Does the Statutory Regulation of Advance Decision-Making Provide Adequate Respect for Patient Autonomy?

This paper considers advance decision-making in the context of healthcare. The common law recognition of advance decisions is contrasted with new statutory provision. This paper will examine the Mental Capacity Act 2005 framework for advance decisions and lasting powers of attorney. The ‚best interests’ test and substituted judgment as criteria for proxy decision-making are compared by application to a case example. The paper examines the statutory safeguards in respect of refusals of ‚life-sustaining treatment’ and postulates that these safeguards may render respect for autonomous advance decision-making difficult to achieve in practice.     

Autonomy, guardianship and mental disorder: one problem, two solutions

The law in England and Wales governing both the provision of medical care in the case of adults with incapacity and the provision of care and treatment for mental disorder presents serious problems for the principle of patient autonomy. The adult with incapacity has no competence either to consent to or refuse medical treatment but the law provides no statutory structure for substitute decision making on that adult's behalf. On the other hand the law does allow a person with mental disorder to be treated for that disorder despite his or her competent refusal. The nature of these inconsistencies is considered and the implications which flow from the singling out of mental disorder are examined with reference to experience in two Australian jurisdictions. The current proposals for reform of the Mental Health Act are then considered in the light of the conclusions drawn.     

On Some Connections Between Legal Communication and Violence

The first version of this article was written and published in 1989 in Tartu in Russian.¹ As perestroika gathered strength the possibility emerged to take a fresh academic look on concepts which had been dogmatically frozen by “historical Marxism” for many years. One of those laying in the dead end was the Marxist concept of law together with its relation to violence. For a young scholar studying at Tartu University 15 years ago, there was always a possibility to try to apply some ideas and approaches drawn from Yuri Lotman’s articles and lectures. The power of his ideas and its brilliant presentation had already for years fascinated everybody dealing with problems of society and culture in Tartu. The other sources of the present analysis are the ideas about the nature of law and legal communication as they appeared in the 1920s–30s in the works of several Soviet scholars as Eugene Pashukanis and Mikhail Reisner. Both scientists were later condemned and forgotten in the Soviet Union. I also felt very comfortable with the understanding of the nature of law as “language of interaction” expressed and developed by the American lawyer and scholar Lon L. Fuller. The present article focuses only on the logic of communication based on the principle of exchange, reciprocity/contract and mechanism (code) of symbolic equalizations necessary, for achieving such reciprocity. But it is appropriate to point out that in a broader context, contract and reciprocity in society are balanced by different types of principles of human interaction. In this broader understanding, L. Fuller and Y. Lotman are close in their interpretations of cultural interaction and human communication. If we compare Fuller’s article “Two Principles of Human Association”² to Lotman’s “‘Contract’ and ‘Devotion’ as Archetypical Models of Culture”³ we see their approaches are in fact complementary.¹ Kannike, S.H., “O nekotorykh svjazjakh pravovogo obshchenija s nasilijem. Istorija I sovremennost’”, in Tartu Ülikooli Toimetised 850. Studia luridica. Historia et theoria3 (Tartu: Tartu Ülikool, 1989), 76–93² Fuller, L., “Two Principles of Human Association”, in L. Fuller, (ed), The Principles of Human Order(Durham: N.C. Duke University Press, 1981), 67–85³ Lotman, Y.M., ““Dogovor” i “vruchenie sebja” kak arhitipicheskie modeli kul’tury”, in Uchenye zapiski Tartuskogo gosudarstvennogo universiteta 513. Trudy po russkoi I slavjanskoi filologii 332. Literaturovedenije: problemy literaturnoi tipologii I istoricheskoi preemstvennosti(Tartu, 1981), 3–16     

