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Thursday April 3, 2014 at 9:05am

If you keep reading your newspapers you will see increasing stories of individuals being abused within the care homes.

For example, it was just reported that  the sickening behaviour of two care assistants in a private care home. Rita Page and Lynette Crook, two carers at Priory Highbank hospital in Greater Manchester, were secretly filmed slapping, jabbing and taunting a brain-damaged man as he lay groaning in his bed. They face jail after they pleaded guilty to charges of ill treatment of the patient, who was being cared for in the £3,000-a-week specialist facility.

This abuse was exposed not through any formal investigation, but because the man’s parents became concerned, and secretly filmed the behaviour.

In fact, the regulator, the Care Quality Commission (CQC) had assessed the home in February this year and found it to be “meeting national standards”.

Or last year it was found by a coroner that 19 elderly patients died amid "institutionalised abuse" at a care home where residents were left thirsty and malnourished and staff falsified medical records.  In five of these cases, the neglect suffered by residents at Orchid View care home in Copthorne, West Sussex, was deemed to have contributed directly to their deaths.

Again the regulator is under scrutiny with the Care Quality Commission having given Orchid View a "good" rating in 2010.

Dealing with regulation, this may be due to a problem with the actual form of regulation.  Unlike Ofsted inspections, whereby teachers are observed doing their job over a period, the assessments get only a very brief snapshot of the actual care delivered. Inspectors will talk to some of the residents, but what about those who cannot communicate and yet are the most vulnerable to abuse?

However, I think the issue is perhaps more fundamental. Elderly people within society have not been treated with respect. And we are living through a process of change as a number of variables come into play and this is changing.

1  An increase in the number of elderly people. More and more of us have elderly relatives and we do not like what we see how they are treated.

2 A view is developing that this is not a way to treat people. I think abuse of elderly has gone on but effectively we have turned a blind eye to it. Now this situation is less tolerated. 

3. An increased ability to find wrongdoing. You are seeing more and more video evidence(as in the Rita Page/Lynette Crook) being used.(very easy to set up). This has its own legal and ethical issues but it is one way to see what is happening.

Whilst the Care Quality Commission is changing its own regime, it still has a way to go. With more law firms entering the market and acting for families of injured elderly residents, the elderly human rights issue is one to watch. 

Wednesday April 2, 2014 at 10:35am

So according to media reports, the celebrity couple, Gwyneth Paltrow and Chris Martin will end their marriage amicably ... in part(mainly, maybe) because they do not want to be entwined in legal documents, the finances or the PR damage. They also may have genuine concerns about the other and for their children. To me on the outside, the attempt at an amicable breakup looks genuine, rather than superficial.

With respect to us mere mortals, in her latest book, Dr Penelope Leach Family Breakdown: Helping Children to Hang on to Both Parents, to be published in June,  advocates two enmity-free households, working together, to make the best of a bad job for children when their parents opt to go their separate ways.

The key, she says, is to separate parenting from partnership; so much easier said than done, as she is the first to acknowledge. "Research tells us parents matter even more and for even longer than everybody knows already," she says. "No child is too young or too old to be affected."

And this is the rub and why divorce may be being done differently now. People are more aware of the impact on children and each other.

There is certainly a shift in attitudes of divorcees now in the conduct of proceedings compared to say 10/15 years ago.

1 Dealing with money. Economically people cannot afford to have an acrimonious divorce which is not a problem which Paltrow/Martin have though they must be aware of the financial impact. People cannot afford an expensive divorce.

2. Divorcees/Those in a Break up with children are much more aware of the negative impact on children of an acrimonious break up and will work harder in dealing with the relationship fall out. This could be because a number of those people breaking up are children of divorcees/people who have broken up. They do not want to hurt their children and they do not think that winning that extra dose of money in Court is necessarily the way forward. 
3. The Internet Underpins Power. Individuals are more confident and knowledgeable in asserting their rights.They have access to information and instinctively want to bypass an often complex, expensive  and aloof legal system. Often, people think they can do a better deal themselves than via the lawyers. If things get complex or nasty, they may still need lawyers, but the base-line position is to try do it themselves.

Thursday March 27, 2014 at 2:46pm
Continuing Healthcare is a significant issue. Please read article which has just been published in My Ageing Parent. 
Sunday March 23, 2014 at 8:34pm
So, the Law Society was accused of giving its stamp of approval to discriminatory practices after it published advice on writing sharia-compliant" wills which deny women an equal share and exclude “illegitimate” children or unbelievers.

The Society has denied promoting Sharia law and insisted that it was simply responding to demand.

