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Title: Discuss the nurse led intervention in relation to secondary prevention for COPD

Chronic Obstructive Pulmonary disease (COPD) is a growing health concern today all over the world. The World health Organization predicts that by 2020 COPD will rise from it’s current ranking of 12^th most prevalent disease worldwide to 5^th and from 6^th most common cause of death to 3^rd.(Murry 1997) Another study by WHO(2002) states that COPD is the third largest cause of respiratory death and account for 20% of respiratory mortality. According to research conducted in UK, around 900000 patients are suffering from COPD in England and Wales currently (NICE 2004). Numbers of patients affected by COPD are increasing in UK and it has taken over the place of heart diseases as one of the major killer diseases leading to 30000 deaths per year. (Gibson 2003). Reason for dramatic increase in COPD includes reduced mortality from other diseases like heart diseases in industrialization countries and infectious diseases in developing countries with marked increase in cigarettes smoking and environmental pollution all over world.

COPD is a chronic progressive disorder characterized airway obstruction with little or no reversibility. COPD affects bronchi, bronchioles and lung parenchyma with predominance on distal airways. It involves two clinical condition- chronic bronchitis and emphysema. Most patients with COPD have both pathological condition but relative extent of emphysema and chronic bronchitis is variable in individual patient.

Chronic Bronchitis and Emphysema

Chronic bronchitis is defined as a cough productive of sputum on most days for 3 months for successive 2 years. Cough is due to hyper secretion of mucus not necessarily accompanied by air flow obstruction.

Chronic bronchitis is characterized by enlargement and multiplication of mucus glands, resulting increased airway mucus production. Evidence suggests that apart from quantity, quality in the form of composition of mucus is also altered becoming more viscous.

Mucus is one of the important component in pathophysiology of COPD. Increased secretion of mucus is the result of goblet cell hypertrophy on exposure to various noxious stimuli. This mucus affects pulmonary function in various ways. Increased secretion for prolong period leads to decrease in FEV1 which is promotional to degree of hyper secretion .Excess mucus causes airway obstruction by accumulation in peripheral airways and increased airway resistance.

Additionally, there is thickening of airway wall and infiltration with lymphocytes, neutrophils and macrophages leading to fibrosis. In contract to asthma, infiltration of lymphocytes and neutrophils are found in greater number in airway lumen. In the event of exaggeration of COPD, Eosiniphils are also observed in airway lumen. Inflammatory process in COPD is powered by interaction of proteolytic enzymes and several chemokines, as sputum of patients with COPD shows increased amount of Leucotriene B4, interleukin- 8 and tumor necrosis factor.

Emphysema is defined as enlargement of airspaces distal to terminal bronchioles with destruction of alveolar wall resulting loss of elasticity of lung and closure of small airways. Elastic recoil of alveolar attachment helps to maintain the patency of airway lumen especially during expiration. With destruction of connective tissue matrix of alveolar walls by proteolytic enzymes called proteases, released by inflammatory cells in the alveolar wall causing destruction of elastin, affects structural integrity of alveolar wall. Pathological changes in emphysema are related to proteolytic activity of these enzymes.

In peripheral airways of patients with COPD, there is airflow limitation due to loss of alveolar attachments, inflammatory obstruction of airways and luminal obstruction with mucus. The airway narrowing in COPD is the end result of combination of structured inflammatory narrowing, loss of elastic recoil and loss of alveolar attachments.

One of the important effects of risk factors of COPD is abnormality in ciliary function. Airway wall is lined by cilia which act as a force to propel mucus or foreign body towards trachea for coughing it out. Mucociliary function is affected by thick and tenacious mucus. It also increases the risk of infection due to accumulation in airway causing recurrent infection in lungs and further lung damage. Mucus plugging and pulmonary infection contributes to V/Q mismatch and hypoxia eventually. Acute hypoxia caused dyspnoea affecting other systems of the body. Chronic hypoxia leads to pulmonary hypertension and right sided failure. Other pathophysiological consequences of COPD include abnormalities in pulmonary function, the mechanism of gas exchange.

Risk factors for COPD

There are several factors responsible for development of COPD called risk factors.

Smoking cigarettes, both active and passive, is considered the major causative factor in development of COPD. More than 80% of COPD patients are or were smokers (Gibson 2003).

Air pollution, industrial smoke and chemicals used in industry are responsible for development of COPD. Exposure to industrial dust is a causative factor in diseases like asbestoses, mesothelioma and black lung disease. Infection especially in early childhood and frequent exposure to allergens leading to changes in airway are contributing factors in development of COPD. People with Alfa -1 antitrypsin deficiency are more likely to develop COPD due to genetic defect in production of enzyme alfa-1 antitrypsin. It is believed that patients having periodontal diseases are more likely to develop COPD as the bacteria casing periodontal diseases travel to lung and cause infection and inflammation.

Babies with low birth weigh have shown increase incidence of COPD and poor nutrition during fetal development leading to small dysfunctional lung is considered the responsible factor for development of COPD. COPD in more common in men, over sixty years of age. At this age it is at its highest level of development, which started in young age.

Out of all the risk factors discussed smoking cigarettes is most important factor in causing COPD. Effects of smoking cigarettes on human body are due to nicotine present in a cigarette. Nicotine molecule was produced over 60 million years ago by tobacco plant to overcome insect herbivores. Tobacco introduced in Europe in 1492 when Christopher Columbus sailed to America and its cultivation then spread to many parts of world (Corti 1931). Today tobacco is widely prevalent in society in the form of cigarette smoking. Typical cigarette contain 9 mg of nicotine of which 1 mg is absorbed by smoker.

Burning tobacco produce a complex mixture of compounds divided in gas and particulate phase components. In gas phase component, carbon monoxide (4%) forms the significant amount in concentration in addition to nitrogen, oxygen and carbon dioxide. The particulate phase component is consisting of aerosol of tar. Tar is the sticky, brown, residual substance left after removal of nicotine and moisture. Both gas and particulate phase are responsible for COPD

Delivery of smoke compound is variable according to type of tobacco used in cigarette, addition of filter and the vigor with which an individual smokes cigarette. Smoking affects lung at the level of bronchi, bronchiole and lung parenchyma. Tobacco smoke affects structure and function of bronchial mucous gland. Number and size of mucus secreting glands increase due to smoking leading to more production and deposition of mucus in airway. Tobacco smoke also produces structural changes in airway cilia. These changes are related to dose and duration of smoke exposure. It also affects the function of cilia with abnormal clearance of secretion. Additionally, it also cases narrowing of small airways with inflammation and fibrosis. Apart from this, smoking has some short term effects like increase in carboxyhaemoglobin, decreased appetite and emotional dependence on nicotine.

COPD is treated with elimination of risk factors, bronchodilators such as beta-agonists and anti-cholinergic, corticosteroids, low concentration of oxygen and mucus thinner like guaifenesic. The cost of COPD is enormous as economic burden on health care system, society, patients and their family is significant. An audit of 1400 patients admitted in a hospital revealed that 34% patients readmitted and 14% had died within 3months. (Roberts 2002)

It is imperative to act upon risk factors responsible for COPD. Smoking is major risk factor for development of COPD and it is never too late to stop smoking and benefits starts immediately. (Price 2004).Usually smoking starts in teen age and continues for long time, but those who have never smoked remain non-smoker for many years.

Study indicated decline in number of male smokers in UK from 70% in 1950 to 28% in 1998 (Macfadyen 2001).More positively, men are giving up smoking in increasing number. These changes in behavior of people in society towards smoking are the result of implementation of health promotion strategies in communities. Health promotion is the science and art of helping people changing life style to move towards the state of optimum health. Optimum health is defined as a balance of physical, emotional, social, spiritual and intellectual health (Irwin 2005)

Health promotion is directing the plan to foster communities’ abilities to take effective actions at local level. It covers the methods to map and mobilize local resources, to activate citizens, government for management of positive changes, and transform institutions into health promoting environment. It involves the actions to improve ability of health care system for primary and secondary prevention and assist citizens in taking control and improve their own health by behavior and lifestyle changes. Life style changes can be facilitated with combination of enhanced awareness and creating environment that support good health practice.

Health promotion is that element of public health that focus on social conditions for maintenance and development of better health for productive society. Evaluation of health education programmes reveled that change in knowledge did not result in action and improved health. Knowledge alone is not sufficient but people need the confidence that they can change their lives.

Hubley (2002) explained that health empowerment has two components self efficacy and health literacy. Self efficacy implies feeling of power and control and confidence of taking action. Health literacy is related to ability to communicate health related issues.

.Health literacy is achieved only by means of health education leading to understanding of health issues and application of it in decision making. Many traditional health education methods rather disempower person by creating more dependency on health professionals. Important element in health promotion is to provide cognitive input through educational process which will not undermine community confidence. Health education using participatory learning methods creates a way forward for heath literacy and self efficacy.

Nurses in health care set up facilitate these components of health promotion by helping smoking cessation in society and directing health care for secondary prevention of COPD. Nurses as health care professionals act by providing information and support to smokers either by telephone contact or nurse led clinic to obtain objective of reducing smoking in communities. There are clear objectives for nurses in smoking cessation programmes of advocating positive social and environment changes for health promotion and organizing supporting activities that leads to secondary prevention of health related morbidity and mortality. It is important for nurses to educate the people to influence the positive behavior changes in health related issues. Apart from providing information, it is important for nurses to use the information to bring change by communicating and convincing smokers and organizing individual action. Government says that smokers are four times more likely to quit smoking using NRT with local NHS stop smoking programme than if they only rely on their will power. (DH 2004)

Smoking is seen in three phases: initiation, maintenance and cessation. Initiation occurs in early teens and begins with experimentation with cigarettes. There is evidence that adolescent of more rebelling or risk taking, out going nature are more likely to take up cigarettes. Individuals of more neurotic personality are also more prone to take up cigarettes. Some degree of genetic predisposing has also been observed, which not particularly specific to nicotine but also for alcohol and caffeine. High status individuals in media also have great influence in initiation of smoking. Maintenance of smoking is promoted by direct and indirect effect of nicotine releasing central dopamine, noradrenalin and opiate peptides. It helps in coping with stress and also improves performance due to its tranquillizing effect, in a variety of tasks but it eventually leads to dependence, addiction and withdrawal symptoms.

On initial contact with patient, nurse establishes that the person is a smoker and obtains informed consent from person. Nurse gives a questionnaire to patient to know smoking history of patient in the form of numbers of cigarettes smoked in a day by a person. It also includes disclosure of information about duration and pattern of smoking.

Nurses then assess the willingness of the person to stop smoking. By asking smoker to rate the importance of quitting on a scale one to ten, with one number having least importance. Smokers are also asked to rate their confidence in their ability to quit. This gives an idea to nurse about the readiness of a smoker for quitting.

Nurse also assess level of breathlessness in patient with COPD, which is graded as follows (Gibson 2003).

Not troubled by breathlessness on strenuous exercise.
Breathlessness when walking uphill
Walks slower than counterpart on the level because of breathlessness
Stops to take a breath after 100m or a few min on the level
Too breathless leave the home or breathless on dressing.

After initial assessment, nurse counsel patient to educate and prepare him/ her to take action to quit smoking. Nurse explains the benefits of smoking cessations with emphasis on the explanation that a person starts getting benefits immediately after stopping and set a quit day with explanation of problem they may come across.

In clinic, most patients say they would like to give up and also tried to stay away from cigarette (Percival 2004).A study indicates that long term success of smoking cessation depends on several factors like low daily cigarettes and delayed first cigarette of day; low consumption of alcohol or caffeine, high socioeconomic class; non smoking spouse and less neurotic or depressive personality. Some evidence also suggests that women find it difficult to give up. It is important for the nurses to now the degree of self confidence from the outset that the goal will be achieved and absence of stressful episodes during the therapy as contributing factors for long term abstinence from smoking. Study suggests that, persons usually give up smoking after five to six trial and error sequences. (Gibson 2003)

The duration of therapy is usually six weeks. Nurses lead session either in a group or one to one and manage for regular follow up. After initial contact, nurses remain in contact with person by telephone or in clinic at 2 days, one week, three weeks and three months interval. Patients are given booklet about COPD and disadvantages of smoking. Booklet also contains the benefit s of quitting smoking. It also explains the patient about how to quit smoking, how to cope with withdrawal symptoms like need to smoke, depression, irritability, insomnia, difficulty in concentration, restlessness and increased appetite… Patients with strong withdrawal urge are explained about NRT. At the end of six weeks patients have consultation with nurses. Those who continued smoking or relapsed are offered additional support.

Anti smoking public health campaign helps smokers by drawing attention more frequently and pushing them to take action. It also helps nurse in facilitating their advice. Self reported motivation of smokers, wish to avoid further health problem and in some cases actual ill health are important factors in giving up smoking. For example, a pregnant lady is inclined to give up smoking to avoid harm to her baby. Smokers receiving advice from hospital physician specially after admission for myocardial infarction had quit rate of 50%, compared to success rate for advice by physician in general practice of around 5% in unselected patients.(Pety 2000 ) Concern of passive smoking and many times social pressure by family and friends also contributes in moving forward for help in smoking cessation clinic. Rising price of cigarettes and ban or restriction of smoking in public places also tend to discourage smokers. Socioeconomic model suggest that for every one percentage rise in cigarette price leads to 0.5 % drop in consumption (NICE 2004).Smoking advertisements and perceived status of smoking from them are significant factors in encouraging people to become smoker.

Nurse encourages person in finding alternate source of enjoyment and different coping strategies in the event of stress leads to successful outcome on long term. Nurse also takes help of specialist in search for other ways of mastering concentration during sustained task. Nurse also asks spouse to quit smoking to create the environment for behavior change. Many smokers have poor central control system for arousal reward and punishment, and then alternative strategies may involve physical sports, mental relaxation, assertiveness techniques and different scheduling for work activities. Nurses help smokers understanding and reducing the image smoking as’ something exciting and sophisticated’.

Most smokers give up with the help of their own efforts but those who cannot manage themselves nurses propose specific methods with the social support. For those , who will not give up in immediate future some damage limitation can be achieved by production of safe cigarettes; transfer to pipe or cigar or chewing tobacco; other formulation of tobacco like nicotine gum, nasal spray, transdermal patch inhalable aerosol- called nicotine replacement therapy (NRT). Before starting medication nurse rules out contraindication for medication like severe cardiovascular diseases, recent MI, severe cardiac arrhythmia, recent CVA, transient ischemic attack, pregnancy and breast feeding. Variety of other drugs apart from medications used for NRT are also used in practice which counteract unpleasant aspects of nicotine withdrawal, includes amphetamine, benzodiazepines, ACTH, vasopressin, clonidine, fluoxetine, bupropion and naloxone. Mecamylamine (nicotinic antagonist) is another important medication used in smoking cessation.

Nicotine replacement therapy in the form of nicotine gum or patch is better than smoking and decrease health risk. NRT and bupropion are prescribed to those who have set a date as a target to stop smoking. Transfer to pipe decrease the risk of lung damage, but can not protect upper oesophageal tract. With nicotine nasal spray, absorption from mucosa is much faster than gum and the blood level achieved are comparable with cigarette smoking. Nicotine aerosol has irritant sensation in nose but it is still the attractive option in switching from cigarettes. Nicotine patches application on skin promotes slow absorption of nicotine from the skin .It is devoid of sufficient sensory stimulation involved in smoking. It has limitation in alleviating withdrawal symptoms during smoking cessation therapy.

Practically more useful are nicotine gum, transdermal nicotine patch, nasal spray and antidepressant bupropion. They are equally effective and safe, doubling quitting rate. Study indicates less than 5% drop out rate due to adverse effects if these drugs, but combination is superior in effects compared to single drug (Gibson 2003).Combining medication with counseling by nurse boost the quit rate. Nurse explains side effects of NRT like headache, nausea, dizziness, palpitation, dyspepsia, hiccups, insomnia, myalgia, anxiety, and irritability to patients before starting it.

For many novice ex-smokers major difficulties emerge after initial euphoria of successfully having overcome the first week of withdrawal symptoms. The more complex task then begins to manage and overcome withdrawal symptoms for longer term for successful outcome. NRT forms the mainstay of management of withdrawal symptoms. There are differences in response from various types of NRT .In case of heavy smokers( more than 20 cigarettes a day) 4mg nicotine gum is more effective than 2mg. In medium to heavy smokers standard patch of 21 mg is more effective than lower dose patch. Treatment with NRT is continued for 10 to12 weeks with gradual withdrawal. If person is unsuccessful in quitting after 3 months, the treatment is again reviewed. (West 2000)

Addition to anti-smoking measures, nurse should check effectiveness of inhaled drug, it’s technique and if they are symptomatic despite short acting bronchodilators.

Nurse also takes care of nutrition and vaccination in COPD case.

Nurse led clinic for smoking cessation is a part of pulmonary rehabilitation program which involves exercise and education over 6to 8 weeks to anyone who feels that COPD is affecting quality of his or her life. It is closely related to health promotion by creating an environment and providing education for improving personal and community health.

Educating people to change behavior and empowering them to take actions leading to smoking cessation are essential elements of smoking cessation clinics.

References

Corti C., (1931). A history of smoking. London: George G. Harrap
Department of health, Office of National statistics, (1997). General household survey. London: HMSO
Gibson g., Duncan G., costabel U., Sterk P., Corrin B.,( 2003). Respiratory medicine, 3^rd edi, vol. 1 p 645. London: Elsevier
Hubley J (2002). Health empowerment, health literacy and health promotion putting it all together. http://www.hubley.co.uk/1hlthempow.htm (Accessed on May 14, 2005)
Irwin J (2005). Health promotion theory in practice: an analysis of Co-Active Coaching. International Journal of Evidence Based Coaching and Mentoring ,vol-3, no-1.http://www.brookes.ac.uk/schools/education/ijebcm/vol3-1-a-morrow&irwin.html! (Accessed on May 14, 2005)
Macfadyen L., Hastings G., Mackintosh A., ( 2001). Cross sectional study of young people-awareness and involvement with tobacco markets. BMJ. 322, pp 512-517.
Murry C., Lopez A., (1997). Alternative projections of morbidity and disability by cause, 1990-2020: Global burden of diseases study. Lancet: 349. 1498-1504
NICE guidelines (2004). Management, treatment and cure of COPD. British journal of nursing ,vol.13, no18, pp1100-1103
NICE; (2004). Guidelines to improve patients with COPD. London : NICE
Percival J. (2004).Make use of all resources to quit smoking. http://www.professionalnurse.net/nav?page=pronurse.article&resource=1454302&fixture_article=1454302&category=RESPIRATORY_CARE. (Accessed on May 14 , 2005)
Pety R., Darby S., Deo H., (2000). Smoking, smoking cessation and lung concern in UK since 1956.Combination of national statistics with two cases control studies. BMJ, 321, pp 323-324
Price D., Foster J., Scullion J., Freeman D., (2004). Asthma and COPD. London: Elsevier
Roberts M., Lowe D., Bucknell C., (2002). Clinical audit indicator of outcome following admission to hospital with acute exacerbation of COPD. Thorax, 57, pp 137-141
West R., McNeill a., Raw a., (2000) .Smoking cessation guidelines for health professionals: – an update. Thorax, 55, pp 987-999
WHO, (2002), reducing risks, promoting healthy life. Geneva : WHO

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CASE STUDY: SEBASTIAN AND BELLE YANOVSKY

This essay examines the legislation, policy and care practice relevant to the case study of Sebastian and Belle Yanovsky, and their parents Ms. Jo Butler and Mr. Zalman Yanovsky. The main issues for discussion are: the legislation relevant to the case study, the role of the family court system, the role of the ‘looked after’ children review system, child protection case conferences, the criminal justice system, and the practical issues which arise from these. The purpose of the essay is to analyze each of these areas to see how they are intended to contribute to the protection and welfare of Sebastian and Belle Yanovsky. The essay also examines closely how the various agencies and services involved in the care of Sebastian and Belle maximize inter-agency communication so as to reduce the risks and maximize the protection available to the children.

