How to control interception-does the UK strike the right balance?

This Article critically analyses the regime for intercepting the content of communications under the Regulation of Investigatory Powers Act 2000 in the light of the recent ruling by the European Court of Human Rights in Kennedy v the UK. It looks at the safeguards for privacy protection provided such as the requirement for a warrant and the roles of the Investigatory Powers Tribunal and the Interception of Communications Commissioner and whether these safeguards are compliant with Article 8 of the European Convention of Human Rights.     

The Health and Social Care Act 2008 (Regulated Activities) Regulations 2014: A Litany of Fundamental Flaws?

This article argues that the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 are fatally flawed notwithstanding the apparent rigour of the process which produced them. These Regulations were the product of considerable deliberation following a sensitively executed public inquiry yet, it is argued, they rely too heavily on the rhetoric of criminal law while failing to take into account the competing norms for compliance and the impact of NHS budget constraints. Further, they push the CQC towards a heavy‐handed deterrence approach to enforcement, which will increase hostility between regulatees and the inspectorate, and ultimately reduce the scope for developing the transparency about failures which is sorely needed in the NHS. This article challenges the contemporary wisdom that it is primarily knee‐jerk regulatory responses that suffer from fatal flaws of this nature.     

The nearest relative in the Mental Health Act 2007: still an illusionary and inconsistent safeguard?

Abstract

The role of nearest relative (NR) is intended as a safeguard in the Mental Health Act 1983 (as amended in 2007) to curb the excesses of professional discretion and protect patients from unwarranted compulsory hospitalisation. It is unique to the mental health compulsory detention process in England and Wales. There are, however, evident tensions in the role and a lack of clarity surrounding the precise functions of the NR. There is also some uncertainty and confusion among practitioners about the scope of the NR involvement, and government plans announced recently to review mental health legislation will include a focus on the role of family and carers in the care of detained patients. Despite long-standing concerns about the role, there is remarkably little published research available to date on its use and effectiveness, in so far as evaluating the extent to which it provides an adequate safeguard for patients, as intended by the legislation. This article will briefly explore the background to the role, highlight some of the difficulties and tensions within it and conclude with some observations about where further research and reform may be needed to provide greater protection and clarity for patients, relatives and health and social care practitioners.     

Social Citizenship,Housing Wealth and the Cost of Social Care: Is the Care Act 2014 ‘Fair'?

This article assesses the extent to which it is ‘fair’ for the government to require owner‐occupiers to draw on the equity accumulated in their home to fund their social care costs. The question is stimulated by the report of the Commission on Funding of Care and Support, Fairer Care Funding (the Dilnot Commission) and the subsequent Care Act 2014. The enquiry is located within the framework of social citizenship and the new social contract. It argues that the individualistic, contractarian approach, exemplified by the Dilnot Commission and reflected in the Act, raises questions when considered from the perspective of intergenerational fairness. We argue that our concerns with the Act could be addressed by inculcating an expectation of drawing on housing wealth to fund older age: a policy of asset‐based welfare.     

The Housing and Planning Act 2016: Rewarding the Aspiration of Homeownership?

In May 2016 the Housing and Planning Act 2016 became law, the first purely Conservative government intervention on housing in England since the 1990s. This article examines the Act's key provisions pertaining to social housing and the government's stated aim of increasing rates of homeownership. The Act, through the Starter Homes Scheme, extension of the right to buy to housing association tenants and changes to security of tenure in the social sector, has been heralded as a ‘landmark’ piece of legislation. This article scrutinises these policy measures and assesses their effectiveness and likely impact. It is contended that the Act exposes the government's promotion of homeownership above all other housing tenures. The article further explores the deep moralisation at the heart of the homeownership narrative and the intensification in the residualisation of social housing in England which, it is argued, is the inevitable consequence of the reforms.     

Justice in Health Care Decision-Making: Patients’ Appraisals of Health Care Providers and Health Plan Representatives

This study describes the development of two versions of a Health Care Justice Inventory (HCJI). One version focuses on patients interactions with their providers (HCJI-P) and the other focuses on patients interactions with the representatives of their health plans (HCJI-HP). Each version of the HCJI assesses patients appraisals of their interactions (with either their Provider or representatives of their Health Plan) along three common dimensions of procedural justice: Trust, Impartiality, and Participation. Both the Provider and Health Plan scales assess indices that are relatively independent of patients demographic characteristics. In addition, patients appraisals of their interactions with their provider were only moderately related to their appraisals of their interactions with representatives of their health plan, indicating that the Provider and Health Plan scales tap distinct aspects of patients overall experience with the health care system. Overall, procedural justice dimensions were significantly related to patient satisfaction in both the Provider and the Health Plan contexts. As predicted, procedural justice factors were more strongly tied to patient satisfaction in the Provider than in the Health Plan context, and health care decisions based on distributive justice principles of Need (rather than Equity or Equality) were most closely tied to patient satisfaction in both contexts.     