The Law Society, which represents us solicitors in England and Wales, has written a guide on Sharia succession rules that will be used in British courts. It will mean that children born outside of marriage and adopted children could also be denied their fair share.

The guide states: 'No distinction is made between children of different marriages, but illegitimate and adopted children are not Sharia heirs.

'The male heirs in most cases receive double the amount inherited by a female heir of the same class. Non-Muslims may not inherit at all, and only Muslim marriages are recognised.

Similarly, a divorced spouse is no longer a Sharia heir, as the entitlement depends on a valid Muslim marriage existing at the date of death."

Before you go completely mad thinking it is the end of civilisation, it is worth reflecting that under English law, anybody can leave whatever property they like to whomever they like.

As someone(correctly) observed on the comments section of the Mail.

"You can be as arbitrary and capricious as you like. If you want to leave women out of your Will, you can. If you want to leave out gay people, fine. If you want to leave your estate to a charity for the promotion of cat welfare, sure. These guidelines don't change what exists already, which is TOTAL FREEDOM TO TESTATE."

And Nicholas Fluck president of the Law Society is correct when he says it was “inaccurate and ill informed” to see it as "promoting" Sharia law by publishing guidance on drafting Sharia wills. 

I agree. If I am asked to draft a Sharia-compliant will, I would like to get it right rather than be exposed to a potential negligence claim. Thanks for the help, Law Society.

P.S There has been some discussion on the law forums on this. One interesting story which I obtained permission to use is this which shows that perhaps the Law Society guidance needs to be improved and that a lawyer ought to think carefully before advising someone on Sharia law.

"I find this fascinating . I was asked to prepare a will on the basis of Sharia law by a husband and wife. Actually the husband because wife wasn’t allowed to attend the interview. I pointed out to the potential client that in fact if I was advising his wife of some 25-30 years (the mother of his six children) I would advise her that he was making inadequate provision in his will and she should challenge it! He was not impressed.

This left me in a conflict situation with the couple. She would telephone me and give me instructions and he would come into the office. It was an impossible position to be in. luckily they withdrew their instructions – she wasn’t too happy either as he had recently taken a second wife without telling her. Apparently a husband is supposed to consult his first wife, he didn’t she found out when it was revealed to her the Home Office wouldn’t let second wife enter the country. What a mess!

I am a great believer in free will and the right to choose, however, the powers that be need to look again at the mess that is being created. I believe if anyone drafts a will on the basis of Sharia Law then they ought to make sure they make huge attendance notes see clients separate etc.

This is an area where the contentious lawyers could have a field day, laying to waste all non contentious lawyers – potentially.

If I am ever instructed to do a will on this basis, if I believe all parties are in agreement then I would bring it to the attention of the ‘Risk Management Partner.’
Friday March 21, 2014 at 9:48am
I have previously posted about the dramatic decline in Employment Tribunal claims.(79% down)

I was emailing a lawyer friend on this issue who told me the following  - "Actually, leaving all personal considerations aside, the statistics are shocking from an access to justice perspective. Although these changes will have done something to dissuade frivolous claimants, they will also have dissuaded many poor (probably often female) claimants from bringing genuine claims. One of the reasons that the recent judicial review application to challenge these fees failed was that it was considered to have been brought prematurely (in the sense that stats were unavailable to show disproportionate impact). I would be amazed if one of the big unions (probably Unison) does not launch another judicial review action within the next 6 - 9 months.

There you go, the trade unions may well win this a second time and not experience defeat.
Thursday March 20, 2014 at 3:25pm

An sad article which illustrates the growing trend of care homes/hospitals to be sued. 

Susannah Anley was 34 when she suffocated herself with a plastic bin liner at the Woodlands psychiatric hospital in April 2008.

She was diagnosed with post traumatic stress disorder in 2000 and was admitted to the Woodlands after several suicide attempts. Sussex Police have now launched an investigation into her death as well as those of Michael Stevens, who was found hanged at The Meadowfield Hospital in Worthing in November 2008, Sergeant Richard Bexhell and John Blair, who were found hanged at the Woodlands unit in August and October respectively. 

It is revealed that Mrs Anley's widower Mark has spoken out, claiming her death was avoidable and accusing Sussex Partnership NHS Trust of treating him "appallingly."

Both families have instructed lawyers.

Tuesday March 18, 2014 at 2:12pm

A very interesting and partisan piece in the Mail about the Court of Protection.

A handyman allegedly took £200,000 from woman, 89, after the Court of Protection gave him control of her bank account and he persuaded the vulnerable woman to sign over her bank accounts The agreement was approved by Court of Protection - despite a social workers' doubts.