Going for the throat: Carnivore in an Echelon World — Part I

Carnivore is a surveillance technology, a software program housed in a computer unit, which is installed by properly authorized FBI agents on a particular Internet Service Provider’s (ISP) network. The Carnivore software system is used together with a tap on the ISP’s network to “intercept, filter, seize and decipher digital communications on the Internet”. The system is described as a “specialized network analyzer” that works by “sniffing” a network and copying and storing a warranted subset of its traffic. In the FBI’s own words “Carnivore chews on all data on the network, but it only actually eats the information authorized by a court order”. This article, in two parts, will provide an overview of the FBI’s Carnivore electronic surveillance system. The Carnivore software’s evolution, its ‘prey’ and the system’s relationship with Internet Service Providers will be the focus of the study. (Although the FBI’s Carnivore surveillance system is now officially called DCS1000, as the surveillance system is more commonly referred to as “Carnivore”, that term will be used throughout). Also addressed in the article are misconceptions about Carnivore, publicly available sniffer programs, Carnivore’s functionality, methods to counter Carnivore as well as the software’s limitations. In addition, the pertinent American law allowing for wiretapping and electronic surveillance as well as programs and policies outside the United States regarding electronic surveillance are surveyed, and an overview of ECHELON, the global interception and relay system, is provided. The aim is to provide the paper’s readers with a better understanding of these surveillance systems: naturally, only through an in-depth knowledge can the benefits and dangers they present for the public (government), private (individual communications users) and technical industry (ISPs) be understood.     

Books,Bureaus, and the Historiography of Cameralism

This paper traces a deep rift in the historiography of cameralism, demonstrating how historians have systematically separated cameralist writings from the context of the Holy Roman Empire’s fiscal chambers. Scholarship on the subject has been largely defined by an artificial separation between “cameralists of the book” and “cameralists of the bureau.” I argue that it is time to interrogate this distinction, which is itself a legacy of the nineteenth century.     

When is personal data not “personal data” – The impact of Durant v. FSA

The Data Protection Act 1998 (the “Act”), which implements the EU Data Protection Directive (95/46/EC), applies to personal data and governs the activities of data controllers and data processors in relation to such data. In Michael John Durant v. Financial Services Authority (2003), the scope of the Act was restricted. In particular, key provisions, including “personal data” and “relevant filing system”, became the subject of narrow judicial interpretation when the Court of Appeal sought to limit the “unjustifiable burden and expense” imposed on data controllers in complying with the Act. Although questioned by commentators and subject to investigation by the European Commission, the significant shift in approach initiated by Durant has been endorsed in two subsequent cases: (1) David Paul Johnson v. The Medical Defence Union (2004) and (2) Terence William Smith v. Lloyds TSB Bank Plc (2005). This article considers the main principles of the Act, how the Information Commissioner, the courts and the European Commission have responded to Durant and what happens next.     

Recent developments in the patentability of software in the UK

Over the past few months there has been renewed debate at the UK Intellectual Property Office (“UK IPO”) and in the UK courts over whether computer programs can be considered patentable inventions. In particular, concern persists that the UK authorities and the European Patent Office (“EPO”) are applying different tests for the patentability of computer software, even though they are applying the same legislation. This article reviews the positions taken by the UK and the EPO tribunals, and how these impact upon businesses wishing to patent inventions encompassed in software.     

Transfers from prison to hospital under Sections 47 and 48 of the Mental Health Act between 2011 and 2014

In England and Wales, prisoners with mental disorder of such severity as to warrant inpatient treatment may be transferred to hospital under the Mental Health Act. UK Government guidance recommends that this process should be completed within 14 days; however, evidence suggests that in many cases it can take much longer. This retrospective service evaluation of 64 male prisoners, who were transferred under Section 47 or Section 48, aimed to evaluate transfer durations. The mean time from referral to admission was 76 days. Prisoners with a psychotic disorder were admitted more quickly. Remand prisoners were admitted more quickly than sentenced prisoners. Findings suggest that, in the UK the transfer time of prisoners under Sections 47 and 48 of the Mental Health Act continues to far exceed the 14-day target which raises concern about equivalence of care for prisoners. Our findings support arguments for fundamental amendments to the admissions process.     

