Richard II

 

William Shakespeare is regarded as the world’s foremost playwright as his works have become timeless classics and have been performed countless times and sometimes even made movies.  One of the “secrets” of Shakespeare’s works is his use of various literary devices to make his plays come alive and appealing.  This study shall focus on his play Richard II.  Such literary devices he employed were metaphor, repetition, and synecdoche.

One literary device Shakespeare employed is the metaphor where certain words symbolize something and it is used to implicitly make a statement.  The purpose of a metaphor is to make the message easy to understand, depending on who is being spoken to.  In Richard II, Shakespeare employed it as well: “Am I both priest and clerk? well then, amen. God save the king! although I be not he;And yet, amen, if heaven do think him me. To do what service am I sent for hither?” (Act IV, Scene I, Lines 172-175)

The metaphor used here are the words, “priest” and “clerk.”  Richard uttered them when he enters the scene to meet Bolingbroke.  He likened himself to Christ being sold out by Judas.  He mentioned this in apparent sarcasm as he realized he was not infallible and how vulnerable he was to those wanted him ousted from the throne.  He began to realize he is not divine or protected by God after all and is subject to the judgment of men.  Another example of a metaphor was also used here:

“Now is this golden crown like a deep well, That owes two buckets, filling one another, The emptier ever dancing in the air, The other down, unseen and full of water: That bucket down and full of tears am I, Drinking my griefs, whilst you mount up on high.” (Act IV, Scene I, Lines 183-188)

King Richard uses the word “bucket” to compare himself and Bolingbroke.  As one bucket goes up, the other goes down.  The ascending bucket represents Bolingbroke while the descending one represents himself, stating that it is weighed down by the tears he has shed while Bolingbroke is lifted up to glory.  It can be seen in these examples of metaphors is that Shakespeare, as well as other writers before and after him, employed this device in order to make it easy for the audience to understand.  In metaphors, plain ordinary words are used such as “priest,” “clerk” and “bucket” because these are common words and are not too profound.

Another device Shakespeare employed was the repetition.  He used it to make point when he would repeatedly use the same word or words in a single passage more than once.  The rationale for this is to dwell on a point.  As an example in Richard II mentioned by King Richard: With mine own tears I wash away my balm, With mine own hands I give away my crown,With mine own tongue deny my sacred state, With mine own breath release all duty’s rites: (Act IV, Scene I, Lines 206-209).

When Richard uttered these words, he was willingly and voluntarily relinquishing his crown to Bolingbroke who also happened to be his cousin and that he preferred to do it on his own accord rather than wait for someone else to take it away from him, by force which was the very likely scenario if he were to continue holding on to power.  In this part, the words “with my own” are used thrice.

Another example of repetition used in Richard II is the word “care/s” in his dialogue with Bolingbroke: “Your cares set up do not pluck my cares down. My care is loss of care, by old care done;Your care is gain of care, by new care won:The cares I give I have, though given away;” (Act IV, Scene I, Lines 194-197)

In this scene, Bolingbroke is trying to persuade Richard to relinquish his crown to him.  Richard was somewhat reluctant initially to let go because of these “cares” or concerns.  These represent all the troubles that has been an emotional baggage for him and he did not want Bolingbroke to bear those troubles which he felt where only his to bear and to carry and that he does not need to bear it since it is not his to bear in the first place though Bolingbroke insisted that it is all right and that he is willing to live with it as it would be his responsibility.  In analyzing Shakespeare’s use of these repetitions, he used it in the first example for the purpose of creating some order as he enumerated what Richard would employ as he expressed willingness to step down as king.  In the second example, repetition is employed to give emphasis to meaning on what he could not let go or turn over to Bolingbroke.

Shakespeare also made use of the synecdoche which is related to the metaphor in meaning as the word is used to represent a whole.  In Richard II, he made use of this as well: To do that office of thine own good will, Which tired majesty did make thee offer, (Act IV, Scene I, Lines 176-177).  The word used as a synecdoche is “office.” Conversely, it could also mean throne.  When Richard made mention of this word, it is not merely the place where he holds court and conducts business in the literal sense, but “office” also carries a symbolic meaning as well as this is where all political authority and power emanate.  This goes to prove that political power is not in the person but the institution, which is what “office” also stands for. Another synecdoche Shakespeare employed in Richard II is related to the word “office” which is “crown”: My crown I am; but still my griefs are mine:
You may my glories and my state depose,But not my griefs; still am I king of those. (Act IV, Scene I, Lines 190-192)

