Category: Free Essays

Research Trail

Question Title:

An engineering business with its headquarters in the Netherlands could either set up a branch in Belgium to service its Belgian customers or offer its services to Belgian clients from its office in the Netherlands. The first case would constitute establishment, the second would merely refer to the provision of services.

Horspool and Humphreys, European Union Law, 4th ed.

In the light of this statement explain the development that has taken place in European Union law relating to the rules of establishment and provision of services. Assess the extent to which the European Court of Justice has been able to draw clear lines of distinction between them.

Texts:

Library search for general EU law texts:

Craig and De Burca:

“EU law: Text Cases and Materials”.

Chapter 18: Freedom of establishment and to provide servies.

Chalmers, Hadjiemmanuil, Monti and Tomkins.

“European Union Law: Text and Materials”.

Chapter 17; The free movement of services

Weatherhill.

Cases and Materials on EU law.

Chapter 14 “Freedom of Establishment and freemovemennt of services: Articles 43 and 49”

Internet resources:

Search of www.google.scholar.com

Terms:

right to practise law EU freedom of establishment services
Freedom of establishment free movement of services
Awesti, A. (2006). Intergovernmentalist theory and Eurosclerosicm: an Intergovernmentalist critique. http://www2.warwick.ac.uk/fac/soc/pais/phd/crips/working_papers/2006/working_paper_2_awesti.pdf
Flint, D. Moens, G. (1993). Business Law of the European Community. DataLegal Publications; Brisbane. (Book review which I then found at the library).
Foster, N. (1991). European Community Law and the freedom of lawyers in the United Kingdom and Germany. The International and Comparative Law Quarterly ,Vol.40,No.3.(Jul.,1991),pp.607-634.
Goebel, R. (1992). Lawyers In The European Community: Progress Towards Community-Wide Rights Of Practice. Fordham Int’l LJ 15,
Malcolm Ross, ‘Freedom of Establishment and Freedom to Provide Services: Mutual Recognition of Professional Qualifications’ (1989) 14 Eur L Rev 162, 165.
Nicolaidis, K. (2006). „Globalization with Human Faces: Managed Mutual Recognition and the Free Movement of Professionals“ contained in Fiorella, K. Padoa, S. (eds.)(2004). The Principle of Mutual Recognition in the European Integration Process. Palgrave: Basingstoke.
Podell, M. (2001). When zeal for European Unity overcame common sense: the lawyers directive. Boston college Law review. http://www.bc.edu/bc_org/avp/law/lwsch/journals/bciclr/23_1/03_TXT.htm
Quinn, J. (2004). The right to practise law in the European Union: an American perspective. (1).113-129. http://austlii.law.uts.edu.au/au/journals/MqBLJ/2004/6.html

Cases (primary sources):

Westlaw Search:

Search by terms: freedom of establishment services lawyers

C-243/01. Criminal Proceedings against Gambelli [2006] 1 C.M.L.R. 35

C-221/89. R. v Secretary of State for Transport Ex p. Factortame Ltd [1991] 3 All E.R. 769. Para 20.

C-2/74. Jean Reyners v Belgian State [1974]ECR 00631.

C-283/99. Commission v Italy [2001] ECR I-4363

C-33/74. J. H. M. Van Binsbergen v Bestuur Van de Bedrijfsvereniging voor de Metaalnijverheid [1975] 1 C.M.L.R. 304.

C-55/94. Reinhard Gebhard v Consiglio Dell’Ordine degli Avvocati E Procuratori di Milano

C-70/95. Sodemare et al v Regione Lombardia [1998] E.J.H.L 67

C-26/62. Van Gend En Loos v Nederlandse Administratie Der Belastingen [1963] ECR 1.

C-427/85. Commission v Germany [1988] ECR 1123.

C-294/89. Commission v French Republic.

C-340/89. Irene Vlassopoulou v Ministerium fur Justiz Bundes-und Europaan-gelegenheiten Baden Wurttemberg [1991] ECR 2357.

C-168/98. Grand Duchy of Luxembourg v European Parliament and Council of the European Union [2000] ECR I-09131

C-506/04. Graham J. Wilson v Ordre des avocats du barreau de Luxembourg.

Treaty Articles and Directives

Eur-Lex.

Art 44(2) TEC.

Art 47(1) TEC

Art 47(2) TEC.

Directive 85/384/EEC on the mutual recognition of diplomas

Directive 2005/36/EC for the Recognition of Professional Qualifications

Directive 77/249 (preamble)

Directive 77/249. Art 5.

Directive 89/48 Article 2.

Directive 89/48 Article 4.

Directive 89/48 Article 1(g)

Directive 98/5. Article 3(1).

Directive 98/5. Article 5(1).

Directive 98/5. Article 10.

Directive 98/5. Article 10 (1).

Word Count 498.

Abstract

Reality TV, like many other postmodern spectacles, operates on a deeply tenuous and ambiguous ethical grounding. On the one hand, the audience / creator model of exploitation can be seen as providing the viewer with entertainment and escapism. On the other it can be said to create a system of dependency and artificial need. The ethics of participation in game show style reality offers a similar contradiction which is dependent upon whether participants are free to choose, or whether they are in fact coerced by elements beyond their control. This dissertation will look at the various factors and paradigms (psychoanalytical, Marxist, poststructuralist) that constitute this model of reality. This requires a certain concretisation of terms such as ethics, and of what constitutes “reality” itself. The dissertation will also look at the politics of reality TV itself – namely, does Reality TV constitute a unique event in the development of television, or does it merely reflect a continuation for television producers to create ever more innovative methods of keeping our interests satiated? Is Reality TV itself the origin of the moral crimes, or is Reality TV merely a reflection of the ethical climate of capitalism in which we live? Finally, the dissertation will look at the possible futures for “reality” TV.

Methodology

As this dissertation is largely discursive in nature, and involves a widespread discussion of general philosophical and ethical themes, I will purely refer to secondary material. This will be assisted by the large and abundant materials that exist on the matter of “Reality” TV, ethics, and the conjoining of the two. I will use library materials, newspaper and magazine materials, as well as the raw footage of the Reality TV itself to generate an opinion and an overall discussion about the general impacts, considerations and ethical standards of reality TV, and whether constructive change is a) desirable and b) possible. What are Ethics?

Ethics have proven to be a central part of philosophical enquiry for thousands of years. As such, it would be useful to summarize what and how this theory has developed over the years, and what tends to form the debate around “ethics” now. This is essential in order to gauge the relationship between “good” ethical conduct and the recent phenomenon of reality TV. Ethics was originally conceived as a way to engage with morals – literally, it can be seen as an attempt to establish a “moral philosophy” for living, and is concerned about notions such as what is right and what is wrong. It exposes the various difficulties between making certain decisions or of living life in a particular way. Understandably, the concept and the notion of good moral behaviour and bad moral behaviour have changed radically since the initial formulation of Western ethics in Ancient Greece over 2000 years ago. While modern moral reasoning bases its understandings upon the writings of Plato and Aristotle, it has mutated radically as regards to who the subject of the writing actually is concerned with. Whereas Plato, Aristotle and the ancient Greeks were concerned more about the self – e.g. how to morally explain the individual – whereas the modern ethical practice is more concerned about how to treat others in the first instance. Annette Hill comments that “Modern moral philosophy is therefore primarily about public good, and the development of moral values within particular social, political and cultural groups, and also within particular secular societies.” (2005, p. 110). Rather than acting, then justifying behaviour, modern ethics are primarily concerned about what exactly one should do in the first place, and is about the relationship between the self and society, the promotion of the notion of the “public good”, and of partaking in particular acts, often against the self or the will that would otherwise have a harmful effect on society.

Major paradigmatic models incorporate this model of public good into their progressive ideologies. Central to the Marxist model (which I will be later applying to the phenomenon of reality TV), is the relationship between the working classes and the ruling classes. This is argued in Marx as being ethically dubious, because while the proletariat are enslaved by the capitalist system by their work, the ruling classes benefit from this relationship infinitely. Therefore, from a Marxist context, capitalism and the ways in which this model distributes wealth can be seen as the primary mechanism from which morality is corrupted. Similarly, religion and faith is often touted as “scapegoats” for unethical behaviour. The existentialist Friedrich Nietzsche formulated his own quasi-religion / moral philosophy based on the concepts of the Ubermensch and the theories of eternal recurrence. His position is existential, and forms a central part of what constitutes ethical matters today. Existentialism is, put simply, a belief that man creates his own belief systems. The existence of something precedes its essence; namely, the process of doing something is more important than the assignation of certain methods of thinking or reasoning behind it. A person is not innately good, but instead he acts good. Robert Anton Wilson (1990) comments that “Nietszsche’s existentialism (1) attacked the floating abstractions of traditional philosophy and a great deal of what passes as ‘common sense’ (e.g. he rejected the terms ‘good’, ‘evil’, ‘the real world’, and even the ego.) (2) also preferred concrete analysis of real life situations […] and (3) attacked Christianity, rather than defending it” (14-15). As such, an existential critique of reality TV would tend to eschew concrete moral conclusion based on the grounding that reality TV exploits people, and therefore it is bad – moreover, the phenomenon of reality TV is based upon a number of larger social trends and mechanisms; a whole system of belief that doesn’t necessarily taint reality, but actually comprises of reality. Therefore, the existentialist may attack Reality TV, but Nietzsche would presumably argue that it is an expression of human will, Marx would argue that it represents merely an extension of the capitalism that seeks to exploit the workers and Kierkegaard would argue that his role is to determine that people have the choice to make their own decisions. Both Nietzsche and Kierkegaard were not concerned about notions of abstract truth – they were existential insofar as their concern was about day to day existence. In the absence of the notion of truth, over Nietzsche’s “will to power” and Kierkegaard’s system of choice and personal autonomy, the system of modern moral philosophy was overturned by the new ethical paradigm. Nietszche argued that the ubermensch would not do bad things because it would be detrimental to his own will to power; a moral system of good and bad is, ultimately, irrelevant to the ubermensch, because the parameters of decision-making have been changed.

This ethical reasoning in many ways bled into the individualism of psychoanalysis, which is a factor that comes into play in a great many of the reality TV programmes: as I will argue later, the obsession in reality TV with rendering perverse the Freudian neuroses (described by him as anal, oral and genital fixations), combined with the capitalist, consumerist desire to pacify the “slaves” within the semiotic network that constitutes television, creates a scenario whereby the human self is rendered obscene. A psychoanalytical analysis of Reality TV creates many discrepancies; moreover, it is the combination of pacifying the autonomous will of the individual, combined with the exposition of Freudian unconscious “discoveries” that makes reality TV objectionable to mainstream technical issues. However, before I try to extrapolate the various issues at stake in the arguments for and against reality TV, the concept of reality TV, in particular what the term “reality” means in this context, has to be explored.

What is the “reality” in Reality TV?

Jean Baudrillard and other philosophers coined “poststructuralist” by Western scholars would undoubtedly be impressed by the ironical use of the term “reality” in reality TV. One of Jean Baudrillard’s key issues is the argument for “hyperreality”. He suggests in Simulacra and Simulation (1994) that the hyperreal is “real without origin or reality” (1). Indeed, the concept of “reality” TV where participants are asked to stay in an enclosed space for weeks on end and told to do surrealistic things (Big Brother), or to stay on a desert island (Temptation Island, Survivor) is unreal in itself, but the term “reality” instead applies to the logic that contestants exist rather than actors or performers. It is a “genre” of TV in which the controlled amateurish quality of the programme is exaggerated into a package of neuroses that have usurped and transcended reality itself. Secondly, TV is edited, disseminated and packaged in a particular way that, according to Baudrillard, substitutes itself for reality; in one judgement of hyperreality, Baudrillard suggests that it represents “more real than real”, and eventually usurps reality. The concept of “reality” in reality TV destroys the “sovereign difference” between the map and the territory (1994, 2). As such, reality TV exists as an exemplar of this particular moment in late capitalism where the simulation of reality has evaded and transcended the real itself. To stress this theory further, I will look more generally at what Baudrillard means by hyperreality, and cite some further examples of how this theory can be established. Like Nietzsche, Baudrillard begins with an interrogation of the “real world”, arguing that because our perceptions of reality are rooted in semiotic languages and discursive structures, that the concept of an external, objective reality outside of the self cannot be established, and merely bases itself upon a chimera or a lie. Instead, Baudrillard argues that reality is merely a system of communication, in which reality has become a commodified, capitalistic device. In The System of Objects, Baudrillard offers a critique of the advertising industry. While many of the images used by, say, the automobile industry are deliberately faked or exaggerated, the nature of this exaggeration, and the extent to which these images are promoted over and above the actual reality of what the car is (ultimately, a device for getting from one place to another), the specific, advertised car itself becomes an impossible object – a representation of reality that lies beyond reality itself. For instance, recent advertising that features a car that transforms into a dolphin does not have any prescience in reality, nor does it even attempt to establish itself as real. Instead, it embodies in the vehicle certain images or “realities” that, according to Baudrillard, become reality and, as such, substitute reality for a marketed, plasticised illusion that “represents” reality to a greater degree. This theory can be extended to encompass many other factors that seem based upon manufacturing and colonising the real. Pornography represents a reality of sex that transcends and usurps sex itself; a soft drink with a non-existent flavour, such as “wild ice zest berry” (http://en.wikipedia.org/wiki/Hyperreality) creates a “reality” in linguistic terms that has no relationship to “modern” as opposed to “postmodern” reality. Again, advertising generates a reality that exaggerates and simulates the real in totality; there is no attempt made to reproduce reality, but instead signs and signification operate within themselves, applying to only their own logic.

This reality can be seen in terms of reality TV as well. Programmes such as Survivor, Big Brother and other reality TV programmes that synthesise the game show format tend to exaggerate the realities of the participants. The world in which these “real” people interact is one which is completely fabricated, usually to exaggerate some narrative or mythological scenario which the viewer is undoubtedly familiar with. Big Brother, for instance, plays with the familiar Orwellian notion of total surveillance and dystopia – Survivor plays on the themes of the desert island, featured in many historical and literary myths that date back to the Bible. As such, depending on what opinions we have about what reality constitutes, these types of program are undoubtedly far off the mark. Post-production techniques are used to exaggerate the dramatic tensions between people; often people who would ordinarily have no contact are forced into relationships with one another, and it has been insinuated that certain parts of reality TV are scripted beforehand, in order to prevent the programme from becoming tedious or formulaic.

What does this development in the notion of “reality” do to a discussion of the ethics of reality TV? Firstly, the production processes of reality TV are heavily reliant upon advertisers and private corporations concerned about making money. Such companies do not generally have too scrupulous a reputation for ethical marketing or behaviour. Product placement is a regular feature in reality TV, which, if looked at from a Marxist point of view, leads to the synthesis of what is seen as common sense “reality” and of corporate desire. The existential view of reality, while in a kind of agreement with the ambiguity of reality TV, would argue that reality as it is presented here merely represents a faith or a religion that substitutes the pure will (choice or autonomy) of the individual into a scenario where all things are scripted, edited and controlled by forces that depend upon the viewer becoming pacified and infantilized. I argue that the reality in reality TV merely represents a particular version of reality. As post-structuralist philosophy would suggest, the notion of objective reality in the postmodern age is simply a psychologically, sociologically and metaphysically attuned network that serves to create a religion or a mythical structure of “truth” and “reality”. While Nietzsche would argue that Reality TV subdues the personal will, and of human folly and weakness, reducing the viewer to the level of passive consumer, he would also argue that it is not the ethical place of people to assume that this dynamic of “exploitation” (as Marxists would posit) is necessarily wrong. Indeed, criticisms of Nietzsche’s critiques of Christianity, while vitriolic and hateful in tone, overlook the simple premise that Nietzsche’s intention himself was not to create a system of objective truth himself. Because, as he postulates in Beyond Good and Evil: “In the womb of being, rather, in the intransitory, in the hidden god, in the ‘thing in itself’ – that is where their cause must lie and nowhere else! – This mode of judgement constitutes the typical prejudice by which metaphysicians of all ages can be recognized; this mode of evaluation stands in the background of all their logical procedures; it is on account of this their ‘faith’ that they concern themselves with their ‘knowledge’, with something that is at last solemnly baptized ‘the truth’” (1973, 34). As such, the creation of truth, upon which grounds Nietzsche was sorely condemned for throughout the 20^th century, was not Nietzsche’s central desire – indeed, the establishment of a particular truth ignores Nietzsche’s attempts to negate the this preoccupation with “truth” and “reality” present in the mind of the “metaphysician” and the abstract philosopher. The existentialist is not concerned about abstractions, but instead he is concerned about the establishment of productive myths. In this respect, the “reality” of reality TV (at least where participants and audience are volunteers) is real and, dependent upon how greatly you herald such issues as personal autonomy cannot be anything but a moral, voluntary exchange.

Marxism and the streams of thinkers that have come to be associated with Marxism tend to think very differently about the self. Socialist philosophy suggests that the human freedoms posited by the American and British administrations during their “free” market experiments are merely a chimera designed to obfuscate and paper over the exploitative system of exchange that operates between rich and poor.

Contrary to existentialism, Marxists suggest that voluntary participants (in such things as reality TV) have to adhere to some greater moral code, because the dynamic of exchange exposes basic human vulnerabilities that exist in everybody. Their concept of reality is based upon a politics of exploitation, or a dialectical exchange between two opposing factions, one of which is exploited, and the other is dominant. Such Marxist theory can be used to explore this notion of “reality” in reality TV further: the dynamic between rich and poor (used in “crude” or traditional Marxism) creates a system of exploitation between the working class and the ruling class. This can be extended into linguistics and semantic theory, and forms the central tenet of deconstructionist theory posited by Jacques Derrida. Derrida argues firstly that the structuralist theories of Ferdinand de Saussure depended upon a relationship between the signifier and the signified – namely, what is being represented and what it represents. While Saussure argued that this framework was stable, and that the signifier and the signified never changed, Derrida and the deconstructionist theorists argued that the relationship between the signifier and the signified was always subject to “play” and fluctuated constantly. Moreover, the limitations of human communication meant that our perception of the world was limited. Derrida argues that the world is conveyed in language and discourse. Derrida takes this further, arguing that Western language has always based its functionality upon what he calls “binary oppositions”, in which one is seen as inferior, while the other is seen as superior. These oppositions run the gamut of human thinking and is what abstract philosophy tends to ignore: for instance, the dichotomy between man and woman is the subject of many feminist writers: while man can give women the same material rights, linguistically, woman still represents the absence of masculinity. Similarly, reality is seen as superior to the simulacrum, as explored by Plato’s myth of the cave, in which he argues that one pure object exists, and that everything else is a copy, and therefore inferior to the real thing. Derrida argues that deconstruction provides a solution to this problem, and by exposing and making conscious these oppositions, and deliberately working against them creates a system of simultaneous difference and equality through semantic “play”.