The four principal pieces of legislation relevant to the Yanovsky children’s case are the Children Act 1989, the Protection of Children Act 1999 the Adoption and Children Act 2002 and the Children Act 2004. The Children Act 1989 sought to carry into legislation the belief that where possible ‘… children are generally best looked after within the family, with both parents playing a full part and without resort to legal proceedings. The welfare of the children is the paramount consideration.’ (Children Act, 1989). Thus the Children Act sought where possible to protect children within a family environment. Thus the act introduced a number of provisions designed to protect children by improving their home and family environment. The report stressed the need for various care agencies to increase inter-communication so as to best determine the risks posed to a particular child or children and so to most effectually provide the protection from abuse that they required. Sections 27 and 47 of the Act – significantly titled ‘Co-operation Between Authorities’ and ‘Local Authority’s Duty to Investigate’ – sets out the governments demands for closer agency communication. Section 27: 4 for instance defines the need for agencies to co-operate on educational care, stating ‘Every local authority shall assist any local education authority with the provision of services for any child within the local authority’s area who had special educational needs’. The relevance of this act to the Yanovsky case will be shown shortly. The main themes of the Children Act 2004 were an emphasis upon ‘integrated planning’, ‘delivery of services’, ‘multi-disciplinary working’, ‘increased accountability’ and, especially, more provision for those children with ‘special needs’. The Protection of Children Act 1999 and the Adoption and Children Act 2002 will be discussed in the forthcoming paragraphs.

This legislation provides the following short term and long term solutions for the Yanovsky children’s case. In the short term, the Children Act 1989 states that, where possible, the welfare of the children must be attempted inside the family environment. Thus the Children Act allows for various professional carers (social workers, mental health practitioners, police etc.,) to monitor the home situation of the Yanovsky children. The Child Protection Act 1999 makes provision for Child Protection Conferences (discussed later in this essay) and a conference for the Yanovsky children would be an important short term measure to assess the risk to the children and to co-ordinate a Child Protection Plan for them. Earlier legislation also allows social workers to put the Yanovsky children on the Child Protection Register if they feel it necessary. If these short term measures prove unsuccessful, then it may be necessary to bring a public law case (family court) against the Yanovsky’s as set out in the Children Act 1989. If the court thinks it necessary to remove custody from the Yanovsky’s then the Adoption of Children Act 2002 makes provisions for the long term care of the children under the status of ‘looked after’ children. Thus, both long term and short term, there is a comprehensive range of legislation to protect the Sebastian and Belle.

The role of a family court in child protection cases is to make rulings about the rights to custody of the child or children involved in a particular case. A family court can be convened under two sets of circumstances as outlined in The Children Act 1989: in the first instance are private law cases where two parents dispute in court rights to custody of a child or children. The second instance is that of public cases where the state on the advice of care agencies seek custody of a child or children. In both public and private law cases the responsibility of the court is to decide who is most fit to care for and support the child or children in question. In public cases the family court hears evidence and recommendations from social service workers, doctors, mental health workers and other professionals. This evidence is intended to evince the potential risk that the child or children are exposed to. If the family court finds that the potential risk to the child or children is too high then the court may rule that custody should be removed from the parents and given – either temporarily or permanently – to the State (Schepard, 2004). Such children are referred to as ‘looked after’ children, and provision for such children has been the subject of much recent government discussion and legislation. Family courts have recently been the subject of much controversy and criticism. The ‘Fathers 4 Justice’ campaign has been particularly prominent and is scarifying of the tendency of family courts to seemingly always grant custody to mothers and to neglect the human and legislative rights of fathers. The group has even published the ‘Blueprint for Family Law in the 21^st Century’ towards this end. Andrew Schepard, amongst many others, has written of the need for radical revision of the family court system so as to promote parity of rights between fathers and mothers. Only when this happens, it is argued, will family courts be able to make rulings that ensure the best and fairest outcome for the welfare of the child or children involved.

The case of Sebastian and Belle Yanovsky has not yet reached the point where a family court has been convened. Mr. Yanovsky and Ms. Butler are still together and so there has been no private application by either parent for sole custody of Sebastian and Belle. Nonetheless, given the seriousness of Sebastian’s and Belle’s physical and emotional abuse, it may be that care services feel it necessary to recommend in future that custody be removed from both parents. If such a recommendation were made then Mr. Yanovsky and Ms. Butler would have to attend a family court to decide whether they were fit to have the custody of their children.

The basic function of the ‘looked after’ children review system is to maximize the government’s provision of care for ‘looked after’ children. The government has pledged to ensure that ‘looked after’ children receive exactly the same opportunities for education, healthcare, social experience and security as other children. There should be no discrimination or prejudice against ‘looked after’ children. The government has made several legislative and policy requirements of local government with respect to ‘looked after’ children. For instance, a review of existing ‘looked after’ children provision is integral to the Children and Young People Plan (CYPP) which every local authority is obliged to have begun by April 2006. Local government implementation of the Adoption of Children Act 2002 is also vital to boost rates of adoption for ‘looked after’ children and to increase the likelihood of such adoption succeeding. Integral to the view is the Every Child Matters ethos, whereby the government seeks to guarantee equal opportunities for all children in the United Kingdom. The government’s proposed package for improving the provision for ‘looked after’ children includes some of these features: a national helpline to recognize carer help, the introduction of minimum allowances, increasing training chances for foster workers, the introduction of a reward scheme and so on. These measures are all intended to improve the lives and educational and social opportunities for ‘looked after’ children. This educational responsibility of local government was set-out in the Protection of Children Act 1999. The Choice Protects scheme was also introduced in March 2002 to ensure that ‘looked after’ children find more secure homes and have a greater choice over their own lives. The government’s 2003 Social Exclusion Unit Report: A Better Education for Children in Care made numerous recommendations about possible improvement to the educational provision for ‘looked after’ children. Perhaps the most important of these measures were the introduction of explicit guidelines for school governors as to the educational needs of ‘looked after’ children, and, secondly, advice for foster carers about the educational needs of the children under their protection.

Sebastian and Belle Yanovsky are not yet ‘looked after’ children, since Ms. Jo Butler is their biological mother. As such, the above provisions for ‘looked after’ children are not directly relevant to Sebastian and Belle. Nonetheless, given the seriousness of the risks posed to Sebastian and Belle there is a strong chance that these children will become ‘looked after’ children in future. If this happened then clearly all of the above provisions and changes to provisions featured in the Adoption of Children Act would affect the Yanovsky children directly.

The purpose of a child protection conference is to convene in one place and at one time all the relevant people interested in the care of a particular child: care professionals, medical practitioners, police, lawyers and so on. Before the introduction of child protection conferences the child protection system was often highly inefficient and ineffectual since various agencies worked independently of each other and had little or no communication between themselves. This confusion increased a child’s risk of abuse since there was little or no sharing of information between the various relevant agencies. Child protection conferences aim to increase communication between child protection agencies and therefore reduce the risk of abuse to the child. Child protection conferences are convened when care services have made an initial assessment of the risk to a particular child and then decide that further investigation is necessary. The professionals who attend child protection conferences must make an evaluation of the welfare of the child, determine the likelihood of physical or emotional abuse to the child, and decide whether that child ought to be placed on the Child Protection Register. Care professionals must also decide whether legal proceedings ought to be brought on behalf of the child, and whether there ought to be a criminal investigation also. If these professionals think it necessary to place a child on the Child Protection Register then they must also design a Child Protection Plan to control future proceedings towards ensuring the safety of the child. These plans clearly define what duties each care agency has for the protection of the child, and ensure that there is coherent and productive communication between these individual agencies. After the initial conference a further meeting can be convened after three months and then further six monthly conferences if felt necessary.

Applied to the Yanovsky and Butler case study, a child protection conference might have the following consequences. The Yanovsky’s social worker (no name), Mrs. Wilma Connelly (the health visitor), a representative from the Garthdee Family Centre, the police and other professionals would meet to discuss the risk posed to Sebastian and Belle Yanovsky. These professionals would use various criteria to produce a total risk assessment posed the Yanovsky children. In this instance, the risks to the Yanovsky children might appear to be very high. There are serious questions the risk Mr. Yanovsky poses as a sexual predator: he offended a seventeen-year-old child in 1992 and he was recently arrested for a Breach of the Peace for an incident in a womens’ public toilet. Moreover, Mr. Yanovsky and Ms. Butler admitted to police incidents of ‘mutual violence’ between themselves. The medical reports for Sebastian and Belle are also extremely concerning. Belle was recently admitted to Royal Aberdeen Children’s Hospital because of vomiting; upon inspection she was found to have a fractured right leg, three similar injuries and two cracked ribs. The medical staff thought these highly unlikely to be caused by accident. A further risk for consideration by the conference might be the quality of housing of the Yanovsky children. Based upon these various risk factors the members of the conference might decide to place both Sebastian and Belle on the Child Protection Register. The conference would also need to produce a Child Protection Plan; this plan might stress the need for greater care provision for Ms. Butler, and counseling for both Mr. Yanovsky, Ms. Butler and, separately, their children. Given the particularly harrowing details of the case, the conference might recommend that Sebastian and Belle be removed from their parents for their protection. The conference might also recommend criminal proceedings against the Mr. Yanovsky and Ms. Butler on account of the injuries caused to their children.

The criminal justice system, under the Child Protection Procedures of the Children Act 1989, allows and sets out guidelines for the prosecution of particularly serious offences against children. The Child Protection Team (CPT) has the responsibility to investigate allegations of abuse against vulnerable children. In the Yanovsky case, the injuries against Sebastian and Belle were thought by Dr. R. Williamson and Police Surgeon Dr. Mike Heron to be ‘obviously inflicted upon the child’ – they were deliberate. The police felt that both Mr. Yanovsky and Ms. Butler had failed to offer plausible explanations for the injuries to Belle. Given the seriousness of the injuries to Belle, the Child Protection Team might decide to recommend that charges of abuse be brought against either Mr. Yanovsky or Ms. Butler, or both. If it became so serious that charges of sexual abuse were deemed necessary by the CPT then these would be issued under the Sex Offenders Act 1997.

In conclusion, the main practical issues to be addressed in the case of the Yanovsky children are as follows. Paramount, of course, is the issue of the safety and welfare of Sebastian and Belle. Clearly there is a high risk of continued physical and emotional risk against both children. Temporarily and short-term, the Yanovsky’s social worker has recommended that Jo Butler receive extra care provision for Sebastian. The professionals involved in the case may decide to convene a Child Protection Conference, where after Sebastian and Belle may be placed on the Child Protection Register and have a Child Protection Plan drawn up to determine how they should be cared for in the coming months and years. The suggestions of abuse against Belle are so serious that the State may decide to seek to remove custody of the children from Mr. Yanovsky and Ms. Butler. The Child Protection Team may also consider it necessary to bring criminal charges against the parents for physical abuse. If custody were removed, then, under the Adoption of Children Act it would be necessary to give Sebastian and Belle the status of ‘looked after’ children and so to implement the provisions that are joined to this status.

BIBLIOGRAPHY

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–– Schepard, A. I. (2004) Children, Courts and Custody. Hofstra University, New York.

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Study Centre, Oxford.

* * * * * *

— The Children Act (1989), Her Majesty’s Government. www.dfes.gov.uk/publicaions/childrenactrepor

— The Children Act (2004), Her Majesty’s Government.

www.dfes.gov.uk/publications/childrenreport

— The Protection of Children Act (1999), Her Majesty’s Government.

www.dfes.gov.uk/publications/protectionofchildrenact

— The Adoption and Children Act (2002), Her Majesty’s Government.

www.dfes.gov.uk/publications/adoptionofchildrenact

— The Sex Offenders Act (1997), Her Majesty’s Government.

www.dfes.gov.uk/publications/sexoffendersact

Chapter 1: Directors’ Duties

Formulating a system for holding directors accountable has never been easy. As Roach put it, directors’ duties must be gleaned from “a confusing and compendious mass of case law and the occasional statutory measure.”^[1] Given the vast variations in the types of companies that exist, and the types of directors that exist, a universal approach has not always been easy to apply. Nevertheless, the law sometimes seeks to impose a single standard of conduct on all directors, regardless of the nature and characteristics of the company, and the level of involvement of the director. While recent statutes have started to distinguish between private and public companies, and may vary the duties of a director depending on which type of company is concerned, the vast majority of the case law on directors’ duties makes no such distinction and is of general application. There is therefore a complex body of statutory and case law which attempts to both define the duties that a director owes to the company, as well as the level of care that must be exercised when performing such duties.^[2]

As well as statute and case law, a number of standards and codes of practice have also been formulated which seek to define the nature of the duties owed by directors to companies. The first of these to be considered here is the Cadbury Committee, which was established in 1991 following a number of financial scandals that occurred during the previous decade. It was widely acknowledged that reform was needed in company law to allow shareholders and other stakeholders to hold directors more directly accountable for the consequences of their actions. The Cadbury Committee focused on financial control mechanisms to be used by the Board of Directors, and on auditing procedures, and published its report at the end of 1992.^[3] The report focused mainly on larger listed companies and its main conclusion was that a Code of Best Practice should be drawn up and which the Boards of Directors of such companies would be obliged to follow. For smaller companies, it would not be obligatory to comply with the code, but if they chose not to, they would have to publish the reasons why they had chosen not to.^[4] Adherence to the Code would be made a listing requirement, which would help ensure compliance among listed companies.

The benefits of the Code would be to make corporate governance more open and transparent, would make the equities markets more efficient, would make boards more accountable and also more responsive to the needs of the company, and would allow shareholders to exercise greater control and scrutiny over boards. The report was an early supporter of the importance and need of non-executive directors^[5] and recognised that executive and non-executive directors play very important complimentary roles. This area proved to be controversial as many saw the creation of two classes of directors as a threat to the traditional unitary nature of boards. However, the report found that non-executive directors could play a vital role in “reviewing” the performance of the executive directors, as well as taking measures to avoid and deal with “potential conflicts of interest”^[6].

While the report emphasised the importance of financial auditing of companies, it did not go into detail on what should be disclosed in such audits, nor did it consider the controversial area of auditor liability. These were issues which would later become the subject of heated debate.

The Report was also an important element in the growth of shareholder activism in the UK, and it concentrated on the steps that institutional shareholders could take to ensure compliance with the Code. In response to the issues raised in the Report, the Institutional Shareholders Committee^[7] published its own paper, “The Responsibilities of Institutional Shareholders in the UK”^[8] which dealt with many of the issues raised in the Cadbury report. The paper stated that “Because of the size of their shareholdings, institutional investors, as part proprietors of a company, are under a strong obligation to exercise their influence in a responsible manner.” This paper marked a new era in UK shareholder activism and promised to make shareholders more involved in making boards more accountable. The paper went so far as to recommend “regular, systematic contact at senior executive level to exchange views and information on strategy, performance, Board Membership and quality of management”^[9]. Regarding the composition of boards, the paper recommended that institutional investors look carefully at “the concentration of decision-making power not formally constrained by checks and balances” and “the appointment of a core of non-executives of appropriate calibre, experience and independence.”^[10] Therefore, this new investor oversight was taken for granted in the Cadbury report as another force that would improve the governance of large companies.

The Cadbury Report has not been without criticism. Many feared that its recommendations, which put a strong influence on non-executive board members, would lead to the creation of a two-tiered board, a development that was seen as unnecessary and inefficient.^[11] The voluntary nature of the Code has also been criticised. As a listing requirement, the Code also drew some criticism on the London Stock exchange which was given the task of enforcing and implementing the Code. Concerns led to the establishment of a follow up report prepared by the Hampel Committee, which re-examined the issues at stake, the criticisms which had been raised, and the conclusions reached in the Cadbury Report. The conclusions of the Hempel Committee were strongly supportive of the Cadbury Report and it was not long before the ‘Combined Code’ was drawn up, and implemented by the London Stock Exchange which listed companies were bound to implement, or give reasons for not doing so.

The Combined Code now requires that boards implement a “sound system of internal control” which must consider all significant risks facing the company, the effect they might have on the company, and the costs and advantages of various means of dealing with such risks. The Code also deals with the terms and conditions on which directors are employed, including their pay packages incentive schemes, and termination payments.

When speaking of the duty owed by directors to a company therefore, this includes the legal duties imposed on directors by the case law and statutes dealing with the subject, as well as the soft-law measures implemented in the Combined Code. Such duties may be owed to the company itself, or to shareholders or other stakeholders such as shareholders, employees, creditors, and the general public.

That said, it must be remembered that in a legal sense, the duties owed by directors is to the company as a legal person, and not shareholders or other stakeholders. The case of Percival v Wright [1902] 2 Ch 421 established beyond a doubt that the duties of directors is to the company. This case concerned a transaction in which a number of directors purchased shares personally from shareholders at a price of ?2 10s. The directors knew that another purchaser wanted the shares and was willing to pay a substantially higher price. The shareholders sought to have the transaction set aside as a breach of duty to the company. Swinfen-Eady J found that the directors had breached no duty to the company, and that no such duty was owed to the shareholders qua shareholders.^[12] The case of Scottish Co-operative Wholesale Society Ltd v Meyer [1959] AC 324 also illustrates the point. In that case, a parent company appointed some of its directors as directors of a subsidiary. These directors proceeded to act in the best interests of the parent, but Lord Denning pointed out the directors “probably thought that ‘as nominees’ of the [parent company] their first duty was to the [parent company]. In this they were wrong.” The duty of directors is always to the company they are acting for, regardless of the external relationships that the company, or they personally, may have with other persons. Currently there are proposals afoot to allow directors to act in the interests of a group of companies, as this is what happens in reality in many cases, especially where the shareholders and directors of the various companies are identical.