The JK Rowling photo case – Are privacy rights evolving for the online era?

The Court of Appeal's recent decision in the case brought on behalf of JK Rowling's young son has some important implications for the developing law of privacy in the UK (David Murray (by his litigation friends Neil Murray and Joanne Murray) v Big Pictures Limited [2008] EWCA Civ 446). Most strikingly, the court's approach shows that the scope of potentially private information is broader than previously thought.The claim brought was for breach of confidence, misuse of private information and under the Data Protection Act 1998 (“the DPA”) and resulted from a photograph of JK Rowling's son, taken covertly in a public place, being published in a newspaper.The decision is significant for photographers and newspaper publishers, in particular, because it suggests that more types of information, especially photographs, may be capable of protection as “private”. It does not follow, however, that this development will prejudice freedom of expression: the balance between privacy and press freedom still needs to be struck, with neither taking precedence over the other.     

Practical guidelines on incorporating “partnering” within IT agreements for public sector bodies

“Partnership” and “partnering” are two of the most frequently used terms in public sector procurement. They may be used by both customers and suppliers to justify their respective negotiating positions. A supplier may argue that, since the agreement is a “partnership agreement”, there should be no service credits or liquidated damages payable. The customer on the other hand, may argue, on similar grounds, that it wants to benchmark the supplier and have a broad right to audit every aspect of the supplier’s business.But despite being well used phrases, most guidance relating to these concepts does not define how “partnerships” or “partnering” is to work in practice. While most talk of the supplier and the customer working together “in partnership” with common aims, there is little information available as to how this will be incorporated into agreements, particularly in the context of large scale IT procurements.¹ The purpose of this article is to review the available guidance and detail some of the ways in which this guidance can be incorporated into legal agreements.     

Attitudes among stakeholders towards compulsory mental health care in Norway

Objectives

The Norwegian Mental Health Care Act allows use of coercion under certain conditions. Even though the current practice has been criticized, little empirical data exist about the attitudes towards compulsory mental health care.

Method

This study used Q-methodology to identify prototypical attitudes and to test possible differences of attitudes between groups of stakeholders towards the use of coercion in mental health care. Sixty-two respondents who represented six groups with different roles in mental health care participated: former patients, relatives of psychiatric patients, members of supervisory commissions, psychiatrists, other physicians, and lawyers.The participants were asked to assess the degree to which they agreed on 30 statements concerning use of coercion for the mentally ill.

Results

Three factors that in a meaningful way express different attitudes towards the question were found. The most widely shared attitude stated that a trusting relationship between patient and therapist is more important than the right to have an attorney. This attitude gives partial support to the present Mental Health Care Act. However, the second most common attitude argues that involuntary hospitalization, if necessary, should be decided in a court and not by the hospital doctor.

Conclusions

Differences in attitude could partly be explained by the respondents' role in mental health care. Both psychiatrists and “somatic” physicians expressed more agreement with the present legislation than the other stakeholders. The findings may have implications for the legal protection of mental health care patients.     

A Brief Introduction to Veit Ludwig von Seckendorff (1626–1692)

Veit Ludwig von Seckendorff is widely regarded as the ‘founder’ of early economics in Germany, of Cameralism. Having survived the horrors of the Thirty Years’ War and the resulting economic, political, and moral breakdown of society, Seckendorff conceived of a holistic science of public administration fit to reconstruct the more than 300 independent German principalities recognized by the Peace of Westphalia. The science he envisioned was both theoretical and practical, covering all the needs of a small principality. The same union of active and contemplative characterizes Seckendorff’s own life, as he devoted himself both to administrating the Court of Gotha and the University of Halle, both to write an “owner’s handbook” to small principalities and one of the most celebrated defenses of Lutheranism. This introduction will explore how these many facets came together in the figure of Seckendorff, what his main influences were, and how the historical context helped shape his writings.     

