Mortgages, seniors and the common law contractual doctrine of mental incapacity in Australia

Seniors in Australia are being called upon to mortgage their most precious economic asset, the family home. They may be asked to guarantee the liabilities of other family members by providing a mortgage-based guarantee or they may decide to enter into a reverse mortgage to supplement financially their savings and pensions. As the family home is the single most valuable asset for most older Australians, the creation of any obligations in regard to it ought to be undertaken with care and vigilance. While seniors are free to create mortgages, they may lack the capacity to understand the legal ramifications of these complex transactions or be unable to protect their interests when entering into them. It is not suggested that older Australians necessarily suffer a lack of contractual capacity. Many seniors are more than able to take care of their interests and assets. However, some seniors do suffer cognitive impairment which adversely affects their capacity to act in their best interests and to navigate the complexities of contractual relations. In contract and mortgage law, this raises the issue of mental incapacity.For centuries, the common law has recognized not only that mentally incapacitated people exist, but that they may enter into contracts such as mortgages and may later wish to have the mortgage set aside. The present formulation of the contractual doctrine of mental incapacity is the product of 19th century jurisprudence in which the courts framed the doctrine to accommodate commercial dealing rather than the interests of persons who lacked the necessary mental capacity. Accordingly, the doctrine has been very difficult to rely on successfully when challenging mortgages made by persons lacking capacity. Therefore, Australian litigators and courts alike have sought to deal with mental incapacity issues in the contractual context by using and modifying other doctrines (such as non est factum, undue influence and unconscionable dealing) in which the issue of capacity may be incorporated, but where mental incapacity need not be the sole or primary focus. While this had led to greater success for mortgagors, this has been at the expense of the common law doctrine. The article concludes by offering some suggestions as to how the doctrine may be modernized and mental capacity dealt with in a way both to empower competent seniors and protect those vulnerable seniors suffering cognitive impairment.     

Lawfulness of a randomised trial of the new community treatment order regime for England and Wales

This article debates and defends the lawfulness of a randomised controlled trial of compulsory outpatient treatment under the mental health legislation for England and Wales. The trial is designed to compare the outcomes for patients of their treatment under the new Community Treatment Order (CTO) regime with their treatment under the older leave scheme - the two main forms of compulsory care in the community now authorised by the revised Mental Health Act 1983. The methods for the trial involve the random allocation of some patients between the two schemes, when they are considered by their Responsible Clinicians to be eligible for some form of compulsory outpatient care. The main question we consider is the lawfulness of that aspect of the methods. Can a carefully selected group of patients be allocated at random between the two regimes to permit an evaluation to proceed? Or would that involve some departure from the decision-making criteria specified by law? We argue that a group of patients can be identified who meet - simultaneously - the tests for treatment under both the CTO and the leave schemes. Those patients could then be allocated lawfully to treatment under either scheme. This opens the door, we argue, to their random allocation between the two schemes for the purposes of the research. In reaching this conclusion, we explain the methods and aims of the trial and closely compare the respective features of the leave and CTO regimes.     

Administrative reform in china: Issues and prospects

China's experience of organizational reform is representative of the country's attempts to implement more general administrative reform. Forty years of organizational reform have produced only short-term successes. In the 1988 reforms, however, leaders proposed for the first time to re-define the role of the state in society. In general, the reforms have been undermined by political, economic, and institutional problems. These include conflicting elite priorities, cycles of economic centralization and decentralization, the interdependence of government agencies and economic enterprises, and the lack of incentives to economize. Consequently, the organizational reform management institutions are very weak. Successful implementation of organizational reform in the future depends to a large extent on further economic development.     

Inter- and intra-subject variability in ethanol pharmacokinetic parameters: effects of testing interval and dose

Calculation of a blood alcohol concentration (BAC) at the time of an offence by forward or back-extrapolation, using population average values for ethanol pharmacokinetic parameters or a single estimate of individual specific parameters, ignores the possibility of inter- and intra-subject variability. In order to estimate inter- and intra-subject variability in the elimination rate and absorption rate, BAC was measured over time in 12 male volunteers on 4 occasions. Subjects received 0.44 g kg(-1) body weight of ethanol on the first study day, and 0.70 g kg(-1) body weight on subsequent study days 1, 11 and 12 weeks later, to enable comparisons in variability over short and long time periods and when the same or different doses were administered. Evidence of both inter- and intra-subject variability was found, with inter-subject variability substantially smaller than intra-subject variability when the dose varied. Forensically important differences in pharmacokinetic parameters were observed within individuals between occasions. These findings could have an important impact on medico-legal issues related to ethanol pharmacokinetics.     

Medicare coverage, Medicare costs, and medical technology

One possible approach to containing Medicare costs involves explicit changes in Medicare's coverage policy with respect to medical technology. This paper first describes the development and diffusion of medical technology in general and then describes how technologies are identified, assessed, and approved for payment by Medicare. Currently, cost is neither a criterion nor an explicit issue in coverage decisions, although coverage policy is an integral part of payment policy. A combination of policies to reduce the rates of adoption and use of certain technologies is needed--including cost considerations in technology assessments for coverage decisions, limiting diffusion of technology to certain providers and sites, limiting utilization to certain indications, and tightening administrative processes. Finally, the interaction between coverage policy and DRG payment needs to be explored more thoroughly.     

Institutions and social movements: the case of comparable worth

Employing evidence from the history of the comparable worth movement, I argue that (1) the State-citizen shaping process is one in which States shape citizens and movements and citizens and movements shape States; (2) States are not always successful in shaping movements because movemnts require a certain level of both stakes and consciousness on the part of potential members; (3) States are more effective at influencing whether a movement will win than they are at actually producing social movements; and (4) the costs and benefits associated with the various institutional channels impact heavily upon a movement, particularly upon its organization and its alliances. These theoretical propositions provide clues as to why the comparable worth movement has been able to persist at the state and local level despite Federal opposition.