Without shareholders seeking a profit from a company, it can be argued that a company is a meaningless concept, or a piece of paper without a purpose. The law therefore recognises that in most cases, the interests of the company, will be closely connected to the interests of the members of the company, the interest of both being to make a profit. However, as shown above, the interests of the members are not paramount, and difficulties will always arise in equating the interests of the company with the interests of the members due to the fact that in many situations, the members will have different opinions and conflicting interests which cannot all be met. Section 172 of the Companies Act 2006 also adopts the ‘enlightened’ approach which calls for the interests of the company to be interpreted widely and not only as the maximisation of profits at a cost to all other considerations. Employees are one group whose interests the directors must “have regard” to under section 172. This is part of the general duty owed to the company and as such, must be enforced by the company, and not the employees. Many have criticised this provision as meaningless, as employees cannot enforce it, however, given that it is a requirement of the Companies Act, it must be expected that the majority of boards will consider the impact their decisions will have on employees, and such consideration will be minuted. While the provision may not prove capable of persuading callous directors to act other than in the interest of profit maximisation, it will certainly support the efforts of directors who do wish to improve conditions for employees. It also remains to be seen how this provision will be enforced by companies and it may transpire that a strong line of case law will develop which will persuade directors to give genuine consideration to the interests of employees.

Another group whose interests must be considered under section 172 is creditors. In Lonrho v Shell Petroleum [1980] 1 WLR 627 Lord Diplock stated, at page 634, that the best interests of the company “are not exclusively those of its shareholders but may include those of its shareholders.” Since it is the members who appoint directors, it would be tempting for directors to seek to promote only their interests, however, as the court recognised, it is often the case that creditors have put significant money into a company and their interests must be taken into account. Lonrho concerned a company that was solvent at the relevant time. The position regarding an insolvent company arose in The Liquidator of the Property of West Mercia Safetywear Ltd v. Dodd and Another [1988] BCLC 250. In this case the Court of Appeal confirmed that when a company was insolvent, its interests include those of its creditors. In Winkworth v Edward Baron [1987] BCLC 193 Lord Templeman found that the duty was owed directly to the creditors and in Brady v Brady [1989] 1 AC 755 Nourse LJ stated that where a company was insolvent, or its solvency was at risk, the interests of the company and its creditors were identical. According to Finch therefore, the creditors interests must always be taken into account to a limited extent, but as the company approaches insolvency, the interests of creditors must be given greater weight, until the interests of both groups coincide on insolvency.^[13]

The full extent of the “success of the company” as it is termed in section 172 of the 2006 Act includes a duty of directors to have regard to “(a) the likely consequences of any decision in the long term, (b) the interests of the company’s employees, (c) the need to foster the company’s business relationships with suppliers, customers and others, (d) the impact of the company’s operations on the community and the environment, (e) the desirability of the company maintaining a reputation for high standards of business conduct, and (f) the need to cat fairly as between members of the company.”

It can be seen that there has been a steady broadening of the concept of the interests of the company to include more and more interests that a pure profit motive would fail to embrace. In March 2000, the DTI Company Law Review Committee stated that an “inclusive approach” should be adopted.^[14] They pointed out that society’s interest in company law was that it promote “wealth generation and competitiveness for the benefit of all”, and that this can better be achieved if directors are forced to take into account “all the relationships on which the company depends.” The approach adopted in the Companies Act 2006 towards the creation of a statutory “general duty” owed by directors to the company is a progression of this concept with section 170(3) stating that “The general duties are based on certain common law rules and equitable principles as they apply in relation to directors…” At subsection (4) it states “ The general duties shall be interpreted and applied in the same way as common law rules or equitable principles”. This is clearly maintaining the case law that has built up over the past centuries as the framework on which the new statutory general duties are based. It remains to be seen what effect the new statutory duties contained in section 172 of the 2006 Act will have on this case law. Therefore, in looking at the duties owed by directors, it is necessary to read both the statutory provisions and the pre-existing case law together. These both make a distinction between the ‘fiduciary’ duties that directors owe the company, and their duty to act with ‘reasonable care, skill and diligence.’

Under section 174 of the 2006 Act a director “must exercise reasonable care, skill and diligence.” The content of this duty has been long ago established by the courts and in The Marquis of Bute’s Case [1892] 2 Ch 100 the limits of the duty were clearly set out. That case concerned the Cardiff Savings Bank, which allowed by tradition the Marquis of Bute to inherit the presidency of the bank from his father. The Marquis in question became president at the age of six months, and in the following 38 years, he attended only one board meeting. He therefore had no awareness of the business or involvement in it, and the court found that he was not expected to be involved. When financial irregularities by the board were uncovered, the court found that the Marquis was not liable due to his remoteness from the business, despite his formal position on the board. However, it appears as if the courts quickly grew stricter and in Dovey v Cory [1901] AC 477 a director escaped liability for malpractice but only because he had relied on information given to him by the chairman and general manager of the company, and his decision to do so was reasonable and not negligent. The extension since the Marquis’ case therefore, was the application of a reasonableness test.

The standard was further developed in Re City Equitable Fire Insurance [1925] Ch 407 in which three rules were established. These were that: a director must show the skill and diligence that could be expected from a person with his knowledge and experience; his duties are intermittent, and exercised only at board meetings where he participates in decision making; where reasonable, a director is free to delegate tasks and responsibilities to other employees. These rules were affirmed in Dorchester Finance Co. Ltd v Stebbing [1989] BCLC 498 which stated that they applied equally to executive and non-executive directors.

One of the features of the standard set out in Re City Equitable Fire Insurance is the fact that the standard is not that of the professional man, but the reasonable man with the skill and experience that the director in question subjectively possesses. This subjective test is useful for most companies as the more complicated the operation and the more money that is at stake, the more qualified the director is likely to be and the higher the standard. The standard will fall short in cases such as the Marquis of Bute, but this is more to do with the fact that a woefully unsuitable candidate has been appointed to the board, such as a six month old baby. In all but such extreme cases therefore, the subjective case set out in Re City Equitable will be sufficient. The second rule only requires the director to attend meetings and make himself aware of the business of the company “whenever in the circumstances he is reasonably able to do so.” Again this approach gives the law flexibility to allow for very different types of director, depending on the nature of the business. So for example, you could have an elderly family member sitting on the board because he knows the history of the business, and he will not be required to pay constant attention to the business, but simply offer his guidance when reasonably practicable. You could also have, as most companies do, full time salaried directors who are paid to spend all of their time and attention on the affairs of the company. As both types of director will be useful in various circumstances, the law allows for both, and requires each of them to be as aware of the dealings of the company as is reasonable in the circumstances.

The third rule allows directors to delegate responsibility to others, and it might be feared that this will be used by directors to avoid responsibility. However, when taken together with the other rules of the test, it is apparent that a director cannot delegate all of his responsibilities and disallow all awareness of the dealings of the company. He will still be required to be reasonably aware of what is going on and only to delegate tasks which it is reasonable for him to do so, taking into account the nature of business and the circumstances of the case.

However, there are many instances in which these three rules will not protect investors or other stakeholders, for example in the Marquis of Bute case, and there have been calls for some time for an objective standard to be introduced into the law. The DTI Company Law Review Committee, in the 2000 report mentioned above, pointed out that an objective standard has been adopted for the protection of creditors by section 214 of the Insolvency Act 1986^[15] and in the case of Re D’Jan of London Ltd [1993] BCC 646 Hoffman LJ found that the objective standard set out in section 214 of the 1986 Act reflected the standard that all directors were bound to meet when upholding their general duty. Therefore, the objective standard first set out in the insolvency context became the general standard owed by directors in all cases, and section 174 of the 2006 Act affirms that both the objective and subjective standards apply. At section 174(2) the 2006 Act states that the standard required is that which may be met by a “reasonably diligent person with (a) the general knowledge, skill and experience that may reasonably be expected of a person carrying out the functions carried out by the director in relation to the company, and (b) the general knowledge, skill and experience that the director has.” Therefore, as a minimum, the director will be required to demonstrate the care and skill that a reasonable director of a company of that type and standard would be expected to demonstrate. This allows for some flexibility as this minimum standard can still vary depending on the business, so that the director of a small family business will have a lower standard than the director of a FTSE 100 company. At the same time, if a director is chosen because of his particular characteristics, which make him qualified above and beyond what one might expect, he will be held to this higher, subjective standard.

This standard, which upholds an objective minimum standard, which may be increased if the director in question is unusually highly qualified, seeks to strike a balance between protecting the interests of the company, and allowing directors to feel relatively at ease with the personal liability they have taken on board. A different approach was adopted in the USA, where the Supreme Court of Delaware, in Smith v Van Gorkom [1985] 488 A.2d 858 found the ten directors of Trans Union Corporation liable in the sum of $23.5 million for agreeing to a takeover without first valuing the shares of the company. While this failure seems fundamental, the sale of the company’s shares was set to take place at a price significantly higher then the quoted price of the shares on the stock exchange, and the takeover would undoubtedly have benefited the company. The massive liability was imposed without any allegation of fraud or breach of fiduciary duty and resulted in a marked unwillingness of qualified persons taking on the role of non-executive director, at least for a time. It also resulted in a number of states, including Delaware where the decision was made, enacting legislation which allowed companies to exclude or limit the liability of directors for negligent breach of their fiduciary duties. Such a situation has not occurred in English company law, and the standard adopted in section 174 is measured to avoid the need for such a development.

The second main area of directors’ duties falls under the heading of fiduciary duties. At its most simple, this covers the requirement that directors act bona fides in respect of the company. The case law that developed however sets out a number of common instances in which directors are in danger of breaching this duty, and the 2006 Act has proceeded to specify these situations explicitly. While it is not set out as such, the duty to act bona fides can be seen as an overriding interest, which cannot be breached, even when authorised by the shareholders in general meeting. For example, in the case of (Re Attorney-General’s Reference (No. 2 of 1982) [1984] 2 ALR 447 the directors of the company were the only shareholders. They took money from the company and the interpretation given was that the directors had taken the money with the authorisation of the shareholders. Nevertheless, the court found that this was breach of the overriding duty to act bona fides. The case of R v Phillipou [1989] Crim LR 559 found the same overriding duty and these cases were upheld by the House of Lords in R v Gomez [1992] 3 WLR 1067. Therefore, it can be said that there is an overriding duty to act in good faith and even if a majority of the shareholders approve of the action, the directors may not breach it, and a minority of shareholders, or creditors, and possibly employees and other stakeholders, would be able to have the action set aside.

However, it is also possible for directors to breach one of the explicit fiduciary duties, such as using powers for one purpose to achieve a different purpose, which are not dishonest or mala fide. In such cases, the court can find that the breach of the particular fiduciary duty does not place the directors in breach of their overriding duty of good faith, and a majority of the shareholders can vote to authorise such acts. Section 239 of the Companies Act 2006 allows shareholders to ratify breaches of a fiduciary duty, but subsection (7) states “This section does not affect any other enactment or rule of law imposing additional requirements for valid ratification or any rule of law as to acts that are incapable of being ratified by the company”. Therefore, the previous case law which was upheld by the House of Lords in Gomez still limits the ability to ratify. In fact, the specific fiduciary duties have been described as “disabilities” and in Movitex Ltd v Bulfield and Others [1988] BCLC 104 it was upheld that companies could alter their Memorandum and Articles to amend the nature of any fiduciary duty owed by the directors to the company, subject always to the requirement that nothing purported to allow dishonesty. Movitex concerned the concept of self-dealing, which is ordinarily presumed to be a breach of duty. In this case, the company was able to remove this presumption, so that the director was able to engage in self-dealing, but subject to the requirement that he did in fact act in the best interests of the company. A simple example of this would be if a cheese producing company sought to appoint the owner of a supermarket as a director. Self dealing would disable the director from selling cheese to the supermarket he owned, as it would be self-dealing, and very easy for the director to breach his fiduciary duties to the cheese producing company. However, the company could authorise the director to sell to the supermarket concerned, on condition that he did not abuse this ability and breach his duty of good faith. An ordinarily disallowed activity would be allowed, but would still be subject to the requirements of good faith.

The explicit fiduciary duties of the director set out in the 2006 Act are: the duty to act within powers^[16]; the duty to exercise independent judgment^[17]; the duty to avoid conflicts of interest^[18]; the duty to declare interests in proposed transactions or arrangements^[19]; and the duty not to accept benefits from third parties^[20].

Section 171 requires that the director “(a) act in accordance with the company’s constitution, and (b) only exercise powers for the purpose for which they are conferred.” This is an area where the courts have been quite willing to excuse directors if they have used a power for a collateral purpose and a majority of shareholders have been in favour of it. For example, in the cases of Punt v Symonds & Co [1903] 2 Ch 506 and Piercy v S Mills & Co [1920] 1 Ch 77, the court allowed the issue of shares by directors to prevent a hostile takeover and to dilute the influence of hostile shareholders, because the majority of shareholders approved. This was despite the fact that the power had been granted solely to allow the raising of capital. However, in Howard Smith Ltd v Ampol Petroleum Ltd [1974] AC 821 the Privy Council held that where there were two purposes for issuing shares, to raise capital and to prevent a takeover, the proper purpose of raising capital had to be the dominant purpose. In Re Looe Fish Ltd [1993] BCC 368 the directors were disqualified under section 8 of the Company Directors Disqualification Act 1986 for allotting shares for an improper purpose.

Section 173 requires the directors to exercise independent judgment. This is a restatement of the common law duty on directors not to ‘fetter their discretion’. This has acted to reduce the risk of directors being in a conflict of interest situation be disabling them from entering agreements which might prevent them from acting in the best interests of the company in the future. In Fulham Football Clun and Others v Cabra Estates Plc [1994] 1 BCLC 363 the company was paid money in exchange for not opposing property development plans. As the planning process drew out, the question arose of whether the directors had fettered their discretion by agreeing never to oppose such plans. However, the Court of Appeal stated that where a “contract as a whole [was] bona fide for the benefit of the company” it was valid and the directors could bind themselves to do whatever was required to fulfil it.

Section 175 prohibits directors from entering a position where his interests actually or potentially conflict with those of the company. If the constitution of the company permits, the directors can authorise a conflicting situation to be entered into, so long as the relevant director does not vote. Section 175 also requires the director to declare their interests in any contracts, and under section 170, this duty extends after the director has ceased to hold office. The declaration is made to the board. The potential complexity of such situations can be seen in Menier v Hooper’s Telegraph Works [1874] LR 9 Ch D 350 in which the James LJ held that a majority shareholder could not prejudice the interests of the company because of its own conflicting interests. Similarly, in Cook v Deeks [1916] 1 AC 554 the directors sought to conclude the final round of contracts in a large railway development programme in their own names. The court held this was clearly in breach of their duty. In Scottish Co-operative Wholesale Society Ltd v Meyer [1959] AC 324 the directors say on the boards of both a parent and subsidiary company, and as soon as it emerged that the interests of the two companies were conflicting, the directors could not longer remain in that position. As Lord Cranworth said in Aberdeen Railway Co v Blaikie Bros (1854) 1 Macq 461 (HL), “it is a rule of universal application that no one, having [fiduciary] duties to discharge, shall be allowed to enter into engagements in which he has or can have a personal interest conflicting or which possibly may conflict with the interests of those whom he is bound to protect.” One area that the courts have found difficulty with is when a director comes across a profitable opportunity as a result of his position as director. This situation arose in Regal (Hastings) Ltd v Gulliver [1942] 1 All ER 378 in which a cinema company sought to lease two other cinemas. A subsidiary was formed for the purpose, but the owners of the two cinemas would only agree to the lease if the authorised share capital was paid up. As the parent could not afford to do so, some directors personally purchased shares in the subsidiary. When it came time to sell the shares in the subsidiary, the company demanded that the directors account to the company for the profits they had made, and the House of Lords held that they were liable to do so. This was despite the fact that the company would have been unable to exploit the situation because of its own lack of funds. The same principle was applied in Industrial Developments v Cooley [1972] 1 WLR 443 in which a director learned information which would have been profitable to the company and kept it to himself. He then used the information to secure a position at a rival firm and left his present company. His present company could not have secured this position itself and so could not have benefited in the manner in which the director had. Nevertheless, the court found that the director had to account to the company for the profit he had made as a result of information gleaned in the course of his directorship. Gencor ACP Ltd v Dalby [2000] 2 BCLC 734 affirmed that it is no defence that the company would not have exploited the opportunity, although the shareholders can approve of the action and this would justify the director.

As a result of the case law and the wording of the relevant provisions of the 2006 Act, it can be concluded that a director is disallowed from entering a position where one of his person

This brief critically considers the empirical literature on asthma care. Emphasis is on UK studies although research from the USA (and other countries) is also considered. It is argued that both environmental and genetic factors are implicated in asthma onset, based on epidemiological evidence. Deficits in care provision persist: these gaps in care may be attributable to a wide range of modifiable factors, including unsatisfactory health professional (GP, nurses) input, limited use of care plans, and patient unawareness. Overall, however, conclusive inferences about asthma care provision are hampered by:

A preponderance of retrospective/correlational studies, and a paucity of randomised control trials, which demonstrate causality;
A paucity of research on particular gaps in asthma care;
Failure to account for third-variable moderator effects.

The Office for National Statistics (2004) publishes comprehensive statistics on asthma-related mortality, morbidity, treatment, and care, collapsed by demographic categories. Data is collected from the General Practice Research Database (GPRD). Issues addressed include mortality, prevalence, time trends, patients consulting general practice, incidence of acute asthma, and hospital inpatient admissions.

Research suggests that health care providers often fail to agree on the precise criteria for diagnosing asthma, whether mild or severe (e.g. Buford, 2005). Severe asthma is often defined based on pulmonary function measurements, such as forced expiratory volume in 1 second, and hospitalisation. However, neither of these indicators reliably predicts asthma severity (Eisner et al, 2005).

Eisner et al (2005) evaluated the efficacy of a method for identifying a cohort of adults with severe asthma based on recent admissions to an intensive care unit (ICU) for asthma. Four hundred adults with severe asthma enrolled at seventeen Northern Carolina hospitals were surveyed. A control group of patients hospitalised without ICU unit admission was also recruited. The study examined whether admission to an ICU unit is in itself a reliable indicator of asthma severity.

Asthma patients with a recent ICU admission generated higher asthma scores (based on the frequency of current asthma symptoms, use of steroids and other medications, and history of hospitalisations/intubations), and poorer quality of life, were more likely to have been hospitalised, visited an asthma specialist in the previous twelve months, been in an asthma-related emergency department, and received inhaled corticosteroids in the past year. Data analysis controlled key background variables (e.g. demographic factors), increasing confidence in the reliability of the findings. However, this study was based on quasi-experimental design and hence may be confounded by sampling bias.

Trends in annual rates of primary care consultations, mortality, and hospital visits/admissions were monitored for children under 5 years and 5-14 year olds. For children aged <5, weekly general practice consultations rose during the early 1990s, peaked around 1993 (circa 150/100,000 children), then began to decline. This decrease persisted through the 1990s, falling to about 70/100,000 by 2000. Annual hospital admissions have also declined through the 1990s, falling from circa 100/10,000 in 1990 to approximately 50/10,000 by 2000. By contrast the number of patients treated for asthma has increased marginally albeit year-to-year change may be insignificant. Mortality rates decreased steadily, from around 10 million in the 1960s to approximately 2 million the year 2000.

