scholarly journals The common law defence of automatism: a quagmire for the psychiatrist

2015 ◽  
Vol 21 (4) ◽  
pp. 242-250 ◽  
Author(s):  
Keith J. B. Rix
Keyword(s):  
Mental Health ◽  
Psychiatric Disorder ◽  
Psychotropic Drugs ◽  
Common Law ◽  
Burden Of Proof ◽  
Standard Of Proof ◽  
Mental Health Act ◽  
The Common ◽  
The Law

SummaryThis article sets out the complicated and confused law on automatism and identifies the role of the psychiatrist, including paradoxically a role in cases of non-psychiatric disorder where the law requires evidence from a doctor approved under section 12 of the Mental Health Act. Legal definitions of automatism are introduced. The internal/external distinction, evidential burden, burden of proof, standard of proof, prior fault, intoxication and the degree of impairment illustrate how the courts limit the defence. Detailed accounts are given of cases in which the defence of automatism has been based on psychiatric disorder and on the effects of psychotropic drugs. Suggestions are made for approaches to assessment and medicolegal reporting.

scholarly journals HOW STRICTLY DID THE ATHENIAN COURTS APPLY THE LAW? THE ROLE OF EPIEIKEIA

2013 ◽  
Vol 56 (1) ◽  
pp. 27-48 ◽  
Author(s):  
EDWARD HARRIS
Keyword(s):  
Common Law ◽  
General Rule ◽  
Nicomachean Ethics ◽  
The Common ◽  
The Law ◽  
Principles Of Justice ◽  
The Relationship ◽  
The City ◽  
Positivist Approach

Abstract H. Meyer‐Laurin has claimed that the Athenian courts took a stricti iuris approach to the law and did not take extenuating circumstances into account. Other scholars (Mirhady, Todd) have claimed that the courts sometimes ignored the law and took extra‐legal considerations into account, which was called ‘fairness’ (epieikeia). The essay begins with a careful reading of Aristotle's analysis of ‘fairness’ (epieikeia) in the Nicomachean Ethics and the Rhetoric and draws on an important essay by J. Brunschwig. Fairness was not a doctrine that attempted to undermine the authority of the law or placed the law of the city in opposition to the unwritten laws or the common law of mankind. Nor did the application of fairness introduce non‐legal factors into adjudication. Rather, fairness dealt with the problem of treating exceptions to the general rule contained in a specific written law. The essay then shows how litigants used arguments based on fairness and how the courts sometimes took extenuating circumstances into account. When Athenian judges swore to decide according to the laws of Athens, they did not just consider the law under which the accuser had brought his case. They could also take into account general principles of justice implicit in the laws of Athens as a whole. In this way, they avoided a rigid positivist approach to law. Finally, the essay sheds some light on the relationship between Aristotle's Rhetoric and the arguments used in the Athenian courts.

scholarly journals Bournewood: Law and capacity

1999 ◽  
Vol 23 (3) ◽  
pp. 177-177 ◽  
Author(s):  
M. Devakumar
Keyword(s):  
Mental Health ◽  
Community Mental Health ◽  
Mental Disorder ◽  
Common Law ◽  
Appeal Court ◽  
Assessment And Treatment ◽  
The Common ◽  
The Law ◽  
The Right ◽  
Health Trust

The Law Lords in June 1998 overturned the judgement in the matter of L. v. Bournewood. The Law Lords, on a majority decision, were of the opinion that a compliant incapacitated patient such as L. does not need the formal powers of the Mental Health Act and admission to hospital and subsequent assessment and treatment for mental disorder can be based on the common law principles of necessity. However, this position is quite contrary to the Appeal Court judges' view, “The right of a hospital to detain a patient for treatment for mental disorder is to be found in, and only in, the 1983 Act, whose provisions apply to the exclusion of the common law principle of necessity” (L. v. Bournewood Community Mental Health Trust, 1997).

20. Unconscionability and Inequality of Bargaining Power

Contract Law ◽  
2020 ◽  
pp. 662-679
Author(s):  
Ewan McKendrick
Keyword(s):  
Bargaining Power ◽  
Common Law ◽  
Case Law ◽  
The Common ◽  
The Law

This chapter considers a group of cases in which the courts have been asked to grant relief on the basis that the contract concluded between the parties was, in some way, unfair, outlining examples drawn both from the common law (including equity) and from statutes. The rise and fall of a doctrine of inequality of bargaining power is also noted. It then considers the arguments in favour of drawing these disparate cases together into one general doctrine, and concludes by drawing on some academic reflections on the case-law and the role of fairness in the law of contract more generally.

