III Serious medical treatment
Part IV Informal patients needing care and treatment
Part V Compulsory provision of care and treatment
Part VI Forensic provisions
Part VII The Mental Capacity Tribunal
Part VIII Patient safeguards
When protective powers become threatening
Authors: Padfield Deborah
Published: December 2015

Indefinite and preventive detention: two archetypal danger-areas for the civil-libertarian mind. Both are permitted by criminal and mental health law, subject to the safeguards provided by common law and the European Convention on Human Rights (ECHR). Watchful eyes need to remain focused on the interpretation of such powers of detention.

That any coercive power that can be abused by authority will be so abused seems a reasonable rule of thumb. Certainly it is the assumption on which responsible legislators ought to work; even if they are willing to trust their own imperturbability in the face of events they have no right to do so, or so to trust their successors. Stop-and-search has been heavily abused, while the limits on control orders are under
judicial scrutiny domestically and at Strasbourg.

Terrorism trials and those involving notoriously violent criminals catch headlines, especially where mental disorder is involved. My concern here is the looseness of provisions which, operating out of the public eye, can indefinitely detain people on preventive grounds.
The concept of objection under the DOLS regime
Authors: McKillop Matthew , Dawson John , Szmukler George
Published: December 2015

In England and Wales, there are now two regimes under which an adult can be deprived of liberty when receiving mental health treatment: the regime established by the Mental Health Act 1983 (MHA), and the Deprivation of Liberty Safeguards (DOLS) authorisation regime established by the Mental Capacity Act 2005 (MCA). Where both regimes might apply to a mentally disordered person in hospital for mental health treatment, a major dividing line between them is the ability of the patient to “object” to being a mental health patient or to being given mental health treatment. If such an objection occurs, a hospitalised patient is ineligible for the DOLS regime and only the MHA regime may be used to authorise the deprivation of their liberty.
S.117 MHA 1983 re-visited: the liability of the State and the existence of a duty of care
Authors: Butler Jonathan
Published: December 2015

This article seeks to summarise the movement towards an increased likelihood of branches of the state (in this case, either social services or health trusts) being found to owe a duty of care to specific categories of people. The issue was phrased thus in 2005 by Lord Bingham of Cornhill: ‘The question does arise whether the law of tort should evolve, analogically and incrementally, so as to fashion appropriate remedies to contemporary problems or whether it should remain essentially static, making only such changes as are forced upon it, leaving difficult and. in human terms, very important problems to be swept up by the Convention. I prefer evolution’. In adopting that Darwinian approach to the development of the law, it is necessary to look at the recent history of duties of care that may be owed by the State. The starting point is X v Bedfordshire County Council (1995); the end point (so far) is AK v Central and North West London Mental Health NHS Trust and Royal Borough of Kensington and Chelsea4 (2008).
Seal v UK: The End of the Story or Time for a Fresh Beginning?
Authors: Gledhill Kris
Published: December 2015

Seal v UK, ECtHR, appn 50330/07 7 December 2010, [2011] MHLR 1
Foreword
Authors: Emmett Charlotte
Published: December 2015

This special issue of the Journal of Mental Health Law has been prompted by the recent publication of the Government’s Green Paper Review of the Mental Health Act 1983: Proposals for Reform. The Green Paper aims to "modernise the legal framework within which mental health care is delivered" by proposing a number of reforms to the current regime established under the Mental Health Act 1983.

We have aimed in this edition to highlight some of the key issues arising from both the Green Paper and the Report submitted to the Department of Health by the Scoping Study Review Team, in July 1999.
Unethical Mental Health Law; History Repeats Itself
Authors: Zigmond A. , Holland A. J.
Published: December 2015

The powers enshrined in mental health legislation go directly to fundamental principles central to any caring and democratic society. The tension and dilemma that exists is, on the one hand, the importance of respect for an individual’s right to make decision’s affecting his/her own life to, on the other, the recognition that there are people with mental disabilities that may be vulnerable to abuse and/or neglect and who throughout their lives or at particular times need care and/or treatment, which they may not seek or be able to consent to themselves. In any society it is through case law and statute that an attempt is made to resolve this tension and to ensure that individual rights are not infringed and that those who need care and treatment receive what is in their best interest. Thus a change in such legislation requires the most rigorous of examination and must be judged on the grounds that it a) does not infringe accepted principles such as those of the United Nations Declaration of Human Rights and the European Convention, b) is based on sound ethical principles and does not conflict with the established law of the country, and c) it is practicable and achieves the right balance with respect to the potential tension described above. As practising clinicians (one working in an acute psychiatric service the other in a district learning disability service) we are not in a position expertly to judge the first of these but we believe we can contribute to the second and the third. In this paper we consider specifically the reasons for, and the consequences that follow, the failure on the Government’s part to accept the central importance of decision-making capacity assessment in any new mental health legislation.