The usage of the word “crown” is not limited to its literal meaning as a regal headgear worn by monarchs.  Whenever this word is invoked, it carries powerful connotations.  Just like in “office” which was mentioned earlier, this crown (figuratively) represents the power and authority that it bestows on whoever wears it.  In this case, Richard still regards himself as king, as that crown makes him different from any ordinary mortal.  In addition, whenever it is used in modern times, it can also be used to refer to a (monarchical) government although nowadays, all political power is gone and yet, the “crown” still has powers that are symbolic yet, significant in the sense that it is the symbol of a nation’s heritage like Britain, a symbol of continuity and one other power it still has is it can bestow legitimacy.  Hence, it is more than just a headpiece.  It is a symbol of political authority  though it is no longer wholly exercised by the monarch and his or her powers are now limited to ceremonial or symbolic yet despite this seemingly “minor” function, it still has significance in the sense that is bestows legitimacy.

In conclusion, Shakespeare had proven himself to be a masterful writer.  Not only in terms of his eloquence and brilliance but also his uncanny ability to play or manipulate words to make his plays very entertaining and not boring with the aid of literary devices. One would notice also that he had varied his use of these devices not only to provide variety but to ensure the audience will be focused on the play and not be bored if he had limited himself to just one style or device which you become trite if he were to use it repeatedly and not employ variations. It is because of his style that his plays have become popular and have endured the test of time to this day where it is still being performed in stages around the world.

Work Cited

Shakespeare, William. Richard II. 3 Oct. 2003. Shakespeare-Literature.com. 3 Oct. 2010 <http://www.shakespeare-literature.com/​richard_ii/​13.html&gt;.

 

 

 

 

 

 

 

 

 

 

 

Medical Law

INTRODUCTION

The United Nations Convention on the Rights of the Child, which was ratified by Britain in 1991, declared that children have the same inherent dignity and equal rights as adults, but at the same time recognizes that children are born dependent and have a right to protection and guidance.

The Family Law Reform Act of 1969 (FLRA) authorized a 16 and 17 year old individual   to give consent to medical interventions in the same manner as adults. The Children Act of 1989 put more weight on the principle that children’s wishes should be considered and respected whenever possible as against the professional’s perceptions of the child’s best interests, and granted limited rights to refuse medical examination and treatment to children looked after by the local authority (Kennedy & Grubb, 1994).

The Legal Significance of Consent

Before a medical practitioner examines and/or treats a patient, a valid consent must be given by the patient. If the said doctor proceeds with the examination without obtaining consent from the patient, whether express or implied, and done against that person’s will and without any statutory authority to do so, that surgeon may incur civil liability for violation of the tort of trespass against the person and criminal liability in accordance with the provisions of Offences Against the Person Act of 1861. The truth is that most cases covered by this area are brought about due to negligence as the cause of action in the tort or damage committed by the doctor. However, in order for the action to prosper, the claimant must show proof that a valid consent from the patient to allow the medical treatment was absent.

The term consent was best described in the case of Cardozo J, Schoelendorff v New York Hospital 211 N.Y.125 (1914) which provides:

“Every human being of adult years and sound mind has a right to determine what shall be done with his own body;”

 

In order to fully understand the concept of a valid consent to medical treatment given minors over the age of 16, we have to provide the legal basis to support this assertion.

According to “The Family Law Reform Act of 1969 (FLRA) (1969 CHAPTER 46) Section 8: “A minor who is over 16 years of age can give his consent to any surgical, medical or dental treatment without obtaining consent from his parent or guardian. Absence of his consent will constitute as a trespass to his person.

Therefore, as clearly stated in the express provisions of the law, minors who are over 16 years of age are capacited to give consent to any surgical, medical and dental treatment ,sans any parental or guardian’s consent. However, well-settled is the principle in the case of Gillick v West Norfolk & Wisbeck Area Health Authority and Department of Health & Social Security [1985] 3 All ER 402) which came in later ruled otherwise.

The term “Gillick competence” was coined from Lord Scarman’s statement in Gillick case expressed as follows:

“Parental right yields to the child’s right to make his own decisions when he reaches a sufficient understanding and intelligence to be capable in making up his mind on the matter requiring decision”.

 

In other words, the classic definition given by Lord Scarman can be simply interpreted like so:

“…as a matter of law the parental right to determine whether or not their minor child below the age of 16 will have medical treatment terminates if and when the child achieves a sufficient understanding and intelligence to enable him or her to understand fully what is proposed”

 

The Gillick case ratified the lawfulness of a 1980 DHSS circular in exceptional circumstances, which allows a doctor to lawfully give contraceptive advice or treatment to a girl under 16 without her parents’ knowledge or consent. The mother of the young girl objected to the notice which prompted her to file an application to the court to declare that the circular was unlawful. The issue reached the House of Lords where, on a majority judgement, the Lords held that the circular was lawful giving the right to children under 16 years of age to decide on medical treatments for themselves without parental consent.

