Billion dollar baby

This week it came to light that the  UK government may have the power to force football's illustrious  Premier League to distribute more cash to the sport’s grassroots, albeit such a move could be in breach of world governing body Fifa’s policy of not allowing government interference in the beautiful game.

John Whittingdale, the minister for culture, sport and media, told a House of Commons committee on the 16th September that the Premier League must give more of its huge profits to lower league clubs and grassroots teams.
He said: “The Premier League is enjoying a complete bonanza now. There is a huge amount of money coming in but the proportion of that that reaches the lower divisions and the grassroots in particular is still very small. Should they be doing more? Without any question.”
When he was questioned as to whether the government could intervene, he said: “If the Premier League absolutely refuses to increase the amount of money that passes down through the system to the benefit of grassroots sport, then I think we would certainly look at what options we have available to us to ensure that is the outcome. I hope that can be avoided. It would be perfectly possible for the government to intervene to achieve that outcome, maybe through a levy.”
This seems to be a key example of transnationalism in modern day law. The idea that a seemingly independent body like FIFA could be both above and below the UK government in terms of financial rule making in football. In short the government does have the legal power to make FIFA distribute profits to grass roots teams but FIFA rules explicitly refer to the prevention of government intervention in football.

Given FIFA's tarnished reputation since the world cup bid fixing scandal earlier this year it will become immensely difficult for FIFA to hide from the fact that much of its multi-billion pound profit sheet is not being spent on developing the sport.

Back in May, the Premier League pledged to share at least £1 billion  of its huge UK TV rights deal with lower levels of the game, claiming that such a contribution is “unprecedented in world sport.”

The Premier League really suprised everyone when it sold live rights to Premier League fixtures to Sky and BT Sport for a whopping  £5.136 billion. Since then the Premier League has been under pressure to distribute its wealth down towards the grass roots tiers of English football. Under this new pledge over £1billion will go towards grassroots football, match day experiences and paying all staff a 'living wage'

Richard Scudamore, the executive chairman of the Premier League, said of the payment amounts to £50 million per member club: “The clubs have always stepped up to the plate when it comes to sharing their success. They appreciate that the development of the Premier League is contingent to a high degree on continued levels of passionate support and a vibrant football pyramid.
“These are unprecedented levels of redistribution in world sport, let alone football, which will deliver long-term progress for English football whether you are a fan, lower league club or involved in the grassroots.”

Details of the Premier League’s future financial contribution to the lower levels of English soccer have still to be finalised as the UK television deal is subject to an investigation by Ofcom which was prompted by a complaint by Virgin Media, about the selling of broadcasting rights. However, the Premier League can expect a further windfall from other domestic rights and international rights.
Business advisory firm Deloitte said recently that total broadcasting income in the next three-year cycle could be as high as £8.5 billion.

Overall, this is a very interesting development in the world of transnational law and the intricacies of the hierarchical relationship between European governments and FIFA are slowly being bought out of the shadows. It is hoped that stories like this will bring a new generation of legal, footballing and property right students into the big issues of the IP world and into the murky waters of transnational law.

For further information on the topics covered in this article please see the following sources:

Cotterell ‘Spectres of Transnationalism: Changing Terrains of Sociology of Law’ (2009) 36 Journal of Law and Society 481-500.

http://www.theguardian.com/media/2015/sep/18/premier-league-rights-battle-between-sky-and-bt-harming-uk-tv-industry

http://www.bbc.co.uk/sport/0/football/27732437

http://www.solicitorsjournal.com/news/commercial/company/music-and-football-industries-ramp-protection-ip-rights

http://www.mondaq.com/mexico/x/123054/Trademark/Sports+And+IP+The+Case+Of+The+Fifa+2010+World+Cup

Need a kidney? Try facebook!

 Recently it was reported that Facebook had failed to take down organ adverts whereby customers in need of an organ could buy organs online. Not only is buying and selling both cadaveric and living organs illegal in the UK[1] ,but it is also an offence to publish or advertise for sale of an organ punishable by 51 weeks in prison. In this article I am going to suggest that this should not be the case and that we should in fact be able to buy organs in a structured and monitored organ market. I propose that the purchase of cadaveric organs should be legalised but not the purchase of living donor organs. In the following  paragraphs I am going to explain: firstly what the law is on these matters and why it is illegal to pay for cadaveric organs, secondly I will explain why paying for cadaveric organs is a good idea and why some of the points against purchasing cadaveric organs are unjustified, thirdly I am going to explain why the law should be changed to allow payment for cadaveric organs but not living organs and finally I will outline by proposal for a new system whereby cadaveric organs can be paid for morally and efficiently. 

The law

The main statute in this area is s32 HTA 2004. Which states that it is illegal to give monetary reward in return for a living or cadaveric organ but that payment to the hospital in money or money’s worth is not the same as a reward if it is to cover the costs of the transplant and any expenses in connection with transporting, storing, removing or preserving the material are not deemed to be a reward and also that payment of the donor’s expenses and compensation for time off work is not a reward.

The reason this is the law[2] is that it is deemed that it prevents the exploitation of poor organ donors who are willing to sell organs and risk their health in order to make money, to prevent the commodification of the human body and to maintain a level of altruism within the organ donation system. In the next section I will outline why these justifications are erroneous and why it would be better if we could create an organ market whereby cadaveric organs are bought and sold in a structured and closely monitored way.

We should not be allowed to pay for cadaveric organs because it involves the commodification of the human body

This is the point often raised by anti-organ payment ethicists, it appears to be a strong argument against payment for cadaveric organs but it is not. English law frequently commodifies human body parts and emotions. For example tort law literally puts a price tag on different injuries and awards damages for broken or lost limbs and emotional trauma. 

Paying for cadaveric organs takes the altruism out of the organ donation system

Again, prima facie this seems like a logical and strong argument however, Harris[3] argues that payment does not negate altruism- more so with cadaveric donors as they would not benefit from the money. Harris explains brilliantly that doctors are all altruistic and provide care and attention for those in need however no one ever suggests that these roles are less altruistic because the people performing them are paid. This is a very strong argument for paying for cadaveric organs. I suggest that we should pay the relatives and the estates’ of the deceased organ donors to recognise the altruistic nature of their  donation and so appreciate of the massive emotional trauma that the families of the deceased must go through knowing that their deceased relative is having their organs removed for donation.