The Green Paper proposals for a new Mental Health Act for England and Wales have now been published. A broad definition of ‘mental disorder’ has been retained, a new system of tribunals is to be established and compulsory treatment in the community would become lawful. However, it rejects the recommendation of the expert committee chaired by Professor Richardson that the assessment of an individual’s decision-making capacity should be a determining factor in the use of compulsory detention. Given this, it does not address the relationship between this legislation and the proposed Mental Incapacity Act. The failure to recognise the central place of decision-making capacity in a modern Mental Health Act is, we believe, a serious omission as it is a reflection of a failure to acknowledge that the basic principle of autonomy is central to such legislation.
Medical Research and Incompetent Adults
Authors: Gunn Michael J. , Wong J. G. , Clare I. C. H. , Holland A. J.
Published: December 2015

The spectre of Nazi medical experimentation during the Second World War undoubtedly hangs over any discussion of medical research and incompetent adults. The concentration camp experiments denied the rights of people who would have been able to give or withhold consent but were, of course, not asked. The fears raised by the nature of these experiments has given rise to a real, understandable and genuine concern that research participants, particularly those who are vulnerable, may be abused through their participation. For example, Professors Kennedy and Grubb take the view that nontherapeutic research on incompetent adults is prohibited and go on to say that “given the history of Europe in the 1930s and 1940s which culminated in the Nuremberg Trials ... it is entirely understandable that some European countries would hold the view that an absolute prohibition was the only defensible [position].” The question that arises is whether prohibition is always the correct approach, or whether some forms of research should be permissible, recognising that strict protections will be necessary. We reflect upon the rigidity of the distinction between therapeutic and non-therapeutic research in the context of a research project that we undertook.
Foreword
Authors: Emmett Charlotte
Published: December 2015

It seems probable that publication of this issue of the Journal will coincide with publication by the Department of Health of the eagerly awaited White Paper containing the Government’s intended reform of mental health legislation.
A Successor Body to the Mental Health Act Commission
Authors: Clayton Margaret
Published: December 2015

“The Mental Health Act Commission (MHAC) has a major role in protecting the interests of patients
who are subject to the provisions of the 1983 Act. Its principal functions are to:
• appoint Second Opinion Appointed Doctors
• review treatments given under sections 57(2) or 58(3)(b) of the Act, ie treatment that requires a second opinion
• visit detained patients and investigate complaints
• keep under review the exercise of statutory powers relating to detained patients
• submit proposals for a code of practice
• look into matters relating to informal patients, when directed to do so by the Secretary of State,
and
• report to the Secretary of State every two years on the operation of the Act.”

This is the summary of the functions of the MHAC contained in the Green Paper on Reform of the Mental Health Act 1983. In this brave new world of the Modern NHS, with much enhanced arrangements for local quality assurance and clinical governance, the Commission for Health Improvement, the Commission for Care Standards, the National Institute for Clinical Excellence, the establishment of Patient Advocate and Liaison Services, and the numerous other ways of increasing patient participation which are outlined in the National Plan for England, is a successor body to the Mental Health Act Commission really necessary ?
“A Mere Transporter” - the Legal Role of the Approved Social Worker
Authors: Hargreaves Roger
Published: December 2015

The role of the Approved Social Worker in the 1983 Mental Health Act is an unsatisfactory amalgam of legal, professional, administrative and practical functions which has accumulated on a largely ad hoc basis over the last two centuries. The current review of the legislation offers an opportunity to redefine this role in a way which is both clear and internally consistent. This article reviews the history of the role and suggests that more fundamental changes are needed than the proposed in the Report of the Expert Committee.
A Consideration of the Approach the Mental Health Review Tribunal Should Adopt When Considering the Discharge of the Asymptomatic Patient
Authors: Mylan David
Published: December 2015

Regina v London South and South West Region Mental Health Review Tribunal ex parte
Stephen Moyle
High Court (Queen’s Bench Division)
Latham J
Judgment Given 21st December 1999
TLR 10th February 2000
Reviewing Scottish Mental Health Law: Any Lessons for England and Wales?
Authors: Patrick Hilary
Published: December 2015

This article looks at the Millan Committee’s review of Scottish mental health law, with some reference to the work of the Richardson Committee and the Government’s response to it. Whilst the issues raised were similar, the Scottish approach is likely to differ in certain significant respects. It is hoped that the article will, therefore, add to the debate south of the Border.
Mental Health Act Guardianship and the Protection of Children
Authors: Sandland Ralph
Published: December 2015

Re F (Mental Health Act: Guardianship) [2000] 1 FLR 192, CA
Court of Appeal (30th September 1999). Evans, Thorpe, and Mummery LJJ. Judgment of the Court given by Thorpe LJ.