Wherefore, in view of the foregoing facts and circumstances, well-settled is the rule that adults and minors below 16 years have the power and authority to give consent to any medical, surgical and dental treatment.

A. Consent and minors under the age of 16: Gillick Competence

The legal adviser should advise that Adrianne, aged 15, that although she is Gillick competent and can give consent to a treatment, it does not include the right to refuse medical treatment.

In an analogous case involving similar facts, the recent case of Hannah Jones, the 13-year-old girl from the UK who recently refused to undergo a heart transplantation procedure in 2008 has drawn media crowd and earned a significant amount of criticism. Hannah was diagnosed with leukaemia at the age of four and the chemotherapy administered to treat the disease caused her heart to weaken. Without a transplant, doctors predict that she is likely to die within six months. However, even if the heart transplant was performed, the medication aimed at preventing Hannah’s body rejecting the new heart could cause her leukaemia to return and she may need another transplant within a number of years. There has been a mixed response to the decision of the healthcare team, who almost followed through with legal action to try and force Hannah to undergo the procedure.

Hannah’s decision is described by some reporters as giving terminally ill teens a “right to die”. This raises significant questions in relation to the types of medical treatments minors are able to consent to, and whether the law permits them to refuse treatment where refusal will lead to death. At first glance, Hannah’s story would suggest that this is the case. To describe Hannah’s case as a victory, giving minors a “right to die” seems misguided.[1] However, in 2010, Hannah, after reaching the age of 14, changed her mind and decided to undergo the heart transplant procedure because it is in keeping with her best interests.

In both our given examples of Adrianne’s and Hannah’s cases, the critical issue is in relation to the welfare and for their best interests. Hannah’s or Adrienne’s decision to refuse medical treatment can be overruled by the court, their parents or guardians. This is in consonance with the power of the court to act within the bounds of its inherent jurisdiction, and such power is unlimited; while parents have parental authority over their minor children. Both girls only have the authority to give consent to any medical, surgical and dental treatment, but this does not include the right to refuse a medical treatment if it will be for their best interests.

The Gillick decision laid a precedent granting to a child below 16 the right to determine issues themselves. However, since there exists a conflict between the Gillick decision and the upholding of children’s rights based on FLRA (s8), the courts have significantly withdrawn from both the Gillick ruling and in certain circumstances found in the children’s rights. The High Tribunal has exercised its power within the bounds of its inherent jurisdiction and such power is derived from the sovereign. (Re E [1991] 2 FLRA 585)

This principle was further emphasized in the case of Re R (A Minor) [1991] 4 All ER 177 CA, the court held that a 15-year-old girl lacked insight into her acute psychiatric condition, which prevented her to fully comprehend the requirement of a medication. She was therefore ruled not to be Gillick competent. This may initially appear consistent with the Gillick principle, because she was believed to lack capacity. However, the court pointed out that assuming for the sake of argument that she was adjudged as Gillick competent, she still had no authority to refuse medical treatment.

While in the case of Re W (A Minor) (Medical Treatment: Court’s Jurisdiction) [1992] 4 All E.R. 627, the Higher court settled the distinguishment between two terms, consent and refusal to consent to treatment. Here, W was a 16-year-old patient with the disease anorexia nervosa. She declined to be transferred to a specialist treatment unit but the court overruled this refusal, although, at 16, she seemed to fall under the terms of the Family Law Reform Act 1969 (FLRA). The decision of Balcombe, LJ bears stressing. It quoted the argument of Lord Donaldson in Re R [1991] and highlighted that the FLRA did not cover refusal of treatment, but only included consent to treatment. The court held that a competent child under 18 years of age, whose refusal of treatment might result in “irreparable consequences”, will be required to undergo the treatment even if it is against her will, if any person with parental responsibility consents to that treatment and a doctor considers it obligatory. Wherefore, the moment the child reaches the age of 16, the right to consent was shared with the child’s parents and the court setting aside FLRA (s8).

In addition, the law treats refusal of medical treatment differently from consent to medical treatment. Both the courts and parents can overrule a 16 or 17 year old’s refusal of medical treatment, regardless of the child’s competence.( Re W 1992 3 WLR 758.) Therefore, a parent cannot overrule the 16 or 17 year olds’ consent to treatment in relation to FLRA (s8) but may overrule his/her refusal to treatment. Futhermore, the courts can overturn both consent and refusal. It is without an iota of doubt that it is unfortunate that the law does not provide the 16 or 17 year old with full autonomy. Even where a young person may have the capacity to consent as provided by law, this does not ipso facto connote that he or she has a right to refuse treatment as settled in the cases Re R [1991] and Re W [1992]. Although he or she may apparently possess sufficient understanding to make a decision, the law is crystal clear that recognizes the child’s ability to consent rather than to refuse a treatment.