Payment for organs exploits the poor

In her very informative article Nancy Scheper- Hughes[4] argues that vulnerable, poor donors who have no real choice but to donate are exploited by systems across the world, such as in Iran, where organs can be paid for. I must point out here that I agree with this point however I would like to make two further points. Firstly the issue of exploitation could be solved with a regulated market which Erin and Harris[5] suggest could involve the NHS paying donors using money that would be for used for medical alternatives to transplantation such as dialysis and secondly, this is why I suggest that only cadaveric organs should be purchasable because then the donor is not making the choice to donate based on their current financial situation but instead as a good will gesture to help create financial stability for his/her family in the future. If one did want to argue that living organs should be allowed to be bought and sold also, one could even suggest a deontological argument whereby that because living donors have rights over their bodies they should be able to have the right to sell organs. The reason that I have chosen to argue only for the right to sell and buy cadaveric organs however is because I believe that the pressure of families on living donors is already too intense and that adding money into the equation will only increase pressure on living donors and may unduly influence donors decisions to donate organs whilst they are alive.  Also as Goyal[6] argues if poor living donors sell organs this will not actually help their financial situation because if they are too ill to work after, for example, their kidney is removed or even later in life due to the weaknesses associated with living with one kidney then they will lose earning that may amount to an equal value to or more than that of the organ.

Why cadaveric organs should be eligible for monetary purchase

There are 3 main reasons why cadaveric organs should be able to be purchased:

1.      It will help reduce the organ shortage and save lives.
2.     The altruism of cadaveric organ donation is actually increased with payment because the deceased donor will have altruistically donated an organ and also altruistically insured some money for their estate that will support their family in future after their death.
3.           Medical professionals and the public have a moral duty to save lives where possible and by encouraging as many people as possible to donate organs we can create a culture of giving and healing whereby our duty to save lives is satisfied.

My proposed model for paid cadaveric organ donation

My proposal contains 5 main principles which could be manipulated and altered depending on the legal system in which this law reform is taking place.  I have created this proposal to follow on from and expand on the model that Erin and Harris suggest[7] and for the sake of this article I have assumed that it is the English legal system that would be trying to create a paid cadaveric organ donation system.

1. The potential donor signs the donor register as normal but selects what the payment will go to (e.g. estate, funeral costs, gift in a will). It is made clear to the donor that the payment is conditional upon the organ/s being used for transplant in that both the organ is suitable for transplant and there is a done available to receive the organ.
2.  The NHS pays the money for the organ/s based on a commodification bill drawn up by experts whereby each organ is valued based on the type of organ and that state it is in. the money will only be paid if the organ is fit for transplantation and a donee is available to receive the organ.
3. The donor dies and his/her organs are taken after the body has undergone cold infusion and the organ/s has been deemed suitable for transplantation and a recipient is ready in theatre.
4. The organ/s is transplanted into a patient and the NHS pay the agreed amount for each organ donated to the desired cause of the donor eg funeral costs, gift in a will etc
5. The entire system is regulated by an Act of parliament and it is only legal for the NHS to pay for organs and all organ transplantations are done in certified hospitals and via the official process outlined above.

Further reading in this area that may be of interest

For a general audience

•            The Organ Donation Taskforce, The Potential Impact of an Opt out system for organ donation in the UK (2008), available at: http://webarchive.nationalarchives.gov.uk/20130107105354/http:/www.dh.gov.uk/en/Publicationsandstatistics/Publications/PublicationsPolicyAndGuidance/DH_090312
•      ‘Organ Donation Opt Out System given go ahead in Wales’, BBC news, 2 July 2013 http://www.bbc.co.uk/news/uk-wales-politics-2314323
•       Gary Becker and Julio Elias, Cash for Kidneys: the case for a market in organs, The Wall Street Journal, 18 January 2014, available at http://online.wsj.com/news/articles/SB10001424052702304149404579322560004817176?mod=WSJ_hpp_MIDDLENexttoWhatsNewsFifth
•       http://www.theconversation.com/action-to-stop-thriving-global-organ-trade-must-start-at-home-7333

For legal professionals and students:

•         M Brazier, ‘Retained Organs: Ethics and Humanity’ (2002) 22 Legal Studies 550.
•         Department of Health, An Investigation into Conditional Organ Donation (2000) http://webarchive.nationalarchives.gov.uk/20130107105354/http://www.dh.gov.uk/prod_consum_dh/groups/dh_digitalassets/@dh/@en/documents/digitalasset/dh_4035465.pdf
•          V English and A Sommerville. ‘Presumed Consent for transplantation: a dead issue after Alder Hey?’ (2003) 29 Journal of Medical Ethics 147.
•        CA Erin and J Harris J. ‘A monopsonistic market—or how to buy and sell human organs, tissues and cells ethically’, in Robinson I, ed. Life and death under high technology medicine. Manchester: Manchester University Press in association with the Fulbright Commission, London, 1994:134–53 (for an earlier, fuller version of the JME argument).
•        J Herring and P.-L. Chau, ‘My body, your body, our bodies’ (2007) Medical Law Review 34.
•        MA Jacob, Matching Organs with Donors (University of Pennsylvania Press, 2012)
•        K Liddell and A Hall, ‘Beyond Bristol and Alder Hey: The Future Regulation of Human Tissue’ (2005) 13 Medical Law Review 170.
•       NC Manson, ‘Normative Consent is not Consent’, (2013) Cambridge Quarterly of Healthcare Ethics 33-44
•      J McHale, ‘Organ Transplantation, the Criminal Law, and the Health Tourist’ (2013) Cambridge Quarterly of Healthcare Ethics 64-76
•        S Pattinson, ’Directed donation and ownership of human organs’ (2011) 31(3) Legal Studies 392-410
•       D Price, ‘End-of-Life treatment of potential organ donors:  paradigm shifts in intensive and emergency care’ (2011) Medical Law Review 86
•       D Price, ‘The Human Tissue Act 2004’ (2005) 68 Modern Law Review 798.n
•              M Potts and D W Evans, ‘Does it matter that organ donors are not dead?  Ethical and policy implications’ (2005) Journal of Medical Ethics 406.
•         C Waldby and R Mitchell, Tissue Economies: Blood, Organs and Cell Lines in Late Capitalism ch 6 (Duke University Press, 2006)
•       Welsh Government, Proposals for Legislation on Organ and Tissue Donation (2011)
•       S Wilkinson, Bodies for Sale (Routledge, 2003) ch. 7