For 5-14 year olds, weekly general practice visits rose in the early 1990s (circa 70/100,000 in 1990), showed a fluctuating pattern through the mid 1990s, but has declined steadily since 1997 (about 50/100,000 by 2000). The number of patients treated annually for asthma has risen slowly but steadily, although this increase seemed to level out by the mid/late1990s. Both mortality rates have dropped steadily since the early 1990s, from about 14 million in 1990 to circa 2 million by 2000. Annual hospital admissions has also fallen steadily, from just under 30/10,000 in 1990 to about 15/10,000 by 2000. These patterns suggest an increase in self-management (e.g. action plans) that obviates the need to visit a general practice, and that asthma care overall is having the desired effect on mortality.

The prevalence of wheezing and asthma in children has generally increased during the last 40 years. Although there is a paucity of reliable national statistics, data is available from specific parts of the UK, notably Leicester, Sheffield, and Aberdeen (see Figure 1).

The prevalence of wheezing increased from 12% (1990) to 26% (1998) in Leicester, and from 17% (1991) to 19% (1999) in Sheffield. The prevalence of asthma showed a similar pattern in both cities, rising from 11% (1990) to 18% (1998) in Leicester, and from 18% (1991) to 30% (1999) in Sheffield. Wheezing incidence rates for Aberdeen increased from 10% (1964), to 20% (1989), 25% (1994), and 28% (1991).

Data from national birth cohorts suggests a sharp increase in the average weekly GP consultations for hay fever/allergic rhinitis from 1991 to 1992. The rates rose from circa 13/100,000 (0-4 year olds) and 40/100,000 (5-14 years olds) in 1991 to about 25/100,000 (0-4 year olds) and 76/100,000 (5-14 year olds) as 1992 approached. Trends subsequently dropped off slightly but then started to show an increase again around 1998. By the year 2000 the figures were roughly 20/100,000 (0-4 year olds), and 56/100,000 (5-14 year olds).

Data from a nationally representative sample of schools across the country suggests that the prevalence of asthma was fairly even across different regions. However, Data for England suggests a higher prevalence outside big cities. The greatest proportions of wheezing was found in the South West, while the highest proportion of asthma cases was found in East Anglia and Oxford (see Figure 2).

In a recent Annual Report, Asthma UK (2003/2004) noted that one child in 10 has asthma and a child is admitted to hospital every 18 minutes due to an asthma attack. Over 600 copies of Asthma in the Under Fives are downloaded from the UK Asthma website monthly and on average every classroom in the UK has at least 3 children with asthma.

The impact of acute asthma can be debilitating. Around 5.2 million people in Britain are presently being treated for asthma, and asthma prevention/care costs the NHS on average almost ?900 (i.e. ?889) million per year. GPs across the country treat over 14,000 new episodes of asthma each week, and UK Asthma met almost 25,000 requests for health promotion documents and other materials.

About 40% of workers who have asthma find that working actually exacerbates their asthma, and 1 in 5 asthmatic people feel excluded from areas of the workplace in which people smoke. Over 12.7 million working days in the UK are lost as a result of asthma, and it is estimated that the annual cost of asthma to the economy is ?2.3 billion.

Asthma UK also states that 82% of people who are asthmatic find that passive smoking triggers their asthma, and 19% of people with asthma indicate that their medical condition makes it difficult for them to play with children in their family. One in 3 children has had their routine daily activities disrupted due to asthma and 39% of asthmatic people are badly affected by traffic fumes (which stop them exercising). About 500,000 people have asthma that is very difficult to control.

In 2003/2004 over 90 researchers worked on Asthma UK-funded projects and, Asthma UK spent ?2.5 million on asthma-related research. The group funded/is funding 63 research projects.

These statistics paint a rather bleak picture of asthma prevalence, incidence, and the effects on people’s lives.

Numerous epidemiological studies have been published that address the etiology of asthma in population groups (International Archives of Allergy & Immunology, 2000; Kitch et al, 2000; Schweigert et al, 2000; Tan, 2001; Court et al, 2002; Smyth, 2002; Weissman, 2002; Tan et al, 2003; Wenzel, 2003; Gibson & Powell, 2004; Barnes, 2005; Pinto & Almeida, 2005).

Barnes (2005) considered evidence on the role of genetic factors in resistance to atopic asthma, Studies which focus on the role of genetic factors in resistance to tropical/parasitic diseases (e.g. malaria) overlap with genetic associations found for asthma. It was concluded that genetic factors might be implicated in the development of allergic illnesses.

Pregnancy is thought to increase the probability of asthma attacks in about 4% of all pregnant women. Beckmann (2006) assessed eighteen pregnant women with asthma. The study was based on a longitudinal design. Participants were recruited from local prenatal clinics and private enterprises, and enrolled during the first trimester. Patients kept a daily log recording peak expiratory flow data until delivery. Three peak-flow assessments were recorded after which the best value was entered into the log. Asthma was diagnosed by a health professional. Participants were also required to record asthma symptoms, exacerbations, medications, and cigarette use. To increase participation, subjects were reminded by telephone to complete their log.

Data analysis showed that peak expiratory flow (PEF) was variable as a function of particular trimesters. Peak air flow was highest during the second trimester, with a statistically reliable difference between the second and third trimester. Unfortunately, the small sample size limits the generalisability of the findings. However, the study was based on a longitudinal design, allowing tentative causal inferences.

Schweigert et al (2000) reviewed the literature on the role of industrial enzymes in occupational asthma and allergy. Enzymes used by detergent manufacturing companies (e.g. amylases, cellulases) are toxicologically benign, with mild irritation effects on the body. However, these enzymes do affected asthma and allergy. Thus, the industry is required to adhere to exposure guidelines for these enzymes.

Kitch et al (2000) considered literature on the histopathology of late onset of asthma (i.e. onset in adulthood), and whether allergic exposure and sensitivity have the same impact on asthma development in adulthood as they do in children. Epidemiological studies suggest that the prevalence of asthma in older adults aged 65years or more is between 4% and 8%. The illness appears to be more common in women, especially those with a long history of smoking, and with respiratory symptoms (e.g. cough, wheeze, shortness of breath). Asthma in adulthood often developed before the age of 40, with maximum incidence occurring around early childhood.

Beyond the age of 20 years the incidence of asthma tends to remain stable through young, middle-aged, and older adulthood. Death rates in adults are generally lower than figures for children; “Mortality rates attributable to asthma among those aged between 55 and 59 years of age and 60 and 64 years of age were 2.8 and 4.2 respectively, per 100,000 people, the highest rates among all age groups” (p.387). However, as adults get older asthma is less and less likely to be identified as the main cause of death due to the increased incidence of other pathology.

Epidemiological research in Japan highlights a link with air pollution (International Archives of Allergy & Immunology, 2000). The prevalence of asthma among kindergarten and elementary school children has increased steadily since the early 1960s, rising from 0.5-1.2% between 1960 and 1969, to 1.2-4.5% (1970-1979), 1.7%-6.8% (1980-1989), and 3.9-8.2% (1990 onwards). By contrast, data indicates little or no change in asthma prevalence amongst adults. Figures range from 1.2% in 1950-1959 to 1.2-4.0% (1960-1969), 0.9-5.0% (1970-1979), 0.5-3.1% (1980-1989) the 1960s to 1.6-2.9% (1990 onwards) (see Figure 3).

Asthma in Japanese children is more common amongst boys than girls although this gender difference has diminished noticeably since the 1960s. Asthma usually appears in infancy or early in childhood but has been known to begin across all age groups. Inherited (genetic) dispositions to allergies have been implicated in the onset of asthma. There is normally a strong correlation between asthma onset and a family history of asthma.

Overall, asthma-related mortality in Japan has decreased since the mid 1990s. Delays in seeking treatment and rapid exacerbation of symptoms have been strongly implicated in asthma mortality. Unfortunately, this article offers little information about the designs of studies reviewed. Inferences regarding the possible causes of asthma morbidity and mortality may be inconclusive if much of the evidence is derived from cohort studies, rather than case control studies that more effectively eliminate alternative causes.

The premenstrual period in women has been implicated in asthma exacerbation. Tan (2001) reviews epidemiological literature suggesting that female sex-steroid hormones may be significant in understanding the premenstrual-asthma link, albeit the available evidence is tenuous. The luteal phase of the menstrual cycle is associated with airway inflammation and hyper-responsiveness, and hence may explain asthma exacerbation during the premenstrual phase. However, this increase in asthma severity can still be treated effectively using the normal drugs.

Studies suggest that premenstrual asthma affects the rate of hospital admissions – the majority of adults admitted are women, indicating that hormonal factors play an important role. Other evidence suggested that emergency presentations increased before ovulation. It is suggested that oral contraceptive pills or gonadotrophin releasing hormone analogues may be especially effective treatments. However, premenstrual asthma was rarely associated with serious mortality. Unfortunately, most of the studies reviewed were retrospective and questionnaire based, and hence subject to response bias. There was a paucity of randomised control trials, or pseudo experiments that may permit causal inferences.

Court et al (2002) considered the distinction between atopic (extrinsic) asthma, common in younger people, and non-atopic (intrinsic) asthma, found mostly in older groups. Additionally, they also considered whether identification of asthma cases in epidemiological research should be based on a doctor’s diagnosis or self-reported asthma symptoms. Nearly 25,000 people in England were surveyed. Data was collected regarding whether participants had experienced wheezing in the past 12 months and/or had been diagnosed as asthmatic by a doctor.

People with atopic asthma were more likely to have experienced wheeze and been diagnosed as asthmatic in the past, compared with the non-atopic group.

Logistic regression analysis showed that gender, social class, smoking status, living in an urban/rural area, and house dust mice (HDM), were all risk factors for the presence of wheeze both with (age not significant) and without (urban/rural area not significant) a diagnosis of asthma. Wheeze/asthma was more prevalent in women, younger people, lower social classes, previous/current smoking, living in an urban area, and greater HDM IgE levels. Smoking status, social class, and age were all risk factors for wheeze in both atopic and non-atopic cases. Gender was also a risk factor for atopic subjects, and urban living for non-atopics.

Other research has considered the epidemiology of severe or ‘refractory’ asthma, which is rather less well understood compared with milder forms of asthma. Wenzel (2003) reviews evidence indicating that severe asthma (defined as asthmatics requiring continuous high-dose inhaled corticosteroids or oral corticosteroids for over half of the preceding year) may account for circa ? 5% of asthma cases. Data from a large Australian-based study, which has followed a large cohort of asthmatics for over three decades, implicates childhood pulmonary problems with reduced lung function in adulthood.

Data suggests that over two-thirds of severe asthmatics were afflicted with asthma in childhood. Other risk factors implicated include genetic mutations (in the IL-4 gene and IL-4 receptor), and environmental factors (e.g. allergen, tobacco exposure, house dust mite, cockroach and alternaria exposures), respiratory infections (e.g. pathogens like chlamydia), obesity, gastroesophageal reflux disease, increased body mass index, lack of adherence to corticosteroid regimes, and poor physiological response to medication. Physiological factors are also implicated, notably structural changes in airway reactivity, inflammation of the peripheral regions of the lungs. Steroids are the main form of treatment.

Tan et al (2003) demonstrated the role of respiratory infection in patients with severe (i.e. near fatal) asthma, acute exacerbations, or chronic obstructive pulmonary illness (COPD). Participants had all been diagnosed as asthmatic by a physician and were undergoing treatment. All showed evidence of forced expiratory volume in 1 second (FEV1) increase of 200mL. COPD patients were suffering from chronic cough and dyspnea, with a predicted FEV1% 50%, with no ?-agonist reversibility. Near fatal cases were patients undergoing ventilatory support in the intensive care unit of a hospital (National University Hospital and Alexandria Hospital, Singapore) as a result of a severe exacerbation.

Acute asthma subjects were characterised by non-improvement following administration of ?-agonists, and/or severe exacerbation judging from clinical/blood data. Analysis showed that near-fatal cases were the least likely to have the influenza A + influenza B virus, but the most prone to have adenovirus and picornavirus, compared with the other two groups (see Figure 4). This suggests that viral infection may be a risk factor for severe asthma. However, due to sampling size/bias (n= 68), and failure to control for key background variables (e.g. asthma history, smoking history, prior medication use, and outpatient spirometry), the findings can be considered tentative.

Smyth (2002) reviewed epidemiological studies on asthma in the UK, and worldwide. The number of new asthma cases seen by GPs has increased noticeably since the mid 1970s. Nevertheless, asthma incidence has tended to decrease since the early 1990s, consistent with data from the Office for National Statistics (2004). By the year 2000 circa 60-70, 40-50, 20-25 new cases (per 100,000 of a given age group) were reported amongst, respectively, preschool children, 5-14 year olds, and people older than 15 years. Significant ethnic differences have been reported, with high asthma prevalence in Afro-Caribbean children. Since 1962, the number of preschool children hospitalised for asthma rose steadily, then peaked in the late 80s and early 90s, and has begun to decline since. The hospitalisation rates in 1989 were 90/10,000 (preschool children), 30/10,000 (5-14 year olds), and 10/10,000 (15 years or older). By comparison the rates for 1999 were 60/10,000, 20/10,000, and 10/10,000 respectively (see Figure 5).

The British Thoracic Society identifies specific benchmarks or ‘best practice’ which health professionals are required to meet when caring for asthma patients (BTS, 2004). These recommendations are mostly based on scientific evidence from RCTs, epidemiological studies (cohort and case-control), meta-analytic reviews, and other good quality research. The recommendations related specifically to the following topics:

Diagnosis and assessment in children and adults (e.g. key symptoms, recording criteria which justified diagnosis of asthma);
Pharmacological management (e.g. use of drugs [inhaled steroids, ?2 agonist] to control symptoms, prevent exacerbation, eliminating side effects, employing a ‘stepwise’ protocol for treatment);
Use of inhaler devices (technique and training for patients, agonist delivery, inhaled steroids, CFC vs. HFA propellant inhalers, suggestions on prescribing devices);
Non-pharmacological management (e.g. breast feeding and modified milk formulae for primary prevention, and allergen avoidance for secondary prevention, alternative medicines);
Management of acute asthma (initial assessment, clinical features, chest x-rays, oxygen, steroid treatment, referral to intensive care)
Asthma in pregnancy (drug therapy, management during labour, drug treatment in breastfeeding mothers);
Organisation and delivery of care (e.g. access to primary care delivered by trained clinicians, regular reviews of people with asthma, audit tools for monitoring patient care after diagnosis);
Patient education (e.g. action plans, self-management, compliance with treatment regimes).

Overall, despite these guidelines, recent research suggests that patients’ treatment needs are not being met. For example, Hyland and Elisabeth (2004) report data on the unmet needs of patients. Focus groups were organised between parents, patients, and clinicians. Patients and parents reported various needs that weren’t been met including frequent exacerbations, and a preference for less complex drug regimens (i.e. with fewer drugs). Many individuals had worries regarding treatment and experienced asthma symptoms 3 or more days per week. As Levy (2004) suggests, there is a need for health professionals to address these concerns, especially in relation to the BTS guidelines.

Levy, a GP and Research Fellow in Community Health, identified current deficiencies in the care of asthma victims. These comprised:

Higher than expected exacerbations (42/1000 patients per year);
Under-diagnosis: more patients presenting for treatment with uncontrollable asthma, who had not been diagnosed previously;
Deficiencies in treatment uptake: many patients fail to collect their prescriptions;
Many patients with symptoms delay presenting for treatment, until their medical situation becomes critical;
Health care professionals are failing to assess patients objectively (PEF, oximetry), both pre- and post-treatment;
Failure to adhere to national guidelines for the care of acute asthma (e.g. not enough oral steroids and ?-agonists are prescribed for patients presenting with asthma attacks.
Considerable variations across GPs, NHS Trusts, clinics, and other sources of care provision: patient follow-up appointments range from a few days to six months, in direct violation of standards set by the British Thoracic Society (BTS, 2004).

Levy suggests various strategies for improving asthma care including diagnosis criteria (e.g. “any patient with recurring or respiratory symptoms [cough, wheeze, or shortness of breath], or who has been prescribed anti-asthma treatment should be considered to have asthma” (p.44)), use of computerised templates, having systems or triggers in place for recalling patients (e.g. patients requesting more medication, or who have been seen out of hours), introducing more effective protocols for monitoring and informing asthma patients (e.g. using a checklist to ascertain various key information on patients status, such as effects of asthma on patients life, recent exacerbations), providing written self-management plans (e.g. how to detect uncontrolled asthma, using PFM charts), and having an agreed procedure for managing acute asthma attacks (e.g. selecting a low threshold for using oral steroids).

Currently there is a lack of research testing the value of these recommendations on asthma health outcomes. However various strategies are continually being implemented in various parts of the country to improve the quality of asthma care. For example,

Holt (2004) describes the effects of implementing the RAISE initiative, launched by the National Respiratory Training Centre, in a primary care setting. This scheme is designed to raise awareness of existing variations in standards of care, improve standards of care through education, support, and feedback, increase awareness and understanding of respiratory disease, use asthma as platform to demonstrate the value of shared experiences across different agencies/professionals, and augment the profile of primary care settings as the main source of asthma care and innovation. The RAISE led to various improvements, such as:

The use of ‘active’ and ‘inactive’ asthma registers, to distinguish patients who currently have asthma symptoms from those who don’t.
Introduction of computerised templates to improve accuracy and reliability of data recording during consultations (e.g. progressing sequentially from assessment of symptoms, to peak flow, inhaler, and advice stages).
Use of symptom questionnaires (e.g. handed out with repeat prescriptions) that help patients with well-managed asthma decide whether they can opt for a telephone consultation, rather than taking the trouble to visit the practice for a face-to-face consultation.

Haggerty (2005) identifies several factors paramount to effective care and management of asthma in UK patients. These comprise adequate patient education about the nature of asthma (e.g. number of asthma episodes, use of quick relief medicines, long term symptoms, restrictions on daily activities, and emergency visits), use of asthma action plans, and customised treatment plans (to achieve early control), and addressing patients own concerns and perception.

Treatment for asthma is usually in the form of regular inhaled corticosteroids (ICS), oral corticosteroids (OCS), and ? agonists. These treatments are usually administered by a health professional when symptoms manifest and/or become severe. However, since asthma can often exacerbate rapidly, before an individual can seek medical help, it is vital that asthma patients receive the necessary care from health professionals, and also self-management skills. GPs and nurses play a critical role.

Griffiths et al (2004) conducted a randomised control trial to assess the effect of a specialist nurse intervention on the frequency of unscheduled asthma care in an inner city multiethnic clinic in London. The role of specialist nurses in asthma care has been uncertain. Interventions in which specialist nurses educate patients about asthma, after hospital attendance with acute asthma, were shown to have inconsistent effects on unscheduled care. However, outreach initiatives to educate medical staff had shown no effect. Thus, an intervention was designed that combined patient education with educational outreach for doctors and practice nurses. It was suspected that such an integrated approach would benefit ethnic minority groups, especially given their higher hospital admission rates and reduced access to care during asthma exacerbation. The key research question was whether specialist nurses could improve health outcomes in ethnic minority groups.