While it is a well-entrenched rule that capacitated children who can fully understand the implications of a medical treatment have the right to make a decision to accept or refuse a treatment, it is permitted only if it is deemed to be for their best interests. If there is any disagreement in relation to the child’s welfare, the people surrounding him/her may have to seek the assistance of a lawyer and consider going to court. If the capacitated child rejects a treatment, but the doctor says is mandatory, the parents or guardians, or can ask a court to intervene and overrule the child’s refusal. The probability of overriding a competent child’s refusal is likely to happen because of the fact that the child’s welfare shall be the court’s paramount consideration, no matter how mature the child may seem to be.

This is as opposed to the standard of competency of adults who can refuse any medical treatment for reasons that are “rational or irrational or for no reason” as enunciated in the case of Sidaway v.Governors of Bethlem Royal Hospital, [1985] 2 W.L.R. 480. This is in consonance with the doctrine of informed consent which states that the patient is not considered to have given valid consent unless he or she is informed of all material risks and the consequence of each procedure.

It was thus encapsulated by Lord Scarman as follows:

(1) The root premise is the concept that every human being of adult years and of sound mind has a right to determine what shall be done with his own body.

(2) The consent is the informed exercise of a choice, and that entails an opportunity to evaluate knowledgeably the options available and the risks attendant upon each:

(3) the doctor must, therefore, disclose all “material risks”; what risks are “material” is determined by the “prudent patient” test, which was formulated by the court, at p. 787:

 

“a risk is … material when a reasonable person, in what the physician knows or should know to be the patient’s position, would be likely to attach significance to the risk or cluster of risks in deciding whether or not to forego the proposed therapy.”

 

(4) The doctor, however, has what the court called a “therapeutic privilege.” This exception enables a doctor to withhold from his patient information as to risk if it can be shown that a reasonable medical assessment of the patient would have indicated to the doctor that disclosure would have posed a serious threat of psychological detriment to the patient.

In the same vein, adults who are detained under the Mental Health Act 1983 are not necessarily incompetent with regard to all decisions. The case of C, a patient at Broadmoor who was suffering from schizophrenia, and who refused the amputation of his gangrenous foot, paved the way to a legal test of competence in adults, which has taken into consideration the comprehension and retention of relevant information, believing it and weighing it up before finally reaching a decision (Re: C (Adult: Refusal of treatment), [1994].

In summary, English law affords minors the right to consent to, but not to refuse, medical treatment, which suggests a right to agree with your doctors (Dickenson, 1994). However, the decision to refuse medical treatment can have grave consequences, and our society is driven towards the preservation of life. In the past the need for a higher level of understanding if treatment was refused was justified as refusal questions expert opinion and doctors were expected to act in their patients’ best interest (Batten, 1996).This assumption is debatable in the light of recent medical scandals, as is the similar assumption that parents inevitably act with their child’s welfare in mind, particularly for those working in child protection scenarios (Batten, 1996). Paradoxically, the legal system is unwilling to accept the right of a 17-year-old to determine what happens to his or her body, when the age of criminal responsibility now stands at 10 years (Dickenson, 1994). If parents and the courts can overrule competent minors, children are not being granted the “equal and inalienable” rights afforded them by the United Nations Convention on the Rights of the Child.[2]

This was supported in the case of Nielsen v Denmark [1989]:

The European Court of Human Rights held that the informal admission of a 12-year-old boy to a psychiatric hospital was against his wishes but with parental consent, did not constitute to the deprivation of liberty which was contrary to Article 5 of the European Convention on Human Rights. The rationale behind it is that, at 12, he was still of an age when it was natural for his mother to exercise her parental custodial rights in the best interest of her child, even if it was against his wishes.

Wherefore, the full autonomy of children was not granted by the court because the ultimate goal is to protect and nurture the children until they are fully mature to be able to make intelligent decisions for themselves.

B. Capacity to Consent to Medical Treatment

Bessie’ case falls squarely within the bounds of Mental Capacity Act of 2005, which took effect in 2007. The law covers persons who are 16 years of age or older and even those persons with “lacking capacity”, or those who cannot make their own decisions involving acts in connection with care and medical treatment. In the case of Bessie, in the eyes of the law, she is considered an adult without mental capacity. As such, she cannot make an intelligent decision for herself and needs assistance to make her fully comprehend the consequences of refusing to undergo an emergency caesarean section, otherwise, it will endanger her baby’s life.