---

[1] Human Tissue Act 2004 s 32
[2]  For more analysis of law  in this area see: A Cronin and J Douglas, ‘Directed and conditional deceased donor organ donations:  Laws and misconceptions’ (2010) 18 Medical Law Review 275-301 http://medlaw.oxfordjournals.org/
[3] J Harris, ‘Organ Procurement: dead interests, living needs’ (2003) Journal of Medical Ethics 130.
[4] N Scheper-Hughes, ‘The Ends of the Body – Commodity Fetishism and the Global Traffic in Organs’ (2002) 22(1) SAIS Review 61-80; available at: http://web.mit.edu/writing/2010/June/Scheper-Hughes_endsofthebody.pdf
[5] C Erin and J Harris, ‘An ethical market in organs’ (2003) 29 Journal of Medical Ethics 137-138; available at http://jme.bmj.com/content/29/3/137.full
[6] Goyal M, Mehta RL, Schneiderman LJ, Sehgal AR. Economic and health consequences of selling a kidney in India. JAMA. 2002;288:1589–93. [7] C Erin and J Harris, ‘An ethical market in organs’ (2003) 29 Journal of Medical Ethics 137-138; available at http://jme.bmj.com/content/29/3/137.full

Clinical Negligence... a constant battle but not between Lawyers and Doctors

Dear Readers,
My apologies for not posting sooner. I thought I should keep you updated with my current articles that are in the pipeline as I prepare for to start my Bar Professional Training Course. Given Mr Hunts recent comments on the competence and work ethic of doctors in the NHS I thought I would publish a couple of clinical negligence and medical law based articles. In the pipeline at the moment I have a couple of articles, one on the costs and procedure in clinical negligence cases and how the NHS could reduce these to save money and the second on the recent Facebook scandal relating to selling organs online and whether or not a commercial market for transplant organs would be legal or desirable. Thank you for your patience I hope you enjoy reading my new set of articles soon. Also thanks again for your containing endorsements and support. I love to hear from you on twitter and Facebook and it humbles me to know that so many of you are inspired to research, write and take an interest in law because of Legal Luminance.
Every kind wish,
KT

'Chinese Dream': a corrupt sham?

Lawyers on the wrong side of the bars?

This week in China dozens of human rights lawyers have been detained as the government suspects that they have swayed court decisions, faked protested and disrupted public order. The lawyers targeted were mostly human rights lawyers who have worked on freedom of speech cases and judicial review. The Ministry of Public Security accused a group led by the Beijing-based Fengrui Law Firm, of illegally hiring protesters and swaying court decisions in the name of "defending justice and public interests". It also accused the lawyers of presenting a legitimate police shooting at a railway station as a murder conspiracy. These detentions are being seen as a consequence of China's  national security law which critics say disproportionately protects the government's power.President Xi Jinping has been using his power to detain hundreds of thousands of officials in recent times and there has been a media push to discredit human rights lawyers by using their personal information to defame them.

The Chinese Dream Sham

All of this has happened in the midst of a 'Chinese Dream' to combat legal and official corruption and a campaign to uphold the image that China respects the rule of law. However as many of you will know the rule of law centres around the transparency of law and the ability of courts to review decisions with the help of barristers in order to ensure that public authorities are not abusing their power. What is happening in China however appears to be the exact opposite. This is made even more worrying by the fact that as Maya Wang, a researcher with Human Rights Watch, said the detention of activists and lawyers was not in response to “any kind of perceivable threat.”

The role of public opinion

William Nee, from Amnesty International, said Fengrui’s effectiveness in highlighting cases of injustice worried the government. “We’ve seen cases where public opinion seems to have been mobilised and I think they are worried because they don’t want to lose their grip on public opinion.” Protests outside courts by activists had unnerved the government, he added. This further suggests that these detentions are not lawful and are in fact a political move to prevent the public opinion from swaying towards the opinion of human rights lawyers in China that public authority corruption is rife and powers are being abused.

For more information see:

http://www.bbc.co.uk/news/world-asia-china-33502955

http://www.ft.com/cms/s/0/e39a987c-27d6-11e5-8db8-c033edba8a6e.html

http://www.theguardian.com/world/2015/jul/13/china-targets-lawyers-in-new-human-rights-crackdown

Should healthy people have access to euthansia?

Abstract
This week has been an interesting week in medical law. It has been reported that courts in Belgium have allowed a healthy woman to access euthanasia  because she  has had ' suicidal thoughts since childhood' meanwhile in the Netherlands there has been a push to allow children under the age of 12 with terminal illnesses or illnesses that make life  unbearable to access euthanasia. Back in the UK Lord Falconer's Bill is on its way through parliament and if it is passed into law it would allow people who have capacity, a terminal illness and less than 6 months to live to access euthanasia legally as long as they are domicile in the UK. These  stories prompted me to look at whether or not euthanasia should ever be an option for a healthy person. For the sake of space I will assume that we are only considering adults over the age of 18 in situations where there is a genuine desire to die and no malice on the part of the physician. In this essay I am going to explore, firstly, the reasons why euthanasia has been legalised in some European countries and the main arguments for its legalisation. Secondly, why healthy  people may choose euthanasia over suicide and whether this should be a lawful choice and finally whether it is consistent with the aims of medical law for the euthanasization of healthy people to be lawful.

Reasons why euthanaisa should be legal in some cases

Autonomy- one of the main reasons behind the push to legalise euthanasia in Europe has been the desire to respect people's right to die and not continue a life that they consider not worth living. In the case of healthy people this argument still holds strong. If what makes the England a modern and civil state is our desire to allow citizens to make their own choices for their own reasons then we should allow healthy people to have access to euthanasia simply because this is what they want. This would of course be subject to the conditions that the Doctor would not gain for the euthanasia and that the patient had a certain, capacitated and long held desire to die.

