Rive Gauche: Mr Andrew Mitchell MP will have a huge bill to pay…?

The BBC has just reported that Mr Andrew Mitchell loses in the High Court.  No doubt..others will write on this.

Mitchell called PCs plebs, judge says

 

One can always rely on Twitter for amusing tweets in time of  ‘need’…

You’re a sweaty, stupid little git – Mellor’s four-letter rant at cabbie: Ex-minister shamed after taxi driver tapes torrent of abuse on way home from Palace

  • Former cabinet member said: ‘Shut the f*** up. Smart-arsed little b******’
  • Cabbie said Mellor made him feel like ‘something he’d found on the bottom of his shoe’
  • Taxi drivers are now threatening to refuse to pick up Mr Mellor, said union

Read more: http://www.dailymail.co.uk/news/article-2849615/You-sweaty-stupid-little-git-Mellor-s-four-letter-rant-cabbie-Ex-minister-shamed-taxi-driver-tapes-torrent-abuse-way-home-Palace.html#ixzz3KKzbwmhl

Guest Post: The Responsibilities of Being a Deputy

The loss of mental capacity is a scary time for any person going through the process, including those around them, with most M worries reflecting the stresses of day-to-day life and handling money. A Court of Protection Deputyship may be able to help a little with this.

What is a Court of Protection Deputyship?

The Court of Protection has the power to appoint a Deputy on behalf of a person who no longer has the mental capacity to make important decisions for themselves. A Deputy is given the responsibility of making decisions for ‘Ps’, as the court calls them, for an indefinite period.

A Deputyship is often confused with a Lasting Power of Attorney. This is however, very different, as the Power of Attorney is assigned while a P still has the mental capacity to solely make the decision. A Deputyship however, is an appointment on application once this is no longer possible. This may be due to a serious brain injury, illness or dementia, for example.

There are two main types of a Deputy:

  1. Property and financial affairs Deputy – someone who is required to pay bills, organise bank accounts, pensions and so on.
  2. Personal welfare Deputy – responsible for medical treatment and day-to-day care

Each person may be appointed 2 or more deputies if need be.

What Responsibilities Will a Deputy Have?

Becoming a Deputy is a huge responsibility, and there is quite a lot of paperwork that comes with the position. Depending on the type of deputyship, they will be expected to:

  • Complete annual reports
  • Work with the Office of the Public Guardian
  • Deal with benefit entitlements
  • Maintain bank and savings accounts
  • Complete Tax Returns
  • Safeguard, or sell property where required
  • Maintain any owned businesses
  • Pay any debts
  • Pay for any required care

A Deputy has a lot of powers, but there are strict conditions under the Mental Capacity Act 2005, and a Code of Practice that must be adhered to.

How to Apply for Deputyship

The first step in applying for a deputyship is to check you meet the requirements. In order to be deemed appropriate, a person must be aged 18 or over, and be a close relative or friend.

To become a property and affairs deputy the court will also check that you have the skills to make financial decisions. And if you want to become a personal welfare deputy you will require permission to apply.

In order to gain permission from the Court of Protection you will need to fill in a permission form, an application form and get an assessment of capacity form from the person’s doctor.

The final step is to send off the application forms and pay the fees. Each application costs £400, so it is important to ensure you have the relevant funds beforehand. 

Are you considering applying for a property and financial affairs, or personal welfare, deputyship? Then you may want to speak to a solicitor first to discuss your options. Legal advice is always advisable when making such a big decision.

Author biography

Are you a relative or friend considering applying for a Deputyship? JMD Law’s Nigel Jones is one of only four professional Deputies in Wales appointed to the approved Panel of the Court of Protection, and therefore JMD Law is the perfect solicitors firm to help guide you through the process. Call JMD Law on 02920 456780.

Rive Gauche: A painting of me… not “Charon”

This is a painting of me by my brother Stewart. I have a walking stick because of a spinal injury sustained some time ago when I tripped on a bath mat and fell backwards into the bath cracking my spine. The Baobab tree reflects my early life – many years ago – when I spent a year working in Zambia after school before going to university.  I have no idea what the lizard signifies.  I did see a fair number of lizards – but I also came across a fair few nasty snakes and wild animals when I worked in the bush doing geological work for Zamanglo Exploration, a subsidiary of Anglo-American Corporation.  (I thought it might be an idea to become a geologist and completed a year of Geology before changing to read law. Law was far more to my taste – although I did come across a few ‘human snakes’ in my time, fortunately well and truly outnumbered by some marvellous people!)  I asked Stewart to give me yellow glasses because I have just purchased some yellow glasses.