The Daily Mail asserts "Her insurance firm raised alarm after he tried to take nearly £150,000 more A gardener was able to take more than £200,000 from the bank account of an 89-year-old woman as a result of a ruling by the controversial Court of Protection."

It is very good that the Mail draws attention to this...but it is worth reflecting the CPS has done nothing to take action against the handyman. 

As the Mail goes on: "The handyman persuaded the confused and vulnerable woman to sign an agreement that he should control all her bank accounts, savings and property. The agreement – which was approved by the court even after social workers questioned the gardener’s motives – allowed him to put more than £200,000 of her money into his own account. He was stopped only when he tried to take nearly £150,000 more of her savings, causing her insurance firm to raise the alarm and the police to investigate.

But Senior Judge Denzil Lush ordered the LPA to be revoked. He said the gardener had broken its terms in several ways and his claim to a salary was ‘inherently artificial’.

Because there has been no criminal charge ‘it does not imply that his behaviour has been impeccable’, he said.

He ordered that the woman’s affairs should be managed by a publicly-appointed official who will pay her care home fees from the proceeds of the sale of her home.

Although the gardener was investigated by police, the Crown Prosecution Service decided not to prosecute. He will keep more than £60,000 of the money he took from the woman’s accounts and estate."

So the CPS take no action, no criminal action results, the Court of Protection takes action, yet criticism is directed at the latter institution. The Daily Mail is silent on the former. 

Denzil Lush is not only the Senior Judge in the Court of Protection; he is the co-author of book I am reading/reviewing on powers of attorney.

In his book and he does cover the issue of revocation with it being within Section 22(3) of the MCA 2005,(Mental Capacity Act)

2) The court may determine any question relating to—

(a) whether one or more of the requirements for the creation of a lasting
power of attorney have been met;

(b) whether the power has been revoked or has otherwise come to an end.

if the court is satisfied—

(a) that fraud or undue pressure was used to induce P—

(i) to execute an instrument for the purpose of creating a lasting
power of attorney, or

(ii) to create a lasting power of attorney, or
(b) that the donee (or, if more than one, any of them) of a lasting power of

(i) has behaved, or is behaving, in a way that contravenes his authority or is not in P’s best interests, or

(ii) proposes to behave in a way that would contravene his authority or would not be in P’s best interests.

So, what is the story with the CPS? 

Sunday March 16, 2014 at 8:37pm

I have previously posted on how the era of the specialist employment lawyer may be over.

Well, well, well.

The Ministry of Justice has recently published the quarterly Employment Tribunal statistics for October to December 2013. The statistics show a dramatic fall in numbers. From October to December 2013, 9,801 claims were received – a drop of 79% compared with the previous year.

Hmmmm, interesting times....

Please link to our services

Sunday March 16, 2014 at 8:01pm
According to the Law Society Gazette, the Institute of Chartered Accountants in England and Wales (ICAEW) is preparing 30 of its members to apply for practice rights to conduct reserved activities in the area of probate.

The Ministry of Justice last week rubber-stamped the ICAEW’s application for licensing powers in probate as well powers for it to license alternative business structures.

On the face of it this may seem bad for lawyers, but I do not necessarily think so. There is a significant sizeable market there and I would be seeking to link up with a accountancy firm(s) to see about prospects for mutual referral and working collaboratively.

Whilst my firm does probate there are a variety of complementary services to probate such as wills, powers of attorney, court of protection work. 
Thursday March 13, 2014 at 9:07pm
I have been folllowing the Oscar Pistorius trial in South Africa and it feels just like the OJ Simpson trial again. A celebrated athlete is on trial for a shocking crime.

Just some other thoughts:

There is some excellent media coverage,  Aislinn Laing in the Telegraph really stands out. I wish she was judging it.

It is not worthy of such high media coverage. As a journalist, Sipho Hlongwane observed today covering the proceedings, "I have seen and spoken to battle-weary hacks who were in Côte d’Ivoire when Laurent Gbagbo was deposed by the Forces Nouvelles of Guillaume Soro fighting for Alassane Ouattarra, when Col Muammar Gaddafi lost Libya and when the Central African Republic fell into anarchy, and when police tried to stop a wildcat strike with a barrage of machine-gun fire at Marikana. All these worthy journalists are now following this "meaningless trial". Why?"

What I find most perplexing is that i do not think with all the media coverage and the fact that we can see the trial happen is necessarily going to change our opinions.

Every time we hear evidence of a woman sceaming, it reinforces our view that he is guilty, every time we see evidence of police expert incompetence, we view Mr Pistorius as innocent. We will not be swayed by what goes against our prejudices.
Effectively our minds are made up.

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