Non-discrimination- another argument that frequently features in the euthanasia debate is the need for people who physically cannot commit suicide due to paralysis or disability to have the same right to suicide as able bodied people. This is where we run into problems if we allow healthy people to have access to euthanasia,Suicide was made legal by the Suicide Act 1967 but assisted suicide and euthanasia remain illegal. If a healthy person wants to die then suicide is still an option for them, assuming that paralysis and disability take you out of the category of 'healthy persons'. Therefore it seems to go to far to say that not only should healthy people be allowed to kill themselves but they should also be allowed to ask a medical professional to help them. There is no discrimination in the case of a healthy adult who wants to die, they can commit suicide and the law cannot step in.

Prevention of harm- finally in most right to die cases the issue arises that the person wants to die and is currently in pain or mental distress to such an extent that doctors should help them die in order to prevent their suffering continuing. In the case of a healthy person seeking euthanasia this may be an issue because there may be no harm being prevented. It is of course arguable that the woman in Belgium, known only as 'Laura' was in such mental distress by her suicidal thoughts that allowing her to die prevented this suffering. However it is also clear that in many cases counselling, mental health treatments and other medical treatments may help to relieve this mental distress and so letting someone die would actually take away the chance of recovery rather than cure them.


Why would a healthy adult choose euthanasia?
I accept that I have limited space and knowledge in this area to really explain and analyse all the reasons why someone may want to be euthanized despite being physically able to commit suicide themselves. For  now I shall look at 2 reasons. First, a fear that another suicide attempt may fail and second an inability to go through the process of suicide alone.

If a healthy adult wishes to die and wants a physician to help because they have attempted suicide before and failed then euthanasia may seem like the best option. The healthy person may believe that a doctor will be able to ensure that they are given drugs that will be sure to work and that death will be as peaceful and painless as possible. Whilst this seems rational and logical it misses out the fact that another person, the physician will be complicit in the euthanasia and so would have to consent to effectively killing a healthy person. In law consent is no defence to harm and so if the euthanasia of healthy people was legalised this really would be an extraordinary anomaly in English Law. It is possible that doctors would be given a right to conscientious objection which is fair and reasonable however my question would be what kind of doctor would agree to kill a healthy patient and go against all they have learnt at medical school about how the doctor's duty is to protect and care for their patients?

Secondly, if a healthy person wishes to access euthanasia because they feel they have not got the ability to go through the process alone then it should be asked whether they really do want to die. Part of the reason suicide is lawful is because the person themselves is ending their own life and right up until the last moment they can choose to remain alive. If doctors could assist a healthy person's suicide then the doctor will be taking the final steps of actually killing the patient and so the patient's autonomy in those last few seconds of life is surrendered to the Doctor. Therefore giving healthy people access to euthanasia is not protecting their autonomy as the law should.

Conclusion: would allowing healthy people to be euthanized be consistent with English medical law?
In short, no. Euthansia would not protect the healthy person's autonomy in the same way suicide does. The healthy person could not withdraw his consent once the lethal dose has been administered but he could choose not to jump from a bridge. This is why suicide is legal and euthanasia is not. English medical law has foundations in patient autonomy. Allowing healthy people to be euthanized also goes against the foundations of the medical profession as it effectively allows a doctor to end a patient's life and it offends the principle of the prevention of harm. Therefore overall I feel that the legalization of euthanasia for healthy people is unacceptable on medical and ethical grounds and although it is unlikely a judgement like the one in Belgium will ever happen in England judges should be slow to follow the Belgian model

Results Day

Dear Readers,
Thank you so much for to all of you who wished me luck on the 23rd. I am delighted to announce that I will be graduating from Queen Mary University of London with a first class honours for my Law LLB. Once again I was humbled by your support and honest critique of my work. Thank you to everyone at The Lawyer for helping me boost the publications section of my CV. The clerks at OTC, 1 GC and Staple Inn for their guidance and help with getting experience of the best cases. Finally thank you to all the students who read this blog and told me how much it has helped them. I really appreciate your loyalty and patience and I cannot wait to continue writing at Bar School and Pupillage.
Every kind wish,
KT

Lincoln's Inn BPTC major scholarship award interviews

Dear Readers,
As promised I am here to offer a concise run down and top 5 tips for the dreaded Lincoln's Inn interview.

A brief outline of the process post offer of interview
Firstly, huge congratulations on getting this far. If you have been offered a scholarship interview at any Inn but especially Lincoln's you are already part of an elite set of prospective barristers who a star studded set of benchers have deemed worthy of investigation. This may seem very wishy washy but maintaining this perspective will give you the boost and reassurance you need to get through what is an enjoyable but daunting interview. In short, the interview will involve a panel of 3 members (usually a bencher who will be a QC or judge, and 2 barristers) in my case I was confronted with 2 judges and a QC who whilst intimidating where absolutely awe-inspiring. Next they will proceed to ask you questions about the area of law you wish to specialize in, tear apart your application form and press you for your financial capability to fund or not fund BPTC.

Key aspects of the interview 
Firstly, your specialism. I would recommend knowing which area you said you were looking to go into on your application form and not being afraid to say if this opinion has changed or been narrowed since. They want to see that you have drive and knowledge of where your career is heading not that you never change your mind. For me, this involved explaining that whilst my application form was tailored towards the Family Bar what I actually wanted to work in specifically was child protection law, court of protection cases involving children and child public law. I had spent an excessive amount of time researching and working in these areas however I think what matters is that you know your area well and are willing to research not that you can answer a quiz on the area of your choice. Also do not be afraid to mention more than one area for example I mentioned my first class results in Public and administrative law and my desire to mix this with work with the incapacitated and children. However, if your plans are not quite so easy to explain then do not worry just ensure that you know what your area involves and that you can justify what it is that inspires you about your area of the Bar.