The Mental Capacity Act 2005 Section 2(1) defines what the absence of capacity is. It means that if, at the time the decision needs to be made, patients are unable to make or communicate the decision because of an “impairment of, or a disturbance in the functioning of, the mind or brain”, they are deemed to be incapable.

The test for capacity is contained in Section 3 of the Mental Capacity Act 2005 which states that a person is unable to make a decision for himself if he is unable to: a) Understand the information relevant to the decision; b) retain that information; c) use or weigh that information as part of the process of making the decision, or d) communicate his decision (whether by talking, using sign language or any other means).

For the purposes of this Act, a person lacks capacity in relation to a matter if at the material time he is incapable of making decision for himself, in relation to the issue on hand because of an impairment of, or a disturbance in the functioning of, the mind or brain. It is irrelevant and immaterial whether or not the impairment or disturbance is permanent or temporary. A lack of capacity cannot be established merely by reference to— (a) a person’s age or appearance or (b) a condition of his, or an aspect of his behaviour, which might lead others to make unjustified assumptions about his capacity.

In the case of Bessie, the doctor advised her to undergo emergency caesarean section for the best interest and safety of her unborn child and her own health. She is considered under the law as an incompetent adult because she cannot fully grasp the entire decision making process which must be compliant to the “best interests” rule. Her present medical condition can cause serious harm and danger to the life and health of her unborn child and immediate medical intervention is a necessity. Hence, she cannot validly refuse the treatment advised to her by her doctor, even if it is contrary to her decision, because it means saving her life and her unborn child. The law allows medical treatment to be administered by medical professional, even without the consent of the incompetent adult if it will work for the best interests of the patient.

The time-honoured “principle of autonomy” should be highlighted as laid down in the case of Airedale NHS Trust v Bland [1993] 1 All ER 821 Lord Keith stated:

“The first point to make is that it is unlawful, so as to constitute both the tort and crime of battery, to administer medical treatment to an adult, who is conscious and of sound mind, without his consent see F v West Berkshire Health Authority (Mental Health Act Commission intervening) [1989] 2 All ER 545, [1990] 2 AC 1. Such a person is completely at liberty to decline to undergo treatment, even if the result of his doing so will be that he will die.”

This seems perfectly clear, but transpired to be more difficult for medical professionals to accept than to understand, as illustrated in the much publicised case of Ms B v An NHS Trust [2002] EWHC 429 (Fam).

As a result of haemorrhaging of the spinal column in her neck, Ms B was paralysed from the neck down and was being kept alive by a ventilator.  She asked the hospital to withdraw ventilation and this was refused.  The doctors considered she did not have capacity to make the decision. She sought judicial review. It was held that she had capacity and so her continued treatment without her consent was unlawful. Dame Elizabeth Butler –Sloss stating:

“…the right of the competent patient to request cessation of treatment must prevail over the natural desire of the medical and nursing profession to try to keep her alive.”

 

Clearly, the principle of autonomy signifies that the competent patient has the right to refuse or choose their treatment as anchored in the Latin maxim “Voluntas aegroti suprema lex.”

However, before the passage of the Mental Capacity Act of 2005, the ruling in the case of R v St George’s Healthcare Trust v S (1998) 44 BMLR 160 was the prevailing jurisprudence. Dame Elizabeth Butler-Sloss ruled that:

“In deciding whether the patient has sufficient mental capacity… it is most important that those considering the issue should not confuse the question of mental capacity with the nature of the decision.”

 

The facts of the case are: S paid the doctor a visit in the late stages of her pregnancy.  The doctor advised that there was a serious problem and said the birth should be induced.  However, S refused to follow the doctor’s advice.  Together with the assistance of an Approved Social Worker and another doctor, the GP sectioned S under s.2, Mental Health Act 1983, for assessment.  S was taken to the local mental hospital and was immediately transferred to the maternity hospital.  The hospital applied to a judge ex parte for permission to perform a caesarean section on S.  The application was granted. But the court later on held that treatment of S without her consent was unlawful.

Since this case was decided before the Mental Capacity Act 2005 came into force in 2007 the test used was that in Re C, J. Thorpe instructs that for the patient offered amputation to save life, there are three stages to the decision: (1) to take in and retain treatment information; (2) to believe it and

(3) to weigh that information, balancing risks and needs.

In the same light, the case of (NHS Trust v T [2004] EWHC 1279 (Fam) held that:

“While a competent patient is entitled to make an irrational decision, such a decision can of itself be evidence of incapacity.”