As such, the ethical concept or exchange between the directors of reality TV, the participants and the audience create an interesting dynamic of exploitation that tends to eschew simple ethical thinking. To say that these reality programmes are bad ethically (a string of reasons have been posited, from the sensory deprivation of participants, to the unsavoury and voyeuristic nature of the program, to the use of the grotesque, to the implementation of torture techniques) avoids the overall issue that participation is “voluntary”. However, the previous arguments (deconstructive, Marxist, feminist, existential) all have radically different arguments as to what exactly constitutes “voluntary”; the notion of voluntary participation is a key issue in philosophical debate, and can be seen to surface in the ethics of advertising, fast food consumption and the selling of junk to young people. The question revolves around the concept of “reality”; namely, whether we are in control or whether our choices are determined by mechanisms and structures of power, addiction, and deep psychological needs. Reality TV argues that it exists as a form of entertainment. In the following section I will look at the dynamic of exploitation; particularly upon how reality TV exploits certain human qualities or “realities”, and renders them perverse.

Reality TV: a psychoanalytical approach

Reality TV, especially the phenomenon of the game show Reality TV programme, namely such programmes as Big Brother, Survivor, Big Diet, Celebrity Fat Club, Temptation Island, Bachelorette and Boot Camp exploit numerous psychoanalytical desires in order to “hystericise” reality and to render ordinary impulses and desires perverse. This exploitation, which I will argue is central to the strategy of corporatism and central to the postmodern malaise raises a number of ethical questions concerning the position of Reality TV in contemporary society, is endemic in the phenomenon of reality TV, and appears concerned primarily as either a reflection of, or a creation of, many issues that plague Western consciousness. Reality TV attacks certain concepts and, via gossip columns and TV journalism in other media, makes these things hysterical. One such topic is that of the “normal” relationship. While Big Brother tends to vet the participants based upon their position as sexually “perverse” (the last series of Big Brother featured a transsexual and several homosexuals) eccentric or colourful in order to engender conflict within the house and to maximize the entertainment value that can be derived from this “reality” that is constructed, the vision of the ordinary relationship, which occurs with relative frequency in the Big Brother house, is one that is treated with extreme shock by both participants, media, the programme makers, and eventually, the audience themselves. Jan Jagodozinki (2003) comments that “each reality game ‘hot-houses’ and hystericizes ‘normal relationships’, engendering paranoid perception where no one is to be trusted” (323). Of course, ethically this hystericisation serves the purpose many mass-mediated and televised spectacles seek to achieve. In a Marxist, postmodernist context, the media (especially the ‘modern’ mediums of television and brand advertising) wishes to engender a consumer whose only relationship to the outside world is through the corporatist-owned signification of signs. We are marketed towards in order to create an atomised, pseudo-individual whose only relationship to him / her self is through signification and engagement with the hyperreal. As such, consumer need is created, manufactured in the dream factory of advertising, and disseminated through mass media to create demand for a product that was, prior to the embellishment of reality through hyperrealistic signification, useless and unnecessary. Reality TV simply contributes to this feeling of post-human disgust with the mechanisms of the body and the unconscious mind. For instance, the drives expounded by Freud (labelled by him as genital, oral and anal), are attacked with frequency in a number of these TV reality shows: In Big Brother, participants are deprived of food, and are occasionally “treated” to products from the outside world when they participate in a particular task (the oral, anal dichotomy). The lack of privacy in toilets suggest the programmes obsession with these excretive functions; also, the relationships that occur among these “ordinary” people are exaggerated with an unparalleled degree of disgust and hysteria both within the programme and external to it in other “gossip” columns and TV magazines. This suggests an obsession with the genital drives that are echoed in other reality TV programmes. The hystericisation of normality “are the very symptoms that plague the American landscape, namely the preoccupation with the excesses of the drives – anal and oral (food / dieting) […], genital (seduction) […] trust, […] extreme physical exertion […] authority” (Jagodozinki 2003, 323). These drives are isolated and compounded in a manner that many would figure as unethical; the audiences watch the TV – voyeurs in their living rooms – rendering all these desires perverse and alien. The anal / oral functioning can be seen in all manner of these game show / reality TV hybrids. In Survivor, participants experience food deprivation, then are force-fed the junk food of capitalism. Reality TV provides us with either a perverse kind of promotion of these desires, or else exaggerates and satirizes these principles that already play a huge part in the advertising, producer / consumer relationship of (most of) Western society. For instance, many of these reality TV programmes are obsessed with food and excrement, the balance between which is, of course, expressed in terms of physical weight: Game show reality programmes such as Fat Club, Big Diet, Survivor and Big Brother, as well as innumerable documentaries, talk shows (Gerry Springer, Rikki Lake, Oprah Winfrey all tend to devote a disproportionate amount of time to “exposing” obesity in ways that carefully tread the dual lines of exploitation and grotesquery, and non-pervasive exploration or passive “documentary”, often with a focus on the former) all focus on weight, eating and consumption as a mainstay of their challenges. In one edition of I’m a Celebrity, Get Me Out of Here, pop-mystic and spoon bender Uri Geller was forced to eat live slugs while some other minor celebrity spent most of the programme complaining about his constipation. As such, natural processes such as eating, drinking and excreting matter becomes exaggerated to such an extent that these very bodily processes become shameful. Jagodozinki comments that “Survivor players are foced to follow exactly the same starve and binge mentality of bulemics” (2003, 321). The Freudian drives and impulses are concentrated upon by programme makers in order to engender an interest in the programme that, if it were a representation of ordinary, mundane “reality”, would presumably be too scant to provoke widespread interest.

Similarly, other drives are obsessed over. The genital desires, marked by an obsession with sex, lust and seduction are exploited through programmes such as Big Brother, Temptation Island and Bachelorette, where sexual, relationship related trysts are exploited by the programme makers in order to maximise audience ratings and profits from their programme. For instance, whenever a relationship threatens to bubble over in Big Brother, the programme makers, along with the media vehicles that feature Big Brother (showbiz magazines and tabloid newspapers, for instance) tend to simultaneously glorify and pervert the developing relationship into a grotesque and abominable spectacle.

Trust and paranoiac fantasies are also played with in the post-production of Big Brother. The format is automatically designed to expose hypocrisy: while participants are forced to work together and live together, participants also have to periodically vote each other out of the house. As such, issues of trust and paranoiac functions are exploited, in a microcosm, of the contemporary world that constitutes “reality” TV.

As such, the difficulty with exposing the ethical indiscretion of reality TV is simply that it can either be seen as a hyperbolic reflection or satire of current prevalent trends in Western society, or that it can be seen as contributing to the effects of “consumerisation”, and can therefore be seen in the light of Marxists who approach the exploitative mechanisms of mass media with grave suspicion. Louis Althusser’s system of “interpolation” which in his words, is described as having the following relationship with ideology: “ideology interpolates the individual as subject, […] this interpolation “is realized in institutions, in their rituals and practices” (2001). As such, the ideology of guilt, of loathing for the body and of the consumerisation of the general public through the exploitation of these particular vulnerabilities is, according to Althusser, interpolated and disseminated through mass media, or, as he calls it, the “ideological state apparatus”. And any form of mass media that adheres to these capitalist desires against the individual and for the “subject” is also catering to systematic oppression to the masses and is therefore morally reprehensible.

So, what is the argument in favour of reality TV? Namely, that it bypasses these ideologies and instead presents us with a “reality” of ordinary people, unencumbered by the traffic of biased representation one tends to get in drama and fiction. The function of reality TV, according to this argument, is to present to people life as it really is. I would argue, however, that this is not the case for a number of reasons. The psychological stresses that subjects are put under are, in themselves, unique in these game show / reality TV programmes. It would be extraordinary to presume that everyday people would be forced to endure these psychological strains. Moreover, the dissemination and the editing of these pieces together serves a dual function: firstly, it imposes a strict narrative upon the happenings based upon a desire to entertain. Entertainment can be achieved through the exploitation and exaggerations of these specific, Freudian functions. In order to condense 24 hours of time into half an hour, programme makers have to edit the raw material of “reality” in a way that generates interest in the overall product. The effect of this is to highlight these desires and dramas and to generate a narrative of disgust from the raw material. As such, events are scandalised, hystericised, and processed through the “state apparatus” of Freudian drama. This is satirised in the film The Truman Show. Jagodozinki (2003) comments that “The banality of his everyday life with its mundane repetitions is the very opposite of media hype which happens off camera or is worked in ‘live’” (328). The function of this segment is to highlight the principle that these dramas are not reality; simply because the subject is “real” and falls into the pigeonhole of “non-fiction” by programmers, the ways in which these “documentaries” are assembled tend to fall into dramatic stereotypes associated with the exploitation of Freudian impulses, checked with a Marxian system of exploitation.

The World Is Flat: “Infotainment” and relativism

Modern news programming tends to cut and splice events of widely different qualities – from serious news items about plagues, famines, death and suffering to items about cuddly toys and cats getting stranded in trees. Also, programming on commercial channels are cut every fifteen minutes with a barrage of advertising, with the effect of sharply combining the “reality” of news footage and reality TV with the “non-reality” of advertising. Ethically, this places TV in general under the accusation of numbing the viewer and transforming him or her into the amoral, relativistic, emotionally numb and philosophically nihilistic consumer infant that sociopaths and corporations tend to prefer. As such, arguments about the “reality” of reality TV being less produced than fiction tends to falter – instead, the handle of “reality” has the effect of simply lowering the viewer’s (or consumer’s) guard. The juxtaposition of mundane events in a fast barrage of creative editing sensationalises the mundane. In a triumph of style over content, some reality TV shows and news features use music and montage to create the illusion of event, when there is no event to speak of. “Real life” documentaries and long-running reality TV programmes, such as Changing Rooms and DIY SOS utilise quirky (and somewhat insipid) montage sequences with humorous music in order to generate a homely, friendly appeal. However, almost all reality TV programmes appeal to consumerist desires (an endless procession of programmes about house hunting, gardening, buying), or exploitative voyeurism (house cleaning programmes about “dirty” people, unsympathetic obesity programmes, a fixation upon sexual or cosmetic acts). Ethically, reality TV however, only ser

James has died recently, and has left a properly executed will in respect of his estate. There are a number of provisions in this will, including a substantial financial legacy to his sister, a trust over James’ leasehold estate for which the trustee has since died, a trust of ?100,000 for the purpose of benefitting James’ friends’ dependants completing studies, a gift of his collection of coins and mints, and a gift of Jack Daniels whiskey and some money to his niece. Each of these provisions of the will present certain problems. The provisions will be addressed individually in order to assess their status, and determine who will actually get what under James’ will.

The first provision, then, is a gift of ?100,000 to his “beloved sister” Emily, with an obligation on Emily to use a “reasonable amount” to look after James’ step-daughter, Mary. This would appear to create a trust over a portion, but not all, of the ?100,000 in question. As identified in the seminal case of Milroy v Lord (1862), a trust can be created either where a person declares himself or herself a trustee over property the legal title of which he or she holds, for the benefit of (that is, beneficial ownership lies with) another; or where a person transfers his property to trustees on trust. It is established, however, that a trust obligation can only subsist in relation to specific trust property. James’ clear intention here to create a trust will not, on its own, be sufficient to benefit his step-daughter if it cannot be ascertained exactly what the trust property was intended to be.

This brings us to a fundamental requisite of valid trusts; the so-called three certainties, identified by Lord Langdale in Knight v Knight (1840), when he was Master of the Roll. The three certainties that must be present are certainty of words (or intention), certainty of subject matter and certainty of objects. In relation to certainty of intention, one must consider James’ wording. He does not specifically mention a “trust”. This may not be fatal to the successful establishment of one, however, as his “absolute confidence” that his sister will use some of the money for the specified purpose would probably qualify as “precatory words”; which would be sufficient. In Re Adams and Kensington Vestry (1884), the words used in a similar provision were “in full confidence that [the testator’s wife] would do what was right as to the disposal [of the trust property] between his children”. Cotton J, in the Court of Appeal, suggested precatory words alone were insufficient, but a valid trust may be created in the wider context of the will. Again, James’ words would appear to qualify as he has created other trusts.

There may also be a problem with this provision in relation to the specific subject matter of the trust. Trust property must be clearly defined, otherwise the trust will fail for lack of certainty. Here, James has asked that a “reasonable amount” be used for the upbringing of his step-daughter. The court may be prepared to define a “reasonable amount”, however, following such cases as Re Golay’s Will Trusts (1965). Here, the wording provided for a “reasonable income” for the legatee, and Ungoed-Thomas J considered the term to be sufficiently objective to be capable of quantification. It seems this provision will be valid if two conditions are met; namely James’ use of precatory words are considered sufficient in the context to create a trust, which seems likely, and the court is prepared to define “reasonable amount” as the subject matter of the trust which, again, seems likely.

The second provision in James’ will relates to his leasehold estate in Blackacre, which he wishes to pass to his nephew John, whom he desires to use the rent for the estate for either James’ children who John thinks are most deserving, or for John’s own children. There are a number of interesting, and potentially problematic, aspects of this provision. The first is that it relates to a trust over land. Under the Law of Property Act 1925, there are further formalities that must be observed when creating a trust over land. The trust will only be validly constituted if legal title to the trust property is effectively transferred to the trustee, John. Section 52 of the LPA 1925 states that any conveyance of land must be effected by deed. Mere writing (such as in James’ will) or an oral transfer, or even physical possession of the land will be insufficient. An assignment of title to a testator’s leasehold estate to an intended beneficiary’s mother was held invalid because it was not done by deed in Richards v Delbridge (1874). It seems that this trust would have failed for this reason.

The trustee, John, however, died without distributing any of the rent from the leasehold property. The trust has therefore failed for two reasons (the trustee’s death and the absence of a proper assignment of legal title to the trustee). What, then, happens to the leasehold estate? It will become a resulting trust. The beneficial interest “results” back to the settlor or his successors, and the trustee holds on bare trust for that party. This is known as an Automatic Resulting Trust (ART). In probate terms, the interest will revert to James’ estate and will be distributed in accordance either with other provisions of his will, or with the intestacy rules.

The third provision in James’ will relates to ?100,000 which he has given to Mark in order that Mark can invest it and use the income to help “any of [James’] friends’ dependants complete law degrees. This will meet the requirements of an express trust in terms of its certainty of subject matter. The ?100,000 is a specific sum of money that is to be made the subject of the trust. In this instance, however, we must consider the nature of purposes in the context of trusts. The law of trusts allows individuals to devote their property to the carrying out of specific purposes. There are, however, a number of restrictions on how this can be done. Purposes often involve both trusts and contractual obligations to carry out some action. The general starting point in this discussion is that unless it is a charitable purpose, the law in England does not generally allow the simple transfer of property on trust to carry out a particular purpose. Using Penner’s example, “?10,000 on trust to oppose UK entry into the common European currency” would be likely to fail.^[1]

In order to assess whether James’ provision to Mark of ?100,000 for the designated purpose is valid, the “beneficiary principle” must be considered. This states that for a trust to be valid, it must be for the benefit of ascertainable individuals. This provision is not a pure purpose trust, which would fail under English law, but rather it is for the benefit of certain individuals. In Morice v Bishop of Durham (1805), Sir William Grant, then Master of the Rolls, said “there can be no trust, over the exercise of which this Court will not assume a control; for an uncontrollable power of disposition would be ownership, and not trust … There must be somebody, in whose favour the court can decree performance.” In this case, as mentioned, there are a particular group of potential beneficiaries of the trust; it is not simply “for the general advancement of legal studies”, for example. Although the beneficiary principle would appear to be met, then, it is a corollary of the requirement of certainty of objects, to which we now turn.

For a trust to be valid, the objects of the trust (that is, the beneficiaries), must be certain. In other words the trust must be expressed in such a way as to enable the trustees, or in their default, the court, to identify who exactly the beneficiaries are. The trust of ?100,000 to Mark is characteristic of a discretionary, rather than a fixed, trust, meaning that the precise benefit to specific individuals is not defined by James. Rather, Mark will exercise discretion as to who, from the group of possible beneficiaries, will benefit. In McPhail v Doulton (1971), the House of Lords stated that the test for certainty of objects in trusts such as this one should be similar to the test for objects of powers. It should, in other words, be possible to say of any given individual that he or she is, or is not, part of the specified class of beneficiaries. Subsequently, in Re Baden’s Deed Trusts (No 2) (1972), the Court of Appeal stated that when this test is applied, a discretionary trust will be valid so long as the beneficiaries can be identified with “conceptual certainty”.

How does this apply to the present case? The discretionary trust relates to “any of my friends’ dependants”. This is of course, subjective. Who is, or is not, James’ friend? And who qualifies as a dependant of those friends? An early test for this problem was the so-called “complete list” test, which was applied in IRC v Broadway Cottages Trust (1955). Jenkins LJ stated that “a trust for such members of a given class of objects as the trustees shall select is void for uncertainty, unless the whole range of objects eligible for selection is ascertained or capable of ascertainment.”^[2] Clearly, in the present case, it is unlikely that an exhaustive list of the potential beneficiaries will be able to be compiled. The test was, however, criticised in subsequent cases as failing to deal adequately with developing discretionary trusts that covered larger groups of potential beneficiaries. In McPhail v Doulton (mentioned above, in which the purported discretionary trust was very similar to the present one), the complete list test was discarded in favour of the “is or is not” test.

Unfortunately for the present trust, however, it would most likely still be invalid on the basis of administrative unworkability. Again, this concept arose in McPhail v Doulton, when Lord Wilberforce stated that there may be classes where “the meaning of the words used is clear but the definition of the beneficiaries is so wide as to not form “anything like a class” so that the trust is administratively unworkable…”^[3] Given the potential size of the class of beneficiaries here (depending of course on James’ popularity), this trust would probably fail.