Secondly, you must know your specialist area in some depth. For example know the big recent cases, supreme court decisions and any new bills in this area that are currently in parliament. Also know why you will excel in this area and what you can bring to advocacy in your area of the Bar. For example if you are interested in Commercial Law a keen eye for analysis and stats will help, be good with numbers and be able to tackle legal and economic jargon with ease. Push your ability to make complex legal arguments and deal with rich, demanding and often troublesome clients. However if you want to work in Family Law realize that you need to be far more empathetic, down to earth and able to simplify the law and legal arguments for what are sometimes very volatile and vulnerable clients.

Thirdly, know your application form inside out. Work out which words you used just to fill space or sound sophisticated and work out how you are going to justify yourself. For example, if you said a lecture on X by Y was very inspiring be ready to explain X in detail and why Y was particularly talented. What did X inspire you to do and why did Y help you realize this aspiration?

Finally, although you do not have to know how you will fund the BPTC to the £ make sure you accurately portray how much you, yourself have at your disposal to invest in your dreams. Do not be afraid to say that you will need to borrow or beg or that you will work for a year (or a decade) to fund your BPTC course. What matters is that you show willingness to study and succeed even if you do not get any extra funding.

5 Top Tips 
I would like to end this post with a disclaimer... these tips are not idiot proof and will not guarantee you a scholarship. They will however help you to present your best points in the best way you can. The rest however is for fate to decide (and a room full of judges, QCs and admin staff)

1. Do not act like you are on the Apprentice- This is not a competition, it is a pitch. Do not worry about that guy in the corner with 20 years experience running his own business and his £2000 suit. Worry about you and ensuring that you shine. You do not have to be the most experienced, the smartest or the oldest you just have to hold yourself well and believe in your ambitions

2. Laugh- no, not like a maniac. Just do not be afraid to relax. Remember that the panel sat in front of you have been your side of the desk. They know that there are people with a  first class Law LLB from Oxford in the waiting room but they also know that you have something unique to bring to the Bar. They are human and they are compassionate, if you make them feel like that they will make sure you know that BPTC is closer than you think.

3. Stay calm- remain focused and show off those well refined reasoning skills and the award winning personality that got you this far.

4. Maintain your perspective- realize that it is incredibly hard to get this scholarship and that many award winning QCs and judges did not make the cut when they applied. This is not the be all and end all this is one step on your journey to creating arguably the best career there is. If you fail get back up and keep moving forward (see Rocky for further details)

5. Invest- look smart but also act smart. It is okay to spend your student loan on the perfect suit but that will not pay £18,500 for  your BPTC year. What might is investing emotionally in what you do in the interview room. Do not think about what someone else would do. Articulate what this means to you and why you are worthy of a scholarship.


Thank you for taking the time to read this post. I hope this was helpful for all of you who asked me to assist with your interview and BPTC preparation. Please remain aware that you will achieve your ambitions with hard work and if it does not happen at this interview it will at one in future. Most importantly, good luck and see you all at the Bar.

Every kind wish,
KT

Law LLB is over

Dear All,
Thank you for all your kind wishes these past few months. As most of you know I finished my Law LLB at QMUL last week which is why I haven't posted since March! I thought after some much needed sleep now was a good time to update you with my progress and plans for Legal Luminance. As some of you already know back in April I was lucky enough to receive a Lord Denning scholarship from Lincoln's Inn which means my BPTC year is being funded for me. Of course this is amazing news not just for me but it also means you lucky people on here will get a first hand insight into life at BPP Bar school and with any  luck life at the Bar of England and Wales. I want to take this opportunity to thank each and every one of you who helped me prepare for my interview, offered me publication deals and opportunities and generally just sent kind words of encouragement. I will be posting a realistic and hopefully winning formula for tackling the Lincoln's Inn scholarship interviews in due course which I know many of you requested. I will also be posting shortly about my route to BPTC and general tips for gaining a place at one of London's immensely competitive but fabulous Bar schools. Finally at some point in the near future I will be aiming to publish my paper on Human Rights reform and why Mr Cameron has scrapped it from this year's Queen's speech to parliament and hopefully I may even have time to throw some light on my Bar ambitions and the areas I have worked and wish  to work in next year.
Thank you so much for your time and patience.
Every kind wish,
KT

A celebration of Catherine MacKinnon- does the law really see and treat women and men see and treat women?

Dear Readers,

My apologies for such a long delay since my last post I have been snowed under with Inn scholarship application forms, interviews, BPTC applications and offers and of course revision for my finals! I have been working on a short article inspired by Catherine MacKinnon a personal heroine of mine and an incredible feminist legal scholar. My apologies that it was not ready for publication in time for International Women's Day but I would like to thank  Dr Ksenia Bakina (jurisprudence tutor), Richard Simmons (editor at The Lawyer) and Alex Thirlwell (my long suffering partner and dear friend). I stress any mistakes are completely my own. 

A celebration of Catherine MacKinnon- does the law really see and treat women and men see and treat women?

MacKinnon[1] argues that the liberal state created a legal system that reinforces a social order in favour of the male interest, in this way law sees and treats women the way men see and treat women. MacKinnon’s aim is to use radical feminism to ‘uncover and claim as valid the experience of women, the majority content of which is the devalidation of women’s experience’.  MacKinnon believes that legal objectivity is actually male objectivity therefore women’s experiences are not accurately portrayed in law and that gender hierarchy in liberal states oppress women and devalue their experiences.   I will focus on rape, domestic violence and foetal protection laws in light of MacKinnon’s statement and analyse them to see what they say about how men see and treat women and if there is any correlation between how the law sees and treats women. I will conclude that the law sees and treats women as objects that need protection from their own irrational actions in much the same way as some men see and treat women as their property or weak beings that need protect from the harsh realities of the rational, male, public sphere.

Rape: the objectification of women

Mackinnon argues that rape is an example of men using the gender hierarchy to abuse women[2]. The law defines rape as the intentional penetration of the vagina, anus or mouth of another person with a penis[3]. This focus on penetration, MacKinnon argues, shows how the law protects the interests of the male offender because men see sex as a primarily physical act whereas for women sex is more of emotional and intimate act. MacKinnon believes that rape, in law, is defined by the loss of access by the woman’s partner to the female victim, not based on how the victim feels about the violation of her sexuality. MacKinnon argues that rape is treated as a crime against female monogamy and not against female sexuality. Using penetration as the benchmark for rape leaves many female victims who have been sexually violated without justice and also shows the juxtaposition between the way women see rape and the way the law, and men, see rape. Women see the rape in sexual intercourse; the law sees the sexual intercourse in rape. This goes to show how the law sees women as objects that can be used by men and the fact that rapes happen show that some men see their access to women’s bodies as a right. 