Outcome variables were the percentage of patients receiving unscheduled treatment for acute asthma during a 12 month period, and time to first unscheduled attendance with acute asthma. The study was based on 44 practices in two east London boroughs. Participants comprised over 300 patients (aged 6 to 60) who were admitted to or attending the hospital, or the out of hours GP service with acute asthma. Half the sample were classified as South Asians, 34% were Caucasian, while 16% were Caucasian. The intervention was based on a liaison model. Practices were assigned to either a treatment or control condition.

Practices randomised to the treatment condition ran a nurse led clinic involving liaison with GPs and practice nurses, incorporating education, raising the profile of guidelines for the management of acute asthma, and providing on-going clinical support. In practice these practices received two one-hour visits from a specialist nurse who discussed guidelines for managing patients with acute asthma. Discussions were based on relevant empirical evidence. A computer template was provided to elicit patient information on various treatment issues, such as inhaler technique and peak expiratory flow, and offer self-management advice. By contrast, control practices received a visit promoting standard asthma care guidelines.

Data analysis showed that the intervention lengthened the time to first attendance (median 194 days for intervention practices, and 126 days for control practices), and also reduced the proportion of patients presenting with acute asthma (58% treatment practices versus 68% in control practices (see Figure 6). These effects were not moderated by individual differences in ethnicity, albeit Caucasians seemed to benefit more from the intervention compared with minority ethnic groups.

O’Connor (2006) noted that asthma care in the UK remains below the required standards. The majority of the 69,000 hospital admissions and circa 1400 deaths annually are attributable to poor patient adherence to treatment regimens. Nurses, it is argued, play an important role in promoting adherence. Additionally, use of a new inhaled corticosteroids – circlesonide – may also help increase adherence. Circlesonide is much easier to use than more established asthma drugs (e.g. it has a once-daily dosing). Evidence is reviewed suggesting that peak expiratory flow remains stable when patients are given circlesonide compared with a placebo.

Tsuyuki et al (2005) assessed the quality of asthma care delivered by community-based GPs in Alberta, Canada. They reviewed clinical charts for over 3000 patients from 45 primary care GPs. Of this number 20% had ever visited an emergency department or hospital, 25% had evidence that a spirometry had been performed, 55% showed no evidence of having received any asthma education, 68% were prescribed an inhaled corticosteroid within the past 6 months, while a very small minority (2%) had received a written action plan. Figure 6 shows percentage of participants receiving medication.

Sixty-eight percent were prescribed an inhaled corticosteroid, 11% were given an oral corticosteroid, and 80% received a short acting ?-agonist, while 8% were prescribed a long acting ?-agonist. Participants with an emergency room/hospital event were (marginally) more likely to be prescribed medication (no group differences in use of short acting ?-agonists). Regarding pulmonary testing, 25% had evidence of a pulmonary function test (not peak flow), 46% had peak flow monitored, 34% showed no evidence of pulmonary function tests, while 26% had an x-ray. Again individuals with an emergency room/hospital event were more likely to be tested (see Figure 7).

Data about education received by patients was also evaluated. Twenty-two percent received information about environmental triggers, 20% on inhaler use, 10% on how to perform a home PEF test, 2% on written action plans, while 55% received no education at all. Those with an emergency room/hospital event were more likely to receive education. Receiving asthma education, use of spirometry, and prescription of inhaled corticosteroids, were all predicted by number of asthma-related clinic visits (4 or more) and having an emergency room/hospital event. Additionally, asthma education was predicted by cormorbidities, and absence of documentation regarding asthma triggers, while use of spirometry was predicted by being a non-smoker, and symptoms or triggers. Finally, use of inhaled steroids was predicted by symptoms.

Overall, this study highlights numerous gaps in the care provided by GPs, partly echoing criticisms of GPs in the UK (Levy, 2004). For example, Levy (2004) cited ‘under

The modern meaning of the word ‘gender’ emerged in the 1970s. Its original purpose was to draw a line between biological sex and how particular thoughts and behaviours could be defined as either ‘feminine’ or ‘masculine’ (Pilcher & Whelehan, 2004). The reason for using the word ‘gender’ was to raise awareness of the exaggeration of biological differences between men and women. The popularity of this meaning for the word ‘gender’ resulted from the efforts of second wave feminism in the 1970s. This essay examines how second wave feminism attempted to construct a ‘grand narrative’ of women’s oppression. It then examines Judith Butler’s contribution to post-modern feminist theory through her performative theory of gender and how this fits into post-modern feminist debates.

A product of second wave feminism, which began around 1970, was the attempt to place women within a ‘grand narrative’ history of their oppression. One of the seminal writers on this narrative was Simone de Beauvoir. Her work in describing how women had become ‘the other’ in her book The Second Sex (de Beauvoir, 1961) laid the foundations for what was to come in the second wave of feminism (Gamble, 2002). De Beauvoir argues that the way in which men think about women is only in relation to their fantasies, that they have no substance of their own. Unfortunately, for de Beauvoir, women have come to accept men’s fantasies of womanhood as constituting their own conception of themselves. For de Beauvoir, it was for women to conceive of themselves in their own terms, to take back the power themselves.

A criticism of de Beauvoir’s approach was that it tended to blame women for their current condition (Gamble, 2002). The second wave feminists of the 1970s, however, such as Millet (1970), pointed to patriarchy as the root cause of women’s oppression. It is patriarchy, so Millet argued, that has become a political institution, and from this flows all the other forms of women’s oppression. Firestone (1970) also took a strong line against patriarchy, equating women’s oppression to a caste or class system. Ideological support for patriarchy, in Firestone’s view, has come from institutions such as the family, marriage along with romantic love.

These ideas are referred to as constructing a ‘grand narrative’, a way of charting the history and development of particular ideas, in this case women’s oppression (MacNay, 1997). One of the problems that much feminist thought has come up against in trying to provide a ‘grand narrative’ of women’s oppression is that it is difficult to effectively give all women a common identity (Whelehan, 1995). If the very idea of gender flows from cultural origins, then it is only natural to conclude that gender has different meanings in different cultural contexts. How then can a common identity be posited?

Other critics such as Richards (1982), examining second wave feminism from a liberal perspective, have seen it as a movement that has failed. Richards sees many of the feminist approaches as being extreme and unattractive, and not focussing, as she sees it, on rational debate. She criticises feminists for utilising ‘eccentric’ arguments which do not conform to the normative expectations of philosophical debate. Further, she criticises feminism for ignoring the obvious differences between men and women – such as women’s ability to have children – and thereby presenting an unrealistic picture of utopian gender relations.

Another vibrant stream of criticism against second wave feminism has been that it assumes that what is required is a reversal in the relative positions of men and women. In other words, if women can take the position of men in society then their oppression will finally be undone (Brooks, 1997). Instead, however, post-modernist forms of feminism have tended to criticise the placing of women and men in oppositional categories. Post-modernist writers, such as Judith Butler, Brooks argues, help the feminist debate move on from the grand narrative to the focussing on deconstruction and identity (Brooks, 1997).

Judith Butler’s work as a social theorist has been extremely influential. Some of the major themes of her work include important contributions to queer theory and her criticism of the way in which gender has been constructed (Clough, 2000). Her breakthrough work was Gender Trouble which strongly criticised existing feminist theory on gender such as the work of Firestone and Millet.

Butler (1990) points out that feminist approaches have tended to emphasise the difference between gender and sex. In these perspectives sex is seen as a biological fact, while gender is a cultural construction. The problem for Butler is that this split has gone too far, such that it is not possible to analyse how the sexed body is constituted (Salih & Butler, 2004). Rather than splitting gender and sex, then, Butler’s work has actually collapsed one into the other (Fraser, 2002). Sandford (1999) explains that this is achieved by showing that gender actually produces sex.

Butler (1990) asks whether it is possible to talk about the ‘masculine’ attributes of a man and then talk about their ‘feminine’ attributes and still be able to ascribe sensible meaning to the word ‘gender’. Butler (1990) argues that when the idea of ‘woman’ and ‘man’ are dispensed with, it is more difficult to see how these gendered attributes can still be viable. Butler (1990) states that gender cannot necessarily be referred to in terms of these attributes, or as a noun, a thing of itself, but rather as a verb. In this sense Butler considers gender to be performative, to be an act which constitutes itself rather than flowing from some other source.

The criticism aimed by Butler (1990) at feminist theory is precisely that it has argued there must be a source for actions. This means that gender cannot be ‘performed’ of itself; it must be performed by something. Butler (1990) provides an example in the relationship between sexual desire and gender. Freud’s explanation that attraction comes from biological sex is considered by Butler. She argues that sexual attraction, rather than coming from sex, is a process that is learned over time, that is a performance we work on, not something flowing directly from biological sex.

The political implications of this argument are vital, especially for homosexuality. Kirsch (2001) argues that some people in the queer movement have accepted the primacy of biology. This idea is related to essentialism which relies on factors such as the ‘gay gene’ to explain homosexuality. In contrast to this view, a constructionist approach concentrates on the ways in which society encourages certain types of behaviour through social norms. ‘Men’ and ‘women’, within Butler’s theory, are no longer essentialist universal categories but rather free-floating categories which are socially produced.

The norms to which Butler is referring are those which see the body as being directly related to the types of sexual desire and practices that are associated with it (Salih & Butler, 2004). Sexual desires and practices which do not fit within this matrix are ‘not allowed’. In order to understand how sexed bodies are produced, Butler uses Lacan’s reading of Freud (Salih & Butler, 2004). Lacan argues that it is through fantasy that the sexed body is created. Salih (2002) points out that it is Butler’s use of Freud that is one of her most important achievements. Here, she analyses Freud’s idea of the Oedipus complex. This is where the child is forced to give up its desire for its parents by the incest taboo. Butler reinterprets this by arguing that the child desires the parent of the same sex, but finds that this is taboo. Sex and gender identities are then formed from this taboo. Butler argues that everyone’s gender identity is formed from this homosexual taboo. Butler refers to the formation of gender identity in terms of melancholic identification (Salih, 2002). The place where this identification can be seen, according to Butler, is on the body in the form of gender and sex identities.

While Butler’s theory of performativity along with her work in post-modern feminist theory has been extremely influential, it has also provoked a fair degree of criticism. Benhabib (1995) has argued that the death of the subject, which is at the heart of Butler’s thesis, leads to an incoherent picture. Benhabib (1995) points out that it is difficult to believe there is nothing behind the mask of gender, that agency appears completely absent. In a parallel argument to Benhabib, Kirsch (2001) makes the point that this negation of the subject has negative consequences for ideas of identity and collective action. A sense of collectivity, in particular, is often seen by those ‘coming out’ as providing support. In Butler’s theory, however, there is only the focus on the individual. To Kirsch (2001) it seems that Butler’s theory tends to reduce the ability of the wider community to provide support to the individual.

A more generalised criticism of modern feminism, however it is labelled, is that there is a sense in which it is an exclusive club. Butler’s ideas relating to the performativity of gender are only available to a certain restricted group in society: white, middle-class, intellectual (Whelehan, 1995). Each feminist sub-movement implicitly creates its own lists of what can be done, and what cannot. Women, therefore, can find it difficult to label themselves as feminists as there are now many apparent bars to entry and negative associations with it (Whelehan, 1995).

Perhaps in this sense second wave feminism, as enunciated by Firestone and Millet, provided a vision with which it was easier to associate. In contrast, post-modern perspectives, a category in which Butler’s work has been put, provide a much more complex and illusory analysis of gender; even, as some critics would have it, making it harder for those attempting to live outside society’s norms.

It has been argued that theories such as those put forward by Butler have lead to the need for a new type of feminism (Pilcher & Whelehan, 2004). This is precisely because postmodernist thought has rejected the ‘grand narratives’ associated with second wave feminism. As a result, women may find it difficult to claim the identity ‘woman’ as its nature is so contested in postmodernist thought (Pilcher & Whelehan, 2004). This is part of the problem that so-called ‘post-feminism’ has attempted to address.

This leads to an attempt to answer the question: “What gender am I?” Viewed through the influence of Butler’s theories, it is increasingly difficult to provide a clear answer. The two answers that are most ‘natural’, male or female suddenly become obsolete expressions which appear devoid of their previous meaning. With the ‘subject’ apparently removed from the equation, it is difficult to lay claim to any particular gender. Certainly Butler’s theory does not imply that both men and women can travel without hindrance across the boundaries of gender, far from it. Naturally society’s norms still apply and even transgressions are carried out in relation to the norms themselves. Ultimately, though, the question comes back to the problem of agency. If it is up to me to choose my gender, as I wish, then who is doing the choosing? When Butler even rejects the idea of there being an actor at all, all meaning fades from the question “What gender am I?”

In conclusion, the second wave of feminism brought a grand narrative view of the history of women’s oppression. It pointed to oppression as a political institution enforced through social mechanisms such as the family, marriage and economics.

Critics of this approach, however, questioned whether it was possible to set women up in direct opposition to men. Judith Butler responded to the second wave view by collapsing the ideas of gender and sex into each other. Gender, she argues, is performed, and so the subject in feminist thought, was apparently destroyed. But, argued critics of Butler, these notions of gender appear to restrict the political power of feminism, to leave it toothless, without its subject. Attempting to answer the question “What gender am I?” when viewed in the light of Butler’s theory, leads to a sense of confusion. I could be both, I could be either, I could be neither. Is this freedom, or is it just too free-form?

References

Benhabib, S. (1995). Subjectivity, historiography, and politics: Reflections on the feminism/postmodernism exchange. In: S. Benhabib, J. Butler, D. Cornell, & N. Fraser (Eds.). Feminist contentions: A philosophical exchange. New York: Routledge.

Brooks, A. (1997). Postfeminisms: Feminism, cultural theory, and cultural forms. Oxford: Routledge.

Butler, J. (1990). Gender Trouble: Gender and the Subversion of Identity. Oxford: Routledge.

Clough, P. T. (2000) Judith Butler. In: G. Ritzer (Ed.). The Blackwell Companion to Major Social Theorists. Oxford: Blackwell Publishing.

Beauvoir, S. (1961). The Second Sex. Translated by HM Parshley. New York: Bantam.

Firestone, S. (1970). The dialectic of sex: The case for feminist revolution. New York: William Morrow and Company.

Fraser, M. (2002). What is the matter of feminist criticism? Economy and Society, 31(4), 606-625.

Gamble, S. (2002). The Routledge companion to feminism and postfeminism. Oxford: Routledge.

Kirsch, M. (2001). Queer theory and social change. London: Routledge.

MacNay, L. (1997). Foucault and feminism: power, gender and the self. London: Polity Press.

Millet, K. (1970). Sexual politics. London: Ballantine.

Pilcher, J., & Whelehan, I. (2004) Key concepts in gender studies. London: Sage.

Richards, J. (1982). The sceptical feminist: a philosophical enquiry. London: Penguin.

Salih, S. (2002). Routledge critical thinkers: Judith Butler. Oxford: Routledge.

Salih, S., & Butler, J. (2004). The Judith Butler reader. Oxford: Blackwell Publishers.

Sandford, S. (1999) Contingent ontologies: sex, gender and “woman” in

Simone de Beauvoir and Judith Butler. Radical Philosophy 97, 18–29.

Whelehan, I. (1995). Modern feminist thought: from the second wave to post-feminism. Edinburgh: Edinburgh University Press.

Anne Stevenson’s poem, “The Marriage,” is a playful, subtle and profound description of the differences between men and women, and the difficulties inherent in such, specifically in regards to the unification of the sexes, both physically, spiritually and in terms of societal conventions (thus the title). By portraying these difficulties in pure physical terms – as a couple trying to come together to rest comfortably in bed – Stevenson is able to build a vivid and surprisingly comprehensive and universal depiction of marriage.

The poem is from the point of view of the wife, perhaps the author herself, who is trying to figure out a way to position her body against her husband’s so the two will be able to rest snugly at night. With both of them facing the same direction, she in front, he in back, they are nearly successful, but only:

…if her backbone

Cuts exactly into his rib cage

And only if his knees

Dock exactly under her knees

And all four

Agree on a common angle

Thus positioned – provided their bodies willingly correspond – the husband and wife have achieved unification, or, at the very least, a modicum of comfort. But this is a small victory, or even a false one, for as the narrator continues:

All would be well

If only

They could face each other

In three lines, Stevenson has perfectly summed up what plagues marriages, old and new alike: that men and women are inherently different. Not that one is superior and the other inferior – she seems to prescribe to the “separate but equal” doctrine that is the norm in her homeland of American and her adopted country of England – but that they are uniquely separate entities. Men and women think differently, act differently, and are proportioned differently. And any kind of union between the two, any form of coming-together, is marked my problems. The poet is also asserting that in order for this to occur, a compromise must be enacted. And in any kind of compromise, some things are won (the couple “fit”) and some are lost (they are not facing each other). While the partners have achieved a level of comfort and intimacy, with her backbone nicely fitting into his rib cage, and his knees docking perfectly under hers, they have lost a major component of such, as they cannot look at one another.

Stevenson’s vision of compromise is universal, and does not apply to merely physical situations. The implications correspond to any aspect of a relationship, including, for example, where a couple chooses to settle (one likes the city, one likes the country, so they move to the suburbs), to how they raise their kids (one is a fan of television, one isn’t, so the child watches a minimum amount), to how they spend their money (one likes extravagant things, one prefers simple things, so they buy items that are moderately priced). In all of these situations, both parties are content in that they have achieved satisfaction. While neither got everything they were asking for, each partner got enough (presumably, at least) to remain content. This “partial victory” is the crux of a successful relationship.

But Stevenson is not finished. She goes on with her physical description of the pair, who meet:

Nose to neck

Chest to scapula

Groin to rump

And yet, even though the situation is still not ideal – they are unable to face each other, after all – in even this there is a silver lining:

They look, at least

As if they were going

In the same direction

While this is merely a small caveat – notice her use of the phrase “they look, at least,” as if this is merely the appearance of agreement – even so, it is something. And this small something, again, this tiny “victory” is often enough to make all the difference. Stevenson is celebrating the small moments of daily life and the small “victories” that are won through compromise. Are the couple, or, in fact, are any man and woman perfectly matched? No. Are there differences between the two that will never be breached? Certainly. But does this mean that one cannot work with this other to achieve some form of balance, even if it is not perfect? Of course not. And, at least in the poet’s mind, this transcendence of differences makes it even more special.

In Stevenson’s world, a husband and wife half-consciously groping for each other in the middle of the night is as important as any other compromise made between the sexes. A man moves halfway across the world to be with the woman he loves. A woman changes her religion to be with the man she loves. Both are noble and tremendous acts, but are just as heroic as the couple fumbling in bed. Love, marriage, etc., is both gigantic and intimate, and every act of coming together is important.

