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.     

Homeowners Associations as Private Governments: What We Know,What We Don’t Know,and Why It Matters

Homeowners associations (HOAs) are private governments that are reshaping urban governance and service delivery in large parts of the United States. Despite the fact that millions of Americans are HOA members, the field of public affairs has paid scant attention to these new governance entities. The essays in this symposium call attention to HOAs’ potential effects on urban services and civic life in the hope of sparking interest among scholars and public managers to include HOAs in our understanding, research, and teaching of contemporary urban governance.     

Paths to destruction: the lives and crimes of two serial killers

Although research into the phenomenon of serial murder has revealed that serial killers frequently do not fit the initially described paradigm in terms of their physical and psychological profiles, backgrounds, and motives to kill, the media continues to sensationalize the figures of such killers and the investigators who attempt to analyze them on the basis of aspects of their crimes. Although the so-called "typical" profile of the serial murderer has proven accurate in some instances, in many other cases the demographics and behaviors of these killers have deviated widely from the generalized assumptions. This report details two unusual cases in which five and eight murders were committed in upstate New York. The lives and crimes of these offenders illustrate the wide spectrum of variations in the backgrounds, demographics, motivations, and actions witnessed among serial murderers, and highlight the limitations and dangers of profiling based on generalities.     

When (Some) Prostitution is Legal: The Impact of Law Reform on Sex Work in Australia

In Australia, prostitution regulation has taken a very different path from many other countries. Law reform has led to the opening of some significant new spaces for legal sex work, including the (very different) regulatory regimes established in two Australian states – Queensland (brothels legal if their owners are licensed) and New South Wales (most commercial sex businesses and some street prostitution decriminalized; no licensing regime). The main research question is: how has regulation impacted on the positive rights of sex workers? I argue that law reform has engaged a mix of neo-liberal and other approaches – not to increase personal or corporate freedom but as part of a practical strategy designed to control a range of social problems, such as police corruption and organized crime. Neo-liberal regulation of prostitution in Australia has always been deployed in tandem with other modes of regulation – including new criminal law and policing strategies, planning law, health regulations, and (of course) moral regulation.     

The use of the M-Vac® wet-vacuum system as a method for DNA recovery

Collecting sufficient template DNA from a crime scene sample is often challenging, especially with low quantity samples such as touch DNA (tDNA). Traditional DNA collection methods such as double swabbing have limitations, in particular when used on certain substrates which can be found at crime scenes, thus a better collection method is advantageous. Here, the effectiveness of the M-Vac® Wet-Vacuum System is evaluated as a method for DNA recovery on tiles and bricks. It was found that the M-Vac® recovered 75% more DNA than double swabbing on bricks. However, double swabbing collected significantly more DNA than the M-Vac® on tiles. Additionally, it was found that cell-free DNA is lost in the filtration step of M-Vac® collection. In terms of peak height and number of true alleles detected, no significant difference was found between the DNA profiles obtained through M-Vac® collection versus double swabbing of tDNA depositions from 12 volunteers on bricks. The results demonstrate that the M-Vac® has potential for DNA collection from porous surfaces such as bricks, but that alterations to the filter apparatus would be beneficial to increase the amount of genetic material collected for subsequent DNA profiling. These results are anticipated to be a starting point to validate the M-Vac® as a DNA collection device, providing an alternative method when DNA is present on a difficult substrate, or if traditional DNA collection methods have failed.     

Trends in Mortality of the Soviet Population

Two prominent American demographers present an up-to-date study of trends and countertrends in mortality of the Soviet population; discussed are variations (by republic and over time) in life expectancy, infant mortality, and mortality in the working ages. Analyzing trends since 1959, the authors highlight problems relating to the quality and interpretation of pertinent statistical data of Soviet origin. Distinguishing real trends from pseudotrends, they evaluate mortality differences among regions and illustrate a more favorable long-term trend in mortality than suggested by official figures (nonetheless, because of error in official statistics, actual rates are generally higher). Journal of Economic Literature, Classification Numbers: 052, 123, 841.     

From ethnocide to ethnoviolence: Layers of native American victimization

The contemporary phenomenon of ethnoviolence - otherwise known as hate crime - has its roots deeply embedded in the historical persecution of Native Americans by representatives of 'the state and private individuals alike. Genocidal policies and practices of the past have their present counterparts in anti-activist and anti-treaty violence, as well as in isolated acts of violence against individual Native Americans. This paper traces the threads that bind together the (d)evolution from ethnocide to ethnoviolence.     

Partner similarity for self-reported antisocial behaviour among married,cohabiting and dating couples: the Generation R Study

Abstract

From a criminological perspective, romantic relationships are supposed to decrease the risk of antisocial behaviour (Laub, Nagin, & Sampson, American Sociological Review, 63, 225–238, 1998). However, the effects of these relationships probably depend on the romantic partner's behaviour. In the current study we examined partner similarity for antisocial behaviour in an ethnically heterogeneous community sample of 4135 married, cohabiting and dating couples from Rotterdam, the Netherlands, using self-reports. Spousal correlations were consistently positive for antisocial behaviour but differed in strength according to the type of antisocial behaviour. Associations between spouses remained strong after adjusting for age and educational level depending on the type of antisocial behaviour. In addition, antisocial behaviour was positively associated between partners across marital status and ethnicity, but the strength of this association varied to some extent. Results are discussed in light of the phenotypic assortment, the socialization and the social homogamy hypotheses.