MacKinnon[4] argues that basing consent  on the male defendant’s ‘ reasonable belief’ shows how law sees and treats women as men see and treat women. The law sees force just above normal male sexual behaviour as acceptable. It is not about the victim’s experience it is about punishing rapists where their actions look like rape and not sex. This leaves many women who have been emotionally or financially forced into sex without justice because the force is not physical so the man can maintain reasonable belief in consent and so escape punishment.

Munro[5] argues that MacKinnon sees female victims as weak and this just serves to reinforce the gender hierarchy.  I disagree; MacKinnon is trying to demonstrate that the female perspective of rape is not acknowledged at law. This explains why rape report rates are so low.[6] Victims doubt that they will be believed and so they do not report that they have been raped. Women are taught from society that they should submit to men and that men are there to protect them, unfortunately some men abuse this power and therefore women are doomed to remain the sex objects of men as result.

Domestic Violence: Women as irrational and weak

Munro[7] argues that because domestic violence cases can be bought to court without the female victim’s consent the law on domestic violence does not protect women. I agree, by prosecuting a female victim’s male partner without the victim’s consent the law is treating women as if they cannot make a rational choice about whether or not to bring a claim. Whilst it is true that many women do not bring their partners to court because they have been emotionally manipulated to believe that the attacks are their fault; it is also true that many male perpetrators of domestic violence reoffend after they are released from prison.[8] The law’s view that male domestic violence offenders can be prosecuted without the victim’s consent is not only patronizing to women but also puts them in danger.

Naffine[9]  says that domestic violence is an example of when the law chooses to infringe on the private lives of citizens. The term ‘domestic’ has traditionally been associated with the safe haven of women where they can raise children. ‘Domestic’ added to ‘violence’ is an odd juxtaposition that shows that women are no longer safe in the home; in fact they are in danger even at the hands of their own partners. For me, this is why the link between domestic violence and the treatment of women as irrational is so tragic. The nature of domestic violence ruins the safety of the home and the stability of the family. The fact that domestic violence is a relatively new crime proves that the law does not see women as rational claimants who bring serious claims and deserve equal protection to men who are victims of violent crimes in public.

Munro[10] argues that the victim focused agenda has led to a broadening of the powers of regulatory quasi-state therapeutic institutions which are claiming to protect women yet still do not consider their views as to whether their partner should be tried for domestic violence. Whilst this increase in power is beneficial because domestic violence is being treated more seriously, it does not stop the law from seeing women as weak, irrational beings who cannot judge for themselves whether or not to bring a claim. For me,  this view of women could lead some men to believe that they can get away with domestic violence in and it is in this sense that the law sees and treats women as men see and treat women.

Laws on foetal protection: Women as fragile carers

Sheldon[11] argues that law sees and treats women as if they are ‘leaky, volatile and penetrable’ whereas men are seen as ‘strong, impenetrable and stable’. This divide means that women are seen as a greater risk to foetuses than men. Men ejaculate and then are physically separate from the foetus whereas women are physically connected to the foetus and so are deemed to me more of a risk to it that it’s father.

This is especially evident in employer’s foetal protection policies which stop pregnant women, or women of reproductive age, working with dangerous chemicals that could damage the foetus. Women are treated as weak and in need of protection. Whilst it is right that foetus’ should be protected from chemical toxins, Sheldon argues that the law ignores the fact that men are at risk from these toxins too and they may go home and see their pregnant wives, girlfriends and sisters and the toxins on their work clothes may infect the pregnant women and harm the foetuses anyway. Sheldon calls for more equality in protective employment policies to ensure that women are not seen as the only source of danger to the foetus. In Page v Freight Hire[12], a 23 year old woman was dismissed from her job as a tanker transporting the harmful toxin DMF because she was of reproductive age and so it was deemed that exposure to DMF could harm her reproductive abilities. This is an example of how the law sees and treats women as men see and treat women, fragile beings in need of protection. Ms Page was not pregnant and had said that she did not want any more children however she was still dismissed because the company had no alternative work for her and the court thought that she may change her mind and decide she wanted more children in future. The court labelled Ms Page fragile and penetrable because she could be infected by the toxins but also immature as she was not trusted to make her own reproductive choices. In short, employer’s policies on foetal protection treat women as fragile and in need of protection whereas they treat men as stable, strong and somehow less vulnerable to toxins.

Sheldon then goes on to consider the Congenital disabilities (civil liability) Act 1976[13] whereby a child cannot sue their mother for negligence during pregnancy unless they were negligently driving. For Sheldon, this shows how women are seen as the fragile carers because not being allowed to sue your mother maintains the child/mother bond and in the law’s eyes the mother is the primary carer of the child. Conversely, men can be sued but usually have to pay damages which shows how they are seen as the breadwinners and the child’s economic but not emotional support. This situation feeds into MacKinnon’s [14]theory on patriarchy and the subordination of women because men see women as mothers and wives who need to be protected from the ‘real world’ and men are seen as strong breadwinners who protect their families.  I agree with Sheldon, however I would add that part of the reason men are not seen as being an equal risk to foetuses is because scientific evidence of the effect of drugs, alcohol and toxins on sperm and the male reproductive system is only just starting to be produced and so the law needs time to codify these scientific findings. However, as Daniels[15] says, it is true that women are seen as irrational and likely to take drugs or put their foetus at risk and so are protected and persecuted by the law whereas men are seen as invulnerable and capable of withstanding the damage that toxins, drugs and alcohol can do to the body.