Stewart does take commissions – so if you are interested in having your portrait painted do, please, get in touch. My email is at the top on the right hand side of the blogroll.

Well..there we are…

 

Rive Gauche: A few F.E. Smith quotes to brighten the day…

  English law has thrown up some interesting characters over time.  One of my favourites – for his well known quotations – is  F. E. Smith, a     conservative politician who served as Lord Chancellor

The Rt Hon. Frederick Edwin Smith, 1st Earl of Birkenhead, GCSI, PC, KC, best known to history as F. E. Smith, was a British    Conservative statesman and lawyer of the early 20th century. He was a skilled orator, noted for his staunch opposition to Irish      nationalism, his wit, pugnacious views, and hard living and drinking.

 A few of his more pugnacious quotes:

“It would be possible to say without exaggeration that the miners’ leaders were the stupidest men in England if we had not frequent  occasion to meet the owners.”

“Judge: You are extremely offensive, young man!
Smith: As a matter of fact we both are; and the only difference between us is that I am trying to be, and you can’t help it.”

“Judge: What do you suppose I am on the bench for?
Smith: It is not for me, Your Honour, to attempt to fathom the inscrutable workings of Providence.”

“Judge: I’ve listened to you for an hour and I’m none wiser.
Smith: None the wiser, perhaps, my lord but certainly better informed.

“Churchill has spent the best years of his life preparing impromptu remarks.”

Well…there we are.  They don’t make them like that these days.  Pity.

Guest Post: Holiday Pay to Include Overtime – Substantial Increased Costs for Employment

Holiday Pay to Include Overtime – Substantial Increased Costs for Employment

In a landmark decision this month, the Employment Appeal Tribunal held that employees who work overtime will now be entitled to claim additional holiday pay. The tribunal found that all elements of a worker’s normal remuneration must be considered when calculating holiday pay. The tribunal has sought to bring UK law in line with the European Working Time Directive , which seeks to ensure that workers are not forced to work rather than take holiday i.e. they do not lose out on earnings while they take their holiday.

Prior to the decision, most employers calculated holiday pay entitlements based on an employee’s basic pay and did not take into account additional payments for overtime.  The result was that employees received considerably less pay when on holiday than they would whilst working. 

While the decision limits entitlements to claim any retrospective holiday pay to a maximum of three months, employers will no doubt be extremely concerned that payroll costs will escalate significantly. Government figures suggest that approximately one in six of the 30 plus million employees in this country currently get paid overtime will be affected by these new regulations, and employers who rely heavily on employees working overtime will certainly have to consider re-evaluating their business structure.

It is feared that holiday claims of this kind might be backdated by up to six years, but an appeal by the employees has yet to be brought to claim.

No doubt it will take sometime for the true financial effects to filter through, however the tribunal has made it clear that workers should be entitled to holiday pay based on their actual income. Although the decision only dealt with overtime, there is likely to be future decisions effecting commission payments. 

If you are an employer or employee and feel you may be affected by these changes, please contact our expert employment team on 0151 666 9090 and we would be delighted to assist.

Lights… Camera… Courtroom

Lights… Camera… Courtroom

This time last year, cameras were allowed into the Court of Appeal and the High Court for the first time. More recently, the trial of Oscar Pistorius, the Paralympic athlete who was sentenced to five years in prison for the culpable homicide of his girlfriend, Reeva Steenkamp, has brought the issue of cameras in court back into the spotlight.

The televised Pistorius trial opened-up the South African legal system to the world. In a case that was fraught with emotion, those who watched from the comfort of their own homes had the opportunity to judge the case for themselves, without the bias that can sometimes be generated by media scrutiny. The media circus surrounding the case was expected, but was nonetheless a spectacle that would have worsened an already unimaginably distressing situation for the family and friends of those involved in the case.