The fourth provision relates to James’ collection of coins and mints which he gives on trust in order that any of his colleagues who wish to do so to purchase them at half price. The rest are to go to James’ sister, Lora. The first issue here is the identity of James’ trustees. He has not specified who will be the trustee(s) in this case. This is not, however, a significant problem as it is well established that trusts will not fail for want of a trustee. This applies either where no trustee is specified (as is apparently the case here), or where the specified trustee is unwilling to accept this responsibility. If no willing trustee can be found, Public Trustee will be appointed as a last resort. Provision for this office was made in the Public Trustee Act 1906 (section 2(3)). Alternatively the court may appoint a trust corporation to administer the trust pursuant to section 42 of the Trustee Act 1925. This first issue with the present trust, then, presents no real problem.

The trust property is James’ “valuable collection of coins and mints”. This is unproblematic, assuming that the collection can be physically located. It should be relatively clear what forms part of the collection and what does not. The requirement for certainty of subject matter will therefore be met. The class of beneficiaries is expressed as being James’ colleagues. This is not a discretionary trust in the same way as the one discussed earlier, as the trustees have no discretion as to who will benefit from the trust. Rather it is the potential beneficiaries who may exercise their discretion to purchase items from the collection. The equitable maxim that “equity treats as done that which ought to be done” would apply a constructive trust here, if there was a specifically enforceable contract to sell the property to the beneficiaries. There is not, however, as the potential beneficiaries have not yet decided to accept.

In the present context, a further requirement of a valid trust is worth considering; namely that where a settlor wishes to create a trust over which a third party is trustee, the legal or beneficial title to the subject matter of the trust must be effectively transferred to the trustee. James’ words here refer to his “trustees”. In Choithram (T) International SA v Pagarani (2001), it was held that where it is intended that there be a body of trustees, it will be sufficient to transfer title to one member of that body. The rules of effective transfer of title vary according to the type of property in question, and are most lenient in relation to chattels (which cover the collection here). Title may be transferred either by deed or gift, or delivery of possession. It is likely that the will, if correctly executed, will be sufficient for this transfer.

There is, in trust law, a rule against perpetuities. This states that gifts of property must vest within a certain period of time. James’ sister is due to inherit the remainder of the collection at some point in the future, but this is not defined. The perpetuity period is “a life in being plus twenty-one years”.^[4] This limits the period of time in which the remainder of the collection must vest in Lora.

The final provision in James’ will relates to 20 bottles of Jack Daniels whiskey that is stored in his cellar, and ?500 from his City Bank plc savings account, which he gifts to his niece, Emily. This is, on the face of it, unproblematic. It would appear to meet the requisite standards of certainty in relation to words (or intention), subject matter, and objects. The wording clearly creates a testamentary gift. Assuming James has only one niece called Emily, the intended beneficiary will be clearly identifiable. Ostensibly, also, the subject matter of the trust should be sufficiently certain. The problem, however, relates to the fact that in James’ cellar there are 40 bottles of Jack Daniels; and in the relevant savings account, there is ?1000. The testamentary gift therefore relates only to half of these items.

It is clear that a trust cannot exist in abstract. It must relate to specific assets or else it will fail. By way of example, in Hemmens v Wilson Browne (a firm) (1995), an agreement allowing a person to call for a payment of a specified sum at any time did not create a valid trust because no specific property had been identified as the subject matter of the obligation. There “was no identifiable fund to which any trust could attach.”^[5] In the present case, there is no conceptual uncertainty as to the intended trust property, however, as it explicitly relates to bottles of whiskey and money. The problem arises, however, because the property is unascertained. In Re London Wine Co (Shippers) Limited (1975), a customer order for a consignment of wine was unable to create a trust over specific bottles in the seller’s warehouse because the specific property could not be ascertained. The customer’s specific order had not been appropriated from the general stock.

This would suggest that the gift to Emily would fail for similar reasons. The Privy Council confirmed the approach in Re Goldcorp Exchange Limited (In Receivership) (1995) in relation to gold bullion. Again, specific orders had not been appropriated from the general stock so the trust failed. This is not conclusive, however, as an alternative approach occasionally adopted by the courts should be considered. In Hunter v Moss (1994), an oral declaration of trust was made over 5% of the issued share capital of a private company in which the settlor owned 950 shares. The court held that this was not void because the specific shares had not been segregated from the remainder of the shares. This decision, although it might help on the successful implementation of Emily’s trust, has been criticised as being inconsistent with the earlier Privy Council decision. One justification for following the decision in Hunter was offered in Re Harvard Securities Limited (In Liquidation) (1997) as being that Hunter related to shares and not chattels. In the present context then, it seems that the trust over the money in the account might be valid, but that over the whiskey may not be.

BIBLIOGRAPHY

Statutes

Law of Property Act 1925

Public Trustee Act 1906

Trustee Act 1925

Cases

Choithram (T) International SA v Pagarani [2001] 2 All ER 492

Hemmens v Wilson Browne [1995] Ch 223

Hunter v Moss [1994] 1 WLR 452

IRC v Broadway Cottages Trust [1955] Ch 20, CA

Knight v Knight (1840) 3 Beav 148

McPhail v Doulton [1971] AC 424

Milroy v Lord (1862) 4 De GF & J 264

Morice v Bishop of Durham (1805) 10 Ves 522

Re Adams and Kensington Vestry LR (1884) 27 Ch D 394

Re Baden’s Deed Trusts (No 2) [1972] Ch 607

Re Golay’s Will Trusts [1965] 2 All ER 660

Re Goldcorp Exchange Limited (In Receivership) [1995] 1 AC 74

Re Harvard Securities Limited [1997] 2 BCLC 369

Re London Wine Co (Shippers) Limited (1975) 126 NLJ 977

Richards v Delbridge (1874) LR 18 Eq 11

Secondary sources

Martin, J.E. (2001) Hanbury and Martin – Modern Equity, 16^th Edition (London: Sweet & Maxwell)

Pearce, R. and Stevens, J. (2006) The Law of Trusts and Equitable Obligations, 4^th Edition (Oxford: OUP)

Penner, J.E. (2004) The Law of Trusts, 4^th Edition (London: LexisNexis)

The first step we should attend to briefly is to define what a trust is. Simply put, a trust is a relationship under the law of equity^[1] that arises when one person (the settlor) vests the legal title in another person (the trustee) for the benefit of a third-party called a beneficiary. The trustee holds the legal title and the beneficiary-(ies) possess the equitable title and as such the trustee owes them a duty to carry out the duties as defined by the settlor^[2]. The most basic species of trust is an express private trust; this is a “trust which is declared intentionally by the settlor”^[3]. There is no fixed mechanism or form of words for creating such a trust because “equity looks to intent rather than the form”^[4]; see Paul-v-Constance^[5]. Hudson (p.72) speaks of “exposing” a trust which demonstrates that it exists by law and is not created by the courts retrospectively. Express trusts can be established during the life of the settlor or as in this case, via instructions placed in their will.^[6]

There are two basic sets of requirements for valid trusts; the first is that there needs to be three basic certainties as per Knight-v-Knight^[7]; defined as certainty of intention, subject matter and object – if any one fails then there is no trust. The first of these requires that there was a certainty of intention by the purported settlor “that the person receiving the property is under a mandatory legal obligation to carry out the wishes of the settlor”^[8]. Secondly and only logically, it must be certain what the subject of the trust is i.e. the property. Finally, there must be certainty of object i.e. there needs to be someone with equitable ownership to enforce the trust, see Re Endacott^[9]. The second basic requirement is that the trust must be constituted i.e. the legal title must pass to the trustee(s). This should not be an issue here because as executors Edward and Sandra would have already acquired legal title of all Alice’s estate^[10].

DISPOSITION A

Alice’s disposition is potentially void as a trust due, firstly to uncertainty of intention; the disposition does not suggest Alice intends to impose a legal obligation on Edward to carry out her wishes. Rather it potentially suggests she was imposing on him a “power”. In essence, trusts impose an obligation to act and powers authorise people to carry out certain tasks with a lower level of compulsion.^[11] The task we have is to decide what Alice intended and according to Dixton (p.67) “it is very easy to confuse trusts and powers, especially since most power are given to people who are otherwise trustees”. Edwards (p.80) advises that to differentiate between them is “a matter of construction for the courts, based on identifying the intention from…the language and the document as a whole” He further suggests that a significant indicator would be “existence of a gift in default of appointment” and wide discretion. Applying this to our facts, we see that Alice grants him a‚¤10,000 to buy a small memento for “such of my relatives as have not received anything under the other provisions” and after doing this “to keep what is left”. It is submitted that this does not meet the necessary level of certainty, especially as Edward keeps what is left over, it is merely a power; a power of appointment^[12], outside of a trust instrument^[13].To impose a trust situation in this case would be to ignore the warning in Re Hamilton to “take the will you have to construe and see what it means, and if you come to the conclusion that no trust was intended then say so”. The next issue is what kind of powers these are and what level of compulsion exists on Edward to carry out the tasks. This could be a personal power^[14] or a fiduciary power and this will turn on whether he was given the power in his capacity as a son or executor. Wilkie (p.52) says if it is a personal power he could distribute “spitefully, or capriciously, or even go to sleep and forget about exercising the power at all”.

You could argue that Alice gave the power to her son in his capacity as a son; and so considering the remainder goes to him then it is all but an absolute gift. He could just buy a few relatives key-rings as mementoes and be done with it. The beneficiaries would have no equitable interest in any property as its quantum is unknowable. The second view you could argue is that he has to exercise the power in his capacity as executor and so he has a higher level of onus upon him. It is submitted that as such, this power of appointment would be what is known as a hybrid or intermediate power^[15] in that he is authorised to distribute it to a certain category of objects, relatives, excluding those who have already benefited. The level of compulsion or onus is debatable. In Re Hay’s Settlements^[16], it was held that he just cannot ignore this power to appoint randomly, he must make efforts to complete it. And in McPhail-v-Doulton^[17] – the leading case in this area – it was said he “must act in a responsible manner according to its purpose” and “make survey of the range of objects” that” will enable him to carry out his fiduciary duties.” Wilkie (p.52) says that there is much lessor onus is on a donee^[18] of a power to locate those who may be objects. However, other commentators, see Penner (58+) say the onus depends on the type of power as well as who has been granted it.

However, even with ‘powers’, the subjects and objects need to be ascertained and Alice has simply defined “small memento of me” and “relatives” minus those who benefited from the will; these are problematic. Firstly, the subject matter is conceptually uncertain^[19]; as per Palmer-v-Simmonds^[20] and so potentially void; what is ‘small’ and what is a ‘memento’^[21]. Secondly, “relatives” could be taken to be anyone with a common ancestor and as you work back far enough this could include almost anyone. However, in Re Baden’s Deed Trusts (No.2)^[22], relatives was equated to next-of-kin and held to be conceptually certain; a strange decision considering how rigid the court has been on conceptual uncertainty. Furthermore in McPhail, the test to ascertain objects for a power was decided as the ‘is or is not’ test described by Wilberforce as, “can it be said with certainty that any given individual is or is not a member of the class?” Thus it appears possible that we could, if necessary, reach a legal definition of the objects although the problem is the subject of the power.

The advice to Edward is pretty clear; as a trust this fails and so based on Curtis v Rippon^[23], he could take the entire amount of a‚¤20,000 seeing that the amounts to be given to relatives are uncertain and so the absolute gift to him takes effect over the failed trust. However, if viewed as a power, he may be under compulsion to distribute some of the a‚¤20,000 buying small mementos for relatives once he complies with the above; although, in practice few would be willing, or able, to compel him to execute this power.

DISPOSITION B

Does the phrase “fullest trust and confidence” indicates certainty of intention to create a trust? In Re-Adams-and-Kensington-Vestry^[24] a husband gave property to his wife in “in full confidence that she will do what is right”, yet this was held to only impose a moral obligation upon her. However, in Comiskey-v-Bowring-Hanbury^[25] the phrase “in full confidence” was held to impose a trust. The similarity in these cases is superficial and it is apparent that each was judged on its individual merits and potential settlor’s intentions. Hence, the mechanical application of phrase simply turns the law on its head. It is much more insightful to follow Re Hamilton comments listed above in part A and use common sense. Applying this, it is submitted there is potentially a certainty of intention, but we also need to examine the other certainties.

On ‘certainty of subject’; it is trite law that, as per Re-London-Wine-Co^[26] that trust property must be ascertainable. In that case un-segregated wine voided certainty. This was supported in Re-Goldcorp-Exchange-Ltd^[27] . Mustill^[28] said “rights in property, whether equitable, cannot exist in the air… it can only exist in relation to property which is specifically ascertained”, i.e. physical segregation is necessary^[29]. However we are not dealing with a situation exactly similar to Re-London-Wine. Under a will, the executor takes full title to the property on the death and according to Martin(p.60) the “equitable ownership is in suspense” – the trust has not yet been constituted whereas it allegedly had in London-Wine. All the executors need to do is to walk down to the cellar and physically segregate fifty bottles of wine and identify them as trust property and transfer legal title from Edward/Sandra, as executors, to Edward personally. It is obvious Alison knew what was in her wine cellar so the property she is referring to really was not a specific 50 bottles of wine, but 50 of the 80 wine bottles I know I have in my cellar. How else could she describe them if they were homogeneous, was an 80 year old woman close to death meant to go down to her cellar and move bottles around?

However, it is the “old friends”, the potential objects of this trust, which poses more serious problems. The phrase “my old friends” is conceptually uncertain^[30]; both words are subjective; what is a ‘friend’ and what is ‘old’? With the knowledge that this would be a fixed trust if the three certainties were present; i.e. each beneficiary entitled to an “equal” share then IRC-v-Broadway-Cottages-Trust^[31] states that all the beneficiaries must be able to be listed and there is no room for any conceptual uncertainty. The disposition states that Edward should cure any uncertainty and his word is “final”. However, this is not likely to be accepted by the courts. In Re-Tuck’s-Settlement-Trusts the court allowed a Rabbi, as per the trust document, to cure an issue of uncertainty i.e. whether someone was of “Jewish blood”^[32]. However, the Rabbi was acting in his capacity as expert on the Jewish faith and evidencing the meaning of the words not defining them. You could make a good argument that Edward could define his mother’s old friends just like the Rabbi defined Jewish blood, but it would go against current legal and academic opinion so as a trust it would likely fail.

However, the advice in this case might be that this could be treated like above, as a power. This is because, as a power Edward could use the “is or is not test” rather than the “complete list” test and so circumvent this issue and give Edward much more leeway to carry out his mother’s intentions. Remember the preference of the courts will be to see Alice’s wishes carried out rather than not.

DISPOSITION C

There is clearly an intention to create a trust with the subject matter of a‚¤20,000, because it is stated. It is further obvious that it is a discretionary trust^[33]; this is a type of express trust where the trustee has what is called ‘dispositive discretion ’ i.e. an ability to decide the quantum of trust property, if any, goes to each beneficiary^[34]. It is important to note the difference between this and a fixed trust; in a fixed trust the beneficiaries have a severable equitable claim on the property because they can usually calculate what they are entitled to. In a discretionary trust the trustees can exercise discretion; and in this case the basis of this discretion is those “they find most deserving.”

The real issue is who exactly are the objects of the trust; that are subject to this discretion?^[35] We are given no names but rather a class description “such of the first 300 people to have crossed the Victoria Bridge on the 24^th of October 2008”. Such descriptors in theory pose no problems. However, if we assume that this date has passed^[36], then we are presented with a difficult evidential problem. It is important to point out that the names of the 300 people who were first over Victoria Bridge is a fact; they are an absolute certainty; it is just the trustees don’t know who they are yet. Hence, it is not an issue of ‘conceptual certainty’ as to the class descriptor; it is not like “old friends”. The issue is one of evidential uncertainty in that the trustees do not have enough evidence to write down a complete list. The courts have grappled with this problem but it is now clear from McPhail-v-Doulton that previous requirements for a complete list, like for fixed trusts, are no longer valid. The test now is the “is or is not” test as outlined above. Hence, the trustees do not need to know the 300 people who crossed the bridge, they only need to meet the test set by Wilberforce in McPhail; “can it be said with certainty that any given individual is or is not a member of that class”. The issue now is could anyone do this with sufficient certainty. It would not be enough to show you crossed the bridge on the day but that you were one of the first three hundred to do so^[37]. This turns on facts we don’t have; considering the coverage of police cameras in London it is likely there is one focused on Victoria Bridge so this might help candidates prove their claim. To conclude this section, the advice is whoever can prove with sufficient certainty that they fall within the class, and then they will become beneficiaries of the trust. However, if no one can prove then the trust will fail for lack of certainty of objects and the a‚¤20,000 result back to Alice’s estate.

There are a number of other issues which should be covered briefly for Edward and Sandra. Assuming the three certainties are present, then the trust is properly constituted (as the potential trustees they are also executors and have legal title). To be a trustee you need to have reached the age of 18; we are not told Sandra’s age but presumably she complies with this. The trust is defined to be for 21 years i.e. 21 years after Alice’s death and this is permissible under Section 13 of the Perpetuities and Accumulations Act 1964. However, it is worth pointing out to Edward and Sandra that the trust is unlikely to last as long as 21 years. Although the beneficiaries would have no rights severally because as Penner (p.85) describes them they are “mere postulants, seeking the trustees’ largesse”; they could have rights jointly because it is an exhaustive trust^[38] i.e. Alice appears to have instructed them to spend all the 20K and there are no devices to return unspent money to the estate. As such the beneficiaries may have rights jointly to petition the court to simply give them the trust property, see Martin (p.211) which presumably they would have agreed to divide equally^[39].

References – Bibliography

Burn, E, Trusts & Trustees Cases & Materials 6^th Edition, Oxford University Press.

Dixon, M, 2005, Equity and Trusts Q & A, Cavendish Publishing.

Edwards, K, 2000, Essential Equity and Trusts, Routledge.

Duddington, J, 2007, Equity and Trusts Law Express, Pearson.

Hudson, A, 2005, Equity & Trusts, Routledge Cavendish.

Mohamed, R, 2004, Cases & Materials on Trusts, Routledge Cavendish.

Martin, J, 2005,Hanbury & Martin, Modern Equity 17^th Edition, Sweet & Maxwell.

Penner, J, 2005, The Law of Trusts Core Text 4^th Edition, OUP.