Conclusion

To conclude, I agree with MacKinnon’s statement that the law sees and treats women as men see and treat women for three reasons. Firstly, rape law treats women as the sex objects of men to whom men can have access as long as the rape looks like sexual intercourse. This is why female rape victims doubt that they will be believed and subsequently why rape conviction rates are so low and unfortunately one of the reasons why rapes happen, because men feel like the law will let them go unpunished. Secondly, law on domestic violence treats women as weak, irrational beings who cannot judge for themselves whether or not to bring a claim. This reinforces their abusers perception they are able to be abused and is unlikely to be brave enough to call the police.  Thirdly, foetal protection laws, support MacKinnon’s theory on patriarchy and the subordination of women because both the law and men see women as mothers and wives who need to be protected from the ‘real world’ and men are seen as strong breadwinners who protect their families.

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[1] Catharine A. MacKinnon [1983], ‘Feminism, Marxism, Method and the State: Towards Feminism in Culture’ 8 signs Journal of women in culture and society 644-45

[2] Catharine A. MacKinnon, ‘Sex and Violence: A Perspective’, in Feminism Unmodified: Discourses on Life and Law (Harvard University Press, 1987), 85-92

[3]  Sexual Offences Act 2003  s1

[4] Catharine A. MacKinnon, ‘Sex and Violence: A Perspective’, in Feminism Unmodified: Discourses on Life and Law (Harvard University Press, 1987), 85-92

[5] Vanessa E. Munro, ‘Violence Against Women, “Victimhood” and the (Neo)Liberal State’, in Margaret Davies and Vanessa E. Munro (eds), The Ashgate Research Companion to Feminist Legal Theory (Ashgate, 2013), 233-248

[6] Ministry of Justice, Home Office & the  Office for National Statistics ‘An Overview of Sexual Offending in

England and Wales’ [2013] p 16

[7] Vanessa E. Munro, ‘Violence Against Women, “Victimhood” and the (Neo)Liberal State’, in Margaret Davies and Vanessa E. Munro (eds), The Ashgate Research Companion to Feminist Legal Theory (Ashgate, 2013), 243-244

[8] http://www.wewillspeakout.org/wp-content/uploads/2013/03/domestic-violence-statistics-2009.pdf accessed 26/02/15 at 13:42

[9] Naffine [2002] ‘ In praise of legal feminism’ 22 Legal studies 73-76

[10] Vanessa E. Munro, ‘Violence Against Women, “Victimhood” and the (Neo)Liberal State’, in Margaret Davies and Vanessa E. Munro (eds), The Ashgate Research Companion to Feminist Legal Theory (Ashgate, 2013), 243-244

[11] Sally Sheldon, ‘ReConceiving Masculinity: Imagining Men’s Reproductive Bodies in Law’ (1999) 26 Journal of Law and Society 129-149

[12] Page v Freight Hire (Tank Haulage) Ltd [1981] IRLR 13 EAT

[13] Congenital Disabilities (Civil Liability) Act 1976

[14] Catharine A. MacKinnon [1983], ‘Feminism, Marxism, Method and the State: Towards Feminism in Culture’ 8 signs Journal of women in culture and society 644-45

[15] Cynthia Daniels, ‘Between Fathers and Fetuses: The Social Construction of Male Reproduction and the Politics of Fetal Harm’ in (1997) 22 Signs 579–616

Anorexia, the last taboo

“The law’s continued acceptance of the forced feeding of the mentally ill makes a mockery of the Mental Capacity Act’s commitment to take the wishes of the incapacitated into account.”  Critically analyse this statement.

Introduction

This essay is going to discuss the Mental Capacity Act (hereinafter referred to as MCA) and its commitment to take the wishes of the incapacitated into account and the implementation of the courts of this commitment to patients who are force fed as a result of anorexia.  Mental illness often incapacitates a patient and so even if a treatment may save their life it is very hard for doctors to perform treatment that the patient has not consented to.  The law in England has been trying to move away from a paternalistic model of consent, whereby the doctor does what he thinks is best, to a partnership model of consent where the patient communicates their wishes about treatment despite their incapacity and these wishes are respected as far as possible. It is clear that the MCA is trying to commit to the partnership model of consent however courts have had difficulties in applying the partnership model to situations where the patient is mentally ill and so lacks capacity. Donnelly[1] questions whether the process of establishing consent established by the courts can deliver on the MCA’s goal of preserving maximum decision-making freedom, while, at the same time, providing an appropriate degree of protection. Few areas of case law demonstrate this point in relation to the wishes of the incapacitated better than the case law on the force feeding of anorexics. Therefore I will examine these cases in light of the statement and conclude that although the case law does not make a mockery of the commitments of the MCA, the courts do however need to make some improvements.

Section 1: The case law makes a mockery of the MCA commitment to protect the wishes of the incapacitated

In this section I am going to consider the reasons that could be given that suggest that the force feeding of the mentally ill makes a mockery of the MCA[2]’s commitment to take the wishes of the incapacitated into account.

The most obvious example is the case of Re E[3] where a young female anorexic who had been suffering for 18 years wanted to be left to die with dignity. The House of Lords found her to be incapacitated because under the MCA s 1 she could not weigh up the costs and benefits of being force fed. The House of Lords therefore ordered her force feeding by a specialist hospital.  Jackson[4] acknowledges that it is unlikely that E will ever consider her weight to be acceptable and that she is an intelligent adult therefore her views should be respected. The House of Lords did not take this into account which shows that they are still committed to the view that life is valued above and beyond all else, life in its intrinsic sense is valuable no matter how low the quality of life is. The court found that E’s life is precious despite the fact it is possible that the treatment will be not be a success. Draper[5] criticises this decision by arguing that in the case of an intelligent young woman like E she should have been found to be competent because her refusal of feeding was based on her ability to weigh up the pros and cons of her quality of life not based on her incompetence surrounding her fear of calories.

It is possible to look at Re E from another perspective, the copious consideration of E’s wishes to die and have control of her condition were detailed and so it seems that the House of Lords did not actually disregard her wishes. The court respected her wishes, in line with the MCA, yet chose to see that those few occasions where E wanted to fight her illness and her right to life, however hard, took priority over her refusals to be force fed. This reading of Re E is very sympathetic to the court but misses a key point about the effects of the decision in Re E. In this case E was badly sexually abused as a child and the force of the feeding to be given to her was likely to give her traumatic flashbacks of her abuse, the intense psychological suffering she had undergone was disregarded and her right to a painful and unwanted life was maintained. The court used a finding of incapacity, because E could not weigh up the possibility of dying and force feeding due to her fear of calories, to mask their desire to maintain and protect human life at all costs regardless of the wishes of the patient. This is why, for me, the Re E decisions shows the courts’ lack of commitment to the MCA’s underlying need to protect the wishes of the incapacitated.