But let us quickly go back to these words:

They look, at least

As if they were going

In the same direction

This passage holds another meaning, that of the fact that the couple is actually not going in the same direction, but only appear to be. Stevenson is saying that looks are deceiving, and while the pair seems to be in agreement, they are in reality far from it. This is a reinforcement of her belief that the sexes are different, and even when they don’t seem to be (a husband and wife both like the same television program, for example, but he enjoys it for the action, she for the sexy leading man), in truth their agendas and perceptions are widely divergent, more than ever.

To demonstrate her view of marriage, Stevenson adopts a casual, easy, free verse style, one that is relaxed and light. The words are simple and straightforward, and the situation is commonplace and routine. Underneath, of course, it is a different story, as the subject matter – the differences between the sexes, and how these differences can be overcome – is neither easy nor commonplace. And while she uses the couple’s awkward brushing of body parts to personify this subtext, even this is muted. However, her choice of illustration is highly effective, and she doesn’t need to cloud the issue with excessive metaphor or lofty language. In fact, her technique actually apes her point of view. The mundane act of a man and woman trying to sleep comfortably together is profound, as it not only acts as a representation for the larger compromises that couples must make, but is on its own special and meaningful. By keeping it simple, Stevenson demonstrates the complex and universal.

Anne Stevenson, unlike the never-married Emily Dickinson and Elizabeth Bishop (who she is often compared to), has been wed four times. Since 1987 she has been with the Darwin scholar Peter Lucas, and no doubt in those seventeen years she has learned a thing or two about compromise. Her poem “Marriage” perfectly captures the disparities between men and women, and the contortions that must be performed to unify the two. Marriage, relationships, love, etc., are wondrous, unique things, as are men and women themselves, but they are also universal. Couples must compromise to survive, sometimes in big ways, sometimes in small ones. But all of these compromises are significant, and all of them make us human. Stevenson’s poem, like marriage itself, is both incredibly simple and tremendously complicated. Her basic, straightforward words could not be more profound.

Bibliography

Hickling, Alfred. “Border Crossings.” The Guardian Unlimited. 2 Oct. 2004.

Stevenson, Anne. Poems 1955-2005. Northumberland: Bloodaxe Books, 2005.

DISSERTATION

Age assessments for unaccompanied asylum seeking children: Policy, law and implications for social work.

Abstract
Methodology
Literature Review
Chapter One – Introduction
Chapter Two – Unaccompanied Asylum Seekers
Chapter Three – Age Assessment – Policy, Legislation and Practice
Chapter Four – Conclusion and Recommendations.

Unaccompanied asylum seeking children arrive in the UK seeking refuge from often-horrific events in their home countries. The response of both national government and local authorities to this influx has been largely unsatisfactory with campaigners arguing that the focus has been on cutting costs and removing young asylum seekers rather than providing them with the care that they are entitled to. This study suggests that policy and practice around age assessment is central to this argument. There is significant evidence that local authorities are pressurising social workers to age assess children as older than they are in order to save them money. The haphazard way in which age assessments have usually been carried out only serves to encourage this behaviour. Even without financial pressure, the lack of a standard approach to age assessment is also leading to inconsistencies when age assessments are put into practice

The focus of this dissertation has been to analyse how, why and when age assessments are used in processing unaccompanied asylum seekers and examine whether the process is fair and consistent. The methodology has primarily to adopt secondary sources and evaluate evidence from as wide a range of viewpoints as possible. The dissertation has been aimed towards a conclusion that the current process is unsatisfactory and has attempted to deliver recommendations that could improve the process.

Literature for this dissertation has been gathered from a combination of academic books and journals, government publications, reports produced by independent agencies and articles from newspapers and magazines including The Guardian and Community Care.

One of the most detailed reports on the subject of assessment is the 2007, When is a child not a child? Asylum, age disputes and the process of age assessment by Crawley. Much of the factual detail about the actual mechanics of age assessment has been gathered from this source.

Of academic journals, the articles written by Kohli have been most useful as they delivering the results and analysis from a wide range of studies around unaccompanied asylum seekers.

Each year, approximately 3000 unaccompanied children and young people arrive in the UK to seek asylum.^[1] Many of these are subject to age assessment to clarify that they are entitled to services available to vulnerable children in the UK. The age of people claiming to be children can be disputed by a range of professionals, from immigration officers to police and social workers.

It is important to define what an age assessment actually is at the beginning of this study. An age assessment is he method used by either the UK border and Immigration Agency or local authority social services departments to assess the age of an asylum seeker.^[2]There is currently no method that is capable of defining the exact age of a child and the accuracy of the assessment will often be produced within a range of two years over or below the assessment age.^[3]

Some commentators have argued that many local authorities have proactively looked to avoid the cost of looking after young asylum seekers in need and have set up control measures to keep children aged 16-18 out of the territory.^[4] One of the mechanisms for doing this has been attempts by social workers to stop classifying unaccompanied minors as children. There have been suggestions that many social workers became preoccupied with attempting to assess the age of applicants rather than providing services and that such an assessment was crude exercise based on the individual opinion of a single social worker. As Kohli writes

“studies reported a growing disbelief in respect of those claiming to be under 18 and the treatment of anyone over 16 years as a de facto adult allowed access to food and shelter but little else.”^[5]

Professionals working in the highest echelons of childcare have expressed similar concerns, for example the Children’s Commissioner Sir Al Aynsley Green has stated:

“Although Home Office Policy is for the immigration officer to apply the ‘benefit of the doubt’ in favour of the applicant in borderline cases, the evidence suggests that in practice this is frequently not adhered to. The result is that a substantial number of asylum seekers who are in fact unaccompanied children are excluded from the protection of domestic care regimes…”^[6]

Government policy from the early part of the decade has been to work in partnership with local authorities and disperse asylum seekers of all ages around the country. The Home Office negotiated contracts with a number of authorities to receive and accommodate asylum seekers.^[7]

There also is evidence to support this. Central government has since 2005 looked to change the role of social work teams at ports of entry to work practically as adjuncts to the Border and Immigration Agency, deliberately narrowing the gap between immigration and social services functions. There is clearly a financial motivation for this – in 2005 the 6000 unaccompanied asylum seeking children offered services by local authorities comprised less than 10% of cases yet used up approximately 25% of the Home Office budget.^[8]Social work teams have been set targets in terms of turning away age disputed asylum seekers and assessing clients claiming to be 15 as older.^[9]

This study looks at how the UK deals with unaccompanied asylum seekers and in particular examines policy and practice around age assessment. Chapter two focuses on the legislation in place and policy around it whilst chapter three looks more specifically at the age assessment processes and the general failings of the system in the UK. Chapter four concludes with recommendations on improving the system

Unaccompanied asylum seeking children arrive in the UK for a number of reasons. A recent study of 218 arrivals found that half came from countries undergoing armed conflict or serious disturbances and over two fifths were victims of direct or indirect persecution. Deprivation, poverty or trafficking for exploitation were other primary reasons for seeking asylum.^[10]

Dealing with asylum seeking children, either with or without their families is a growing area of social work practice yet one in which there is relatively little understanding of the needs or circumstances of such children.^[11]

In legislative terms, legislation such as The Children’s Act 1989 and The Framework for the Assessment of Children in Need and their Families remain central to issues around assessment and care for asylum-seeking children and they should also be included under the remit of the Every Child Matters agenda. The Children and Young People’s Plan 2005 for example makes reference to joint working between housing and social care bodies to meet the housing needs of unaccompanied asylum seekers. ^[12]

For local authorities, there is a duty to provide services necessary to safeguard and promote the well-being of any children deemed to be in need under the Children Act 1989. Due to the absence of their parents, unaccompanied children are classed as vulnerable and therefore in need. The Nationality, Immigration and Asylum Act 2002 also reinforces the local authority duty to support unaccompanied minors.

It is helpful to have a clear definition of what an unaccompanied asylum seeker actually is. The Immigration and Nationality Directorate definition is a young person under the age of 18(or who appears to be if there is no proof); who is applying for asylum in his or her own right; and who has no adult relative or guardian to turn to within the UK.^[13]

The age of an unaccompanied asylum seeker has historically been an important factor in respect of the Special Grant that the Home Office made available to unaccompanied minors. Prior to 2004 there were two levels of support available, with those supported under the age of 16 receiving a higher level and those first supported at age 16 or 17 receiving half that amount.^[14] However, a judicial review – the Hillingdon Judgement – carried out in 2004 has significantly increased the impact on local authorities. The judgement ruled that, except in exceptional cases, all asylum-seeking children must be treated under section 20 of the Children’s Act 1989 which classes them as looked after children. ^[15]

There is clearly an impact on service provision for both national and local government. Watters writes that “the arrival of significant numbers of unaccompanied asylum-seeking children through the port of Dover thus presented very significant challenges to social care, health and education providers in the south east.” ^[16] Asylum seekers who after the assessment process became looked after children would be entitled to foster or residential placements, an allocated social worker and financial support. They may also have qualified for the benefits of leaving care status up to the age of 21, a further financial burden on local authorities.

The question of age then is a crucial issue for local authorities. Many young people seeking asylum do not have official papers or documentation confirming their age so practitioners in both social services and immigration have difficult decisions to make.

It can be difficult to draw information from asylum seeking children – research shows that when they are asked about reasons for their asylum request, they try and fit their stories into the narrow format that they believe are acceptable in their given country.^[17]This in turn can lead to scepticism amongst officials and social workers, the same research reported instances of social services personnel being cynical about young Kosovan and African males claiming to be younger than they looked and thus worrying that their services were being exploited and their resources drained.^[18]

Ultimately, age assessment is a crucial tool for immigration officials and social workers. There are asylum seekers who try to abuse the system, so a method of asserting age is required. When the current practices serve this purpose will be discussed in chapter three.

When and Why

Most age disputes in asylum cases occur when an asylum seeker first applies for asylum, normally at their port of entry.^[19]There is little in the way of formal assessment at this point, age disputes will be lodged primarily based on the basis of appearance, demeanour and documentation. Another issue of contention is the range of individuals or professionals that might dispute the age of an asylum seeker – this can include immigrations officials, social workers or police officers. Social workers may even dispute the age of a child who had not been queried by immigration officials.

Age disputes may happen several months or even years after a child has entered the country. Crawley quotes a case study of a young girl who had been brought into the country at a young age to be used as a domestic slave. When immigration officials became aware of her five years later – still under the age of 16 – she was age disputed before eventually taken into the care of a social services department.^[20]

In contrast, many young people, perhaps some who are over 18, slip through the net and are classed as minors. Many social services departments simply do not have the resources to undertake formal age assessments and have concerns about the impact of multiple interviews and assessment on young asylum seekers. As such, decisions are made not to query age.

Policy and Legislative framework

Home Office policy in terms of unaccompanied minors is set out in policy documents including Policy bulletin 33, Guidance from processing applications from children and Guidance on age disputed cases 3^rd ed which lays out specific procedures for professionals who dispute a claimant’s age and believe that it is an adult claiming to be a child.

One of the most interesting aspects of policy and perhaps the most controversial in the light of what appears to be happening is that the INDs guidance on age disputed cases states clearly that when there is an age dispute “a claimant must be given the benefit of the doubt with regards to their age unless their physical appearance strongly suggests that they are aged 18 or over”.^[21]It seems that this is not the case currently in practice – local authorities certainly are encouraging social work team to dispute age more regularly.

Other aspects of the IND guidance can be confusing and it is not surprising that there are inconsistencies in practice. For example there is no actual duty for immigration officers to refer age disputed cases to the appropriate local authority, rather this is something that should be done in principle, a situation that can only complicate things for social workers further down the line. Overall, the current system seems disjointed and variable. As Crawley writes:

“There is evidence of a significant gap between what is supposed to happen and to what happens in practice”^[22] and some of the issues involves at age assessment units around the country highlight this:

A general lack of care, including a lack of food and water, for young people waiting to be screened
A failure to use the privacy of separate interview rooms
Difficulties with microphones meaning conversations held through the glass screen in the public area are either overheard or not heard at all

No responsible adult being present to support young person^[23]

Clearly age assessment is not a simple matter. All children vary in development, maturity and natural growth and there can be a wide range of supposed ‘normal findings’ at various ages. It is extremely difficult to accurately gather a young persons age and things such as race, ethnicity and local conditions such as disease and malnutrition have to be considered in any assessment. Whether children’s social workers are qualified to do this is questionable The organisation Youth Support which assists young refuges reports that in its own age assessment process it includes as many factors as possible including

“height, weight, body mass, shoe size, developmental factors such as skin care and teeth, sexual development; mental and emotional age estimates including thought processes and general concepts. Also of great importance is the history and social milestones which the young person might have experienced – again talking culture and religion into consideration.”^[24]

There is clearly inconsistency in the process nationwide. Michie argues that one of the problems in the UK has been that a diversity of systems and guidelines has developed in assessing the age of unaccompanied minors, involving a combination of history collection, physical anthropometry and radiographs. He writes:

“Their lack of uniformity identifies an underlying difficulty: there is no method by which chronological age can be precisely estimated in this age group. Paediatricians in the United Kingdom care for small numbers of individuals in late adolescence and early adulthood in graduate outpatient services, but often have little experience in this area.”^[25]

There are some success stories. At Heathrow Airport for example, Hillingdon Social Services have used a number of strategies to deal with large volumes of unaccompanied asylum seekers. These have included use of a dedicated police officer for child protection, a specific questionnaire for staff working at terminal 3 and the development of a specifics age assessment tool combined with specific training,.^[26]

Guidance for Social Work Practice

Age assessment is clearly a difficult area for social work practitioners. There is little experience in this type of work and relatively little in the way of practice guidelines. The guidance drawn up by the Children’s Legal Centre is perhaps the most useful document for social workers to refer to when carrying out age assessments. Some of the points included are:

Taking account of ethnicity, culture and customs of the person being assessed and well as the level of trauma, tiredness, anxiety and bewilderment present
The asylum seeker may have had coaching prior to arrival. It is important for the social work to engage with the person in a process sometimes known as ‘joining’.
The assessment framework should be led by open, non-leading questions
The practitioner should note the verbal and non-verbal (body language) behaviour of the person
A useful indicator is if the person seems uncomfortable talking to an adult
A detailed family tree with ages of parents and siblings can help assessing likely age
Questions about the activities and roles a person was involved in prior to entering the UK can be a good indicator
Social workers may consider arranging for the person to be put in a social situation with people of the age stated and observing interaction
Gaining detailed accounts of educational history can be a valuable source of information in making an accurate age assessment

Assessment of life skills is useful – does the person have any experience of living independently, managing money etc^[27]

All of the above can be done in conjunction with opinion and input from other sources including foster carers, teachers, doctors, interpreters and residential workers. It is useful also to have input from paediatricians, dentists or optician although a social worker should take into account advice from paediatricians that there can be a five year error in age assessments.^[28]

Just as important is information and best practice sharing between professional involved in this type of work. A uniform approach to age assessment across the UK should be a shared objective.

There are clearly huge improvements necessary in the way that social service departments across the country deal with unaccompanied asylum seekers. This includes both the process for age assessment and the subsequent services provided. Evidence shows that staff in the various agencies dealing with these children lack knowledge about the services available and how to deal with the emotional trauma that many of these children will have experienced.^[29]Social workers dealing with age assessments are clearly lacking in the skills to do so accurately. One reported when surveyed:

“We do them (age assessments) but we can be wrong five years either side – it matters a lot doesn’t it? They can end up with many dates of birth – social services, Home Office, their own..”^[30]

Practitioners need such understand the vulnerability of the young people they are dealing with and avoid taking a cynical approach. As Michie concludes:

“The fairness, legality and ethical base of any national framework for age assessment has to take into account legal history, jurisprudence as well as the paediatric wisdom, “What if this were my child?”, Although it may be difficult to quantify the inadequacies of the current system, it clearly compounds abuse to a vulnerable group of children. We must do better.”^[31]

The are some positives in examining the UK response to unaccompanied asylum seekers . The more holistic approach developed in recent years seems to be more efficient are more aware of the sensitivities of the issues than for example the US and Australian governments. Bhaba et al write of the UK:

“It has made extensive efforts to identify children in genuine need at the earliest possible stage and to institute programmes to target trafficking in children through training of in country border officials and the instigation of research. ^[32]This is a pleasing sign, yet problems still occur when age is disputed.

Recommendations:

There are a number of steps that can be taken to improve the way in which young asylum seekers are treated to ensure consistency. Protection of vulnerable children is crucial, yet it is also important that age assessments can be used to identify asylum seekers over the age of 18 who seek to abuse the system. The EU’s reception directive states that unaccompanied children seeking asylum should be appointed a legal guardian^[33] and this should be adopted by the UK

Helping vulnerable children through the process would be a welcome improvement.

Trained, skilled age assessors should be employed at ports of entry. These may well be social workers, experienced in dealing with this age group, accountable to a child protection team with paediatric expertise open to them in some form. Another option would be to establish fully trained multi agency teams based in regional assessment centres, something that would produce holistic and better-informed outcomes.

Ideally age assessors should be financially independent of local authority social services – this would limit the chance of pressure being put upon assessors to reach targets for the number of age assessments found to be 18+.

The lack of statutory guidance on the process of age assessment should also be addressed – this would help alleviate some of the inconsistencies in the process.

A final recommendation, supported by Crawley, would be for the age assessment process to be overlooked by an independent age assessment panel which could provide support and guidance, help with the auditing process and make it less likely that decisions could be challenged or influence by those holding the local authority purse strings.

The most important thing is that age assessment is done fairly and consistently, and that young asylum seekers are treated in the same way, regardless of port of entry or the local authority overseeing them. At present this is not the case and there is work for legislators, policy makers and practitioners to do if this is to be rectified.

Bibliography

Bhaba J, Finch N, Crock M & Schmidt S, Seeking Asylum Alone, Themis Press 2006

Chase e, Emotional Well-being of asylum seeking children, http://www.communitycare.co.uk/Articles/2008/07/29/108994/well-being-of-asylum-seeking-children.html – accessed 15 October

Children’s Legal Centre, Practice Guidelines for age assessment of young unaccompanied asylum seekers, http://www.childrenslegalcentre.com/NR/rdonlyres/BAA6E134-7810-42C1-9634-2AC500D326DE/0/PracticeNotesKarenGoodman.pdf – accessed 15 October

Crawley, H, When is a child not a child? Asylum, age disputes and the process of age assessment, Immigration Law Practitioners Association, May 2007

DFES 2005, Guidance on the Children and Young People’s Plan,

Hayes D, Humphries B, Cohen S, Social Work, Immigration and Asylum, Jessica Kingsley Publishers 2004

Kelly A, Minors Conflict, The Guardian Jan 31 2007 http://www.guardian.co.uk/society/2007/jan/31/asylum.guardiansocietysupplement1 – accessed 16 October

Kohli R, The Comfort of Strangers: social work practice with unaccompanied asylum-seeking children and young people in the UK, child and Family Social Work ,vol 11 2006

Kohli R, The Sound of Silence: Listening to What Unaccompanied Asylum-seeking Children Say and Do Not Say, British Journal of Social Work vol 36 2006

Michie CA, Age Assessment: time for progress? Archives of Disease in Childhood, 90(6) June 2005

Mitchell F, The social services response to unaccompanied children in England, Children and Family Social Work, vol 8 August 2003

Watters C, Refugee Children, Routlege 2008

http://www.guardian.co.uk/uk/2007/jan/05/immigration.immigrationandpublicservices – accessed 15 October

Asylum seekers and unaccompanied minors, http://www.guardian.co.uk/uk/2007/jan/05/immigration.immigrationandpublicservices – accessed 16 October

http://www.ind.homeoffice.gov.uk/sitecontent/documents/policyandlaw/asylumprocessguidance/specialcases/guidance/disputedagecases.pdf?view=Binary – accessed 15 October

www.everychildmatters.com – accessed 14 October

http://www.ilpa.org.uk/infoservice/Info%20sheet%20Age%20Disputes%20&%20Age%20Assessment.pdf – accessed 16 October

1

Title: A critical review of Porter’s competitive strategy in relation to his five forces model in comparison to other perspectives.