Wilkie, M, 2008, Equity and Trusts Blackstones Q & A 2008/2009, OUP.

1

Title: EMPLOYMENT LAW :

In undertaking this essay, the writer will; identify the issues involved in Julia’s case scenario, define and explain those issues using relevant Law whilst applying them to Julia’s case. The writer will subsequently advice Julia and then conclude.

The legal issues identified in Julia’s case are; contract of employments and their variation, victimisation, wage deduction, breach of contract and available remedies such as unfair dismissal, constructive dismissals and wrongful dismissal.

‘A contract of employment is an agreement entered into by an employer and an employee under which they a have certain mutual obligations. They may be oral or written and may be indefinite or for fixed terms’^[1]. There’ an offer and acceptance supported by consideration. Offer usually coming from the employer and acceptance may be by conduct i.e. turning in for work^[2]. It follows that Julia entered into a contract of employment on turning up to work with Silkos in March 2004. The holiday term may not have been agreed by her at this time but where there is ambiguity as to the contract, the courts look at an advertisement and letter of appointment to spell out terms of the contract or to decide terms agreed as in Deeley v British Rail Engineering ltd^[3] (and Pedersen b Camden London Borough)^[4].

Julia may rely on the advertisement and any willing witnesses to their agreement on the issue of holiday. Practice of the parties are relevant to the courts, In Dunlop Tyres Ltd v Blowers^[5], the practise of paying treble time existing over 30 yrs were considered.

The law requires that a written statement of terms be given to the employee within two months of starting work (as provided by The Contracts of Employment act 1973 and employment protection rights act 1996 (ERA)). Julia’s employer breached this rule, by being a month late to provide the statement, and only after Julia’ grievance process.

The statement must contain names of employer and employee, date of commencement of employment, brief description of the work, remuneration details, holidays, sickness coverage, pension rights, notice, disciplinary process e.t.c

To vary any contract there must be express or implied consent from both parties but it must be supported by consideration. Conduct may suffice from employee working under altered conditions.

Flexibility clauses such as ‘the employee will perform such duties as are from time to time assigned to him by the board of directors or managing director’^[6] are to legally aid employers and employees in varying terms without legal problems, without these clauses, Donaldson LJ’s remarks in Janata Bank ldt v Ahmed^[7], that ‘the continuously changing contract is unknown to law’^[8]

Establishing variation is important and different from ending a contract, if an employer on his own enforces a variation without an employees consent, he breaks the contract of employment, and the employee is free to choose whether to accept the fundamental breach, and resign, or to carry on working and seek damages as was the case in Burdett-coutts v Hertfordshire^[9]; Rigby v Ferodo ltd^[10]. Julia may decide to end her employment this way as she may argue that she had not consented to the holiday term and the deduction/variation of her wages and working conditions.

It was held in these cases- Jones v associated Tunnelling Co. ltd^[11]; Courtaulds Northern Spinning Ltd v Sibson and TGWU^[12]; Aparau v ICELAND Frozen Foods plc^[13] that failing to object to disadvantageous statement of terms is not acceptance of them especially where the terms are of no immediate practical importance. It suffices that even though Julia has been silent on the issue of the four week holiday, she has not accepted the term, but her conduct may imply that she consents. for example, she has worked for two years and must have taken annual holidays, this may be viewed as consent but she could still argue that she was not able to start another grievance process because she is feels victimised having done so in the past.

If terms are not agreed, the tribunal may confirm details given, amend or replace contract terms by substituted particulars as held in Mears v Safe car Security Ltd^[14] and supported by the EPCA 1978, s 11, this power cannot be extended to holiday, holiday pay, sick pay, pensions or disciplinary rules where none existed by agreement between the parties because there is no requirement to include this in the contract, as held in England v British Telecommunications plc^[15]. Julia is still protected by her statutory rights regarding these benefits.

If a deduction of wage has been made without employee’s consent, this is regarded as a fundamental breach of contract and termination of the same as held in Hogg v Dover College^[16]. Following this, the Julia may claim termination if her wage has been deducted without her consent.

In Horrgan v Lewisham London Borough Council^[17], Arnold J,said:

‘It is fairly difficult…………..and it is very necessary if one is to do so, to have very solid facts which demonstrate that it was necessary to give business efficacy to the contract,…. way of variation’^[18].Silko’s may rely on this provision but will fail on the manner in which they are seeking to make the variation.

In Marriot v Oxford and District Cooperative Society^[19], Lord Denning MR found that ‘……………….. By insisting on new terms to which he never agreed, the employer did..…. terminate the old contract of employment’.

‘….case law suggests that employers must make it clear that he is terminating one contract and offering another, otherwise there is a risk that the employee can claim in the courts of tribunals’ rights forgone under the old arrangement’^[20]. It is arguable that by seriously changing the terms of Julia’s wages and responsibility, the employer may have brought an end to her employment.

In Sheet Metal Components ltd v Plumridge^[21], Sir John Donaldson said; ‘ the courts have rightly been slow to find that there has been a consensual variation where an employee has been faced with the alternative of dismissal and where the variation has been adverse to his interests’, the same is the situation in Norwest Holst Group Administration Ltd v Harrison^[22].Julia may strongly rely on these provisions.

In Burdett-Coutts v Hertfordshire County Council… an employer may end a contract by breach when seeking to vary the terms; the courts may interprete this as dismissal.

The House of Lords in Rigby v Ferodo Ltd^[23]established that the employee must consent to termination, and reduction of wages is not automatic termination. Also in Miller v Hamworthy Engineering Ltd^[24] . It is therefore advisable for employers to give proper notice to terminate one contract, before offering another, not doing so-as in Julia’s case- carries risk of an employee claiming for unfair dismissal.

‘It is implied into a contract of employment that an employer will provide and monitor for employees, so far as is reasonably practicable, a working environment that is reasonably suitable for the performance by them of their contractual duties’^[25]. So in Waltons and Morse v Dorrington^[26] it was held that an employer must not act in such a way as no reasonable employer would act’^[27]. This case is supported by Clark v Nomura International plc^[28], and Johnston v Bloomsbury Health Authority^[29] and walker v Northumberland county council^[30]. It appears that the employer has breached this implied contract term by ‘copying’ Julia’s grievance issue.

It is also implied into a contract of employment that an employer must take any action having regard to avoid ‘either imposing workload on the employee or acquiescing in the assumption by the employee of workload that was reasonably foreseeable may cause physical or mental injury’ Marshall specialist vehicles ltd. V Osborne^[31].

This is clearly breached by increasing the expectation to meet the same targets with less number of people in her team e.t.c. Express and implied terms must be capable of coexistence in the contract without conflict (Johnstone v Bloomsbury Health Authority^[32], Aspen v Webs Poultry and meat group (Holdings) ltd^[33].Julia’s express term of three week holiday is not in compliance with her statutory right to a four week minimum, as other implied terms can be excluded except if there is any statutory restraint, such as the rights to guarantee pay, equal pay, notice and maximum working hours.

Section 27 of the ERA 1996 defines ‘wages’ as any sums payable by the employer to the worker in connection with the employment including ‘any fee, bonus, commission, holiday pay or other emolument referable to his employment, whether payable under his contract or otherwise’^[34]..

A deduction of wages includes a failure or refusal to pay the amount agreed to be paid in exchange for employee’s work, Delaney v Staple^[35] regardless of reason McCree v Tower Hamlets London Borough Council^[36]. Even though Silko’s will breach the employment contract between her and Julia’s if her wages are deducted for valid economic reason. They must seek her consent in written form to obtain deduction.

In Discount Tobacco and Confectionery Ltd v Williamson^[37] ,a retail case where it is permissible to reduce only a tenth of their daily wages with consent on missen items in the shop,It was held that the employers could deduct only in relation to the last event where consent was given. Potter v Hunt Contractors ltd^[38] and Fairfield ltd v Skinner ^[39] It is illegal to contract out of this provision.

The working Time regulation 1998 came into force on 1 October 1998 and was designed to achieve, ‘a better balance between work and home’, ‘greater choice over hours of work’ and ‘improvement in health’^[40].Regulation 13 of provides annual leave of four weeks minimum. It allows a worker to complain if he suffers action short of dismissal for pursuing his entitlement, and unfair dismissal is also available on the same principle. Julia may pursue her holiday rights following this.

According to Sex Discrimination Act 1975,s4(1)’ RRA 1976, s 2(1)’Unlawful victimisation arises where a person is treated less favourably because he; brings proceedings, gives evidence or information, alleges a contravention or otherwise acts under the equal pay, sex discrimination or race relations acts or intends to do any of these things’^[41].

To succeed in a claim of victimisation the applicant must show that one of the acts above done by the applicant-such as bringing an earlier complaint of discrimination- has influenced the alleged victimiser in his unfavourable treatment of the applicant as was held in Aziz v Trinity Taxis ltd^[42]. In Nagarajan v London regional transport^[43] , His motives are unimportant according to the House of Lords.

Julia may seek redress under this provision on the basis that she was victimised because she instigated grievance proceedings in trying to assert her rights to her statement of particulars. She was made aware of her disadvantage for asserting these rights.

In Lindsay v alliance and Leicester plc^[44], a person had made an application for promotion and had instituted a grievance on grounds unconnected with the Race Relations Act 1976. Chief constable of west Yorkshire police v khan^[45] and commissioners of Inland Revenue v Morgan^[46].

According to the acas paper, ‘consultation on the draft employment equality (age) regulations 2006 (July 2005)^[47], firstly an action is taken, such as a complaint or allegation and secondly the person is treated less favourable because of such an action. Julia qualifies to claim victimisation on the basis of this provision.

Clearly, there have been significant breaches in Julia’s employment with Silko’s in ; her statutory rights to receive statement of particulars within two months, holiday rights, potential variation/termination of her contract with regards to reduction of team members and wages, victimisation for asserting her statutory rights e.t.c.

For all these breaches Julia is entitled to redress in the civil courts or the employment tribunals, in the form of damages for unfair dismissal and or wrongful dismissal by reason of constructive dismissal, redundancy e.t.c.

The Employment rights Act 1996, the Employment Act 2002 and The Employment Equality (Age) Regulations 2006 cover unfair dismissal. Basically employees can be dismissed unfairly.

Qualification for this right is by a working period of a year with the employers but there are exceptions, where; dismissal is connected to trade union membership or activities (Trade Union and Labour Relations (Consolidation) Act 1992) pregnancy of childbirth, maternity, adoption, paternity or parental leave, asserting a statutory right, claiming the national minimum wage and asserting rights under the working time regulations.

From these provisions, it is obvious that Julia qualifies for a claim on both the basis of a year qualification and automatically unfair reasons.

The act mentions fair reasons for dismissals as; capability or qualifications, conduct, redundancy, illegality or contravention of a statutory duty and some other substantial reason. There is no fair reason to dismiss Julia it appears.

An employer must act fairly and reasonably in dismissing an employee or may be faced with a successful claim for unfair dismissal regardless of fair reason for dismissal. The employers have not satisfied either of these criteria in Julia’s case.

A constructive dismissal occurs when an employee leaves a job but then claims that their employers left them no choice but to do so, either by their actions or by implication.

It is an unfair dismissal claim but the employee must prove that their employer’s behavior caused them to end the contract. Julia has every reason to institute unfair dismissal claim by reason of constructive dismissal because of the behavior of her employers. According to the trade union and labour relations consolidations act 1992, it is automatically unfair to dismiss an employee if they ‘indicated that they supported or did not support recognition of a union (or unions)’^[48], clearly Julia did not support the union and may argue- on application for unfair dismissal- that she was victimized for this reason.

If an employee proves this behavior, the employer becomes guilty of wrongful dismissal and if unable to prove that the forced dismissal was fair, they become liable for unfair dismissal too. Statutes now suggest that the employee must raise a grievance at least before bringing the claim to the tribunal, which would eliminate constructive dismissal and warn the employers.^[49]

Wrongful dismissal claim is for a breach of contract and can be brought by any employee, and only requires one month employment. Notice is required but depends largely on how long an employee has worked. After one month it is a week’s notice, after two years, it is one week’s notice for each complete year to a maximum of twelve weeks on and after twelve years.

The remedies for unfair dismissal are reinstatement, re-engagement and compensatory award.

Compensatory claim has two components, – the basic award which takes the age of the employee into question and has no minimum limit and the compensatory award which provides what is just and equitable as compensation, having regard to the loss suffered as a result of dismissal. It is now a maximum of 55,000 pounds, but in dismissals rendered unfair under the public Interest Disclosure Act 1998, there is no limit.^[50]

For wrongful dismissal, the remedy are for breach of contract and is usually the ^[51]wages and benefits that the employee would have earned if due notice had been given (Radford v De Froberville^[52], Shove v Downs Surgical plc^[53].

The writer advices that Julia may firstly use the grievance procedure agreed on her contract first, but only if she feels comfortable with so doing, if not-and from the case scenario, it seems not- she still has a strong case for unfair dismissal regardless of the fact that she is ‘uncomfortable’ using the agreed grievance procedure-the tribunal will her reasons for ‘discomfort’ favorably. The suggested grievance procedure is taken favorably into account in granting awards for damages.

The writer will also advice her that compensatory award for damages in the case of an unfair dismissal claim is more generous than for wrongful dismissal and she may apply on the basis of constructive dismissal because if successful-and it appears she will-the employer will be unable to prove that the dismissal was fair, and will incur damages for unfair dismissal. Damages are then awarded.

She chooses between the employment tribunal and the civil courts, but the writer suggests she pursues this through the tribunal because of its less rigid procedures and costs. She must keep all records from the time of employment till the time of making the application, she must also be aware that there are time limits for bringing the claim to the tribunal but a generous time limit is given by the civil courts. The earlier the better for her because records and evidence do change.

Bibliography
Books
A.McColgan, Discrimination Law; text, cases and materials 2^nd edition
P.CHANDLER, Waud’s Employment Law: The Practical Guide for Human Resource 14^th edition,

J.Bowers, A practical approach to employment Law, seventh edition, oxford university press, New york,2005

G.Duddington,. John, Employment law, Pearson Education, 2003 GOULD, T. (2007) Unfair dismissal: a guide to relevant case law. 25th ed. London: LexisNexis Butterworths.

GUINAN, G. (2007) Do dismissals by the book. People Management. Vol 13, No 18, 6 September. p22

Journal articles

Vorste, G. School staff sacked for tying up student in classroom, published 15 February 2008 14:24

Consultation on the draft, Employment Equality (Age), Regulations 2006

Internet resources

Writer unknown, Previous misconduct counts in dismissal decisions, viewed on 18 February 2008 11:00

http://www.personneltoday.com/articles/2008/02/18/44427/case-of-the-week-previous-misconduct-counts-in-dismissal-decisions.html

Writers unknown, employment law resources for practitioners, viewed 18 February 2008 14:00,http://www.cipd.co.uk/subjects

Writers unknown, employment law resources for practitioners, viewed 18 February 2008 15:00http://www.hrmguide.co.uk/hrm/steele/index-2007.htm

Writers unknown, employment law resources for practitioners, viewed 18 February 2008 17:00http://www.hrmguide.co.uk/hrm/steele/index-2007.htm

Writers unknown, employment law resources for practitioners, viewed 18 February 2008 14:00 http://books.google.co.uk/

Writers unknown, employment law resources for practitioners, viewed 18 February 2008 14:00http://www.berr.gov.uk/files/file16397.pdf

Contents

Introduction

Chapter 2: The impacts of domestic violence on children

Chapter 3: Protecting children from domestic violence

Chapter 5: The multi-agency approach to child protection

Chapter 6: Policies to protect children against domestic violence

Conclusions and Recommendations

References

Introduction

This dissertation looks at domestic violence and the impacts domestic violence has on children and child protection issues. The dissertation begins with a description of domestic violence, including an estimation of the extent of the problem, illustrated with statistics. The dissertation then moves on to analyse the immediate and long-term impacts of domestic violence on children’s health, education, personality, socialising and future relationships. The dissertation then moves on to the issue of protecting children from domestic violence in terms of the child protection issues that need to be taken into consideration. The dissertation then moves on to a discussion of the role of the mother and why her socio-economic status and culture is important. Protecting the mother, in terms of protecting the child, is then discussed, in terms of whether, for example, it is best for children to live with both parents, even when there is domestic violence occurring.

The dissertation then moves on to an analysis of the multi-agency approach to child protection, examining its advantages and disadvantages. The available services for children living with domestic violence are also discussed, as are the policy and legislation against domestic violence and pro child protection in the UK. Through this, the dissertation moves on to analyse the intervention strategies that are available to protect children, in terms of the extent to which prevention is possible and how. The dissertation then moves on to a critically analysis of the roles of policies, legislation, agencies and professionals in protecting children, in terms of whether the legislation enhances or hinders the effectiveness of professional intervention, and what should happen next. The dissertation ends with a conclusions and recommendations section, which provides recommendations as to how child protection can become more effective.

This section presents a description of domestic violence, including an estimation of the extent of the problem, illustrated with statistics.

Domestic violence, or intimate partner violence, or interpersonal partner abuse, as it is also commonly known, is a pattern of aggressive behaviours, either physical, sexual or psychological (or all three) that adult partners use against their intimate partners (Ganley, 1995). The Home Office classifies domestic violence as, “Any violence which occurs between current or former partners in an intimate relationship, wherever and whenever this violence occurs. The violence may include physical, sexual, emotional or financial abuse” (Home Office, 1998).

It is known that domestic violence is mostly perpetrated by men against women victims and that it often begins, or gets worse, around pregnancy (Nicolson et al., 2006). Domestic violence is generally repetitive, in that once it has occurred once, it is likely to be repeated, either in the same manner or utilising a different form (psychological, sexual or physical), with each form of the violence interacting with the other form and causing problems for the victim(s) of the violence, who are not only the partner but also any children that may be present in the household (see Ganley, 1995).

Shockingly, a high proportion of children living with domestic violence are themselves being abused, with almost 80% of the children who are on the ‘at-risk’ register coming from homes where domestic violence is known to occur (see, for example, Mullender and Morley, 1994; Department of Health, 2002). In addition, research has shown that there is a correlation between being an abusive partner and having witnessed abusive behaviour in one’s childhood (see O’Leary, 1987).