Press attention can often detract from the real matters at hand, but in this case media reports were arguably enhanced by the accuracy of reports that can only come with a televised trial. Furthermore, while many may have been surprised at the sentence eventually handed down to Pistorius, there could be no doubts about the meticulous way in which Judge Thokozile Masipa analysed the evidence presented to her as we watched her lengthy delivery of the judgment. That, and her respected authority over proceedings, can leave few questions in the public’s mind over the fairness of the trial, even if they disagree with the sentence. It is debatable whether the public’s perception of the judge and the conduct of the trial would be the same had they not had the option to watch it themselves.

In the UK, senior judges remain divided over having cameras in court. Last week, however, the Director of Public Prosecutions, Alison Saunders, voiced her support for televising criminal trials. If we want to demystify and open up our legal system to all, then it is surely only logical that we televise criminal trials over here, as already takes place with Court of Appeal and Supreme Court cases.

As specialist litigation PR consultants, Byfield Consultancy work hard to make sure that the media spotlight doesn’t focus too heavily on just one aspect of a case. Having cameras in court opens up the debate: the public will be able to inform what they read in the papers from what they have seen played out in the courtroom, and form a more balanced view. Thorough media training for judges, so that they learn to avoid technical jargon and deliver judgment in a clear and coherent manner, will help dispel the perception that the judiciary is out of touch with ordinary people and give society a better understanding and appreciation of our world renowned legal system.

Harriet O’Reilly is a Senior Account Executive at Byfield Consultancy, a communications consultancy specialising in Legal PR, Litigation PR and Reputation Management.

Guest Post: Legal Advice on Providing for Disabled Family Members in Your Will

Legal Advice on Providing for Disabled Family Members in Your Will

When thinking about making a will, parents are often most concerned about providing for their children or other dependants if they are to pass away. This concern becomes much greater when the beneficiary has reduced capacity or another kind of disability. This post addresses some of the major concerns in connection with leaving to a disabled beneficiary and how this is best approached.

The following advice comes from Wilson Fish, probate, wills, and executory solicitors based in Scotland.

Do I need to make a will?

If you have a family member with reduced capacity or some other kind of disability it is very important that you make a will.

If you pass away without making a will, your estate will be distributed according to standard rules. If your estate is distributed under these standard rules, this may mean:

  • Certain beneficiaries may get less (or more) than you would have liked them to
  • The money the inherit will be paid directly to them – even if they are incapable of managing it themselves.
  • They lose any means-tested state benefits
  • As the person is in a vulnerable position, others may try to take advantage of them because of their money

Writing a will allows you to take some extra steps to avoid these things from happening. It also allows you to ensure that those closest to you and those who need it most will receive the right financial support after you pass away.

How can I prevent my child’s benefits being affected by inheritance?

Many parents assume it will be better to disinherit their disabled child so they can continue to receive state benefits – instead giving the money to someone else under the condition that they look after the disabled child.

However, this may not be the best thing to do for a number of reasons.

If circumstances change, the beneficiary may find it difficult to fulfil this role. It may also mean that your disabled child is negatively affected by the life of the beneficiary, for example if they divorce or become bankrupt or even die without making a will making no provision for the disabled individual.

Children also have a legal right to inherit a share of their parent’s estate – if you disinherit a child in your will, there is a good chance it will be contested regardless of whether it is in the bests interests of the child financially.

Also, as you may be aware, children have a legal right to inherit a share of their parent’s estate. If you disinherit a child, there is a risk that another relative or even the local authority could contest your will. This can happen regardless of how the receipt of a large amount of money would affect your child’s benefits.

To avoid these problems, you can set up a discretionary trust in your will.

What is a Trust?

A trust is a legal arrangement that allows assets to be transferred to ‘trustees’ who must use these assets for particular purposes and to benefit the ‘beneficiaries’.

You may set up a trust during your lifetime, or it can be included as part of your will.  A trust is set up by a trust deed, or will. Your trust deed or will will outline:

  • Who the trustees are
  • Who the beneficiaries are
  • How the money or property if to be managed
  • How the money or property may be used
  • Who will receive the money when the trust comes to an end

There are various types of trust that are used in different circumstances. It is important to seek legal advice to ensure you set up the right kind of trust to meet your needs.

What is a discretionary trust?

In a discretionary trust, the Trustees are given discretion about how the assets in the trust are used. This means they will make decisions about if and when payments are made and to whom.