Treating the vulnerable in England and Wales: the impact of law reform and changing policy

This article considers the role of treatment in the provision of mental health care in England and Wales. The current legislative position with regard to the making of treatment choices following compulsory commitment will be examined. Consideration will also be given to the position of the informal hospitalised patient, as in the case of R v. Bournewood Community and Mental Health NHS Trust, ex parte L and finally, the role of the common law in establishing (in)capacity in relation to the non-consensual provision of treatment for physical conditions. Attention will then be given to the reform process, which is currently ongoing in England and Wales, and its likely impact on treatment provision. The Mental Capacity Act 2005 received Royal Assent on the 7th April 2005, while the draft Mental Health Bill 2004 underwent detailed examination by the Joint Scrutiny Committee, a report of which was published on the 23rd March 2005. On the 13th July 2005 the British Government outlined its response following the publication of the Scrutiny Committee's recommendations and despite it accepting many of the recommendations put forward, some significant areas of concern remain making the draft Mental Health Bill 2004 "a long way from acceptable legislation".     

Introduction 15th annual conference of the european association of law and economics, utrecht, the netherlands, september 1998

This issue of the International Review of Law and Economics contains a selection of papers presented at the 15^th Annual Conference of the European Association of Law and Economics (EALE). It was the first time that the annual conference of the EALE was held in the Netherlands. It took place at Utrecht, in September 1998.Approximately 40 papers were presented at the conference. Many of these papers were submitted to this issue of the International Review of Law and Economics, and we were obliged to face the difficult task of selection. In this task we were helped by anonymous referees, who deserve much credit for their delicate task. The issue opens with the text of the invited lecture by Chief Judge Richard Posner on “Employment Discrimination: Age Discrimination and Sexual Harassment.” After this lecture, seven refereed papers are published. They cover a wide range of topics and include theoretical and empirical approaches.The first two articles are empirical studies. In their article “The Dynamics of Pretrial Negotiation in France: Is there a Deadline Effect in the French Legal System?,” Bruno Deffains and Myriam Doriat provide empirical evidence on pretrial negotiation in France with the primary goal being to determine whether there is a deadline effect. Theoretical and experimental studies generally show that in pretrial litigation most claims are settled just before the negotiation deadline, i.e., at the door of the court. Using data on civil law conflicts in France, the authors demonstrate that although the out-of-court settlement rate is relatively low, a deadline effect exists in the French legal system. The article complements the theoretical and experimental literature in the field of pretrial negotiation and provides additional insights into the functioning of the legal system.The article “Modeling Crime and the Law Enforcement System” by Frank van Tulder and Abraham van der Torre presents a macroeconomic model of the Dutch criminal justice system. The empirical estimations show that demographic, social, and economic factors and the results of the law enforcement system influence the number of crimes. It is found that a rise in the clear-up rate reduces the crime rate, whereas the average term of imprisonment has a negative impact on violence. A growth in the number of young men, divorced persons, unemployed, drug addicts, and motor vehicles—each per capita—and a rise in income inequalities have a boosting effect on one or more types of crime.The third article by Michael Faure and Paul Fenn is concerned with the costs and benefits of making liability for accidents retroactive, given the availability of liability insurance. The authors distinguish between the injurer’s perceived risk that the standard of care applied by the courts will differ from his chosen level of care, where this perceived risk is based on precedent or current practice, and the genuine uncertainty that the standard of care may change in the future as a result of unknown developments in the technology of care. While the injurer’s probability distribution over liability may be the same in each of these cases, he may be far less confident about the reliability of the probability distribution as a guide to choice in the latter case. In principle, the risk of liability arising from an unknown standard of care could be transferred to a liability insurer through the purchase of occurrence coverage. However, in addition to the