In terms of the theoretical models that have been posited to explain domestic violence, social exchange theory suggests that human interactions are guided by seeking rewards and avoiding costs and punishment (see Blau, 1964), with domestic violence tending to occur when being violent does not outweigh the rewards on offer (see Gelles and Cornell, 1985; 1990). Following this reasoning, therefore, one of the ways to reduce the prevalence of domestic violence is to increase the cost attached to being a ‘batterer’ (i.e., a person who inflicts violence on an intimate partner) through, for example, creating and enforcing criminal laws against domestic violence (see Danis, 2003). Deterrence can, after all, be defined as, “the state’s ability to diminish the incidence of a prohibited action through legal threats which clearly indicate that the costs of an action would be greater than any benefits derived from it” (Dutton, 1995; p.242).

Other theories suggested to explain the prevalence of domestic violence include social learning theory, which suggests that people learn to be violent through reinforcement (i.e., receiving a reward or being punished directly after an aggressive act has taken place) or through modelling (i.e., basing one’s actions on what one has witnessed) (see Bandura, 1973). As has been seen, intergenerational transmission of the behaviour that leads to domestic violence is possible and, indeed, occurs in many situations (see O’Leary, 1987 and Mihalic and Elliott, 1997). On this basis, many ‘batterers’ are treated, attempting to reverse the behaviour that leads to domestic violence on the premise that what has been learned can be un-learned (see Danis, 2003).

The British Crime Survey, and annual survey of crime conducted in the UK, can be used to find prevalence data of domestic violence. Mirrlees-Black and Byron (1996) showed that, in 1996, around 4% of women interviewed admitted some form of domestic violence in the year previous to the survey, with women twice as likely as men to have been injured by a partner in the year previous to the survey. In addition, Mirrlees-Black and Byron (1996) found that 23% of women had experienced some form of domestic violence at some point in their lives, with those most at risk being the under 25s and those in financial difficulties. It was found that only half of the victims had reported the domestic violence, and of the half that had reported the domestic violence, this was to a friend of family, with police and medical staff being notified only in a small proportion of cases (Mirrlees-Black and Byron, 1996).

Mirrlees-Black (1999) again used the British Crime Survey data to analyse the prevalence of domestic violence, finding that, similarly to the 1996 survey (Mirrlees-Black and Byron, 1996), around 4% of women reported some form of domestic violence in the year previous to the study, with women twice as likely as men to be the subject of domestic violence. Mirrlees-Black (1999) estimated that there were 6.6 million incidents of domestic violence in the year previous to the survey, with 2.9 million of these incidents involving actual physical injury. This survey (Mirrlees-Black, 1999) revealed that 12% of women had been assaulted on three or more occasions, which Mirrlees-Black referred to as chronic victims.

Similarly to the 1996 survey (Mirrlees-Black and Byron, 1996), women under 25 were most likely to report domestic violence, with 34% of women in this category reporting some form of domestic violence, higher than in the previous, 1996, survey (Mirrlees-Black and Byron, 1996). In terms of the actual domestic violence perpetrated against these women, pushing, shoving and grabbing were the most common types of assault with injury occurring in 41% of the domestic violence episodes (Mirrlees-Black, 1999). Alarmingly, around a third of the women surveyed who reported domestic violence episodes revealed that their children had been aware of the last violent episode (Mirrlees-Black, 1999). In addition, chronic victims of domestic violence were usually the victims of more serious types of attack (Mirrlees-Black, 1999).

Walby and Allen (2004) present the most recent survey of domestic violence using the British Crime Survey, showing that domestic violence is still widespread with 36% of women reporting some sort of domestic violence episode, although this figure represents concentrated episodes of chronic domestic violence and/or multiple episodes of domestic violence throughout their lives. The study found that 13% of women had experienced some form of domestic violence in the year prior to the survey (up from 4% in the 1999 survey reported by Mirrlees-Black (1999) and that for women subjected to domestic violence, the average number of domestic violence episodes per year was twenty (Walby and Allen, 2004). On this basis, Walby and Allen (2004) estimated that there had been 12.9 million domestic violence episodes in the year prior to the survey, up from 6.6 million in the 1999 survey (Mirrlees-Black, 1999). The 2004 survey also revealed that 2% of women who admitted domestic violence had been the subject of a serious sexual assault inside the home (Walby and Allen, 2004).

Walby and Allen (2004) found that those women who lived in a household earning less than ?10,000 were three and a half more times likely to be the subject of domestic violence than a women in a household earning more than ?20,000, although it was admitted that the correlations between domestic violence and poverty are unclear. For example, poverty could be the cause of domestic violence, or could be the outcome of domestic violence, in that women who have fled domestic violence often end up living on low income (Walby and Allen, 2004).

In terms of assessing the prevalence of domestic violence, studies have shown that it is difficult to provide a realistic estimate, in reality, as many women do not seek help and even when faced with medical professionals with whom they could speak, for example their GP’s, most women do not willingly discuss their problems (see, for example, Bonds et al., 2006). Indeed, research has shown (see, for example, Boyle and Jones, 2006) that women who are the subject of domestic violence frequently only disclose when healthcare staff directly enquire about this possibility, many of whom actively stated, when interviewed, that they do not ask about such matters so as not to offend the patient, even though evidence shows that women who are not the subject of domestic violence are unlikely to be offended by such a question (Boyle and Jones, 2006).

One of the most comprehensive studies of the reported frequency of domestic violence against women has been reported by Bradley et al. (2002), who surveyed 1871 women attending general practice through a cross-sectional, self-administered anonymous survey. 40% of the women surveyed had, at some point in their lives, experienced domestic violence by a partner, with 12% of women reporting that their GP had approached them about possible domestic violence (Bradley et al., 2002). In addition, a worrying 69% of the women surveyed reported controlling behaviour from their partner, with 28% admitting to feeling afraid of their current partner (Bradley et al., 2002). Most of the women surveyed voiced support for routine enquiry about domestic violence as part of regular check-ups with their GP, suggesting one route for monitoring the presence of domestic violence in the community (Bradley et al., 2002). Elliott et al. (2002) suggested that better GP training in this issue would lead to higher detection rates and better care for the victims of domestic violence.

As Gerbert et al. (2002) suggest, other risk behaviours that were once considered taboo (such as HIV and alcohol and drug abuse) have been tackled, in that medical professionals routinely ask about such matters in consultations. It is thus not acceptable that domestic violence is not addressed in such a manner, given the high prevalence of this and the deleterious effects this can have on the victims and any children who are present in the household (Gerbert et al., 2002). It is suggested that it is a general lack of training that stops medical professionals from enquiring about such violence, and that the lower domestic violence screening rates, compared to the screening rates of other risk behaviours, may reflect the medical professionals beliefs that they do not know how to screen or intervene or their belief that such interventions may not be successful (Gerbert et al., 2002). It is suggested that screening rates can be improved by educating medical professionals as to the many benefits that identifying domestic violence can bring to the victims (Gerbert et al., 2002).

This section of the dissertation analyses the immediate and long-term impacts of domestic violence on children’s health, education, personality, socialising and future relationships.

In terms of children’s exposure to domestic violence and maltreatment, Osofsyky (2003) looked at this issue in terms of prevention and intervention, showing that on the basis of available research, there is no doubt that huge numbers of children are being abused as part of the presence of domestic violence in the household, although the effects on children of this abuse, as a result of domestic violence, depends greatly on the child’s individual circumstances, on their additional risk factors and their susceptibility. Herrenkohl et al. (2008) reported similar results, showing a massive overlap in physical child abuse and domestic violence, which was especially prevalent in situations with other stressors, such as adverse socio-economic conditions, for example.

Hartley (2002) also looked at this issue, and found that there is a substantial overlap between domestic violence and child maltreatment, finding that adverse socioeconomic factors were more likely to correlate with domestic violence and child neglect than with child abuse per se, although child abuse was present in a shockingly high number of cases, suggesting, as Osofsky (2002), that domestic violence goes hand-in-hand with child maltreatment, either through child neglect as a result of domestic violence or child abuse by the perpetrator of the violence as part and parcel of the domestic violence (Hartley, 2002).

Hester and Pearson (1998) looked at domestic violence in the course of their work with abused children, finding that domestic violence was present in 70% of the cases of child abuse they dealt with, showing that the presence of domestic violence is a major factor in child abuse cases. It was suggested, as a result of this, that it might be useful to screen for domestic violence as routine practice, in terms of this being a possible predictor of child abuse, either current, in which case it could be identified and treated, or future, in which case, if the domestic violence is dealt with, might never occur.

Gorin (2004) looked at understanding what children say about living with domestic violence, showing that children are often more aware of domestic violence than is realised, although they don’t often understand what is happening, nor why it is happening (Mullender et al., 2002). It was also reported that children worry about their parents more than is recognised, even though most children choose not to talk about this to anyone, and actively try to avoid the problem by distracting themselves physically and emotionally (Gorin, 2004). When asked about why they chose not to share their experiences with others, a fear of not being believed by professionals was the generally reported concern, with the fear that help will not be forthcoming when asked for being another commonly reported concern (Gorin, 2004). In addition, children report not having any idea of where they can go to get help, which stops them asking for help, although the majority of children affected by domestic violence reported that they long for someone to talk to about the violence, in terms of having someone to listen to them and to provide comfort and reassurance to them (Gorin, 2004). During the course of the research, it was found that children most asked for information to help them understand what was happening to their parents, and why they weren’t able to stop the violence (Gorin, 2004).

In practical terms, this responsibility, of knowing about the violence but not being able to do anything to stop it, and feeling they do not have anywhere to turn to report the violence, can lead to many problems for the children. Children who have experienced domestic violence generally feel they have to be more responsible in the home than othert children, in terms of undertaking more practical tasks around the home, often as a way of trying to avoid the violence by pre-empting arguments, for example (Gorin, 2004). This responsibility, or knowing about the violence but feeling there is nothing that can be done about it, and the responsibility of taking on extra tasks, can lead to children developing sleep problems, being tired, and not paying as much attention as they need at school, leading to problems with their education (Gorin, 2004).

Fantuzzo et al. (1997) looked at the effect of domestic violence on children, showing a myriad of adverse effects in children exposed to domestic violence, especially amongst those children who are already exposed to other risk factors such as drug abuse and/or adverse socioeconomic conditions. Fantuzzo and Mohr (1999) continued the work of Fantuzzo et al. (1997), looking at the effects of domestic violence on children, showing that domestic violence has many adverse effects on children, which are modified according to many factors, such as the child’s age, the nature of the violence, the severity of the violence and the existence of other risk factors in the children’s lives (such as poverty and substance abuse, for example), but which are, nonetheless severe. Childhood exposure to domestic violence can lead to aggressive behaviour, to increased emotional problems, such as the onset of depression and anxiety, to lower academic achievement and to lower levels of social skills (see Fantuzzo and Mohr, 1999).

Baldry (2003) looked at bullying in schools following exposure to domestic violence, through a cross-sectional study of 1059 Italian school students using a self-report anonymous questionnaire. It was found that those children who had been subjected to domestic violence (i.e., interparental violence) were far more likely to bully whilst at school than those children who had never been subjected to any form of domestic violence, thus showing a direct negative effect of domestic violence on children’s behaviour (Baldry, 2003). Bauer et al. (2006) also looked at the relationship between bullying and intimate partner violence, through a self-report questionnaire of 112 children, and found, similarly to Baldry (2003) that children who had been exposed to intimate partner violence in a home setting were more at risk of developing physical aggression and internalised behaviours than children who had never experienced intimate partner violence in the home setting.

Hall and Lynch (1998) looked at the lifelong effects of domestic violence on children, finding that separating the causes of domestic violence from its effects and from other correlated factors, such as poor parenting, poverty, substance abuse, for example, is difficult and that, as such, pinpointing the specific effects of domestic violence on children can be difficult. Hall and Lynch (1998) report, however, that children in violent households are three to nine times more likely to be injured and abused, either directly or in the course of trying to protect their parent. In addition, children from violent households are more likely to suffer a range of emotional and psychological problems, including self-harm, eating disorders, post-traumatic stress disorder and suicide, along with stress-related health complaints, such as insomnia and irritable bowel syndrome (Hall and Lynch, 1998).

In addition, these behavioural and psychological problems can lead to other problems, such as involvement in violence and/or bullying (as seen, see Baldry, 2003 and Fantuzzo et al., 1997), educational failure and/or dropping out of, or being excluded from, school (Woodward et al., 1998) (Hall and Lynch, 1998). In addition, it has been found that if a mother decides to leave her partner and go in to a shelter for the victims of domestic violence, this can lead to the children feeling isolated from their previous friends and their established social networks, leading to further problems for these children who were already exposed to a high level of stress and emotional and psychological problems (Hall and Lynch, 1998).

In addition, it is also known that being exposed to violence in the home can lead to juvenile crime, with many child victims of juvenile crime being the subject of youth criminal sentences (Hall and Lynch, 1998). In addition, the effects of domestic violence on children are long-lasting, with anti-social behaviour at the age of seven being highly correlated with violent behaviour towards partners in later life (Hall and Lynch, 1998), mediated, as has been seen, through the process of social learning theory (Bandura, 1973).

Chapter 3: Protecting children from domestic violence

This section of the dissertation addresses the issue of protecting children from domestic violence in terms of the child protection issues that need to be taken into consideration.

As children suffer many and varied consequences of domestic violence, including direct child abuse by the perpetrator of the violence and indirect consequences of witnessing the violence, such as emotional, psychological and physical ill-health, the child protection issues that need to be taken in to consideration are many and varied. In those cases where child abuse is suspected, the child needs to be protected against this abuse. This could mean removing the child in to care, or working with the mother to encourage the mother to move, with the child, in to a refuge to avoid the domestic violence. The particular option chosen by social workers depends on the risks assessed in the particular situation.

In terms of protecting children more generally, in terms of identifying possible negative effects on children from domestic violence, for example, all health professionals should be aware of the effects of domestic violence, and possible symptoms of domestic violence on children, which, if not physical, can be noted in the child’s behaviour. Medical professionals who come in to contact with children should be trained in detecting these signs of domestic violence in children, with adequate screening programmes in place to detect such signs and to enable children to deal with the problems that domestic violence presents to them, in terms of being given the opportunity, in a safe and confidential manner, to talk about what is happening in their household, how they feel about this, what problems this is presenting to them and what needs to be done about the situation. Children are perhaps more likely to want to talk to the school nurse, or to a GP than to any other professionals, as there is some previous relationship established and some form of trust that has already been built up (Hall and Lynch, 1998). It is essential that teaching about domestic violence be mandatory for all professionals involved in multi-agency teams dealing with child protection issues (see Hendry, 1999).

This section of the dissertation presents a discussion of the role of the mother and why her socio-economic status and culture is important. Protecting the mother, in terms of protecting the child, is then discussed, in terms of whether, for example, it is best for children to live with both parents, even when there is domestic violence occurring.

It has been found that there is a substantial overlap between domestic violence and child maltreatment (see Hartley, 2002), in that adverse socioeconomic factors are more likely to correlate with domestic violence and child neglect (including child abuse). Walby and Allen (2004) also found that those women who lived in a household earning less than ?10,000 were three and a half more times likely to be the subject of domestic violence than a women in a household earning more than ?20,000, although it was admitted that the correlations between domestic violence and poverty are unclear. For example, poverty could be the cause of domestic violence, or could be the outcome of domestic violence, in that women who have fled domestic violence often end up living on low income (Walby and Allen, 2004).

Thus, whilst there are some correlations as to the socioeconomic status of the mother and the probability of being the subject of domestic violence, the links have not been researched fully and, as such, no causal relationships can be found. What is clear, however, is that where there is poverty, or perceived financial problems, there is more likely to be domestic violence, and that where there is domestic violence, there is likely to be some form of child neglect or child abuse also going on. Mothers, therefore, have a responsibility, within the framework of them being victims themselves, to their children, in terms of protecting them, as far as possible, from the violence.

This is itself a complicated issue, however, as many women have nowhere to flee to when they leave a violent partner, meaning the women often end up in temporary refuges or low-standard rented accommodation, often outside of the area where their children go to school, often leading to further psychological problems for their children, who then feel isolated from their friends and support networks, which can lead to further emotional and psychological problems for these children (Gorin, 2004; Hall and Lynch, 1998). It is reported that the mother often stays in the household and subjects herself to domestic violence because of fear of what leaving the household would do to their children (see Nicolson et al., 2006).

Hazen et al. (2006) looked at female care-givers experiences of domestic violence and behaviour problems in their children, finding that serious problems are faced by children when the mother is subjected to domestic violence, and that these children need to be helped as far as possible in terms of addressing the problems that these children face. If the mother decides not to leave the abusive partner, therefore, the mother has a responsibility to her child(ren) that she will ensure that they are treated as far as possible for these problems. Again, however, this is complicated by the fact that mothers often want to hide the fact that they are being abused from their children, and, as such, do not discuss this with their children. This is a fallacy, however, as shown by Gorin (2004), as children are often far more aware of what is happening than they are given credit for, and the untreated consequences of the domestic violence can lead to major future health and behaviour problems for children (see, for example, Hall and Lynch, 1998).

The problems facing mothers who are the victims of domestic violence are many and varied. They are the subject of abuse themselves, which can leave them feeling ashamed and not willing to discuss this with anyone, not even their children. Their children, aware of what is going on, but unable to talk to their mothers then begin to develop problems, which – if the mother even recognises these problems – are then not treated, as they are viewed, by the mother, as part and parcel of the same humiliating violence they are subject to. The effects of the violence are thus perpetrated, often with severe long-term consequences (Hall and Lynch, 1998).

It will be argued, however, that is the responsibility of the mother to protect her child, as the child’s care-giver, against domestic violence and against the effects of domestic violence. However, this is not as straight-forward as it seems, for, in addition to the humiliation that women feel when being abused, there are also financial concerns about how the mother would support her child(ren) if she left the violent partner. Many women victims of domestic violence argue that subjecting their children to poverty is worse than having them witness domestic violence (Gorin, 2004) and so they stay with the partner who is violent towards them, subjecting their children to the range of emotional, psychological and physical health problems already discussed (see, for example, Hall and Lynch, 1998).

Thus, the responsibility of a mother to protect her child(ren) against domestic violence and against the effects of domestic violence is a complicated issue. If there is child abuse present, it is obviously the mother’s responsibility to involve the police, and to ensure that the perpetrator is brought to justice, although, as has been seen, this is not as easy as it sounds, as women often have difficulty in approaching the police, witnessed by the low reporting rates of serious instances of criminal domestic violence to the police reported in Walby and Allen (2004).