This case arose as a spin-off from what on the face of it was a relatively straightforward application for care orders, made by the Social Services Department of the London Borough of Hackney (‘LBH’), in respect of eight siblings. The case is of interest to mental health lawyers by reason of the attempt of LBH to use creatively elements of the Mental Health Act 1983 (‘the 1983 Act’) regime to plug apparent gaps in the powers available to local authorities and the courts in the
Children Act 1989. This entailed the court’s consideration of various provisions of the 1983 Act, as they relate to persons with learning difficulties. This case will also be of interest to family lawyers, as the boundary between family law and mental health law, such as it is, was also considered by the Court of Appeal. Moreover, it is worth remembering that the backdrop to all judicial activity in the field of mental health law at present is the on-going root-and-branch reform of this area of law. As will be discussed below, this case adds to a growing number that highlight
deficiencies in the operation of the current regime as it applies to adults with learning difficulties. Finally, although there is little direct discussion to be found in the law report of the judgment of the Court of Appeal, this case raises broader issues of human rights; a topic that none can afford to ignore in light of the Human Rights Act 1998.
Detention of a recently-discharged psychiatric patient
Authors: Hewitt David
Published: December 2015

R v East London & the City Mental Health NHS Trust and David Stuart Snazell, Approved Social Worker, ex parte Count Franz Von Brandenburg
Court of Appeal, 21 February 2001, The Master of the Rolls, Buxton LJ and Sedley LJ
[2001] 3 WLR 588

Although it was unnecessary to show a change in circumstances following discharge by a MHRT, it would be difficult for an ASW to be satisfied that a fresh application for detention, made within days of detention, ought to be made
The Legal Structure of Mental Health Services
Authors: Eldergill Anselm
Published: December 2015

The way in which mental health services are organised, delivered and regulated has been reorganised many times in recent years. The purpose of this article is to summarise the present position, and it is informative, rather than analytical. The service changes are dealt with in the following order:

 
A The National Health Service
B The Provision of Social Care
C The Provision of Independent Healthcare
D Maintaining Quality Standards
Qualitative Analysis of Recommendations in 79 Inquiries after Homicide Committed by Persons with Mental Illness
Authors: McGrath Melissa , Oyebode Femi
Published: December 2015

‘Building a Safer NHS for Patients’ proposes significant changes to the reporting of adverse events in Britain’s healthcare system including the place of inquiries in the analysis of adverse events. Within mental health services, since 1994 an independent inquiry has been mandatory for all homicides committed by persons in contact with mental health services. The inquiry reviews the care the patient was receiving at the time of the incident, the suitability of that care with regard to the patients history, health and social care needs, and the extent to which the care corresponded with statutory obligations of the health service. A report is usually published following each inquiry including a set of recommendations based on the findings of the inquiry. The assumption is that these recommendations are intended to influence mental health policy and practice. However, many critics argue that inquiry reports and their recommendations have yet to substantially alter policy and practice.
Claiming Damages for Workplace Stress
Authors: Myers Edward
Published: December 2015

British workers are reported as having the highest levels of stress in Europe; indeed 1 in 5 workers (around 5 million people) is affected by stress. The cost to Britain’s economy is broadly estimated at approximately 6.7 million working days lost each year – valued at between £3.7–£3.8 billion. As recently as 14th October 2002 the TUC launched a campaign “Tackle the Hassle” designed to focus on the 270,000 people per year who go sick, and the cost to British Companies of around£538 per employee.
The Home Secretary’s Tribunal Referral Powers Following IH
Authors: Mylan David
Published: December 2015

R (on the application of C) v Secretary of State for the Home Department
[2002] EWCA Civ 647
Court of Appeal (15th May 2002) Lord Phillips MR, Dyson LJ, and Jonathan Parker LJ
Nearest Relatives of Gay and Lesbian Patients
Authors: Cho Nicola
Published: December 2015

R (on the application of SSG) v Liverpool City Council (1) Secretary of State for Health (2) and LS (Interested Party).
Administrative Court (22nd October 2002) – Mr. Justice Maurice Kay
The Significance of Mental Disorder Classification
Authors: Harding Anna
Published: December 2015

R (on the application of B) v Ashworth Hospital Authority [2003] EWCA Civ 547
Court of Appeal (15th April 2003) Simon Brown LJ, Dyson LJ, and Scott Baker LJ
Foreword
Authors: Emmett Charlotte
Published: December 2015

Those who have been following the progress of the mental health law reforms in England and Wales may be forgiven for experiencing a sense of déjà-vu during the Queen’s Speech last year, as the much anticipated Mental Health Bill was (perhaps not surprisingly) absent from the Government’s parliamentary agenda for the second year running. It would seem that ministers are unable to reach agreement on the exact direction of the new Bill. There are also rumblings that the much needed Mental Health Act reforms are not being afforded sufficiently high priority by the Government. John Reid, the Health Secretary, was quick to respond such criticisms in November, confirming the Government’s intention to bring forward a revised Bill for pre-legislative scrutiny by Parliamentary Committee “as soon as possible”. For the time being however, it remains to be seen when the new reforms will be introduced.
What is a hospital?
Authors: Hewitt David
Published: December 2015

A number of possible answers have been proposed. Though most are perfectly sensible and, to varying degrees, helpful, none resolves the question entirely. The purpose of this paper is to consider those answers and to identify the merits and demerits of each.