“All men can see these tactics whereby I conquer, but what none can see is the strategy out of which victory is evolved.” Sun Tzu, Chinese General

Introduction

Strategy originates from military and warfare and according to Stephen Cummings; the word itself has its origins from the Greek word ‘stratos’ which meant ‘army’ (Cummings, 1993, pp 133 – 135). A number of ancient generals and scholars have defined the character of strategy. Some famous ones are Sun Tzu, the Chinese general in the 2^nd century BC and Sextus Frontinus, the Roman general in the first century AD. Frontinus has defined strategy as “everything achieved by a commander, be it characterised by foresight, advantage, enterprise or resolution” (Cummings, 1993, pp 133 – 135). Another Greek military commander Xenophon very aptly defined strategy as “knowing the business which you propose to carry out” (Cummings, 1993, pp 133 – 135).

The importance of clear intent, seeking advantage over adversaries, objectives of survival and expansion, and utilisation of given resources with inherent strengths and weaknesses in a manner that successfully leverages the advantage, are as relevant to a business organisation as to military. Aligning resources to objectives to gain advantage to maximum limits requires strategic thinking. This process can be either logical or creative. Strategy formation itself can be deliberate or emergent.

Strategy operates at various levels and contexts. It can operate in a combination of business level, corporate level or network level in industry context, organisational context or international context (Wit and Meyer, 2004, p.14). There are diverse models on strategy and strategic management. However all models focus on the importance of aligning the dynamics of a business system to the dynamics of its environment for meeting its long-term objectives. The goal of strategic management is to gain competitive advantage.

According to Wit and Meyer, a business system is the configuration of resources (inputs), activities (throughput) and product/service offering (output) and this configuration is the cornerstone of gaining competitive advantage (Wit and Meyer, 2004 p. 231).

There are two broad models on business level strategy. One involves market orientation and the other is focussed on resources. One revolves around the outside-in perspective, while the other is inside-out perspective. Both deal with the ability of a form to acquire competitive advantage (See Appendix I and II).

One such prominent strategy model is Michael Porter’s Five Forces model. This assignment critically evaluates Porter’s Five Forces model and compares it with alternative models.

Sustainable Competitive Advantage

It is important for competitive advantage to be sustainable. But what exactly is competitive advantage and what makes it sustainable?

According to Wits and Meyer, “a firm’s has a competitive advantage when it has the means to edge out rivals when vying for the favour of customers” (Wit and Meyer, 2004 p. 244). Michael Porter argues that competitive advantage is sustainable “if it cannot be copied, substituted or eroded by the actions of rivals, and is not made redundant by developments in the environment” (Porter, 1980). Wits and Meyer interpret that sustainability is determined by competitive defendability and environmental consonance.

Porter’s Five Forces Model

The five forces model involves market orientation and is an outside-in perspective. The model proposes that the starting point in determining an appropriate competitive strategy is to understand two dynamic factors, (1) the long-term profitability that determines the attractiveness of the industry in which the firm operates; and (2) the position that a firm occupies within an industry vis-a-vis its competitors.

Porter concludes that neither all industries are equal in attractiveness, nor are all firms equal in achieving levels of profitability with in their respective industry. But these positions change and therefore cannot fully determine competitive strategy. On the other hand, a firm can actually shape both (1) the industry attractiveness as well as (2) its competitive position. By understanding of what he calls as the “rules of competition” a firm can create an effective competitive strategy that can alter the balance in its favour.

According to Porter, five competitive forces determine the rules of competition. These are:

The barriers to entry for new competitors
The threat of substitutes
The bargaining power of suppliers
The bargaining power of buyers
The magnitude of existing competition

As can be understood that all the above forces have a direct or an indirect impact upon how the prices and the cost that make up business operations within the industry. What’s more, the level of investment required by a new comer to get into the industry is also portrayed by these forces. The intensity as well as the importance of these forces varies from industry to industry. But irrespective of the nature of industry the collective strength of these forces “determines the ability of firms in an industry to earn, on average, rates of return on investment in excess of cost of capital” (Porter, 1985). For example, for an industry with low entry barriers, the magnitude of competition will be higher. Similarly, availability of substitutes deflates the price within the industry. Bargaining power of buyers brings down prices and as a consequence the margins for firms within the industry. Bargaining power of the suppliers has a direct impact on cost and availability of raw materials. For an industry, which is intensely competitive, the margins once again come under pressure. The UK supermarkets are clearly operating in an intensely competitive industry albeit with a certain degree of control over their suppliers. However, this is not entirely true for the airlines industry, which is not only highly competitive, but also has a low control over its suppliers, especially for its most important raw material – the petrol prices. Therefore the pressure is on both ends – the cost as well as the price.

Each industry has certain economic and technical features that make up its structure. Industry structure is susceptible to change over a period of time. It is important for a firm to understand the factors that could change the industry structure. It is this understanding that can enable a firm to build an effective competitive strategy that can alter the structure of an industry. Porter argues that a successful strategy is the one that can alter the rules of competition to create a position of advantage for the firm. He states that the merit of the five-forces framework lies in the fact that it “allows a firm to see through the complexity and pinpoint those factors that are critical to competition in its industry, as well as to identify those strategic innovations that would improve the industry’s – and its own – profitability” (Porter, 1985).

A strategy has a potential of altering the industry structure in a negative manner as well. It can bring about price sensitivity, competitive backlash or lowering of barriers that protect the industry and ensure its profitability. A good example of this is the low-cost airlines where pricing is treated as the strategy.

‘Smart’ companies take a long-term perspective while making strategic choices, so as not to destroy the industry structure. Industry leaders whose strategic choices can easily alter the industry structure, due to their size and bargaining power, are sensitive to the fact that an altered structure can have a negative impact on the firm’s own growth therefore a leader needs to show an approach that protects the industry structure, rather than destroy it.

The importance of industry structure

Two key areas are touched by industry structure. These are:

Buyer needs, and
Supply/demand balance

Buyer needs: Serious firms treat the task of satisfying buyer needs as their core objective. The effort is always to create value for their customers. However, industry structure determines how profitable this effort turns out to be. For instance, two industries that create an equally high value for their customers may have different returns. Entry barriers, threat of substitutes, bargaining power of buyers and suppliers as well as intensity of competition, all these forces influence industry profitability vis-a-vis customer value creation.

Supply/demand balance: This also has an impact on the industry profitability and at the same time is influenced by industry structure in the long term. Entry and exit barriers exert influence as also capacities. For example, in some industries, even a little excess capacity can lead to price wars and therefore lower the profitability. This is being witnessed in the airlines industry.

Competitive strategies

The objective of understanding industry structure lies in the need to build a sustainable competitive strategy which results in a position of advantage relative to its competitors. The starting point is in value chain analysis that helps a firm to determine the activities which contribute to creating superior value. The goal is to achieve profitability higher than the industry average.

Porter argues that based on this analysis, a firm can have one of the three competitive strategies:

Cost leadership – by which a firm leverages its scale to bring down the cost of doing business and then passes the benefit to its customers. This is achievable only for firms that display one or more of such features – (1) they operate on a large scale, serving multiple segments and perhaps even operating in complementary industries; (2) have proprietary technology; (3) have “preferential access to raw materials” (Porter, 1985). What’s more, cost leadership advantage is not at the expense of differentiation and is pursued by seeking cost advantage from multiple operational areas such as marketing, finance, human resources, in addition to production and supply-chain. Porter states that “a cost leader must achieve parity or proximity in the basis of differentiation relative to its competitors o be an above-average performer, even though it relies on cost-leadership for its competitive advantage” (Porter, 1985). An example is Tesco.
Differentiation: This strategy is aimed at achieving uniqueness on attributes that determine consumer preference. According to Porter, this strategy can emerge from product differentiation, distribution system, and/or marketing approach. This allows a firm to charge premium price and can result in a loyal customer base. However care must be taken that the premium price is more than the cost of differentiation as well as is sustainable in long run. Once again, pursuing this strategy does not mean that a firm can ignore the cost element, which is a vital contributor to its bottom-line. An example of this could be Waitrose.
Focus strategies – cost focus / differentiation focus: These strategic choices are for firms with narrow target segment. These are achievable only if the “target segments “either have buyers with unusual needs or else the production and delivery system that best serves the target segment must differ from that of other industry segments” (Porter, 1985).

These are generic strategies across industries and the manner in which these are executed also varies for different industries.

Internet and the Industry Structure

In recent times, Michael Porter’s five forces model has expanded in scope to include internet and its influence industries. In his article “Strategy and the Internet” published in Harvard Business Review in 2001, Porter argues that Internet “tends to influence and alter industry structures in ways to dampen overall profitability, and it has a levelling effect on business practices, reducing the ability of any company to establish an operational advantage that can be sustained.” He states that the seemingly low cost of doing online business is actually artificially depressed as it does not account for many key activities such as inventory and warehousing which are needed to deliver value to the customer. But he also determines that internet has increased the possibilities for firms “to establish distinctive strategic positionings” that traditional information technology tools could not offer. He concludes that including internet offers a new dimension to a firm’s operations and is unavoidable as a tool in carrying out business. But if real economic value is to be created then internet initiatives must be integrated with the traditional competitive strategy as “internet per se will rarely be a competitive advantage” (Porter, 2001).

Alternative model: Strategy from inside-out

This perspective is exactly opposite to Michael Porter’s Five Forces model. Models based on this perspective are focussed on internal strengths and capabilities for devising a competitive strategy rather than scouring external opportunities. The starting point is an assessment of firm’s resources or competences that have been acquired over a period of time. What’s more, if one such resource is not existing within, then how to acquire it? Market positioning is sought in alignment with a firm’s resource based strategy. “Selected market positions must leverage the existing resource base, not ignore it….for success resources should be leading and markets following” (Wit and Meyer, 2004, p. 252).

Two main models have been proposed by leading practitioners of management:

Competence based view; and
Capabilities based view

This viewpoint does not consider just physical resources, but also intangible resources or competences that get uniquely composed within an organisation during its operational span. These could vary from competence in Internet-driven supply-chain management to offline quality process. Firms seeking leadership position make sure that its core competences or capabilities are upgraded on a periodic basis so that competitive advantage is maintained. This is termed as the dynamic capabilities view (Teece, Pisano and Shuen, 1997). It is emphasised that a firm needs to take a long-term view of its competences and take all actions to strengthen these competences. This perspective does not advocate an ad-hoc approach that results in building up of unrelated competences.

On the flip side, the challenge is in dismantling of existing competences and building of new competences as market demand changes. One good example of this is the mass-production mastered by American automobile companies could not be transformed swiftly into lean production practiced by Japanese firms such as Toyota, leading to erosion of market share and competitive advantage for giants such as General Motors and Ford. “…companies experience that that their core competences can be their core rigidities, locking them out of new opportunities” (Leonard-Barton, 1995).

The perspective is further refined by Miller, Eisenstat and Foote (2002) as they propose the terms “asymmetries” and “capability configurations.” According to them, a firm’s asymmetries are it’s “skills, knowledge, processes relationships, proper ties, or outputs an organisation possesses or produces that its motivated competitors are unlikely to acquire or copy in a cost or time-effective way” (Miller et al 2002). However these can be of disadvantage to a firm unless “carefully fostered and directed….by leveraging them via an appropriate market focus, companies may be able to aspire realistically to attain competitive advantage” (Miller et al 2002). This is the essence of “capability configuration” which is a system of reinforcing elements incorporating core capabilities and the organisational design infrastructures…” (Miller et al 2002). They argue that the development process of inside-out strategy is emergent and iterative in nature and is characterised by trial and error. Three imperatives suggested by them for deriving sustainable competitive advantage out of an capabilities model are that firms need to: (1) “discover asymmetries and their potential”; (2) “create capability configurations – by design”; and (3) “pursue market opportunities that build on and leverage capabilities” (Miller et al 2002).

Conclusion

Both perspectives have their supporters. It is for a firm to decide the perspective that it wants to take for building its competitive strategy. It is suggested that the inside-out perspective has more depth. The argument is that although market-orientation and ability to capitalise on external opportunities are critical factors in a firm’s success, both (1) market-sensing and (2) customer-linking are distinctive capabilities that get cultivated within a firm over a period of time (Day, 1994). At the same time, Barney (1991) argues that resources become the foundation of competitive advantage only once they meet four conditions. They should be “(1) valuable, (2) rare, (3) difficult to imitate, and (4) difficult to substitute” (Barney, 1991).

Appendix I: Outside-in versus inside-out perspective

Outside-in perspective

Inside-out perspective

Emphasis on

Markets over resources

Resources over markets

Orientation

Opportunity driven (external potential)

Strength driven (internal potential)

Starting point

Market demand and industry structure

Resource base and activity system

Fit through

Adaptation to environment

Adaptation of environment

Strategic focus

Attaining advantageous position

Attaining distinctive resources

Strategic moves

External positioning

Building resource base

Tactical moves

Acquiring necessary resources

External positioning

Competitive weapons

Bargaining power and mobility barriers

Superior resources and imitation barriers

Source: Wit and Meyer, 2004, p.255

Appendix II

References:

Barney, J.B. (1991); Firm Resources and Sustained Competitive Advantage; Journal of Management, Vol. 17, No. 1, 1991, pp.99-120
Cummings, S. (1993); Brief Case: The First Strategists; Long Range Planning, Vol. 26, No. 3, June pp. 133 – 135
Day, George S. (1994); The Capabilities of Market-Driven Organisations; Journal of Marketing, October 1994, Vol. 58, No. 4, pp. 37-52
Leonard-Barton, D. (1995); Wellsprings of Knowledge; Harvard Business School Press, Boston, MA
Miller, Danny; Eisenstat, Russel and Foote, Nathaniel (2002); Strategy from the inside out: building capability-creating organisations; California Management Review, Vol. 33, No. 3
Porter, M.E. (1980); Competitive Strategy: Techniques for Analysing Industries and Competitors; New York: The Free Press
Porter, M.E. (1985); Competitive Advantage: Creating and Sustaining Superior Performance; New York: The Free Press
Porter, M.E. (1996); What is Strategy’; Harvard Business Review, Vol. 74, No. 6, November-December, pp. 61-78

Porter, M.E. (2001); Internet and Strategy’; Harvard Business Review, March; accessed from Harvard Business Publishing online http://www.hbsp.harvard.edu/hbsp/index.jsp

Prahalad, C.K. and Hamel, G. (1990); The Core Competence of the Corporation; Harvard Business Review, Vol. 68, No. 3, May-June, pp. 79-91
Teece, D.J., Pisano, G. and Shuen, A. (1997); Dynamic Capabilities and Strategic Management; Strategic Management Journal, Vol. 18, No. 7, August, pp. 509-533
Wit, Bob De and Meyer, Ron (2008); Strategy: Process, Content, Context – An International Perspective; Thomson, 4^th Edition

Brief 211514Page 1 of 8

Recently, research has occupied a crucial place in nursing that is identified as “the diagnosis and treatment of human responses to actual or potential health problems” (American Nurses’ Association, 1980 p.9); thus, an appropriate understanding of research literature is a prerequisite for every individual who works in this area (Rees, 2003). Unfortunately, despite the fact that most of nurses acquire specific skills in research, only some of them manage to apply research data or research findings to practice (Bostrum & Suter, 1993). This can be explained by the nurses’ inability to critique a research, evaluating its pros and cons (Krainovich-Miller et al., 2002). The aim of the present essay is to critically analyse two quantitative research literatures in patient safety. The first research is “Relationship between complaints and quality of care in New Zealand: a descriptive analysis of complainants and noncomplainants following adverse events” by M. Bismark et al. (2006), while the second research is “Comparison of three methods for estimating rates of adverse events and rates of preventable adverse events in acute care hospitals” by P. Michel et al. (2004). Although many nursing studies have been conducted in the last decade (e.g. Johnson & Lauver, 1989; Conlon & Anderson, 1990; Norman et al., 1991; Brennan et al., 1995; Gross et al., 1995; Fieler et al., 1996; Bennet, 1999), they implicitly dealt with the issues of patient care; however, the studies discussed further directly relate to the quality of medical care in New Zealand and France.

The research conducted by Bismark et al. (2006) evaluates the extent of injuries in the patients cured in public hospitals of New Zealand, or more precisely (as the title reveals), a correlation between patients’ complaints and quality of medical care. While the title is clue to the focus, the abstract gives more detailed information, identifying the major aspects of the research (objectives, design, setting, population, main outcome measures, results and conclusion) in a clear scientific style. However, the abstract does not indicate the research questions of the study; they are stated further in the research and are the following:

1) Do complaints track injuries, or are they prompted by more subjective concerns?

2) Are complaints the “tip of the iceberg’ in terms of quality of care problems and, if so, how representative are they of broader quality problems? (Bismark et al., 2006 p.17).

Although the research by Michel et al. (2004) also refers to patient safety, neither the title, nor the abstract uncovers the theme in an explicit way. Actually, the theme is exposed further in the research; in particular, the study analyses rates of unintended injuries (defined by the authors as adverse events and preventable adverse events) in the patients cured in care hospitals of France. Similarly to the first research, the abstract in the second study briefly summarises the research and is divided into the same categories that uncover the essence of the investigation. In this regard, the abstract is an obvious strength of the analysis and it can serve as an example to other researchers who investigate various aspects of nursing.

But the research does not specify the research questions either in the abstract or in the introduction section of the paper. Such a lack of specific questions certainly complicates the overall apprehension of the study. The authors could have proposed some research questions, such as

1) What are the major aspects of reliability, acceptability and effectiveness?

Or

2) How rates of adverse events and rates of preventable adverse events can be properly assessed with each of three methods?

These questions are of primary importance to the research, as adverse events and preventable adverse events can not be rightfully evaluated, if the major criteria of reliability and effectiveness are not properly discussed in the context of the research. However, the authors pay little attention to these aspects of the analysis.