If, however, as has been seen, the violence is mainly directed against the mother, and the mother feels it is better for the sake of the children, on balance, to stay in the violent household, whilst the violence is only directed towards her, then that is the mother’s decision, as a balance between the effects of the domestic violence on the children and the potential effects of moving to a new place and living in worse conditions than their current conditions, and the further emotional and psychological problems this would present to the child(ren).

If the mother makes the decision to stay with the violent partner as this is, on balance, the best option out of two possible sub-optimal options, then, in these situations, where the violence is not thought to be serious enough, by the victim, to warrant reporting or to warrant leaving the partner, even though the child(ren) is/are being affected by domestic violence, the question then becomes how to protect the mother, in order to ensure the best protection of the child. This question will be elaborated on in the next sections of the dissertation.

Chapter 5: The multi-agency approach to child protection

This section provides an analysis of the multi-agency approach to child protection, examining its advantages and disadvantages. The available services for children living with domestic violence are also discussed, as are the policy and legislation against domestic violence and pro child protection in the UK. Through this, the dissertation moves on to analyse the intervention strategies that are available to protect children, in terms of the extent to which prevention is possible and how.

As shown by Mirrlees-Black (1999), only about half of the victims of domestic violence told someone about the violence, most likely to be a friend or relative, with the police being notified of an attack in only about 12% of the violent episodes reported in the survey. Medical staff were the next likely to hear about the domestic violence, in about 10% of the violent episodes reported, and were reported to have been more likely to offer help and advice than the police (Mirrlees-Black, 1999). Overall, Mirrlees-Black, (1999) found it more likely that the victims of serious attacks (i.e., those regarded as a crime) would report these attacks to the police, with those women who felt responsible in some way for the attack being less likely to report the attack, even if the attack was criminal in manifestation (Mirrlees-Black, 1999). There is, thus, a massive problem with reporting domestic violence, something that

Discuss the drawing examples from your studies, bibliography.

Natural law is the law that exists independently of the positive law of a given political order, society or nation state. As a genre, natural law is the law of nature that is the theory that some things are as they are because they are. The central theme of the theory us that there are natural rights that are given to every human being by God.^[1]

Legal personality has been defined to express the ability of self to remove himself from all particularities such as family, personal history, social and cultural background and to become abstract and indeterminate. Legal recognition is a type of recognition based on the minimum commonality of people and not on the differences and individual characteristics which make them unique individuals.^[2] A legal person is a bearer of subjective right.^[3] Legal personality can either be natural or juristic.

Natural legal personality is therefore the legal status allocated to every human being by the mere fact of their existence by God. So, every body has Natural Legal Personality regardless of where they are from and under what political regime they live. Having said that, It is doubtful that this is highly relevant in England today. This essay focuses on the concept and illustrations of its applicability and limitations.

The concept of natural legal personality is hardly ever mentioned these days. This is possibly because there are not many rights that are attributable to natural legal persons. Even in the realm of Public International Law where there are laws that are attributable to persons by the mere fact that they are human by way of human right provisions, enforceability for instance, is almost impossible in the absence of the state.

In the realm of private law, where legal personality becomes more relevant, an individual’s autonomy exists only in a very restricted and figurative sense. A person cannot grant rights to himself because rights of one person necessary presupposes obligations on another and such a legal connection can only be made in conformity with an objective legal system by way of a consonant expression of will by the two parties. Even this legal connection only exists in so far as the contract is established by the objective law as a law-creating material fact. So, in private law, there is no complete autonomy.^[4] The mere use of the word ‘legal’ seems to suggest the lack of such autonomy.

Practical applications of the concept of Legal Personality exist. Sometimes, so-called natural ‘legal’ are restricted in their exercise of rights that have been attributed to others. In the realm of contract, the general rule in English Law is that anyone may enter into legally binding contracts if they want to. However, a restriction exists to the effect that minors as defined under the Family Law Reform Act 1969 and people that are mentally incompetent are incapable of entering into binding contracts except for the supply of necessaries.^[5] In the case of Moulton v. Camroux^[6], It was held that unsoundness of mind constituted an adequate defence in a case for the enforcement of a contract.

Also under the realm of Contract Law, non natural persons are attributed rights that would normally only be attributed to natural persons.

In the realm of criminal law, some categories of people may have their culpability reduced by virtue of their age or soundness of mind. A proved plea of insanity would mean that someone that has committed a crime is not punished in the same way other legal persons.^[7] In the case of R v Sullivan^[8], on a charge for causing grievous bodily harm, on appeal to the House of Lords, It was held that the trial court’s ruling of ‘not guilty by reason of insanity’ was appropriate. The same applies if the person is underage. He or she is not punished the same way a fully grown adult would be.

In the realm of company law, legal personality has been attributed to non natural persons. They are attributed with corporate personality. Such persons are known as juristic or artificial persons as opposed to natural persons. For legal purposes, they have the same rights and obligations as natural persons. They are capable of suing and being sued as an entity quite apart from the members. The implications of this personality were fully determined in the case of Salomon v Salomon^[9]. In that case, It was held inter alia that at law, a company is a different entity from the subscribers to its memorandum of association. The members of a company are therefore not personally liable for its debts s that unless there are contrary provisions, the members are completely free form liability.^[10]

The above discussion seems to suggest that the concept of natural legal personality, if it actually exists, is not really relevant in English Law. The mere use of the word ‘legal’ would suggest the existence of a state or other body. There is also the problem of how the natural rights are determined since a right for one person necessary constitutes an obligation for another. This suggests the necessary existence of some sort of agreement by the two parties which in turn, needs to be governed by certain rules. In terms of practical application, most laws prescribe their own definitions of ‘legal persons’ and the limitations to this personality.

The concept of natural legal personality does not exist in English Law and even if it did, It would merely be normative in nature and effect.

Bibliography

Davies, P. “Gower’s Principles of Modern Company Law” (1998) London: Sweet and Mawell.

Douzinas, C. and Gearey, A. “Critical Juriisprudence: The Political Philosophy of Justice” (2005) Oxford: Hart Publishing.

Kelsen, H. “Introduction to the Problames of Legal Theory” (2002) Oxford: Oxford University Press.

Neuhouser, F. (Eds) “Foundations of Natural Right” (2000) Cambridge: Cambridge University Press.

Statute

Criminal Procedure (Insanity) Act 1964

Sale of Goods Act 1979

Cases

Moulton v. Camroux 2 Ex 487

R v Sullivan [1983] 2 All ER 673

Salomon v Salomon [1897] A.C. 22 H.L.

Web Resources

The Free Dictionary

^[1] The Free Dictionary

^[2] Douzinas, C. and Gearey, A. “Critical Juriisprudence: The Political Philosophy of Justice” (2005) Oxford: Hart Publishing. Page 182

^[3] Kelsen, H. “Introduction to the Problames of Legal Theory” (2002) Oxford: Oxford University Press. Page 39

^[4] Kelsen, H. “Introduction to the Problames of Legal Theory” (2002) Oxford: Oxford University Press. Page 40.

^[5] Section 3 Sale of Goods Act 1979

^[6] 2 Ex 487

^[7] Under Sections 2(1) and 5 (1) of the Criminal Procedure (Insanity) Act 1964

^[8] [1983] 2 All ER 673

^[9] [1897] A.C. 22 H.L.

^[10] Davies, P. “Gower’s Principles of Modern Company Law” (1998) London: Sweet and Mawell. Pages 77-78 and 80.

DIABETES

Diabetes Mellitus

The medical name for diabetes mellitus comes from the Greek word that means to siphon and the Latin word that means sweet like honey.

Diabetes mellitus is the name given to a group of conditions where there is too much glucose in the blood. It affects approximately 3% of the population. There are currently 1.4 million people with diabetes mellitus in the UK and it is expected that by 2010 that there will be a further 1 million. It costs the NHS 4.9 billion a year and affects a million people without them even knowing that they have it. (Devendra et al 2004)

RELATED BIOLOGY

Which organ is involved in the regulation of Blood Glucose Levels?

The pancreas.

Where is it located?

Retroperitoneally, within the curve of the duodenum and with the tail extending to the posterior surface of the spleen.

What type of tissue is it made up of?

Primarily glandular tissue that has both endocrine (Insulin) and exocrine (Pancreatic digestive enzymes) functions.

Which area of this organ is responsible for producing the hormones involved in the regulation of blood sugar levels?

The Islets of Langerhans

What are the main functions of insulin?

To reduce the levels of blood sugar by facilitating the uptake of glucose from the bloodstream into the cells.
It increases the rate of glycogen synthesis in the liver
It promotes the synthesis of fatty acids in the liver
It inhibits the breakdown of fatty acids in adipose tissue
It stimulates the uptake of amino acids
It increases cell permeability to potassium

(after Wills C et al 2003),

What type of substance is insulin made of? Circle the correct answer.

Carbohydrate Protein Fats

Name the calls that produce the hormone glucagon.

Alpha cells

What are the main functions of glucagon?

An insulin antagonist, it raises blood glucose levels by increasing hepatic glycogen breakdown.
It activates hepatic glyconeogenesis
It enhances lipolysis of triglycerides

One of these hormones has a Catabolic action and the other an Anabolic action.

State what these terms mean and identify which hormone falls into which category.

CATABOLIC

Catabolism is the breakdown of complex biological molecules into smaller component ones

Glucagon

ANABOLIC

Anabolism is the synthesis of complex biological molecules from simpler components.

Insulin

What are considered normal limits of blood sugar readings?

Fasting blood sugar 3.0 to 6.1 mmol/l (Client note: this is variable – I have quoted WHO figures – check what your tutor recommends and add it here!)
Those with levels of 6.1 to 7.0 mmom/l are said to have impaired glucose tolerance

(WHO 1985)

CLASSIFICATION OF DIABETES MELLITUS

State the 4 main categories.

To the client: this is a loaded question. There are many different classification schemes. I quote the categories as defined in RECD 1997

Type 1 diabetes mellitus

Type 2 diabetes mellitus

Gestational diabetes mellitus

Secondary diabetes mellitus – includes:

Genetic defects of beta-cell function

Genetic defects in insulin action

Diseases of the exocrine pancreas

Pancreatitis

Trauma/pancreatectomy

Neoplasia

Cystic fibrosis

Hemochromatosis

Endocrinopathies

Acromegaly

Cushing’s syndrome

Glucagonoma

Pheochromocytoma

Hyperthyroidism

Somatostatinoma

Aldosteronoma

Drug- or chemical-induced

Vacor†

Pentamidine

Nicotinic acid

Glucocorticoids

Thyroid hormone

Diazoxide

Beta-adrenergic agonists

Thiazides

Phenytoin

Alfa-interferon

Infections

Congenital rubella

Cytomegalovirus

Uncommon forms of immune- mediated diabetes

Other genetic syndromes sometimes associated with diabetes

Down syndrome

Klinefelter’s syndrome

Turner’s syndrome

Wolfram syndrome

Friedreich’s ataxia

Huntington’s chorea

Lawrence-Moon Beidel syndrome

Myotonic dystrophy

Porphyria

Prader-Willi syndrome (RECD 1997)

Diabetes mellitus can be due to a deficiency in insulin synthesis, secretion and also in some cases resistance. It is also thought that some diabetics may have a combination of both.

State 5 causes of Primary Diabetes Mellitus [aetiology].

Primary Diabetes Mellitus is subdivided into Type 1 and Type 2 varieties
Aetiology of Type 1 is multifactorial. It is auto immune and trigger factors can be genetic or environmental
Environmental causes include exposure to Coxsackie B virus, Rubella virus and Cytomegalovirus and exposure to cows milk.
Aetiology of Type 2 is also multifactorial. It includes genetic factors and environmental factors including: western diet, lack of exercise, obesity and hypertension (Todd W et al 2000)

NB Causes are still unknown, the above are thought to be trigger factors.

State 4 causes of Secondary Diabetes Mellitus.

Causes of secondary Diabetes Mellitus. There are several types of secondary Diabetes Mellitus including:

gestational diabetes
malnutrition-related diabetes
pancreatic diseases causing diabetes
endocrine diseases causing diabetes
drugs and chemicals causing diabetes
genetic conditions causing diabetes

Causes depend on the variety but include pregnancy, pancreatitis and various drugs including:

steroids
thiazide diuretics
phenytoin
diazoxide
streptozotocin

Pancreatic diseases can cause Diabetes Mellitus including:

acute and chronic pancreatitis
pancreatic carcinoma
cystic fibrosis
haemochromatosis

Disease processes can also cause secondary Diabetes Mellitus including:

acromegaly
Cushing’s syndrome
glucagonoma
phaeochromocytoma

Complete the following chart by using the recommended textbooks to compare the two main types of Diabetes.

TYPE 1 TYPE 2

Age at onset juvenile (<25) adult (50+)

% of all cases about 10% about 90%

Acute/insidious acute insidious

Body build lean obese

Genetic link high low

Prone to ketoacidosis yes no

Autoimmune Disease yes no

Treatment insulin diet, oral hypog’s

(Harris M 1995).

What age group in the general population has the highest incidence of Type 2?

Typically the 55-75 age range (Harris M 1995).

Certain groups in the general population have an increased risk of developing Type 2 and currently Diabetes UK is promoting a campaign to identify those most at risk earlier, so that they do not develop the major complications associated with this chronic disease. This is called the Missing Million Campaign.

Names these “At Risk” Groups

1. History of Heart Disease

2. History of Stroke

3. Obese (BMI>30)

4. Over 50s

5. Over 40s if from African Caribbean or Asian backgrounds

PATHOPHYSIOLOGY / CLINICAL FEATURES

DEFINITIONS

Define the terms:–

Gluconeogensis

Biosynthesis of glucose from sources other than glycogen

Glycogenolysis

Oxidisation of hepatic glycogen into glucose

Briefly describe how insulin deficiency / absence can cause the above processes to occur.

Insulin deficiency and/or low glucose levels promote the secretion of glycogen

Glucagon promotes the activation of the enzyme adenylate cyclase in the liver which triggers glycogenolysis. This is exactly the opposite process to gluconeogenesis and is mediated by a number of enzymes, the most significant being pyruvate kinease

Clinical Presentation – Complete the following

When blood glucose levels arise above a certain amount the renal threshold in the kidneys is exceeded and glucose spills over in to the urine. This is called glycosuria. This excess glucose sucks up the water so that it can flow from the body; this is called. Large amounts of urine are excreted. This is called polyuria. Excessive thirst is called polydipsia.

Excessive urination can result in lowered blood pressure and shock. Blurred vision can be caused by fluctuations in the amount floaters and water in the lens of the eyes during periods of dehydration. This is called osmotic myopia of the lens. Cells are not able to access glucose so they do not receive any fuel and as a consequence cannot produce energy. This triggers the brain to send a message of hunger. This excessive hunger is called polyphagia. Lack of energy makes the individual feel tired and weak. Other sources of energy are sought. Fat stores are broken down to provide energy. This may result in ketosis. Breakdown of fats results in the production of ketone bodies which are excreted in the urine. These are acidic and alter the blood PH.

There is a sweet smell of ketones on the breath. This is called ketotic respirations. Weight loss also results. Breakdown of protein stores results in muscle wastage. Skin infections are common e.g. Staph boils, erysipelas . Excess glucose suppresses the natural defence mechanisms and the action of the lymphocyte* cells. Electrolyte imbalances occur. The electrolyte potassium affects cardiac muscle causing arrythmias if deficient. Urea and electrolyte imbalances also result in the following symptoms 1. Dry mouth 2. Thirst 3. Muscle weakness 4. Lethargy 5. Cardiac arrythmias.

Numbness and tingling in the feet and cramps may result from peripheral neuropathy.

Client Note (*)– this is debatable – your tutor may have a specific answer in mid for this one

The recommendations of the W.H.O “Definition, Diagnosis and Classification of Diabetes Mellitus and its Complications” were formally adopted in the UK on the 1^st June “2000. The key recommendation, with regard to diagnosis is that fasting plasma glucose should be lowered from 7.8mmol/L to 7mmol/L.

What is an OGTT?

The Oral Glucose Tolerance Test

In the oral glucose tolerance test the patient, after fasting for 15 hours, drinks 75 g of glucose in 300 ml of water, over 5 minutes. Blood glucose is measured before the drink and after 30, 60, 90 and 120 minutes. Urine is collected before the drink, and after 60 and 120 minutes. Before the test, for a period of 6 hours, the patient should avoid smoking and drinking coffee.

There is a normal glucose tolerance if the venous plasma value is less than 7 mmol/l after the 2 hour period,

If after 2 hours after the glucose load the value is between 7 and 11 mmol/l, then there is impaired glucose tolerance.

If glucose is greater than or equal to 11.1 mmol/l this is diagnostic of Diabetes Mellitus

OTHER TESTS / SCREENING PROCEDURES

What is an HbA1c Test and why is it carried out?

This is a measure of glycosylated haemoglobin in the blood. It is a longer term measure of the degree of blood glucose control. (DCCRG 1993)

NICE target is 6.5 – 7.5 HbA1c

When would Urea and Electrolyte levels and Blood Gases be tested?

Normally only if metabolic imbalance is suspected, dehydration, renal involvement or occasionally as a screen for end-organ pathology (kidneys). U’s + E’s may be requested as part of a monitoring procedure. Blood gases may be useful if severe ketoacidosis is present.

When would a Full blood count, specimen check and chest X-rays be carried out?

This is more likely to be done as a screening or monitoring procedure (FBC or Urinalysis) unless there was an obvious clinical reason for doing them such as suspected anaemia etc. A CXR would be less likely to be carried out unless pulmonary or cardiac pathology was suspected (Client: this is contentious – as different clinicians have different rationales for these investigations.)

When would and ECG and Lipid levels be checked?

ECGs are likely to be checked on diagnosis, as a monitoring procedure or if arrythmias have been detected. They may also be done as a baseline investigation, with hypertension or if cardiac involvement is suspected.

Lipids are very likely to be abnormal in Diabetes Mellitus. They would be checked as a monitoring investigation at most visits. (DCCRG 1993)

When would a neurological assessment and inspection of the lower limbs be carried out?