Buying Amendments? Lobbyists' Campaign Contributions and Microlegislation in the Creation of the Affordable Care Act

When do campaign contributions matter? This article advances the claim that a group that gives campaign contributions to US Members of Congress is more likely to achieve legislative success when (1) a single legislator can deliver to the group (2) a private benefit (3) without attracting negative attention. Using an original data set based on the written comments of nearly 900 interest groups lobbying the US Senate Finance Committee on health reform legislation in 2009, I link group requests to corresponding legislation. The analysis shows a significant relationship between lobby groups' campaign contributions and their legislative success, and at distinct units of analysis—the group, the side, and the group-senator dyad. The relationship is particularly strong in predicting senators’ amendments in committee. The rare data presented here offer compelling evidence that interest groups' legislative victories are sometimes connected to campaign contributions in a way that previous studies could not identify.     

Is the medicine right?

Is asking the Better Regulation Agenda (BRA) to answer the same preconditions it requires for any regulatory action a proper treatment? Does any assessment of the agenda necessarily imply a thorough definition of the costs and the benefits deriving from its application or is it enough to provide a few key insights to perform it? Is the BRA really so ideological, deriving from “a liberal analytical framework that considers no regulation/state intervention” as the preferred option? Is regulatory quality an issue that “cannot realistically be solved”? Does the principle of subsidiarity as a policy objective need some revision? Several questions come to mind when reading a very thought‐provoking article that is very critical of the BRA but that in the end recognises some of its main qualities.     

Claiming the Right to Health in Brazilian Courts: The Exclusion of the Already Excluded?

The aim of this article is to test a widespread belief among Brazilian legal scholars in the area of social rights, namely, the claim that courts are an alternative institutional voice for the poor, who are usually marginalized from the political process. According to this belief, social rights litigation would be a means (supposedly “a better means”) of realizing rights such as the right to health care, since supposedly both the wealthy and the poor have equal access to the courts. To probe the consistency of this belief, we analyzed the socioeconomic profiles of plaintiffs in the city of Sao Paulo (Brazil) who were granted access to specific medications or medical treatments by judicial decisions. In this study, the justiciability of social rights has not proven to be a means of rendering certain public services more democratic and accessible.     

Comparative effectiveness research under the Patient Protection and Affordable Care Act: can new bottles accommodate old wine?

The Patient Protection and Affordable Care Act (PPACA), as amended by the Health Care and Education Reconciliation Act of 2010, initiated comprehensive health reform for the healthcare sector of the United States. PPACA includes strategies to make the American healthcare sector more efficient and effective. PPACA's comparative effectiveness research initiative and the establishment of the Patient-Centered Outcomes Research Institute are major strategies in this regard. PPACA's comparative effectiveness research initiative is one in a long line of federal initiatives to address the rising costs of healthcare as well as to obtain better value for healthcare expenditures. The key question is whether the governance and design features of the institute that will oversee the initiative will enable it to succeed where other federal efforts have faltered. This Article analyzes the federal government's quest to ensure value for money expended in publically funded healthcare programs and the health sector generally. This Article will also analyze what factors contribute to the possible success or failure of the comparative effectiveness research initiative. Success can be defined as the use of the findings of comparative effectiveness to make medical practice less costly, more efficient and effective, and ultimately, to bend the cost curve.     

Explaining Controversial Organizational Decisions: To Legitimize the Means or the Ends?

We investigated the influence of information legitimizing the means—or decision procedures—versus information legitimizing the ends—or the decision outcome—on observers' reactions to an undesirable organizational decision. One hundred and sixty-one employees read an account of a company layoff occurring in a nearby city. The content was experimentally manipulated, such that participants either (i) did or did not receive information legitimizing the layoff procedures, and (ii) did or did not receive information legitimizing the layoff itself. Furthermore, participants received one of two versions of the manipulations, to assess the generalizability of the results across two operationalizations of the primary independent variables. Whereas both information legitimizing the means and information legitimizing the ends were necessary (and neither sufficient) to mitigate observers' judgments of outcome unfairness, procedural information was necessary and sufficient to influence evaluations of the organization. Overall, the data are consistent with the notion that the effectiveness of managerial accounts might be determined not only by information explaining why but also information explaining how decisions are made.