Under most construction contracts, the contractor takes on the ground conditions risk. However, a recent case has demonstrated that the risk can fall on the employer.
PC Briggs was left in a minimally conscious state as a result of the serious, permanent brain damage he suffered as the victim of a road traffic accident.
In a public hearing, before Mr Justice Charles on 20 December 2016, the sanctity of life and the strong presumption that lives with value should be supported by the continuation of life-sustaining treatment were weighed in the balance, along with a person’s right to self-determination.
The court heard compelling evidence from Mr Brigg’s wife, his mother, his two brothers, and his colleagues that Mr Briggs would not have consented to the continuation of his clinically-assisted nutrition and hydration (CANH). Having heard this, the court determined that it was in Mr Brigg’s best interests to do what Mr Briggs, as an individual, would have decided if he had the capacity to do so. So the court withdrew consent for the continuation of the CANH.
The judge paid tribute to all the witnesses in this difficult case, both family and treating clinicians, who all gave their evidence “honestly and helpfully”.
Mrs Briggs was eligible for non-means tested legal aid. This enabled her to instruct solicitors and counsel, rather than representing herself and to avoid having to draw from her own savings to fund the case.
The Court of Protection, with its dual jurisdiction of property and finance and health and welfare, considers the ultimate issue of life and death, as in PC Briggs’ case, but also the life-changing:
- Can I return home?
- Will I be deprived of my liberty?
- Can I marry, have sexual relations, etc?
- Can I live with my spouse?
- Who can I have contact with?
- Who will manage my money, and how?
Public funding is sometimes available, but often isn't.
Court of Protection and mental capacity work brings the practitioner into contact with the best and the worst of humankind, and issues so intractable and complex they sometimes require the wisdom of Solomon to unravel.
In the last few days, a new Law Society accreditation scheme has been launched - the Mental Capacity (Welfare) Accreditation. This scheme will set the standard, guaranteeing quality representation for clients with impaired capacity to make important decisions for themselves. It will result in a bank of approved welfare specialists who can be approached by anyone seeking advice and representation in these challenging cases.
This scheme was conceived by members of the Law Society Mental Health and Disability Committee.
There will be two pathways to accreditation: a route that allows solicitors with expertise in capacity law simply to have their knowledge and skills recognised, and a second pathway for those who wish to put themselves forward as accredited legal representatives in accordance with the Court of Protection Rules. Accredited legal representatives were first incorporated into the Court of Protection (Amendment) Rules 2015 as a measure to provide legal representation for those who lack the mental capacity to make their own decisions. The intention is to provide a means by which the individual can be as involved as possible in the court proceedings that impact on their life.
At Anthony Collins Solicitors, our purpose as legal professionals is to “improve lives”. We believe that the Mental Capacity (Welfare) Accreditation will raise the profile of this vital area of work and draw in more of the brightest and the best of the legal profession to work with some of the most vulnerable individuals in our society. Our own Kirsty MacMillan, Court of Protection Welfare associate solicitor, plans to be one of the first mental capacity professionals to secure this new accreditation.
The UK Government has been consulting on how it should promote social value in its procurements. Here is our response that we submitted to the consultation...
The Tenant Fees Act 2019 came into force on 1 June 2019.
A recent case in the Court of Appeal will no doubt bring a sigh of relief for employers, but a corresponding sigh of disappointment may be uttered for equality and gender balance in the workplace.
This briefing assists response to the consultation paper by outlining the consultation questions, providing some background information and prompting some thoughts and potential answers.
A report published on 29 May by the Institute for Fiscal Studies (IFS) has found that since 2009-10, local government spending on services has fallen on average by 21% in real terms.
A long-awaited decision of the Court of Appeal has clarified that a lower standard of proof should apply than previously thought before an Inquest can return a conclusion of suicide.
New regulations come into force on 1 June 2019, amending the Section 21 (s21) prescribed form template for use with assured shorthold tenancies.
In a challenging economic climate with continuing budget cuts and increasing expectations of staff, sickness absence remains an ongoing problem that is important to address.
Social housing providers will routinely have a number of construction projects underway at any one time. It is essential for client teams to understand and avoid key contract management pitfalls.
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