Peripheral neuropathy and vascular impairment are common sequelae to Diabetes Mellitus and this would be actively considered and evaluated at each monitoring visit. Probably at least twice a year or more frequently if indicated. (DCCRG 1993)

Why are protein levels checked?

Proteinuria is a good indicator of diabetic nephropathy. Urine protein should be checked at every monitoring appointment. Serum proteins are less sensitive but if renal pathology is established then it may be a useful investigation. (DCCRG 1993)

When is urine checked for ketones?

In the presence of dehydration, clinical suspicion of ketonuria, pregnancy and as a monitoring procedure. (DCCRG 1993)

When would an eye inspection / photography be carried out and why is this done?

Retinopathy is a potent cause of visual impairment and commonly found in the diabetic state. It is commoner with poorly controlled Diabetes Mellitus and Type I diabetes mellitus. It is one of a number of ophthalmic complications seen with diabetes and should be actively screened for at every routine visit. (DCCRG 1993)

Why would a diabetic require having their blood pressure regularly recorded and what value is recommended?

Hypertension is a common cardiovascular complication of Diabetes Mellitus and is an independent risk factor in Type II diabetes mellitus. The presence of hypertension and Diabetes Mellitus coexisting in the same patient will increase the overall morbidity risk of both cardiovascular disease and cerebro-vascular accident.

A blood pressure reading below 130/85 mmHg is an ideal goal for most people with diabetes who don’t have kidney complications, but some authorities may recommend an even lower blood pressure goal (below 120/75 mmHg) for people with diabetes who have kidney complications. (DCCRG 1995)

State the main complications

Short-Term

Hypoglycaemia, dizziness, lethargy, impaired conscious level – drowsiness.

Hyperglycaemia, nausea, headache, malaise, ketosis.

Coronary heart disease,

Cardiovascular disease (macro- & microvascular disease)

Retinopathy which can lead to blindness

Nephropathy, which can lead to kidney failure and the need for dialysis

Neuropathy which can lead to, among other things, ulceration of the foot requiring amputation

Microvascular

Retinopathy,

Nephropathy

Neuropathy

These are generally related to HbA1c levels with the highest incidence of complication occurring when HbA1c levels are above 12%

Atherosclerosis

Arteriosclerosis

Both processes can lead to :

heart disease
stroke
peripheral vascular disease

(Stratton I et al 2000)

What are the SIGN Guidelines and name those that relate to Diabetes.

A set of guidelines originally drawn up by Scottish Intercollegiate Guidelines Network. They include:

visual impairment (SIGN 4)

pregnancy (SIGN 9)

children and young people (SIGN 10)

renal disease (SIGN 11)

foot disease (SIGN 12)

cardiovascular disease (SIGN 19).

Treatment- Give Principles

Type 1

Always insulin dependent.

Active treatment involves titrating insulin dose against glucose levels and then maintaining levels by manipulation of the insulin regime

Constant monitoring by either patient or physician

Constant vigilance for complications

Type 2

Depends on cause, but in most cases treatment involves lifestyle modification, weight loss, dietary carbohydrate restriction.

If not successful then progression to oral hypoglycaemics and occasionally to insulin.

Constant monitoring for the presence of complications

Reduction of secondary causes of complication i.e. cessation of smoking.

INSULIN

Insulin was identified as a substance that prevented diabetes in the early 1890’s. Banting and Best extracted insulin from the pancreas of a dog in 1921 and the first human received a crude extract of insulin from the pancreatic glands of cattle in 1922. Over the years there have been many advances in the synthesis of insulin. Insulin is a protein. Insulin injections are vital for people with Type 1 diabetes as they are unable to produce insulin them selves and also for many with Type 2 diabetes whose condition has progressed to a point where tablets and diet cannot control it adequately. The aim of this treatment is to ensure that blood glucose levels are maintained at less that 6.5 mmol/l. (Client: see previous comments)

Name 4 factors which influence control

1. Weight

2. Severity of disease process

3. Diet

4. Level of exercise

(Wing RR, et al 2001)

There are a variety of insulins available on the market.

The two main sources are animal and human.

How is human insulin produced?

By recombinant DNA technology inserting human genes into bacteria such as E.coli which then produces insulin in commercial quantities.

The majority of diabetics are now on Human insulin but unfortunately some people are still required to take animal insulin. Many drug companies are wishing to phase out animal insulin and at present Diabetes UK is campaigning to maintain these.

Why does insulin have to be given by injection?

Being a protein it cannot be given by mouth as it would be denatured in the gastro-intestinal tract.

What other route is being researched as an alternative?

A great deal of research has been lavished on alternative modes of drug delivery.

Transdermal routes do not give reproducible and consistent blood levels.

Oral insulin has not been a possibility in the absence of a specific peptide carrier system that would work in the gut.

Nasal administration has been tried, but there was low bioavailability and absorption enhancers were needed, in addition the clinical effect was only over a very short period.

Pulmonary routes appear to be promising but we already know that the pulmonary route is comparatively inefficient and requires ten times the amount of insulin to achieve the same clinical effect.

Initial clinical trials show no side effects and research is currently continuing. (Heinemann L 2001)

SIDE EFFECTS

Initially on the commencement of insulin people may experience sensitivity around the injection site.

How would you recognise this?

This is a form of allergy.

It can be local, in which case the local skin becomes red and itchy at the injection site.

It may (rarely) be systemic giving rise to a uticarial reaction, tachycardia and tachypnoea. Very rarely a patient may experience anaphylaxis.

Symptoms of hypoglycaemia may occur if too much insulin is injected or if not enough carbohydrate is consumed or if there is increased exercise without taking extra food.

Hard lumps under the skin may occur at injection sites if they are not rotated.

What is the correct medical term for these?

Lipodystrophy

The number of units prescribed is calculated depending on time of day, age, weight and lifestyle.

Typical dose is 0.7-1.0 units per Kg of body weight.

WARNINGS

Insulin should never be administered in cases of HYPO.

The body may get used to low levels of blood glucose and therefore the warning signs for HYPOs are reduced. Individuals who have lost these may be advised to raise their blood glucose levels slightly for up to 3 months to resensitise themselves to symptoms. Some people have also found that they have lost some or all of their symptoms of HYPO when transferring from animal to human insulin.

Insulin dosages may have to change if there is disease of the adrenal pituitary and thyroid glands and also in the presence of liver and kidney disease. Taking of steroids will increase the insulin requirement.

During illness, puberty or emotional trauma glucose levels can become elevated and therefore insulin doses require to be adjusted and more regular blood sugar monitoring is essential.

During pregnancy insulin requirements may decrease in the first trimester and increase in the second and third trimester.

The following drugs may increase blood glucose levels and therefore lead to a need for more insulin –

Steroids
Contraceptives
Asthma Inhalers

Some drugs lower blood glucose levels and therefore result in a reduction in insulin. These are:-

Aspirin
Beta blockers
Mono-amine oxidase inhibitors.

There are four categories of insulin. Give an example of each.

Very short acting [ANALOGUE] – e.g. Humalog.
Short acting [SOLUBLE, NEUTRAL] – e.g. Actrapid, Human Velosulin.
Medium and long acting [ISOHANE, PROTAMINE ZINC] e.g. Human Insulotard.
Combination of short and medium acting [MIXED, BIPHASIC] e.g. Human Mixtard.

Who would most likely be prescribed very short acting insulins?

The very unstable or out of control diabetic. Children more likely than adults.

How long before a meal does short acting insulin require to be injected?

Depends on type. Sol. Insulin starts working within 30-60 mins and lasts about 6-8 hrs. Other types such as Insulin aspart and insulin lispro both start working within 15 minutes and last for up to five hours.

The glucose rise after a meal typically begins within about 15 mins so the insulin should ideally be in the system to counteract it.

How often daily would you require to take the following insulins:-

Short acting – about 2-4 times a day( when stable)

Medium acting – about twice a day

Long acting – Once (or perhaps twice) a day

These answers depend on the age and size of the patient, as well as the severity of the disease process.

Why is short acting insulin sometimes given with medium acting insulin?

To give a smoother blood glucose profile and also to “fill in the gap” before the medium acting insulin becomes biologically active.

Where should insulin be stored?

In the fridge, but not frozen.

Briefly discuss the types of equipment that are used to administer insulin?

Commonest is still the disposable insulin syringe. Syringe should always be calibrated to match the insulin type. Most are U-100 now.

Other options include the pen devices (expensive but convenient and largely “fool proof”).

Jet injectors are occasionally seen, but not very common.

In hospital surroundings insulin pumps (drivers or infusers) can be used.

Ambulatory subcutaneous pumps are increasingly used to deliver continuous infusion. Very expensive but arguably capable of producing the best control.

(HSG 1997)

What advice would you give to a diabetic who is planning to go abroad on holiday with regard to their insulin?

Take plenty with you as your brand may not be available abroad.

Make sure you can keep it refrigerated.

Run your blood glucose levels slightly higher than you are used to a) because of probable increased exercise and b) to reduce the risk of Hypo whilst away from home.

Be extra vigilant with the blood sugar monitoring. Strange diet may have unexpected consequences.

ORAL HYPOGYCAEMICS

Below are the main categories of drugs. Give an example of each, including daily dosage and side effects?

Sulphonylureas

Chlorpropamide

250 mg (100 mg in the elderly)

This is a very long acting drug, usually taken once daily with breakfast. Alcohol may cause flushing to the face.

Biguanides

Metformin

Start at 500 mg twice a day or 850 mg once daily. The maximum daily dose is 2550 mg given in three divided doses

Gastrointestinal side effects are a common occurrence in people taking metformin. Problems often include bloating, flatulence, nausea, stomach cramps and diarrhoea

Occasionally a metallic taste in the mouth. Rare complication lactic acidosis

(Knowler WC et al 2002)

Prandial glucose regulator

Repaglinide

0.5 to 4 mg with each meal

Occasional gastro intestinal side effects

(Bokvist K et al 1999)

Alpha glucosidase inhibitor

Acarbose

50 mg then titrated against clinical effect.

Flatulence soft stools or diarrhoea.

Glitazones [new drug]

Rosiglitazone

4mg as starting dose increasing to 8mg if required

Possible toxic effects on the liver (theoretical rather than practical)

(Park JY et al 2004)

ACUTE COMPLICATIONS

The most common is Hypoglycaemia. It results from an imbalance between glucose intake, endogenous glucose and glucose utilisation.

A decrease in the blood glucose level normally leads to stimulation of catecholamine secretion. Identify 5 causes.

Insufficient carbohydrate intake
Excessive carbohydrate utilisation (exercise)
Intercurrent acute illness
Overdose of insulin
Other illnesses (viz glycogen storage diseases)
Alcohol

Name 8 clinical features that the patient experiences.

Pallor

Shaking

Perspiration

Fatigue

A feeling of weakness

Rapid heartbeat (Tachycardia)

Hunger

Agitation

Difficulty concentrating

Irritability

Blurred vision

Temporary loss of consciousness

Confusion

Convulsions

Coma.

What would be given in order to treat it?

Depending on severity. If minor, warm sweet (glucose containing) drinks

If major, IM Glucagon. Monitoring essential until fully recovered.

What is ketoacidosis?

A clinical condition almost invariably associated with low insulin levels. As a result, the blood glucose levels rise and the intracellular glucose levels fall. This requires the metabolism at a cellular level to be fuelled with fat derivatives rather than carbohydrates and this produces acidic ketones. These ketones normally require the presence of insulin for their catabolism. In its absence, they build up causing a metabolic acidosis and spill over into the urine when the concentration is high enough.

Identify 5 causes

Fluctuations in insulin regime
Intercurrent illness
Trauma
Reduction in carbohydrate intake
Dehydration +- severe exercise

State 10 clinical features of this clinical state

High blood sugar levels

Frequent urination (polyuria) and thirst

Fatigue and lethargy

Dry skin

Facial flushing

Nausea

Vomiting

Abdominal pain

Fruity odour to breath

Rapid, deep breathing (Air hunger)

Muscle stiffness or aching

Coma

The principals of management are:-

Prompt administration of insulin (usually on a sliding scale) to reduce the hyperglycaemia and ketonaemia

Replacing fluid loss (from polyuria and vomiting) usually by intravenous fluids

Restabilising electrolyte imbalances secondary to dehydration, metabolic acidosis and hypokalaemia.

Treatment for any underlying cause such as infection.

LONG TERM COMPLICATIONS

There are 10 steps that the diabetic patient can take to reduce his chances of developing complications.

Regular screening of BP and maintain at 140/80 or lower.
Regular HbA1c testing.
Maintain blood glucose levels between 4-7mmols/L before meals.
A

Health and Social Policy

Introduction:

In this essay we will discuss the health care plans and objectives, beginning with the definition of health and an analysis of the Constitution of the World Health Organization highlighting which are the areas of health care policy that seems to have received greatest attention. Health relates to physical and emotional well being and this is emphasized even further in the British idea of a welfare state were health relates to social policy and serves as one of the most important areas of governmental concerns. The health care sector of the UK government represented by the NHS and department of health is discussed extensively with health care programs, implementations of change within the health care settings, modernization, collaborative working approaches and a general improvement of health care services being emphasized as essential to realization of a successful health care policy in the UK. We also discuss obesity and smoking related problems within this general context of health care and social policy to show how polices or administrative aspects are related to health care services implementation in general

Defining Health and Healthcare

The World Health Organization defines Health as a state of complete mental, physical and social well-being and not just a condition free from disease and abnormality. The Constitution of the WHO is given as follows: Source: WHO constitution, 2005

THE STATES Parties to this Constitution declare, in conformity with the Charter of the United Nations, that the following principles are basic to the happiness, harmonious relations and security of all peoples:

Health is a state of complete physical, mental and social well-being and not merely the absence of disease or infirmity.

The enjoyment of the highest attainable standard of health is one of the fundamental rights of every human being without distinction of race, religion, and political belief, economic or social condition.

The health of all peoples is fundamental to the attainment of peace and security and is dependent upon the fullest co-operation of individuals and States.

The achievement of any State in the promotion and protection of health is of value to all.

Unequal development in different countries in the promotion of health and control of disease, especially communicable disease, is a common danger.

Healthy development of the child is of basic importance; the ability to live harmoniously in a changing total environment is essential to such development.

The extension to all peoples of the benefits of medical, psychological and related knowledge is essential to the fullest attainment of health.

Informed opinion and active co-operation on the part of the public are of the utmost importance in the improvement of the health of the people.

Governments have a responsibility for the health of their peoples, which can be fulfilled only by the provision of adequate health and social measures.

Worldwide Health Policies:

The legislative and administrative measures on health policy within the divisions of WHO are carried out by Health Policy Analysis Programme (HPA) which is now fully integrated into that of the European Observatory on Health Systems and Policies. Among the Health policies, the Health Impact Assessment (HIA) program adopted by the WHO is a major opportunity to integrate health concerns into all other related policies. HIA influences the decision-making process, and addresses all determinants of health, providing a new direction for participation and empowerment in health related issues and decisions. The overall aim of health policies is to track the use of HIA and to evaluate its effectiveness identifying what are the factors that can help in successful implementation. Along with the Health impact assessment which serves as a decision making tool, the health targets are instruments that can facilitate achievement of certain health policies as they represent commitments of reaching or fulfilling specified outcomes in health care objectives within a defined time frame. Health targets have been identified by the member states of the WHO European Union and OECD countries as tools for both policy formulation and implementation. Health targets have been the focus of several health related discussions and have contributed substantially to national and sub-national health polices (WHO report on Health Policy, 2005). In order to maintain the effectiveness of health target programs and health impact assessment, the European Observatory on Health Systems and Policies launched a three year multi-country project on the effectiveness of HIA in August 2004, and this was co-funded by the European Commission under the Public Health Programme. As far as the WHO Environmental Health Policy is concerned, most European countries have addressed national health policies through the national environment and health action plans (NEHAPs). The WHO reports that Poor environmental quality contributes to 25 -33% of global ill health. Environmental health policy involves collaborative working different sectors and ministries, and the policy-making procedure itself involves many stakeholders in the phases of planning and consultation (WHO report, 2005).

One of the important health policies is the evidence on health needs and interventions (ENI) Programme at the WHO Europe committee which helps assure staff and programmes which uses available evidence in providing advice and recommendations to member states. One of the goals of WHO is to ensure that there is a link between potential interventions programmes or policies and improvements in public health for the primary areas of advice and recommendations. The ENI programme is an important part of the European Advisory Committee on Health Research (EACHR)and is a division of the WHO advisory mechanism on health research, the primary role of which is to advise the WHO regional director for Europe on priorities and policies for development of research. WHO/Europe defines evidence as follows:

findings from research and other knowledge that may serve as a useful basis for decision-making in public health and health care. (WHO report, 2005)

The ENI policy makes WHO/Europe accountable toWHO’s Member Statesas WHO is expected to make use of best available evidence to provide advice and recommendations for health policies to member states and it would be unethical if WHPO could not keep up to the requirement.

Health and Social Policy in the UK

A Policy has been defined as:

‘The process by which governments translate their political vision into programmes and actions to deliver ‘outcomes’ – desired changes in the real world’

Modernizing Government White Paper (2001) – See DH report 2005, Health Policy

A more working definition for policy is as follows:

“A course of action with general applicability, requiring agreement at ministerial or ‘top of the office’ level”

(Professor Mike Richards 2003) See DH report 2005, Health Policy

The Department of Health suggests a Policy is usually developed within complex systems and with many deadlines and pressures; the DH Policy Collaborative is a unique collaborative approach in which health professionals and administrators need to work within the constraints of this restrictive and complex health environment and despite this be able produce benefits to the teams involved. In this period when the Department of Health (DH) is undergoing major organizational changes the Policy Collaborative complements the downsides of organizational change through promoting learning of new and innovative ways of addressing health issues.

With public demands up for a faster and better NHS and social service, and for improved levels of public safety, the health department is working towards developing the right leadership for the whole healthcare system and also to secure delivery (Stephens 2004; Castledine 2004).