usual source of difficulty for insurance markets as a result of information asymmetry, insurers also may have distaste for ambiguity. The authors show that this could in some circumstances lead to market failure in the provision of occurrence policies. These welfare losses from inefficient risk sharing as a consequence of retroactivity must, therefore, be set against the potential welfare gains from improved incentives for injurers to seek out information on care technology, as well as the concerns over distributive justice.In their article “Unitary States and Peripheral Regions: A Model of Heterogeneous Spatial Clubs” Jean-Michel Josselin and Alain Marciano develop an analytical framework for understanding the limits of constitutional unity. Their microeconomic model of unitary states deals with two kinds of heterogeneity. First, preference distance or physical distance account for decreasing net benefits from expansion. Second, heterogeneity may involve a discontinuity in the spatial pattern of preferences: “Peripheral behaviors” threaten unity. The authors integrate such behaviors into the model and draw some lessons as to the nature of an optimal constitutional area, discussing in particular the status of peripheral regions.The fifth article by Benito Arrunada, entitled “The Provision of Non-Audit Services by Auditors: Let the Market Evolve and Decide,” searches for and defines efficient regulation of the provision of non-audit services by auditors to their audit clients. From an examination of the particular problems posed by these services, it is concluded that they reduce total costs, increase technical competence, and stimulate more intense competition. Furthermore, they do not necessarily damage auditor independence or the quality of non-audit services. This assessment leads to recommending that legislative policy should aim at facilitating the development and use of the safeguards provided by the free action of market forces. Particular emphasis is placed on the role played by fee income diversification and the enhancement, through disclosure rules, of market incentives to diversify. A rule of mandatory disclosure of client diversification is examined to facilitate the task of the market with regard to achieving the optimal degree of auditor independence.In the next article, Antony Dnes applies the economic analysis of law to examine recent proposals in England and Wales for the reform of the law affecting financial settlement following divorce. Two specific measures have been proposed to reduce judicial discretion: a mathematical formula (such as a rebuttable presumption to divide equally the whole pool of assets during divorce) to be applied in the absence of agreement between the parties, or the enforcement of prenuptial agreements. The author concludes that these measures should be welfare improving but would need to be forward looking and applied to marriages, rather than divorces.The last article by Niva Elkin-Koren and Eli Salzberger provides a look at the changing world of law with the emergence of cyberspace from the perspective of the economic approach to law. The authors argue that the Chicago paradigm cannot be of much help to analyze law in and of cyberspace. While cyberspace reduces the traditional causes of monopolies, it introduces new types of monopolies that are the consequence of control over technologies rather than of price and demand curves. Second, the strict correlation between markets and states does not exist in cyberspace. The authors equally point at the weaknesses of transaction cost analysis. The Coaseian analysis assumes a given state of technology and overlooks the correlation and reciprocity between technological developments and legal rules. The authors consider neoinstitutional law and economics as the most suitable framework for examining the changing world of cyberspace, but they suggest some refinements. Cyberspace invites a reassessment of the borders between markets and hierarchies and poses special challenges to the paradigmatic assumption of rational behavior.     

Voting rules in insolvency law: a simple-game theoretic approach

A chief characteristic of modern insolvency law in Canada, Germany, the UK, and the US is the provision for ‘workouts’ or ‘schemes of arrangement’ by which insolvent companies can attempt to rehabilitate the business. If reorganization is chosen, the debtor has to devise a plan of action which will be voted upon by claimants. The voting rules, however, differ in each jurisdiction to a greater or lesser extent and as yet have not been analyzed in any rigorous manner. This paper provides an approach based upon the theory of simple games to analyze the rules in terms of the ease which each of these regimes can pass (or hinder) plans and how these rules distribute value among claimants. We pay particular attention to the role of classification and the effect of coalition formation.     