The second point that suggests that the case law on force feeding makes a mockery of the underlying commitment to respecting the wishes of the incapacitated under the MCA is that there is a possibility of breaching Art 3 ECHR[6] if the reasonable force is not for therapeutic necessity. To amount to inhuman and degrading treatment under art 3 the treatment must meet a very high bar. But arguably allowing someone to be force fed is inhuman and degrading because they will have no control over their consumption of food and may be sick, get agitated or even lose control of their bowels. By allowing force feeding to take place without consent even if the patient is incapacitated the courts are simply disregarding the horrendous effects and nature of the treatment which Troscianko [7] argues could amount to torture. Although Re E is an exceptional case a disregard for the humane treatment of patients, even if it is just a one-off, shows simply that the courts do not regard the wishes of incapacitated treatments to count for much and thus the commitment of the MCA to respecting incapacitated patients is forgotten.

The final reason that the courts have made a mockery of the MCA’s commitment to respecting the wishes of the incapacitated in anorexia cases is an extension of Draper’s[8] argument based on body image. Draper argues that women who refuse mastectomies are doing so because of body image issues but operating on them would be unthinkable so it should not be acceptable force feed an anorexic who is refusing due to a body image problem. This could be extended to show that the courts ordering of force feeding for incapacitated patients shows that they not only do not believe that a body image problem is enough to justify letting the patient choose to die but also that the courts do not give proper weight to the wishes of the incapacitated anorexia patient.

Section 2: the courts approach does not make a mockery of the MCA’s commitment to respecting the wishes of the incapacitated.

This section is going to defend the courts approach to anorexic incapacitated patient consent. It will argue that the courts do consider the wishes of the patients despite their incapacity and that this is perfectly in line with the commitments of the MCA.

Firstly it should be noted that under the MCA code of practice code of practice[9]   anorexics understand the information given to them but their condition means they are unable to weigh this information and therefore they are not able to consent to treatment. This guidance in itself shows the commitment under the MCA to ensuring that anorexia and its effects on consent are understood and so the wishes of the patient can be respected as far as possible. This guidance on consent by anorexics was implemented by the court this year in the Ms X[10] case it was deemed that X could not make decisions regarding her treatment for anorexia because she was unable to weigh up the costs and benefits of being treated however she could make decisions regarding her consumption of alcohol and could consent to be treated for alcoholism.[11] This case demonstrates the courts’ desire to allow anorexics to decide as much of their treatment as they can but also allows the doctors to intervene when it is clear from their overwhelming fear of calories that they cannot make capacitated decisions. This is a very sensible approach to take because it promotes the partnership model of the patient/doctor relationship because the patient is allowed to have a say in all treatment except those treatments in which their fear of calories biases their opinion.

Secondly the case of NHS Trust v L[12]  involved an anorexic whose doctor said she was dying but her overwhelming fear of calories would mean that force feeding her would be overly burdensome. Given the condition of L in this case Elenor King J[13] said that force feeding would be burdensome and futile because she was dying and therefore allowing her to dye peacefully was in her best interests. This case can be distinguished from Re E on the grounds that L’s treatment was not going to have any chance of a beneficial effect because she was too close to death whereas E had a small chance of survival and recovery and therefore attempts to save her life through force feeding were desirable and surviving was ultimately beneficial for her. This case shows that courts are willing to let anorexics choose to die however it could be argued that the court was swayed to agree with L because the doctors too wanted to be allowed to let her die unlike in Re E where the doctors and E disagreed.

Overall, the courts are not making a mockery of the MCA’s commitment to respect the wishes of incapacitated anorexic patients. Instead the courts are balancing this commitment with the commitment of the doctors to understand anorexia nervosa and act in the patients’ best interests when they cannot consent for themselves.

Conclusions

The courts approach to incapacitated anorexia patients does not make a mockery of the commitment of the MCA to respecting the wishes of incapacitated patients. The courts should give greater consideration for the implications of treatment for anorexia; especially force feeding, on the patient. Re E was an exceptional case however that does not remove the need for courts to remain cautious when ordering force feeding against the patient’s wishes. It is vital that body image problems which cause conditions such as anorexia are taken seriously and competency questions surrounding anorexia should consider the patient’s competence to refuse treatment for the reasons given not because it is assumed that the refusal was based on their fear of calories.  Draper argues these conditions and consent in these areas needs to be realigned with other consent issues. For example the courts need to acknowledge that a competent refusal to undergo a mastectomy is analogous to refusal to be force fed, both treatments can have severe side effects, both treatments can be life- saving and both cancer and anorexia can make the patient ill to the extent that they lose capacity. If the courts are willing to treat anorexia patients who cannot consent but make it clear that they do not want to be force fed then the courts should be willing to give respect to the views of breast cancer patients who have expressed wishes that they would rather die than have a mastectomy.

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[1] Donnelly ‘Capacity assessment under the Mental Capacity Act 2005: Delivering on the functional approach?’ [2009] LS Vol. 29 No. 3 pp. 464–491

[2] Mental Capacity Act 2005

[3] Re E [2012] EWHC 1639

[4] Jackson. ‘Medical Law’ third edition 2012 ch 4

[5] Draper ‘Anorexia Nervosa and respecting a refusal of life prolonging therapy: a limited justification’ 2000 14 Bioethics 120-133

[6] Art 3 European Convention on Human Rights and Fundamental Freedoms 1950

[7]  Emily T. Troscianko  ‘A Hunger Artist’ 2009 Psychology Today

[8] Draper ‘Anorexia Nervosa and respecting a refusal of life prolonging therapy: a limited justification’ 2000 14 Bioethics 120-133

[9]  Mental Capacity Act Code of Practice para 4.21 and 4.22

[10] Ms X [2014] EWCOP 35

[11] Ibid [30]

[12]  NHS Trust v L [2012] EWHC 2741

[13] Ibid King J