 

In sum, what makes the outcome of choice “irrational” is that a worthwhile life will be lost and wasted, that could have been otherwise preserved. It will still be the solemn duty of the courts to assess the patient’s competence on the basis of the outcome of the choice that he or she has made.

Since the test in the Mental Capacity Act is based on that in Re C it is reasonable to assume the case would be decided in the same way today. However, the test in Re C is now only of historical interest as it was over turned by the case Re MB.

In contrast to Re C, where a patient with a serious mental illness was found competent to make a particular decision regarding treatment, in Re MB (1997) 38 BMLR 175 (CA) an otherwise mentally competent patient was held to not have the capacity to refuse a particular treatment. This doctrine has lain to rest the conflicting view in Re C case.

MB was pregnant and consented to a caesarean section.  However, she refused to consent to an anaesthetic as she had a fear of needles.  The hospital applied for an order allowing treatment. MB did not have capacity as her fear meant that she was unable to use the information, all she could comprehend was her fear.

Although the court specifically held that St George’s doctrine was still good law, whereas the rest of the cases involving pregnant women no longer are applicable.

The recent case of Rochdale Healthcare NHS Trust v. C [1997] 1 F.C.R. 274. provides a graphic example. In this case, the pregnant woman was refusing consent because of her experience of a previous Caesarean section. Johnson J. overruled the consultant obstetrician’s opinion that the woman was competent without meeting or talking to the woman purely on the basis of her comment that she would rather die than have another Caesarean. It is notable that in all of these cases, where the foetus’s life was still at stake, the court declared the Caesarean section to be lawful.[3]

Speaking extra-judicially, Thorpe L.J. explained the courts’ difficulties and reluctance to defend these women’s right to autonomy. He said: It is, perhaps, easier for an appellate court to discern principle than it is for a trial court to apply it in the face of judicial instinct, training, and emotion … It is simply unrealistic to suppose that the preservation of each life will not be a matter of equal concern to the Family Division judge surveying the medical dilemma. Whatever emphasis legal principle may place upon adult autonomy with the consequent right to choose between treatments, at some level the judicial outcome will be influenced by the expert evidence as to which treatment affords the best chance of the happy announcement that both mother and baby are doing well.[4]

Due to the passage and enactment of Mental Capacity Act of 2005, medical professionals are cloaked with immunity from any criminal or civil liability, if they use their best judgement that such medical treatment to be administered on the patients, who are either incompetent adults or children below 16 years of age, will be for their best interests and welfare. The law presumes that the timely medical intervention is obligatory because they are dealing with a medical emergency and they permitted to do whatever is necessary to try to save lives or prevent serious physical or mental harm. Thus, it was held that the lack of consent from the patient does not make the medical treatment unlawful per se. In proceedings under this Act or any other enactment, before arriving at a resolution on whether or not a person lacks capacity within the meaning of this Act, all circumstances must be decided on the balance of probabilities. Hence, in the case at bar, Bessie’s doctor is mandated under the law to administer the medical treatment because her best interests will be the primordial concern considering that the patient is an incompetent adult.

C. Advance Directive

The previously executed advance directive signed by patient Derek should be completely dispensed with. It is the positive obligation of his consultant, based on paragraph 5.23 of the Code of Practice to the MCA, to ask him to participate in the decision-making process by using practical means to communicate with the him through simple language, speaking at the correct volume and speed, choosing the right words and basic sentence structure, slowly breaking down information point by point and using vivid illustrations and photographs to help the person understand the decision to be made. It will all depend on doctor’s diagnosis of the patient’s condition to visibly identify the best interests of the patient. We are relying on the doctor’s medical expertise by acting swiftly in providing timely and appropriate medical treatment in order to prolong and preserve the patient’s life.

The Mental Capacity Act 2005 (Sections 24, 25 & 26) allows for the creation of advance directives for the refusal of treatment. In the legal perspective, advance directive is commonly known as a “living will”. However, medical professionals are reluctant to follow those individuals whose personal circumstances do not fall squarely within the limitations provided under the law and only a few are sufficiently precise to be enforceable by the courts. These written documents may convey a sense of the individuals’ wishes, which in effect be legally binding upon the patient giving it, provided than an advance directive must satisfy a certain criteria

There are three basic types of criticism levied at advance directives. The first is an attack on the moral authority of the directive. The gist of the criticism is that the person making the directive lacks the authority to bind the incompetent individual because they lack the necessary psychological relationship. The second type of attack is directed at the weighting given to autonomy and the third is focused on the pragmatic difficulties of implementing and relying on advance directives.[5]

Even the courts have been equally expressed their reluctancy to uphold the primacy of self-determination especially in cases where the person’s life is at stake.  Two classic examples of these cases before the enforcement of the Act, are still noteworthy and bear stressing. These are: HE v An NHS Hospital Trust [2003] EWHC 1017 (Fam) and W Healthcare NHS Trust v H [2004] EWCA Civ 1324.