Discretionary trusts may be suitable for beneficiaries who are disabled or have reduced capacity and also for those who receive means tested state benefits or are in community care.

This is because having money or property in a discretionary trust will not affect means tested benefits, and will also not be taken into account when calculating how much should be paid towards care services.

It is also important to consider a discretionary trust if the intended beneficiary is not receiving means tested benefits – they may receive these benefits in the future.

Another important consideration if the beneficiary is a child is to think what they might need when they are an adult, for example it may be a good idea to leave enough money for them to make appropriate home modifications or to pay for specialised courses to assist them with learning.

Can the family home be left in trust for the beneficiary to live in?

The family home can be left in trust for your child or other dependent to live in. However, you should consider leaving enough money to ensure the property can be maintained throughout your child’s life – this can include general maintenance, replacement of important components and emergency repairs.

As well as leaving the family home in a trust there are other ways of allowing your child or dependent to live in the family home after you pass away. You should discuss these options with your solicitor to make sure you select the most appropriate way.

What happens if someone else wishes to leave money to my child? 

Often, a child with reduced capacity’s grandparents may also wish to leave them money in their wills. This could potentially affect the means tested benefits the child receives.

It is possible for grandparents to set up a ‘pilot’ trust for the child, with a nominal amount however the trust will not actually begin until a large amount of money is put into the trust. This also allows others to put money into the trust for your child, such as other family members or friends.

How can I balance the interests of my other children with those of my disabled child?

It can be difficult to decide how much or what proportion of your estate to leave to your disabled child. It may be that you decide all of your children should be given an equal share with your disabled child’s share being put into a discretionary trust.

However, it may be the case that your disabled child has significantly greater need for the money or property than your other children – this will be particularly relevant if your other children are financially independent and thus this should be regularly reviewed as your children grow older. 

On the other hand, it may also be the case that your disabled child manages well on their own and receives wages or means tested benefits and would not greatly benefit from a large amount of money and even be unable to spend it or find it burdensome or disruptive. Each case is different and it is important to discuss your individual circumstances with your solicitor.

Wills Solicitors Based in Scotland

If you have a child or dependent with additional needs it is crucial that you seek specialist legal advice. At Wilson & Fish our solicitors are specialists in executory, probate and wills and offer advice on all aspects of making, enforcing or challenging a will where the estate is based in Scotland.

A New Accident Claims Advice Website Launches for UK Residents

A New Accident Claims Advice Website Launches for UK Residents

This week saw the launch of a new website aimed at UK residents and workers who are looking for expert legal advice on matters concerning accident claims and personal injury claims.  The Accident Claims Advice Web is run by the Accident Claimline who are fully regulated by the Claims Management Regulator and lets users find specific advice on a range of accident claims, and then connects the claimant with a personal injury solicitor close to them.  You can click here to view the website in full, or read on for some additional information. 

An Ethical Approach to Accident Claims Management

Whilst the whole industry surrounding personal injury and accident claims has had some bad press in recent years,  this new Accident Claims Advice website works on an ethical approach.  They don’t go down the route of “ambulance chasing” but instead let claimants come to them and then connect accident claims enquiries up with personal injury solicitors who are local to the claimant.

All of the personal injury solicitors work on a no win no fee agreement and have years of experience in helping claimants to receive the compensation that they deserve for an accident.

In the past they have helped resolve accident claims such as gym injuries, spinal and back claims, industrial deafness, and with specialist knowledge of road accident claims processes.

Specialists in Accidents in the Workplace

The majority of accident claims that they help with are accidents in the workplace.  Nobody goes into work expecting an accident to happen, but when it does unfortunately happen, it can be an extremely painful and debilitating process.

Whilst all employers in the UK require insurance to cover the safety and welfare of all staff and visitors to the company, oftentimes when the worst happens, it can be a hard and lengthy process to get them to complete your claim for compensation.  This is where the Accident Claims Web can help and they have a page dedicated to helping potential claimants calculate a claim.

So for quick, trusted, and reputable accident claims advice from a leading Claims Management Company make sure you give them a call to speak to a specialist today.

Hugh Rollinson, The Accident Claims Web

Antique wooden bench for sale

I am selling this fine antique wooden bench.  The dealer I bought it from many years ago told me that it was late 19th Century and believed to be made in Scotland.  The fleur-de-lis motif may, however, suggest French origin – but Scotland and France have always had a ‘special relationship’!