The different health policy teams involved in health care implementation plans in different departments and their foci of work are given below:

Source: DH report on Health Policy, 2005

Policy teams involved in phase 1 of the DH Policy Collaborative

Policy team

Focus of the work as part of the Collaborative

Envisaged distinctive learning

Transplant team

Policy regarding tissue banking and the development of EU legislation

Working with the NHS and other stakeholders on a high-risk, esoteric issue with a European dimension

Cancer team

The introduction of the NHS Bowel Cancer Screening Programme

Developing a bowel cancer programme fit for implementation, whilst taking account of the issues for symptomatic services

Older people’s NHS/social care policy teams and workforce team

To ensure the availability of an integrated health and social care workforce to help older people to maintain their independence

Integration of workforce and service policy making and health and social care expertise

NHS Standards team

The preparation and publishing of statements of standards in relation to the provision of healthcare by and for English NHS bodies and cross-border SHAs

Policy making around a ‘bright idea’ with urgent deadlines and devil in the detail

Within the UK the NHS and Department of Health including the NHS executive set a national framework within which healthcare services are delivered and implemented. The health department uses several different policy measures and tools such as legislation, circulars and guidance, corporate contracts, financial levers and review meetings. Many national level departments and organizations such as the Audit Commission, Clinical Standards Advisory Group, parliamentary committees, the royal colleges and specialist associations, and the Mental Health Act Commission have an impact on research implementation (Klein 1989). As the DH reports, policy measures can have unanticipated consequences and can conflict with policy goals and their may be many obstacles to evidence based practice. There is a growing awareness for the need to identify solutions to problems within the NHS ad health policy initiatives and certain reforms on evidence based care also need evaluation.

The aims of the DH policy for improvement of healthcare services are given as follows (DH report on Health Policy, 2005)

• To support the policy teams in reaching their objectives set within a specified time period
• To include wider stakeholder involvement in the process of developing health policy further
• To make implementation the primary measure of the DH policy making process
• To help project teams and wider stakeholders with handling of issues relating to implementation throughout the policy development process.
• To ensure a coherent, integrated set of policies supporting an agreed strategy.
• To take learning and experiences from the policy implementation programme and use that learning to develop an improved policy development and management process
• To improve ways of working and learning from experiences within DH
• To be informed of the ‘policy management toolkit’
• To involve participation and support of colleagues in managing change in policies within the DH
• To develop measures that can demonstrate real progress of the ‘Excellence in Policy Making’ criteria set out in the NHS management objective.
• To give time for creative thinking and implementation of policies, testing small changes, using examples of best practice and achievement
• To be brave in testing new ways of working and striving for excellence in policy making and challenging the ‘status quo’.
• To take measured risks in the quest for continuous improvement in policies and to achieve an excellent policy.

Health policy within the UK is incorporated within the concept of a British welfare State. The concept of a welfare state refers to government policies and objectives that strive for an ideal model of provision where the state accepts responsibility for providing comprehensive welfare in all areas to its citizens (Brown, 1995). Within the UK, the idea of a welfare state suggests government objective to provide its citizens with guaranteed minimum income, social protection and provision of healthcare and other services at the best possible level. The health care sector of the UK government is largely controlled by the Department of Health with the policy decisions taken by the DH and implemented in association with the NHS. The key elements considered within a welfare state framework are Health, Housing, Welfare, Employment and Social Security.

Healthcare Management in the UK – Evidence and Studies

Eccles et al (2005) suggested behavioral changes of health care professionals as an important factor of policy implementation. They write that routine healthcare is a haphazard and unpredictable process and the usefulness of results of implementation is quite limited. Their study explored the role of a theory based framework and suggests that some methods that could be used to operationalize the framework in the context of designing and conducting interventions which are aimed at improving the use of research findings by individual healthcare professionals or teams. This particular research aims o understand the importance of theory based research of health care services and emphasize on the role of behaviors and attitudes of health care professionals in successful implementation of health care plans.

Cauchi (2005) highlights the challenges of integrated governance in the NHS with emphasis on collaborative and multi-agency working beginning from April 2005 and this according to him poses a challenge for all medical personnel with the nurses being given a leading and more responsible role in the management of clinical cases.

Glen (2004) offers a wide ranging analysis and scrutiny of roles of professionals in the medical, nursing and healthcare sectors. Glen suggests that a coherent vision of the future is needed to shape the future of the health workforce and also argues that this requires moving beyond the presumption that medical reforms are primarily focused on shifting the responsibilities of doctors on to the nurses. The paper claims that the implications of changes in health care roles and the ability of existing professionals to function effectively in the future will require education, training and human resource investments which are supportive of these changes implied. The need to have a clear definition of competence and a national standard to practice has been recognized as essential especially as nurses work in acute critical care settings. A correlation between levels of practice, education ad remuneration has been suggested as important in management of health care. The author suggests that educational programmes for senior nurses should be in coherence with educational programmes required for modernizing medical careers. The paper also suggests that the NHS modernization agenda and government’s health services improvement require certain changes within the culture at higher educational institutions, professional organizations, workforce development agencies and NHS trusts.

The NHS healthcare policy on obesity have made several suggestion on whether junk food advertisements should be banned (Patchell and Paterson 2004) to spreading awareness on the need to have a balanced diet (Price, 2005). A balanced healthy diet cuts down on risks of obesity, diabetes and heart diseases and keeps the citizens healthy and active if it is also combined with a healthy and active lifestyle and this approach has been taken up by the Department of Health to promote awareness and reduce health problems.

For reducing other problems such as smoking, several measures have been taken up by the DH and NHS and these policies and initiatives range from community interventions using co-ordinated, widespread, multi-component programmes to try and influence behavior that would help in preventing smoking in young adults (Sowden et al., 2003) to effectively addressing tobacco control within health promoting NHS trusts as part of its network of health promoting hospitals (HPH) (Quinn et al, 2001).

Conclusion:

In this paper approached the problem of health and health care implementation program using worldwide and British perspectives of welfare and discussed related social policies and plans for implementation of these policies. We discussed in brief, the objectives of the WHO and the NHS, the different departments involved in a new collaborative framework of healthcare within the NHS, the aims of health care policy and the associated problems and obstacles in implementation of these policies. In this context we discussed specific cases of health care policies related to two major problems of obesity and smoking. We suggested along with evidential studies that maintaining modernized health care services and collaborative approach in the NHS are key elements of future health care improvement plan and also involve promoting awareness of the needs of an active and healthy lifestyle in individuals. Thus along with governmental efforts, individual awareness are key to better health and future well being and seem to form an obvious part of social policy.

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Websites:

www.who.org

http://www.euro.who.int/healthtopics/HT2ndLvlPage?HTCode=health_policy

www.nhs.uk

www.dh.gov.uk – for DH reports

http://www.dh.gov.uk/PolicyAndGuidance/HealthAndSocialCareTopics/MentalHealth/MentalHealthList/fs/en?CONTENT_ID=4031694&chk=87%2BXMM

A Critical Discourse Analysis of an article on the Israeli-Palestinian conflict

With increasing global media synergies, media studies seems to be gaining popularity in academia. One part of this discipline involves the close examination of media texts, be they written, spoken, or symbolic. To analyse texts linguistically, two dimensions are often considered: that of coherence, involving semantics or the construction of meaning, and that of cohesion, or syntax. This analysis can be done through various types of frameworks, including grounded theory, narrative semiotics, conversation analysis, and critical discourse analysis (CDA).

According to Barthes (1994), texts are always multi-dimensional and their meanings are uncovered differently depending on the reader, context and setting. Particularly in the media, they are interconnected to other texts, through means such as quotations, indirect or direct references, photos or historical facts; thus, it could be said that the media produce and reproduce not only texts, but from these, social meaning, which is then further reinforced through subsequent intertextuality (Ibid). Baudrillard (2000) adds that language itself is not necessarily powerful; what makes it more so is its use by powerful people—in today’s society, this being epitomised by the globalised media.

Critical discourse analysis is also sometimes referred to as critical linguistics (Wodak and Busch, 2004). Its roots lie in classical rhetoric, sociolinguistics and applied linguistics, and it is often used to illustrate the relationships that power, hierarchy, race and gender have with language (Fairclough, 1995). CDA is especially used today by academics that regard the discursive unit of a text to be one of the most basic units of communication. In fact, it is so widely used within scholarly environments that its legitimacy as a tool for examining power imbalances has been called into question by some, such as Billing (Wodak and Busch, 2004). He claims that because CDA has become so entrenched in academic discourses, it is thus subject to the same rituals and jargon as institutionalized knowledge, thus negating its potential to demystify the functions and intentions of CDA research. While these points are interesting and worthy of further exploration, the scope of this paper will not allow such examination, and furthermore, the assumptions of this paper are that CDA does, in fact, provide useful tools for critical analysis of media texts.

Thus, this paper will apply CDA to one article by Rory McCarthy in the Guardian newspaper, dated Wednesday, December 12^th, 2007. CDA will be employed to illustrate overt and underlying assumptions and beliefs, as well as the construction of social meaning.

Wodak and Busch (2004) claim that all texts can help reproduce and produce unequal relationships in power between men and women, racial groups, social classes, ethnicities, and nations. This can be done through the creation of the Other, which involves the textual representation of a group as being ‘perpetrators and agents’ operating outside the law (Ibid, p. 99). They further claim that after the terrorist attacks of September 11, anti-Islamic prejudices became more pronounced in the media, which characterizes Muslims in anonymous and criminal terms (Ibid). Additionally, ‘strategies of generalization, blaming the victim, and victim-perpetrator reversal are increasingly prominent’ (Ibid, p.100).

Analysing the text in the Guardian, these strategies do indeed seem to be in place. For example, actions attributed to Palestinians in the article often involved negative activities, whereas verbs related to the Israelis were more neutral:

Palestinian actions: firing rockets, accused, complained, fired back, were detained, were reported, appeared to be

Israeli actions: mounted an incursion, said, issue tenders for

It is only when the voice of the article shifts from the writer to a direct quote from a Palestinian official that any harsher activities are attributed to the Israelis: sabotage, place obstacles

The first sentence of the article is also interesting:

Israeli troops in tanks and armoured vehicles mounted an incursion into Gaza yesterday, killing at least six Palestinians….As many as 30 tanks and vehicles were involved in the operation……

Although the facts in the article imply that the Israeli army killed several Palestinians, it is important to note the syntax of the sentence removes direct responsibility from the army and pins it on ‘the incursion’. What is more, semantically, Israeli activity is never referred to as an ‘invasion’ or an ‘attack’ but is referred to as a mere ‘incursion’ or ‘operation’, or in the title, ‘Israeli tanks enter Gaza’. The Israelis have neutral ‘troops’ which are seeking ‘members of Islamic Jihad’ ‘a hardline Palestinian militant group’ or ‘Palestinian fighters’. These phrases imply that Palestinians are the only ones operating outside the law.

Although it is clear from the facts stated in the article that Israel is the aggressor in this particular case: (tanks enter Gaza, killing at least six Palestinian militants) the writer felt it was necessary to include the feeble reaction of the Palestinians to this ‘incursion’ even though no Israelis were killed or even injured by the Palestinian action: ‘Palestinian fighters fired back’. This structure implies a fair battle, although it is abundantly clear that Israel is the only party here with fierce military power.

The body count is kept low in the piece, which claims ‘at least six Palestinian militants’ were killed, rather than emphasizing a larger number, such as ‘about ten’ or even ‘half a dozen’ even though it seems certain that more than six were killed. Importantly, only the deaths of the ‘militants’ are mentioned here: it could be quite possible, then, that several hundred civilians were also killed.

Although ‘as many as 30 tanks and vehicles’ seems a high number, the fact that these machines, and not people, were semantically involved in the invasion diminishes personal, human responsibility for the invasion and deaths. The sentence: ‘most of the dead appeared to be members of Islamic Jihad…’ only slightly suggests the possibility that ‘innocent civilians’ were also killed in the attack, and the words ‘appeared to be’ mean that there was no firm confirmation that the dead were, in fact, members of Islamic Jihad. ‘Several Palestinians were reported injured’ is another vague sentence which refuses to offer quantitative data regarding how many were injured, or give information about who, exactly, gave this report, which makes it sound dubious. The simple use of Palestinians is also vague and fails to clearly state the possible injury of ‘innocent civilians’.

The situatedness of this text historically and politically supports Barthe’s claim that social meaning is reinforced through intertextuality. There is no mention or even implication that the Palestinians are, in fact, fighting to free their homeland from an illegal oppressor, and there is also no overt mention of the illegitimacy and illegality of Israel’s acts: for example, by choosing the word ‘settlement’ in the sentence: ‘…an Israeli decision…to issue tenders for more than 300 houses in the East Jerusalem settlement of Har Homa’ allows for a form of Israeli ‘newspeak’ to whitewash what is essentially an illegal occupation that has destroyed the natural environment of the Abu Ghneim forest and stolen more land from the Palestinians (poica.org) . Moreover, there is no mention of how Israel has repeatedly been condemned by the United Nations for its illegal ‘settlements’ such as that in Har Homa (Ibid). In fact, after reading such an article as the one in the Guardian, readers could well be left wondering just why the Palestinians have been ‘firing rockets’ or why they have been ‘detained’ or have become ‘militants’, although the article makes Israeli grievances easier to understand by employing the very lexis just mentioned previously (as well as: Islamic Jihad, accuse, complain). Thus, victim-perpetrator relationships are skewed by the semantics and syntax used in the article.

There is no doubt that Israel is an oppressive power and disturbing presence in the Middle East, yet it is rarely portrayed as such in the media. There could be several reasons for this, but one may reside in Foucault’s notion of discourse, which states that discourse is an institutionalized way of thinking about something, or in other words, it defines the limits of what constitutes acceptable speech on a topic. Discourse is thus related to power, and defining discourses are often taken to be defining of reality itself (Foucault, 1997).

Wodak and Busch (2004) state that the dominant discourse on Israel generally supports this state, possibly as a kind of backlash after the blatantly anti-Semetic propaganda that was once so common in Europe before and during the Second World War, but also because power relationships have shifted: Israel is a key ally to the most powerful nations in the world, including the United Kingdom and the United States, and as mentioned by Baudrillard (2000), the powerful use language to keep power structures intact.

The final sentence of the article illustrates this point well:

Although Israeli and Palestinian leaders and negotiators have been meeting regularly for months, today’s meeting marks the beginning of talks intended eventually to bring the creation of an independent Palestinian state.

This paragraph implies that talks to create a Palestinian state are just beginning, and that a Palestinian state could possibly be created for the first time. Both of these assumptions are erroneous. Without delving too deeply in the politics of the Middle East, it is generally known by most that shortly after Israel’s inception, talks to negotiate Arab/Jewish territory have gone on almost continually.

Secondly, in 1919 Palestine was provisionally recognized as an independent nation by the League of Nations in League Covenant Article 22(4) as well as by the 1922 Mandate for Palestine that was awarded to Great Britain. This recognition continues today due to the conservatory clause found in Article 80(1) of the United Nations Charter (Boyle, ) . Thus, ‘the creation of an independent Palestinian state’ negates the fact that such a nation has already existed. Incidentally, legally, Israel does not have fixed and permanent borders (except most recently with respect to Egypt) and yet it is generally considered by the media to be a legitimate state (Ibid).

What is important to note here is that history is practically being rewritten in the Guardian text. Van Djik’s (1990) explanation as to how this is possible is closely connected to Barthes (1994) and Baudrillard’s (2000) ideas mentioned above. He claims that journalists and media consumers own ‘mental models of the world’ and thus any text that is understood contains only the ‘tip of an iceberg of information’ (Ibid, p.6). The tip is expressed through syntax and semiotics, but the rest is assumed to be supplied by the underlying knowledge of previous texts. For this reason, Van Djik states that ‘the analysis of the implicit…is very useful in the study of underlying ideologies’ (Ibid, p.6).

In conclusion, this paper has illustrated how critical discourse analysis can be a useful tool for unearthing implicit meanings in text, through the analysis of syntax, semiotics, and assumptions implicit through intertextuality. Furthermore, it has given examples of how current discourses of power can influence the content of media texts. There is no doubt that after several years of exposure to standard news formats, broadcasters and audiences alike are prone to overlooking the covert messages in news content. For this reason, a critical perspective is certainly important, and furthermore, if news texts are assumed to be a system of encoding reality, then the agendas of the encoders must be understood before a thorough deconstruction of their messages can be possible.

Appendix 1

Israel tanks enter Gaza on eve of peace talks

Rory McCarthy, Jerusalem

Israeli troops in tanks and armoured vehicles mounted an incursion into Gaza yesterday, killing at least six Palestinian militants on the eve of a new round of peace talks. As many as 30 tanks and vehicles were involved in the operation in southern Gaza, near the Sufa crossing and close to the town of Khan Yunnis. Several Palestinians were reported injured.

The Israeli military said it was a routine operation against militants, but Palestinian officials accused Israel of trying to disrupt the peace talks. Israeli and Palestinian negotiators were to meet today at the King David hotel in Jerusalem to start a new process of talks in the wake of the Middle East conference in Annapolis late last month.

Palestinian officials have already complained about an Israeli decision last week to issue tenders for more than 300 houses in the East Jerusalem settlement of Har Homa. ‘The Israeli policy of escalation aims to sabotage and place obstacles before the negotiations even before they start,’ said Nabil Abu Rdeneh, a spokesman for the Palestinian president, Mahmoud Abbas.

Most of the dead appeared to be members of Islamic Jihad, a small but hardline Palestinian militant group which ahs been responsible for firing makeshift rockets from Gaza into Israel. Around 60 Palestinians were detained in what was the largest Israeli operation in months. Palestinian fighters fired back and hit one Israeli tank.

Although Israeli and Palestinian leaders and negotiators have been meeting regularly for months, today’s meeting marks the beginning of talks intended to eventually bring the creation of an independent Palestinian state.

References

Barthes, R, (1994) Mythologies, Hill and Wang, London

Baudrillard, J, (2000), Routledge Critical Thinkers, Routledge Publishing, London

Boyle, F, (2007) Elements of Palestinian Statehood, in The European Journal of International Law, Vol.18 No 3

Fairclough, N (1995) Critical Discourse Analysis, Longman, Harlow.

Foucault, M (1997) The Politics of Truth, Semiotext(e), France

McCarthy, R, Israel tanks enter Gaza on eve of peace talks, in the Guardian, December 12, 2007

Van Djik, T. A. (1990). Discourse & Society, in Van Djik, T. A (ed.), (2007) A New Journal for a New Research Focus, Volume 18 No 2, Sage Publications, London

Wodak, R and Busch, B, (2004) Approaches to Media Studies, in Downing, J, The Sage Handbook of Media Studies, Sage, London

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