In the former case, the patient had been a Jehovah’s Witness at the time that she had made an advance directive refusing blood products. When the question arose as to whether the directive should be followed, the court held that it should not. The decision was based on the fact that she had recently become engaged to a Muslim and intended to revert to Islam on their marriage. Also, she had, when conscious told relatives that she did not want to die.

According to Munby J:

“…however unhelpful for hard-pressed doctors this seeming platitude may be, it must all depend on the facts. All I would add is that the longer the time which has elapsed since an advance directive was made, and the greater the apparent changes in the patient’s circumstances since then, the more doubt there is likely to be as to its continuing validity and applicability.”

 

In the latter case, the patient was severely physically disabled, due to MS, conscious but no longer able to recognize her family. The percutaneous gastrostomy tube, through which she received nutrition, became dislodged. She had repeatedly given instructions to her family to the effect that she had no wished to be kept alive if she could no longer recognise her daughters. The question for the court was whether this amounted to a valid advanced directive that the tube should not be replaced. The court held that it did not. There was no evidence that she had given a directive that she should be starved to death.

However the prevailing doctrine wherein an advanced directive was effective was illustrated in the case of Re AK (Adult Patient) (Medical Treatment: Consent) [2001] 1 FLR 129.

In the abovementioned case, a 19-year-old boy suffering from MND requested that he have his ventilation removed two weeks after he could no longer communicate. Hughes J held:

“In the present case the expressions of AK’s decision are recent and are made not on any hypothetical basis but in the fullest possible knowledge of impending reality. I am satisfied that they genuinely represent his considered wishes and should be treated as such.”

As a general principle, the law expects doctors to act reasonably in the circumstances in which they find themselves. In an emergency situation, where is it unclear whether or not an unconscious or otherwise the mentally impaired patient has refused treatment in advance, it is reasonable not to delay treatment if it would result in a serious harm or danger to the person’s life or health. While MCA states that an advance decision is not “applicable” if there are “reasonable grounds” for believing that circumstances exist which the person did not anticipate at the time of making the advance decision and which would have affected the decision had she anticipated them. This provision seeks to deal with a commonly invoked criticism of advance decision-making to the effect that fundamental information (for example, information as to the kind of treatments available or the condition in question) may be absent at the time that the patient makes the advance decision and therefore the advance decision is not an “informed” decision. [6]

This raises the question of whether a decision-maker may take account of a person’s past wishes and views if these indicate a clear desire to be allowed to die in the particular circumstances at issue. In such circumstances, it may be argued that the decision-maker’s motivation is not the desire to bring about the death of the person lacking capacity but to fulfil that person’s wishes. Therefore, section 4(5) should not prevent the inclusion of a person’s past wishes (that they be allowed to die) as part of the determination of best interests under section 4(6).[7]

Therefore, given the vulnerability of advance directives under both the Act and the common law, it can be concluded that advance directives or living wills are not effective enough as instruments of self-autonomy to be legally and validly binding upon persons who execute them. It is rather safe to say that they should be given a presumptive weight with an open possibility that there are certain situations when they will completely disregarded. Therefore, it is deemed best if patients appoint a trusted proxy rather than merely rely on an advance directive if it is unacceptable for them to leave their fate in the hands of the medical profession.

 

 

 

Bibliography:

Statutes

Family Law Reform Act 1969 s.8

 

Mental Capacity Act of  2005

 

Offences Against the Person Act 1969

 

United Nations Convention on the Rights of the Child 1991

 

Key Cases:

Airedale NHS Trust v Bland [1993] 1 All ER 821

 

Department of Health and Community Services (NT) v JWB (1992) 175 CLR 218

 

F v West Berkshire Health Authority  [1989] 2 All ER 545, [1990] 2 AC 1

 

Gillick v. West Norfolk and Wisbech Area Health Authority (1986) AC, 112.

HE v An NHS Hospital Trust [2003] EWHC 1017

Ms B v An NHS Trust [2002] EWHC 429 (Fam).

 

NHS Trust v T [2004] EWHC 1279 (Fam

 

Nielsen v Denmark [1989]

 

Schoelendorff v New York Hospital 211 N.Y.125 (1914)

 

Sidaway v. Governors of Bethlem Royal Hospital (1985) AC, 871.