It is a fairly striking item.

If you are interested in buying – please email me: Mikesp@insitelawmagazine.com ; Happy to sell at £750 ono.

DATALAW LAUNCHES LPC SCHOLARSHIP

DATALAW LAUNCHES
LPC SCHOLARSHIP

Online legal training provider Datalaw is to fund a coveted place on a Legal Practice Course with a new scholarship, giving the recipient the chance to become a fully-fledged solicitor.

Datalaw will pay the tuition fees – a prize worth up to £12,000 – to the winner of its inaugural competition, which it hopes will become an annual event.

It is open to paralegals and trainee solicitors who are training full time or part-time and are available to start their LPC in September 2015. Applications will be accepted from throughout England and Wales.

The race to land the Datalaw Scholarship will begin on August 1, with entries being accepted until the end of October via the company’s website.

Applicants will be asked to answer a series of questions posted on Datalaw’s  website. From the responses, 50 hopefuls will be selected by mid-December to write a blog or submit a five-minute video explaining why they want to become a solicitor.

These will be assessed by a judging panel, and a shortlist of 10 candidates will be chosen for a final interview.

Datalaw will unveil the winner’s identity on YouTube in mid-March.

Charles Peter, the founder and managing director of Datalaw, said: “This is a hugely exciting initiative for Datalaw and, we believe, for the UK legal community.

“After going to university and studying very hard, many graduates are faced with the daunting prospect of trying to raise up to £12,000 to take the Legal Practice Course and become a solicitor. Some employers sponsor their staff for the LPC, but this is rare.

“We are passionate about what we do, and want to show our support for the industry by offering this opportunity for someone to turn their dream into reality.

“The Datalaw Scholarship will be life-changing for the recipient and we expect a bumper response.”

Datalaw was founded by solicitor Charles Peter in 2001 and has its headquarters in Liverpool.

The e-learning business provides legal CPD training over the internet to thousands of solicitors nationwide

It delivers more than 350 CPD courses via webinars and podcasts delivered by a network of vastly-experienced professionals. The courses cover more than a dozen areas of law, including employment, landlord and tenant, private client, conveyancing, family, personal injury, immigration, criminal and children. They are accessible from any device with an internet connection.

Datalaw is fully accredited by the Solicitors Regulation Authority.

***

For more information, visit www.datalawonline.co.uk.

You can also follow developments at Datalaw on Twitter: @datalaw

Rive Gauche: I have dug up an old post

I sometimes wonder what I got up to of an evening in a past era! I have to admit that tweeting and the odd glass of the Vin Rouge often went together back in the day. This from 2009… 

***

 

Charon: Today I am talking to Geeklawyer about his tax return and other matters.  Good morning Geeklawyer.  You have been doing your tax return for nearly eight months.  Are you going for a Pullitzer prize?

Geeklawyer (In a German accent): Good Morning Charon.  The life I live means I have to pay particular attention to my tax and other official papers.  My tax return is one of the most creative things I have ever done… a work of true genius .

Charon: You appear to have turned into a German.  Have you been watching too many war films on Dave?  Be that as it may,  tell me what else you have been up to.  Have you been on Twitter recently?

Geeklawyer: Ja!  I have been on Twitter night und day.  I am addicted.  I cannot help myself.  I wake, see the Twitter screen and I just have to go on.   I even Twitter from court.  Judge does not like it, but I told him  that  I am  typing a note of the proceedings for my records.

Charon: I’m sorry, Geeklawyer but I am having real difficulty understanding you…  are you sure turning yourself into a german is a great idea?

Geeklawyer: Ja!  It is a great idea.  I can charge clients even more because I also  have doctorate degree from internet and clients think I  know a lot more law than my competitors.  Also, when they ask me to repeat myself, it takes time and time is money!

Charon: Well   there we are.  Lawyers are feeling the pinch in these credit crunch times.  We all have to cope.  Thank you for coming on.  I wish you luck with  your new riches.

Geeklawyer: Did you say Reich?  No… I must have misheard you.  It may be the mead I have been drinking.

Charon: Well it is goodbye from me and it is goodbye from my mate Rommel.  Goodbye.  Auf Wiedersehen.