Intention vs. Negligence

2019 ◽  
pp. 175-184
Author(s):  
George P. Fletcher
Keyword(s):  
Mental State ◽  
Common Law ◽  
Mens Rea ◽  
Criminal Cases ◽  
Reasonable Person ◽  
The Face ◽  
The Common ◽  
The Law

This chapter explores the role of mental state in criminal cases, considering the concept of negligence. Lawyers trained in the common law tradition are familiar with the concept of mens rea and the maxim actus non facit reus nisi mens sit rea. Literally this means that there is no criminal (or guilty) act without a criminal (or guilty) mind. The problem is that there are both descriptive and normative interpretations of mens rea and of the maxim. The normative or moral interpretation of mens rea holds that the term equivalent to a guilty mind, for example, a basis for blaming the actor for their conduct, is something not possible in the face of the defenses considered in the last chapter. Meanwhile, negligence is based, as in the classic definition from the law of torts, on the conduct of “a reasonable person under the circumstances.” The important point is that negligence is based on the fault of not knowing.

The principle of good faith in the performance of contractual obligations under the common law of Canada and the law of Quebec

2018 ◽  
pp. 86-93
Author(s):  
D. S. Alyakin
Keyword(s):  
Common Law ◽  
Civil Law ◽  
Good Faith ◽  
Supreme Court Of Canada ◽  
Legal Analysis ◽  
Legal Method ◽  
The Common ◽  
The Law ◽  
Contractual Obligations

Introduction. In the paper, the author analyzes the principle of good faith in contractual performance under the common law of Canada and carry out a legal analysis of one of the key judicial precedents that is in relation to the designated area and that was adopted by the Supreme Court of Canada in 2014, i.e. Bhasin v. Hrynew case. The study is focused on the principle of good faith contractual performance under the law of the Canadian province of Quebec as well.Materials and methods. The material for the study consists of the judicial precedents of Canadian courts as well as the papers of foreign and Russian researchers in the field of civil law. The methodological basis of research comprises general scientific methods of cognition (analysis, synthesis, analogy) as well as specific ones, i.e. the comparative legal method, the formal logical method, the systematic method, methods of structure and function and the method of interpretation.Results. The author conducts a detailed analysis of Bhasin v. Hrynew case and determines the role of this precedent in the common law of Canada as well as the criteria for identifying the principle and a duty of good faith contractual performance. The author also analyzes the principle of good faith under the law of Quebec, i.e. the relevant jurisprudence and the codification of this principle in the legislation of Quebec.Discussion and conclusion. The distinction of the principle of good faith in the performance of contractual obligations as a freestanding principle of Canada’s common law is justified. The Bhasin v. Hrynew case is a vivid illustration of the growing role of the principle of good faith in the countries of the common law tradition. Furthermore, the convergence of Canada’s common law and the law of the province of Quebec, the only one among ten provinces and three territories of Canada that clearly adheres to civil law tradition, is an impact on this precedent.

scholarly journals Holding powers in A&E departments

1997 ◽  
Vol 21 (10) ◽  
pp. 615-617
Author(s):  
K. R. Nicholls
Keyword(s):  
Mental Health ◽  
Community Care ◽  
Common Law ◽  
Mental Health Act ◽  
The Common

The Mental Health Act as an instrument of statute law is unable to address practicalities of caring for mentally disturbed persons who are awaiting formal detention. The common law relevant to this area is ill-defined and depends on interpretation of precedent. The resulting confusion and consequent problems will become more apparent with the advancement of community care, and is a matter which warrants urgent review.

20. Unconscionability and Inequality of Bargaining Power

Contract Law ◽  
2018 ◽  
Author(s):  
Ewan McKendrick
Keyword(s):  
Bargaining Power ◽  
Common Law ◽  
Case Law ◽  
The Common ◽  
The Law

This chapter considers a group of cases in which the courts have been asked to grant relief on the basis that the contract concluded between the parties was, in some way, unfair, outlining examples drawn both from the common law (including equity) and from statutes. The rise and fall of a doctrine of inequality of bargaining power is also noted. It then considers the arguments in favour of drawing these disparate cases together into one general doctrine, and concludes by drawing on some academic reflections on the case-law and the role of fairness in the law of contract more generally.