Public markets, private orderings and corporate governance

In the New Property Rights approach the degree of incompleteness of markets is taken independently of the cost of the public ordering and of their efficiency relatively to private orderings. In this approach “public markets,” similarly to a Swiss cheese, are either assumed to be nonexistent empty holes (because of infinite third party verification costs) or assumed to be smooth and efficient (because of zero third party verification costs). When we allow for positive but not infinite third party verification costs we are necessarily pushed back to the insights of Commons, Coase, Fuller and Williamson. The degree of (in)completeness of public markets becomes an endogenous economic problem and managers can be seen as agents that make “second order” specific investments to run specific relations that cannot be efficiently handled by public markets. Managers and the public authorities build respectively private and public “legal equilibria” that set the working rules within which transactions can take place. Private and public legal equilibria are not only substitutes but also complements. This complementarity is an important source of the path dependency that characterizes the development of different legal systems. The framework is applied to GM’s acquisition of Fisher Body. We suggest that, contrary to the claims of the New property Rights approach, the advantages of the acquisition were not due to the superior incentives of the new private owners but should be rather related to the replacement of public markets by the new private ordering set up by Alfred Sloan.     

Severe mental disorder as a basic commitment criterion for minors

Since 1991, commitment to involuntary psychiatric care has been allowed in Finland for minors in broader terms than for adults. While in adults mental illness has to be diagnosable before involuntary treatment can be imposed, minors can be committed to and detained in involuntary psychiatric treatment if they suffer from "severe mental disorders", and fulfil the further commitment criteria defined in the Mental Health Act. The first years of the new mental health legislation showed an increase in involuntary treatment of minors in Finland. Concerns were raised about the imprecise nature of the commitment criterion "severe mental illness". This study set out to find out whether Finnish child and adolescent psychiatrists are in agreement on how to define severe mental illness and whether their interpretations are sufficiently similar to ensure the equality of minors in commitment to psychiatric care as prescribed by the Mental Health Act. Semi-structured, reflexive dyadic interviews were carried out with 44 psychiatrists working with children and adolescents. The data was analysed using qualitative content analysis. There was general agreement about what constitutes a "severe mental disorder" justifying the involuntary psychiatric treatment of minors. The child and adolescent psychiatrists were of the opinion that involuntary treatment of minors should not be tied to specific diagnostic categories. Which disorders are severe enough to justify commitment should rather be considered through developmental and functional impairment and interactions between a minor and her/his environment.     

Public perceptions of crime seriousness in Israel:: native-born versus new immigrants

The broad consensus generally found with regard to public perceptions of crime seriousness has been shown to reflect “consistency” in relative rankings rather than “absolute agreement” in ratings among sample groups. The present study compared the crime seriousness perceptions of native-born Israelis with those of two groups of new immigrants (one from the former Soviet Union and the other from Ethiopia). Questionnaires including 30 different criminal offenses for evaluation were distributed by means of face-to-face interviews to a representative sample of the Israeli adult population. As expected, the three groups provided very similar rankings of offenses but much less absolute agreement (ratings). It is suggested that the significant gaps in the perceptions of the groups stem from “culture conflict” (Culture Conflict and Crime, Social Science Research Council, New York, 1938), that is, differences in the social and cultural norms of the immigrants’ countries of origin and those prevailing in the absorbing society.     

Health and social care services for women offenders: current provision and a future model of care

Secure provision for women in both the Criminal Justice System and the Health Service has evolved in the last decade, in line with emerging gender-specific policy. Notable gains have been the approach to self-harm in prison and a reduction in the inappropriately high levels of secure hospital care. Although treatment pilots in UK settings are in progress, much practice remains poorly described and insufficiently evaluated. Recent strategic initiatives by both the Ministry of Justice and the Department of Health, as well as the commissioning changes that have followed the Health and Social Care Act 2012, provide a basis for reconsideration and a further paradigm shift. Suggestions for a reinvigorated model of gender-sensitive provision are made, relying on principles of resilience and autonomy.