 

Guest Post: The Legal 500 Release their Rankings for Personal Injury in Scotland

The Legal 500 Release their Rankings for Personal Injury in Scotland

The Legal 500 recently published their findings on personal injury firms in Scotland and listed out the top firms in the country.  Lawford Kidd in Edinburgh were listed in the top 3, which recognised them as being in top firms in the personal injury field.

This accolade is a great supplement to their existing assessments which have been awarded recently including;

  • Top 10 for the 2014 Chambers Directory in Scotland
  • David Sandison (Senior Partner) recognised by the Legal Business Report
  • APIL accreditation
  • Member accreditation by the Motor Accidents Solicitors Society

To find out more about how Lawford Kidd work and their approach to personal injury please visit their website: Lawford Kidd Scotland.

Scottish law provides a means of legal redress for people seeking compensation for an accident, and Lawford Kidd are expertly placed to help claimants pursue a personal injury claim in Scotland.

Under Scots law there are a number of tips for succeeding with a personal injury claim.  These include aspects such as making the claim within three years of the injury occurring.  This time limitation is described in the Prescription and Limitation (Scotland) Act 1973. However, if the personal injury claim concerns a child, then the three year limitation will only start once the child reaches eighteen years old.

In addition to that a personal injury claim in Scotland must also be addressed in the correct court.  So for example, if the claim is under five thousand pounds, then it must be brought to the Sheriff Court.  If the claim is worth more than that, then the personal injury solicitor can make some choices as to which court to proceed with the claim in – this can include the Court of Session.  Scottish Parliament is currently considering proposals to change the minimum financial threshold required to bring a personal injury claim in the Court of Session as part of the Court (Reform) Scotland Bill.

Lawford Kidd, personal injury solicitors in Scotland, can offer a free consultation over the telephone and work on a no win no fee agreement, where the client receives 100% of the compensation.

Guest Post: Sea tide change…

Sea tide change…

With the ‘no’ vote still reverberating across the UK, the Scottish Referendum is not the only recent event which threw legal changes into the spotlight. Recently, the legal press has been saturated with comment on the changes taking place in the profession and this week was no exception.  In the other week’s Law Society Gazette two features focussed on changes which are having and will have a huge effect on the legal sector.

Firstly, solicitor-advocates. Discussion concerning solicitor-advocates is not new and yet it continues as the numbers rise. The Law Society Gazette notes that solicitors first acquired rights of audience in the higher courts in 1994, but it was not until after Lord Carter of Cole’s review of publicly funded legal services in 2006 that they began to consider the advantages of keeping advocacy in-house, instead of outsourcing the job to barristers. According to a recent report on criminal advocacy by Sir Bill Jeffrey, there has been a “marked shift” in the distribution of advocacy work in the Crown court away from the bar, with “many more solicitor-advocates than there were in the years following the liberalisation of the rights of audience.” Owing in part to cost pressures and the cuts to legal-aid, most solicitor advocates are practising criminal advocacy. Some believe their advance may ultimately end the divide between solicitors and barristers.

The second feature in the Gazette is on the CPD changes. The SRA has committed to “continuing competence” ensuring that solicitors provide first-rate client service. This replaces the three decades old compulsory 16 hours’ minimum training per year. In spring 2015 the SRA is publishing a “competence statement” and supporting toolkit to define what a good solicitor looks like in practice. Full implementation of the new approach will come into effect from 1 November 2016. The objective is that training will be dynamic, relevant and targeted with pinpoint accuracy at the needs of practitioners and their firms.

Being media savvy is a crucial part of lawyers’ armour and understanding how the media operates means that managing that media interest in a litigation becomes a much less troublesome prospect. It is this kind of training that the modern day lawyer needs to promote themselves in the best light and we are likely to see more and more training for lawyers that focuses on core management skills and communication skills such as networking and presentation. As a PR agency that is dedicated to the legal sector, Byfield regularly trains lawyers to be at their best in front of the media. Our litigation PR training has just been CPD accredited and guides lawyers to understand the media dimension that is inevitable in any high profile dispute these days.

What can we learn from these two examples of changes taking place? One is the lesson of adaption. To survive and thrive with increased competition firms need to take note and adapt to the new atmosphere. To fit in with a new atmosphere of training is to have a competitive advantage. The season is changing and change is still very much afoot in the legal sector.

