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.

Blackstone

2018 ◽  
Author(s):  
John V. Orth
Keyword(s):  
Significant Role ◽  
Common Law ◽  
Legal Education ◽  
First Century ◽  
Legal Development ◽  
History Of ◽  
The Common ◽  
The Law ◽  
The University ◽  
Law Professors

This chapter focuses on Sir William Blackstone (1723–1780), the author of the most important book in the history of the common law. The four-volume Commentaries on the Laws of England (1765–1769) and the series of lectures Blackstone delivered at Oxford from 1753, changed the way lawyers thought about the law. Blackstone’s Commentaries were read by more people, non-lawyers as well as lawyers, than any other English law book. Their influence is difficult to overstate, and extends into the twenty-first century. Almost as momentous was Blackstone’s influence on legal education. While gradual, the transfer of legal education from the law office and the courts to the university, which Blackstone pioneered, had an enormous impact on legal development, as law professors contributed to the formation of generations of lawyers and themselves came to play a significant role in legal development.

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).

Status: Problems of Definition and Use

1984 ◽  
Vol 43 (2) ◽  
pp. 361-376 ◽  
Author(s):  
Geoffrey MacCormack
Keyword(s):  
Social Theory ◽  
Common Law ◽  
Legal Development ◽  
Frequent Use ◽  
Ancient Law ◽  
Tribal Societies ◽  
History Of ◽  
The Common ◽  
The Law

Sir Henry Maine's Ancient Law, first published in 1861, postulated legal development in terms of an evolution from status to contract. Since that time both lawyers and anthropologists have made frequent use of the notion of status in their characterisation of law or society. Although status is a concept well known in social theory whose exponents, independently of Maine, have worked out its content and application, much that has been written about status in a legal or anthropological context owes its inspiration to him. Maine's status to contract thesis has proved of interest both to lawyers studying the history of the common law or modern developments in the law of contract and to anthropologists studying social and legal phenomena in simple or tribal societies.

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 JURISPRUDENCE POSITION IN THE COMMON AND CIVIL LAWS

2018 ◽  
Vol 2 (2) ◽  
pp. 47-49
Author(s):  
Edi Rohaedi
Keyword(s):  
Common Law ◽  
General Nature ◽  
Anglo Saxon ◽  
Law System ◽  
Legal Development ◽  
Long Time ◽  
The Common ◽  
The Law ◽  
Civil Laws ◽  
Civil Law System

The development of jurisprudence continues to grow in accordance with the existing laws in the society which it is not the same as the law in legal development. It is not related to the rigid nature of the law which only regulates the general nature and the process of its formation takes a long time. In practice, the development of jurisprudence, as one of the sources of formal law, can be distinguished into two legal systems affecting the legal world. They are namely the Continental European legal system with its Civil Law System which prioritizes "codification" in the field of law and the Anglo Saxon law with its Common Law System, which is famous for the "Precedent" system binding the judges to follow the previous judgment in deciding the same case.

The Law of Contract

2018 ◽  
Author(s):  
Eva Steiner
Keyword(s):  
Common Law ◽  
World Market ◽  
Contract Law ◽  
The State ◽  
Legal Certainty ◽  
Philosophical Foundations ◽  
The Common ◽  
The Law

This chapter examines the law of contract in France and discusses the milestone reform of French contract law. While this new legislation introduces a fresh equilibrium between the contracting parties and enhances accessibility and legal certainty in contract, it does not radically change the state of the law in this area. In addition, it does not strongly impact the traditional philosophical foundations of the law of contract. The reform, in short, looks more like a tidying up operation rather than a far-reaching transformation of the law. Therefore, the chapter argues that it is questionable whether the new law, which was also intended to increase France's attractiveness against the background of a world market dominated by the Common Law, will keep its promise.

The New Private Law and Intellectual Property

2020 ◽  
pp. 408-426
Author(s):  
Molly Shaffer Van Houweling
Keyword(s):  
Intellectual Property ◽  
Common Law ◽  
Private Law ◽  
Concepts And Categories ◽  
The Common ◽  
The Law ◽  
Law Courts ◽  
Legal Concepts

This chapter studies intellectual property (IP). A hallmark of the New Private Law (NPL) is attentiveness to and appreciation of legal concepts and categories, including the traditional categories of the common law. These categories can sometimes usefully be deployed outside of the traditional common law, to characterize, conceptualize, and critique other bodies of law. For scholars interested in IP, for example, common law categories can be used to describe patent, copyright, trademark, and other fields of IP as more or less “property-like” or “tort-like.” Thischapter investigates both the property- and tort-like features of IP to understand the circumstances under which one set of features tends to dominate and why. It surveys several doctrines within the law of copyright that demonstrate how courts move along the property/tort continuum depending on the nature of the copyrighted work at issue—including, in particular, how well the work’s protected contours are defined. This conceptual navigation is familiar, echoing how common law courts have moved along the property/tort continuum to address disputes over distinctive types of tangible resources.

Admissibility of confession evidence: Principles of hearsay and the rule of voluntariness

2021 ◽  
pp. 136571272110022
Author(s):  
Jennifer Porter
Keyword(s):  
Western Australia ◽  
Common Law ◽  
South Australia ◽  
Judicial Discretion ◽  
Trial Judge ◽  
Important Policy ◽  
Oral Testimony ◽  
The Common ◽  
The Law ◽  
Confession Evidence

The common law test of voluntariness has come to be associated with important policy rationales including the privilege against self-incrimination. However, when the test originated more than a century ago, it was a test concerned specifically with the truthfulness of confession evidence; which evidence was at that time adduced in the form of indirect oral testimony, that is, as hearsay. Given that, a century later, confession evidence is now mostly adduced in the form of an audiovisual recording that can be observed directly by the trial judge, rather than as indirect oral testimony, there may be capacity for a different emphasis regarding the question of admissibility. This article considers the law currently operating in Western Australia, Queensland and South Australia to see whether or not, in the form of an audiovisual recording, the exercise of judicial discretion as to the question of the admissibility of confession evidence might be supported if the common law test of voluntariness was not a strict test of exclusion.

The Coalition's Plan to Regulate Industrial Relations

1993 ◽  
Vol 4 (1) ◽  
pp. 1-26 ◽  
Author(s):  
Braham Dabscheck
Keyword(s):  
Common Law ◽  
Industrial Relations ◽  
Good Faith ◽  
The Common ◽  
Industrial Conflict ◽  
The Law

In October 1992 the federal coalition released Jobsback, a statement of its industrial relations policies. The article situates Jobsback in the context of the evolution of the coalition's industrial relations policies since the Fraser years, outlines its major features, and provides a critique. Jobsback erects a new regulatory schema under a banner of deregulation. Three key elements are contained in Jobsback. They are tribunal avoidance and the use of the common law, legislatively imposed employment rules to ‘aid’ the transition from an award to a non-award system, and enterprise confinement. The article draws attention to the coalition's views concerning industrial conflict, constitutional issues, transitional problems associated with establishing legislatively imposed workplace rules, minima in workplace agreements, the Office of the Employee Advocate, equality before the law and good faith bargaining.

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