Despite the fact that the introduction section in both studies provides a valid explanation of the importance of the problem, neither of the two studies includes an overview of the previous research or specific reports. This neglect decreases the overall presentation and reduces the value of the presented data. However, the problems of statement are formulated in a concise way and reflect that the researchers narrowed the areas of research to the issue of adverse events in the clinical setting in order to get more accurate findings. In fact, this issue is especially relevant today when patient safety has become worse in many countries of the world. The justification for the chosen topic in the research by Bismark et al. (2006) is that the recent accident compensation system in New Zealand does not adequately examine patients’ complaints in all cases of adverse events. Pointing at the fact that “there is growing international interest in harnessing patient dissatisfaction and complaints to address problems with quality” (Bismark et al., 2006 p.17), the authors concurrently put crucial questions that inspire readers’ interest in the issue of patient safety from the very beginning. In the research of Michel et al. (2004) the underlying reason for initiating an investigation is that the limitations of the employed methods reduce the validity of the received findings in regard to patients’ injures within the hospital setting. However, the lack of appropriate background, theoretical frameworks, hypotheses and definite aims in the introduction section considerably limits the studies. This especially regards the non-inclusion of specific theories that usually back up the presented data. In this respect, both studies are theory-free; unlike theory-testing research and theory-generating research, this kind of research is less popular because it does not analyse any theoretical concepts that constitute the basis of practical nursing. On the other hand, the studies of Michel et al. (2004) and Bismark et al. (2006) specifically focus on a practical problem-solving framework; that is, the present researches are aimed at identifying practical solutions to the discussed problems rather than discussing theoretical implications.

The research of Michel et al. (2004) uses a quantitative research method that “emphasizes objectivity through statistical analysis” (Santy & Kneale, 1998 p.77) and the quasi-experimental design that is considered to be more adequate and less biased than an experimental method, if an investigation is conducted within the clinical setting (Polit & Hungler, 1995). Though objectivity is crucial for such kind of research, it would also be appropriate to combine quantitative and qualitative methods, that is, to combine objectivity and subjectivity (Phillips, 1990). The fact is that due to its quantitative method the study appears to be too analytical, too objectively-oriented; thus, there is a necessity to introduce some aspects of the subjective realm into the research. However, Parahoo (1997) supports another viewpoint, exposing the inadequacy of a qualitative method, especially in regard to a nursing research. The author points out that, applying to a quantitative method, researchers are able to predict the final outcomes, while a qualitative method may generate unpredictable results. The data in the study are collected in care hospitals of Aquitaine with the help of three research techniques – a cross sectional method, a prospective method and a retrospective method. Such triangulation is aimed at “relat[ing] different sorts of data in such a way as to counteract various possible threats to the validity of analysis” (Hammersely & Atkinson, 1983 p.199). In the present study triangulation corresponds with the terms of reference that provide appropriate relevance to the whole research (Shih, 1998). Identifying both advantages and disadvantages of all three methods in Box 2, the researchers contribute much to the reliability of the findings, despite the fact that they have not conducted a pilot study that, according to Carr (2003), intensifies the credibility of the employed research techniques. On the other hand, a pilot study is crucial for the investigations that utilise unchecked tools for research, as is the case with the present study, where the researchers conduct an evaluation of methodology. In this regard, a pilot study “helps to illuminate some of the problems of the research tool” (Santy and Kneale, 1998 p.80).

The research of Bismark et al. (2006) is also quantitative with descriptive design. The baseline data are taken from the medical records of the New Zealand Quality of Healthcare Study (NZQHS) and the Commissioner’s complaints database. Further, multivariate and bivariate analyses are applied to the research to identify certain dissimilarities between complaints and non-complaints. Overall, the explanation of the research techniques and methods is a great strength of this study, as the authors provide a thorough description in regard to data collection and study design. Although the researchers do not define a hypothesis of the analysis, they, nevertheless, use dependent and independent variables to differentiate complainants from non-complainants. However, the limited space of both studies has not allowed the researchers to insert the samples of medical records and questionnaires that served as the basis for the research; thus, the methodology of both investigations can not be fully assessed in terms of the quality.

Actually, the research of Bismark et al. (2006) and the research of Michel et al. (2004) employ primary sources (including official records) that explicitly relate to the subjects. But according to Burgess (1991), even primary sources should be critically assessed and “it is essential to locate them in context” (p.124). But neither the first nor the second study provides a critical evaluation of the utilised sources.

In regard to ethical issues, they are not openly addressed in the studies; however, in the research of Bismark et al. (2006) there is a mentioning that the investigation was endorsed by the Wellington Ethics Committee. For Robinson (1996), such ethical approval is a necessary part of a nursing research, as any investigation deals with human beings who may experience certain difficulties during the research. On the other hand, due to its descriptive nature the present study does not necessarily need an informed consent or ethical considerations (Cutcliffe & Ward, 2003), while the research of Michel et al. (2004) requires a discussion of certain ethical issues because of its quasi-experimental design. Some of these issues are patients’ confidentiality, defence of their rights and risk control (Pranulis, 1996). In regard to the latter factor, it is necessary for researchers to increase potential benefits and decrease potential risks, especially in such studies that involve a great number of participants, as is just the case with the research of Michel et al. (2004). Thus, it would have been proper for the researchers of the present study to discuss in detail subjects’ conditions and potential harm, particularly in view of the fact that nursing directly relates to patient safety within the clinical setting (DHHS, 1981). However, the ethical rights of samples are implicitly defended in both studies, as no personal details of participants are revealed. But the researchers provide no information of the ways the data were stored and protected before or during the investigation. Similarly, neither of the studies refers to informed consents, while this is a prerequisite for any nursing research (Alt-White, 1995; Berry et al., 1996).

As for sampling, the study of Bismark et al. (2006) analyses two groups of patients: the first group includes people who made complaints to the Commissioner and the second group includes people “identified by the NZQHS as having suffered an adverse event who did not lodge a complaint” (Bismark et al., 2006 p.17). A two stage sampling process is initiated by NZQHS on the example of 6579 medical records. Although inclusion and exclusion criteria are not explicitly identified in the study, the researchers make it clear that they only choose the patients who suffer adverse events. In the process of analysis these patients are divided into two categories – complainants and non-complainants, though both groups are typical representatives of the larger population. In the research of Michel et al. (2004) the sampling includes 778 patients from medical, surgical and obstetric wards. This number of samples is appropriate for a descriptive study.

Initially, the researchers chose 786 patients with the help of a two stage cluster stratified process, but excluded 8 persons “because they were still present on day 30, precluding the review of their medical records” (Michel et al., 2004 p.2). In this respect, the study does not clearly define inclusion and exclusion criteria, but some samples are excluded in the process of investigation. No obvious bias is found in regard to the samples; similar to the previous research, the samples belong to typical representatives of the larger group. In view of this fact, the sampling can be considered as fully reliable.

In addition to authors’ comments, the results in the research of Bismark et al. (2006) are presented in figures, tables and boxes that are introduced as additional tools for clarification. This visual information reflects how the data are collected and measured (Figure 1 is especially accurate in revealing the cases of injured complainants and non-complainants). Although the authors do not specifically explain such a choice, they provide a detailed justification for the use of correlation tests that define dependent variables (a distinction between complainants and non-complainants) and independent variables (age, ethnicity, sex and other factors). Besides, the researchers weight the bivariate and multivariate analyses to acquire more accurate findings. The results in the study of Michel et al. (2004) also appear in both textual and graphic forms in order to enhance explanation. But the researchers do not attain the balance between figures and comments, putting too much emphasis on figures. Unlike the previous study, the authors do not use dependent and independent variables in their analysis; however, they employ paired X² tests for the comparison of retrospective and prospective methods.

Discussing their findings, Bismark et al. (2006) draw a parallel between the received results and the findings of the previous studies. Actually, many findings of the prior research are consistent with the present research (e.g. Burstin, et al., 1993; Studdert et al., 2000), while some findings contradict the earlier results (e.g. Tapper et al., 2004). To some extent, such a comparison justifies the lack of literature review at the beginning of the research and provides more validity to the overall outcomes. In general terms, the findings of Bismark et al. (2006) directly relate to the objectives of the study, gradually introducing the evidence that proves the authors’ initial suggestions. In particular, the researchers find out that 79% of all injures can be identified as preventable adverse events. In the case of the Commissioner’s analysis, 64% of the complaints are made by the patients who suffer adverse events, of which 51% are preventable adverse events. In regard to the NZQHS review, 315 cases of adverse events (out of 850 cases) are preventable, 124 cases are serious and 48 cases are serious and preventable. As for instigators of complaints, 41% of complaints are made by the patients, while 59% – by their relatives or friends (13% – spouse, 16% – parent and 17% – child).

Evaluating the independent variables, the researchers reveal that the age of complainants is lower than the age of non-complainants; moreover, non-complainants mainly live in the regions with poor economic conditions. The findings in the research of Michel et al. (2004) also relate to the terms of reference, providing evidence that “the prospective method has several advantages over retrospective and cross sectional methods” (Michel et al., 2004 p.3). In particular, the prospective method better recognises preventable adverse events and is more trustworthy than two other methods. This is clearly seen in Venn diagrams that demonstrate the number of adverse events identified by each of three research methods. Overall, the findings in the present study are not properly discussed; however, the researchers discuss in detail the strengths and limitations of the research in the discussion section. For instance, as the authors reveal, reliability and effectiveness of adverse events rates are successfully estimated because the samples are assessed with the help of three methods. On the other hand, the researchers point at the possibility of bias that “may have been present due to the small number of hospitals and wards” (Michel et al., 2004 p.3) and because of the participation of the care teams in the prospective method. Besides, the reference list that the researchers utilised in the process of investigation might have errors that were not identified. Finally, the aspects of reliability, effectiveness and acceptability are not discussed in detail by the authors, though these are the major assessment criteria of the study. However, there are some obvious strengths of the research; unlike the studies that analyse adverse events either in surgery or medicine (e.g. Mantel et al., 1998; Waterstone et al., 2001), the present study examines various cases of adverse events in three areas – medicine, surgery and obstetrics.

Similarly to this research, Bismark et al. (2006) also identify certain limitations of the study; in particular, the analysis of adverse event rates is rather confined, if medical record reviews serve as the basis for the research. The research also lacks definite ethnicity data for all complainants; thus, there is a “potential for measurement error” (Bismark et al., 2006 p.21). In addition, the authors do not provide any information as to the alternative research methods that can be used for the assessment of the relations between complains and quality of medical care. Drawing a parallel between the employed methods and the alternative methods, it will be possible to enhance the validity of the received findings. The conclusion in the research of Bismark et al. (2006) directly responds to the terms of reference; based on the received results, the conclusion suggests that elderly or economically poor patients rarely initiate complaints processes. The same regards the patients who belong to ethnic minorities (in this case – to Pacific ethnicity). The authors recommend to conduct a further study that will profoundly investigate the reasons for people’s refusal to make complaints in the cases of poor medical care. Moreover, the complaints greatly depend on the severity of injures and whether the event is preventable or unpreventable.

In this respect, as the researchers conclude, “complaints offer a valuable portal for observing serious threats to patient safety and may facilitate efforts to improve quality” (Bismark et al., 2006 p.22). Unfortunately, no recommendations for practice are made at the end of the study, thus reducing the relevance of the received findings. On the other hand, as Santy and Kneale (1998) claim, “all research has some implications for practice even if the results have proven to be inconclusive” (p.82). In the research of Michel et al. (2004) the conclusion summarises the results that, in the authors’ words, “provide new insights into the epidemiology of adverse events” (p.4). Such a viewpoint is explained by the fact that the findings of the present study reveal the ways to intensify the implementation of prospective assessment in the clinical setting. However, the researchers only suggest the answers to the posed questions, avoiding any insistence on specific concepts or notions. Comparing three methods, the researchers recommend to use the prospective method for different purposes that implicitly or explicitly relate to the evaluation of adverse events rates. Finally, Michel et al. (2004) briefly discuss the prior knowledge on the topic and the knowledge acquired in the process of investigation. In regard to the prior knowledge, the assessment of adverse events was conducted in an analytical way that considerably limited the findings. In the present study the researchers receive more feasible results and identify that the causes of adverse events and risk reduction programmes can be successfully evaluated by the prospective method rather than by the retrospective or cross-sectional methods. However, further research is required, if the evidence received in this research is applied to practice (Barron & Kenny, 1986; Scott & Thompson, 2003).

Overall, both researches are well-structured and are written in a scientifically concise style; however, as was stated above, the study of Michel et al. (2004) provides too much technical details, while analysing the results. Therefore, it is slightly difficult to read the research and, consequently, there is a chance that its findings may be ignored by a practitioner on the premise of misunderstanding. Although the research of Michel et al. (2004) is logically constructed, an unqualified person may fail to rightfully apprehend the presented data. On the contrary, the study of Bismark et al. (2006) is easy to understand because it lacks much unexplained jargon. Another strength of the research is the appropriate use of quotes in the discussion section; these quotes are directly related to the analysis and correspond with the ideas expressed by the authors, either refuting or confirming them. Employing this or that quote, the researchers provide a detailed interpretation of a certain concept; and for all that, the number of quotes is reasonable and they are rather short. On the contrary, Michel et al. (2004) do not utilise quotes in the discussion to support their arguments, though they use certain references. Despite the fact that the researchers do not explicitly recommend their studies to nurses, the overall findings can be especially relevant to nursing staff, as well as to the researchers who are involved in health care.

Within a complex clinical setting nurses experience various difficulties because of the lack of appropriate practical knowledge (Treacy & Hide, 1999; Polit et al., 2001). Thus, the studies of Michel et al. (2004) and Bismark et al. (2006) can inspire nurses’ interest in the ways of patient safety, as, despite their limitations and certain inadequacies, the studies pose vital questions that may increase the quality of medical care not only in France and New Zealand, but in other countries as well. Due to the fact that nowadays nursing staff is usually required to implement various aspects of research into practice (Christman & Johnson, 1981; Burnard & Morrison, 1990; Street, 1992; McSherry, 1997; Cormack, 2000; Rodgers, 2000; Hek et al., 2002; Cluett & Bluff, 2004), the present studies are especially valuable, as they provide useful and valid information that extends the prior knowledge in patient safety. In further studies it will be crucial to discuss the received findings in the context of international implications and to pay more attention to preventable adverse events (Thomas et al., 2000). Moreover, it will be important to give some recommendations for nursing staff and those individuals who deal with patients’ complains (World Health Organisation, 1977; Gordon, 1988; Brink et al., 1989; Lindley & Walker, 1993; Ferketich, & Mercer, 1995; Northouse, 1995; Roseman & Booker, 1995; Duffy et al., 1996; Madge et al., 1997; Vertanen, 2001).

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According to Raz, the sources thesis is essential to the authority of law. Does it follow from his account that authority is at heart a matter of power (as a sceptic would maintain) rather than a rational virtue? Can Raz avoid this conclusion and remain a positivist?

It is contended that Raz and his articulation of legal positivism remains intact after careful analysis, if somewhat buffeted by the arguments inherent in the question as posed. To fully appreciate the concept of authority as Raz develops it, one must first consider how Raz has defined the sources thesis and its relationship to the authority of law.

The source thesis as developed by Raz is the culmination of his logical progression in the development of a flexible and comprehensive tool to define legal positivism. Raz fashions a three headed thesis comprised of social, moral and semantic components, of which the social thesis is the most important.^[1] Raz emphatically states that what the law is and what it is not is a social fact –his corollary proposition is that a rule is only a legal rule if it meets a social condition.^[2]

Raz proceeded in his analysis to articulate how the social thesis becomes a cornerstone for the justification of law as a social institution, a concept tightly allied by Raz to three elements that determine the true existence of such systems – efficacy, institutional character and the source of law.

In this context, Raz elevates the source thesis to one of both complexity and prominence. It is submitted that Raz in his definition of both efficacy and institutional character as separate tests that identify the existence of a legal system, in fact renders them as sub-compartments of his source thesis. Raz is certain that the source thesis, an acknowledgement that all law is fully determined by its social sources, is the most important element of a legal system.^[3] He defines his social sources as including any extraneous ‘interpretative sources’^[4] that may exist in a society.

Raz stipulates that a law has a source if its contents and existence can be determined without resort to moral arguments. Raz thus includes both legislation and a wide range of societal facts as defining the law and its authority.

The Raz definition of law as an aggregation of community and societal custom, habits, and shared perspectives is a far cry from the seminal Austin concepts of legal positivism, ones centred upon the notion of a irrefutable ‘sovereign power’ that promulgates law as a command that is reciprocally enforced by sanction, all crisply delineated from any moral considerations.^[5] In contrast, it is plain that Raz perceives the authority of the law in less stark and more indirect terms than Austin would have accepted.

The source thesis as posited by Raz has two functions. The first is its utility in categorising and systemising the interconnected aspects of law (a purpose that all legal positivists from Austin onwards would endorse). The second function is to provide publicly ascertainable standards that are binding upon society.^[6] The state power as contemplated by Raz to achieve these legal societal purposes is held in a collective sense by the community; there is no supreme and authoritative sovereign lawgiver in the Raz model.

However, it is equally plain that Raz does not attribute ‘rational virtue’ to his concept of authority. By definition, virtue is a moral consideration and therefore one that Raz and positivists generally would not permit to enter the authority equation. On the subject of unvirtuous law, Raz suggested that ‘…Even a bad law, as the inevitable official doctrine, should be obeyed for as long as it is in force, while lawful action is taken to try and bring about its amendment or repeal’. It is submitted that this perspective internalizes authority to within the society, consistent with Raz’ thesis that law is fully determined from social sources.^[7]

Raz considers the question of power in relation to law in another sense that bears upon the present question. Raz has stated in a number of his works that consistent with the source based notion of all law, the authority to create or administer the law must be either legitimate or de facto.^[8] The use of the term ‘authority’ has a strong power connotation; legal systems may only claim legitimacy through an implicit or express assertion that the system possesses the power to maintain such authority. The power to adjudicate legal issues and to the ability to maintain regulatory and enforcement systems places the legal system in a position of supremacy within a society, but it is a supremacy derived from societal forces and desires and not a sovereign influence in the Austinian positivist sense.

It is submitted that in the Raz interpretation of the institutional character of the law, the legitimate legal system will inevitably reflect the social fact of the society. In this fashion Raz closes a philosophical loop in his conclusion that ‘…conformity to moral values or ideals is in no way a condition for anything being a law or legally binding. Hence, the law’s conformity to moral values and ideals is not necessary^[9]. It is this proposition that cements the Raz position as one within the positivist camp.

Bibliography

George, Robert P., (ed.) The Autonomy of Law: Essays on Legal Positivism (Oxford: Oxford University Press, 1999)

George, Robert P. “What Is Law? A Century of Arguments.” First Things: A Monthly Journal of Religion and Public Life Apr. 2001:23

Raz, Joseph. Ethics in the Public Domain: Essays in the Morality of Law and Politics (Revised ed.) (Oxford: Clarendon Press, 1995)

Raz, Joseph. Practical Reasons and Norms (Oxford: Oxford University Press, 1979)

Raz, Joseph. The Authority of Law: Essays on Law and Morality (Oxford: Oxford University Press, 1979)