Clementine Travis, Account Executive at Byfield Consultancy

Rive Gauche: Sir Hugo Kok de Up MP on Justice

I thought I would dredge up this old post from the beginning of the year.  While I continue to be surprised by Mr Grayling – he is still in post.  Mind you…there is a General Election next year and Mr Grayling will, hopefully (possibly?), be consigned to history and only observable on Wikipedia.  I wonder if he will keep the robes to lounge about in of an evening in opposition? One must be generous and hope so.

***

It may give The Twitterati some transient pleasure to mock one of the finest gentlemen to have ever graced the House of Commons benches by referring to him as a ‘Crime Scene in Progress’  – I talk of no other than Lord Chancellor Grayling, a man of vision who made his long walk to freedom  from obscurity to hold one of the highest offices of state in the land: Lord Chancellor –  the first non-lawyer to serve as Lord Chancellor since the Earl of Shaftesbury in 1672-3.  It did not end well for The Earl of Shaftesbury, it has to be said – although charges of High Treason were dropped and Shaftesbury fled to Amsterdam,  fell ill, and soon died.  But, be that as it may.

And as for those of you with a predilection for trawling through Wikipedia for amusing nonsense on Chris Grayling and other fellow Conservative MPs to find this sort of thing…..shame on you!

Between 2001 and 2009,[8] Grayling claimed expenses for his flat in Pimlico, close to the Houses of Parliament, despite having a constituency home no further than 17 miles away[9] and owning two buy to let properties in Wimbledon.[10] Grayling says he uses the flat when “working very late” because he needs to “work very erratic and late hours most days when the House of Commons is sitting.”[11]

During the Parliamentary expenses scandalThe Daily Telegraph reported that Grayling refitted and redecorated the flat in 2005 costing over £5,000.[9] Grayling said that both the water and electrical systems failed “leaving the place needing a major overhaul”.[10]

Grayling’s expenses issue was seen as embarrassing for the Conservative Party as he had previously criticised Labour ministers for being implicated in sleaze scandals.[12]

There is more to heaven and earth Horatio than was dreamt of in Wikipedia…. and on that note, I bid you good day. Although I am partial to the Australian greeting…”Gooday mate, how’s it hanging?” when unable to avoid socialists in the house.

The morality of suing a medical professional for Clinical Negligence

The morality of suing a medical professional for Clinical Negligence

By Nilam Patel a city firm fee earner

I often get asked ‘how can you sue doctors for a living?’ ‘Do you not feel guilty?’ ‘Doctors are overworked and sometimes they make mistakes like every human being’. This is my reply.

The perception many people have of Clinical Negligence lawyers can be misguided. It is not possible to take legal action against every clinician who makes an error in the process of treating and advising patients. There are strict legal criteria to be satisfied before a claim can be brought, with three requirements:-

1. Breach of Duty of Care

The first test is whether a reasonable body of practitioners would act in the manner that the accused doctor did. If so, then the actions of the doctor cannot be found to be negligent and he cannot be sued. It follows then that the stringent test is this, if the doctor is unable to find a reasonable body of practitioners who would act in the way that he did, under the same circumstances, then it seems quite obvious that the doctor acted negligently.

As lawyers, we are not in a position to judge the actions of a medical professional and so it is necessary to instruct an expert qualified in the relevant speciality. These experts cover the full range of medical treatment, including breast surgeons, paediatricians, obstetricians and cardiologists. If this expert is able to advise that no reasonable body of clinicians, in a particular medical area, would have acted, as was, then we may have passed the first hurdle.

A widely publicised example of this is the case of young Maisha Najeeb where the treating doctor negligently injected a syringe containing glue into her brain instead of a syringe containing harmless dye, leaving Maisha severely brain damaged. Here, the doctor acted wrongly by negligently using the wrong syringe.

In other cases the doctor will fail to do something (an act of omission).

For instance, in Jennifer’s case, which can be read here, several smear test results were reported incorrectly by a pathologist. These results showed abnormalities which should have been investigated further. The failure to investigate led to a failure to diagnose cervical cancer. Sadly Jennifer died on 21 January 2013.  The cause of her death was metastatic cervical cancer.  If she had received appropriate treatment earlier, the cancer would probably never have developed and Jennifer would be alive and well today.