Psychiatric emergencies

2010 ◽  
pp. 669-690
Author(s):  
Punit S. Ramrakha ◽  
Kevin P. Moore ◽  
Amir Sam
Keyword(s):  
Mental Health ◽  
Alcohol Withdrawal ◽  
Common Law ◽  
Deliberate Self Harm ◽  
Psychiatric Emergencies ◽  
Confusion Assessment ◽  
Mental Health Act ◽  
Self Harm ◽  
Acute Confusion ◽  
The Law

Acute confusion: assessment 670 Acute confusion: management 672 Acute alcohol withdrawal 674 Dealing with violent patients 676 Deliberate self-harm 678 The Mental Health Act and common law 680 Treating patients against their will 682 The law on consent and capacity 683 Patients who do not wish to stay in hospital ...

scholarly journals Common Law and the ‘Code of Practice’ - a commentary

1990 ◽  
Vol 14 (8) ◽  
pp. 449-451 ◽  
Author(s):  
Matthew Jelley
Keyword(s):  
Mental Health ◽  
Common Law ◽  
Legal Aspects ◽  
Incompetent Patient ◽  
Legal Development ◽  
Mental Handicap ◽  
Code Of Practice ◽  
Subsequent Publication ◽  
The Common ◽  
The Law

The decision of the Law Lords in May 1989 that allowed the sterilisation of a woman with serious mental handicap (F. v. W. Berkshire H.A., 1989) is arguably the single most important legal development in relation to psychiatry in the last 30 years. It has far-reaching implications beyond the field of mental handicap and will affect the practice of all psychiatrists. The Law Lords used the appeal to consider “the startling fact that there is no English Authority on the question whether as a matter of common law (and if so in what circumstances) medical treatment can lawfully be given to a person who is disabled by mental incapacity from consenting to it” (Lord Goff). Quite clearly this encompasses a large part of psychiatric practice and promised to clarify much of the controversy surrounding consent and the incompetent patient. The decision that they reached has now been incorporated into the Code of Practice of the Mental Health Act 1983 which was approved by Parliament in December 1989. The effects of this are of huge importance, and it has extensive consequences for all psychiatrists and their patients by simplifying the legal aspects of treatment. The most surprising aspect of this whole issue, therefore, is the silence that has surrounded both the original decision by the Law Lords and the subsequent publication of the Code of Practice. The only reference to these in The British Journal of Psychiatry, or its sister journal, Psychiatric Bulletin, has been a brief letter outlining some implications of the Lords' decision (Lovett, 1989). This is doubly surprising as the Royal College of Psychiatrists has shown considerable interest in this debate, not least by publishing a book about it! (Hirsch & Harris, 1988). The purpose of this paper is to provide a background to the Code of Practice and to clarify certain issues surrounding the Common Law.

scholarly journals The Mental Capacity Act 2005, the Mental Health Act 1983, and the Common Law

2014 ◽  
Vol 1 (13) ◽  
pp. 163
Author(s):  
Phil Fennell
Keyword(s):  
Mental Health ◽  
Common Law ◽  
Institutional Care ◽  
Mental Capacity ◽  
Bodily Integrity ◽  
Mental Health Act ◽  
European Court ◽  
Mental Capacity Act 2005 ◽  
The Common ◽  
Mental Capacity Act

<p align="LEFT">This paper considers what has come to be known as the ‘interface’ between the Mental Capacity Act 2005 and the Mental Health Act 1983. Until the 2005 Act comes into force in 2007, practitioners will have to be aware of the interface between powers to admit to institutional care and treat without consent under common law and those which exist under the Mental Health Act 1983.</p><p align="LEFT">In simple terms, the interface question is ‘When may the common law or, after 2007, the 2005 Act, be used to admit to institutional care and treat without consent, and when will use of the Mental Health Act be required?’ This article argues that there are two decisions of the European Court which need to be considered in determining how to bridge what has become the “Bournewood gap”: <em>HL v United Kingdom</em> and <em>Storck v Germany</em>. These will require that the State must provide effective supervisory mechanisms to ensure that mentally incapacitated people are not deprived of their liberty (Article 5) and do not have their right of bodily integrity interfered with (Article 8) without lawful authority.</p>

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