There are many examples of doctors failing to perform an action which a reasonable body of practitioners would have performed:-

  • Not ordering the correct type of scan or blood test which would have revealed an illness.
  • Not administering the correct antibiotics to treat infections.
  • Failing to diagnose underlying conditions which could be treated.

Sadly, we conduct a number of birth injury cases where there have been failures by the obstetrician or midwife before, during and after labour. For example, in some cases there are clear signs of fetal distress which should have been picked up if the CTG trace had been correctly interpreted. Failures to do so result in the baby being starved of oxygen and suffering neurological damage at birth. Many of these babies suffer from cerebral palsy and epilepsy for the rest of their lives. They require multidisciplinary rehabilitation and their life expectancy is often significantly reduced.

 

2. Causation

The second limb required to establish a claim is the assessment of whether the negligent act caused or materially contributed to the injury suffered by the Claimant. If the doctor acted negligently, but this did not cause any injury to the Claimant then the Claimant has no claim. So, in Jennifer’s case, if earlier diagnosis of the cancer would have led to the same treatment options as were available when the diagnosis was eventually made, then the negligence did not cause any damage to the Claimant. However, Jennifer could have had a hysterectomy which would have led to a complete cure. Her death was avoidable. Other patients may have had the opportunity to have a risk reducing surgery i.e. a mastectomy or oophorectomy.

Also, if the injury would have occurred anyway regardless of the negligence then again there is no case. So for example, if a surgeon negligently cuts off a Claimant’s toe but his leg was to be amputated anyway, the Claimant has not suffered from any additional damage as he would have lost the toe anyway.

3. Compensation – Valuing the Claim

Once both breach of duty and causation have been established, the next point to consider is the value of the claim. The media often reports multimillion pound compensation awards. Defendants would not be making these payments unless we could justify the sums claimed.

The way the value of the claim is assessed is by understanding, firstly, what injury would not have occurred but for the negligence. Secondly, what expenses would not have been incurred but for the negligence. These limbs are categorised as General Damages and Special Damages, respectively.

(i). General Damages

An award of General Damages aims to compensate the Claimant’s ‘Pain Suffering and Loss of Amenity’ (PSLA). Nowadays awards are standardised across the board by Judicial College Guidelines. Although, no case is the same and we use our experience to obtain the highest awards. However, often these sums are very low in comparison to the injury suffered.

(ii). Special Damages

Prior to receiving the compensation, the Claimant may have incurred expenses caused by the negligence.

(iii) Future Loss

When valuing a claim we involve experts from many disciplines such as physiotherapists, occupational therapists, accommodation experts, case managers, support workers, and psychologists to name a few. We quantify the claim with the assistance of experts so we can consider the future needs of the injured Claimant from their perspective.

In many cases, a Claimant will no longer be able to work and so a claim will be made for loss of earnings.  So, for example, but for the negligence and the injury, the Claimant would have been employed until the age of retirement and now suffers from loss of earnings as they are unable to work.

In cases of physical injury the Claimant may require adapted accommodation which allows for room to manoeuvre with a wheelchair or to set up a hoist. Their current home may require adaptations to make everything accessible on the ground floor. The purpose is to put the Claimant in the position he or she would have been in but for the negligence, but in reality, this amounts to only getting the care and support that the person needs, as often they are unable to have the life they would have had if they had not been injured.

In addition to this, the Claimant will require the input of various clinicians and therapists throughout different stages of their life; neurologists, speech and language therapists, and dieticians are a few examples. The Claimant may require a full time career and support worker if it is not safe to leave them alone. What many people fail to understand is that brain injured Claimants are more vulnerable, even whilst in their own home. They may forget to turn the gas off or may allow a stranger in their home or they may not know how to react in an emergency situation. For these reasons, many of our brain injured Claimants need someone with them at all times. The cost of paying for these carers every day for the rest of the Claimant’s life is usually a huge sum of the compensation.

Whilst considering all these costs, it must be remembered that had the clinician acted properly this would have not been required by the Claimant. The negligent act of the doctor has placed the Claimant and their family in a position which they would not have otherwise been in.

For more information or further examples of medical negligence, visit Fieldfisher Solicitors case studies pages, there you will find multiple examples of medical negligence and the results of clinical errors that could have been avoided.

Nilam Patel, Fee Earner