 

Re : AK (Adult Patient) (Medical Treatment: Consent) [2001] 1 FLR 129.

 

R v St George’s Healthcare Trust v S (1998) 44 BMLR 160

 

Re: C (Adult: Refusal of treatment) (1994) I, WLR, 290.

 

Re:E (A Minor) (Medical Treatment) [1991] 2 FLR 585

 

Re: MB (1997) 38 BMLR 175 (CA)

 

Re: R (A minor) (Wardship: Medical Treatment) (1991) 4, All ER 177, CA.

 

Re: W (A minor) (Wardship: Medical Treatment) (1992) 4, All ER 627, CA.

 

Rochdale Healthcare NHS Trust v. C [1997] 1 F.C.R. 274.

W Healthcare NHS Trust v H [2004] EWCA Civ 1324.

Books:

Batten, D. A. (1996)  Informed consent by children and adolescents to psychiatric treatment. Australian and New Zealand Journal of Psychiatry, 30, 623-632.

 

Dickenson, D. (1994) Children’s informed consent to treatment: is the law an ass? Journal of Medical Ethics, 20, 205-206

 

Kennedy, I. & Grubb, A. (1994) Medical Law: Texts with Materials. London: Butterworths, 2000Mason, J.K. and

 

Journals:

 

Lawyers Weekly, November 30, 2008 (http://www.lawyersweekly.com.au/blogs/opinion/archive/2008/11/30/a-minor-s-right-to-refuse.aspx)

 

Lord Justice Thorpe, ‘The Caesarean Section Debate’ [1997] 27 Family Law 663 at 663–664

 

Medical Law Review, Volume 17, Issue 1, pp. 1-29 (http://medlaw.oxfordjournals.org/content/17/1/1.full)

Volume 16, Issue 1, pp.1-22 (http://medlaw.oxfordjournals.org/content/16/1/1.full)

 

The British Journal of Psychiatry (2001) 179: 384-386 (http://bjp.rcpsych.org/cgi/content/full/179/5/384)

 

 

---

[1] Lawyers Weekly, November 30, 2008

[2] The British Journal of Psychiatry (2001) 179: 384-386

[3] Medical Law Review, Volume 16, Issue 1 pp.1-22

[4] Lord Justice Thorpe, ‘The Caesarean Section Debate’ [1997] 27 Family Law 663 at 663–664

[5] Ibid (3)

[6] Medical Law Review, Volume 17, Issue 1, pp. 1-29

[7] Ibid.(5)

Equity law

 

 

Part A

Section 53 (1)(c) of the 1925 law of property act states that a “disposition of an equitable interest or trust subsisting at the time of disposition must be in writing signed by the person disposing of the same, or by his agent there unto lawfully authorized in writing or by will[1]. In identifying the application of section 53(1) (c), under express trust, it is determined whether an attempt by a beneficiary to dispose their interest by conduct or verbally has occurred. For example, it is considered that where an individual A, who is a beneficiary of a trust, declares verbally that  he or she would hold all his interest upon trust for a third party B, then section 53(1)(c) is applicable[2]. In such a case, unless there is contrary evidence, such a declaration that is not in writing is considered to be void. The courts have construed this subsection to be inapplicable especially where a settlor with beneficial interest gives instructions to trustees to vest the interest to a third party where both the legal and equitable interest passes to the beneficiary and applicable where both the legal title and equitable title passes to a third party. Such court cases are presented and analysed in this paper.

Before highlighting the specific attributes of section 53 (1)(c) and the courts application and interpretation of the section, it is crucial to understand some basics of what trusts are and how they are formed. Brown describe a trust as an arrangement where an individual referred to as a settlor offers property to one or more individuals referred to as the trustee, who manages the property for the benefit of another individual who is the beneficiary.[3] The settlor loses both the equitable title, which is the beneficial interest, and the legal title when he assigns other beneficiaries to the properties with himself not a beneficiary and when he or she appoints a trustee. Where the settlor is also a beneficiary, he or she loses the legal title to the trustee but maintains the equitable title as a beneficiary.  The settlor can thus pass the beneficial or the equitable interest but cannot pass the legal interest without revoking the trust instrument. This form of trust is a conveyance in trust[4]. Trusts are also formed through declarations of trust where a settlor through a written statement transfers the equitable interest in a property while retaining the legal interest. These distinctions are crucial in the subsequent discussion of the courts application of section 53(1)(c) of the 1925 property’s act.

Among the key features of the section 53 (1) (c), that must be satisfied for an instrument to be valid includes the condition that a transfer of a relevant interest under the section must be in writing. The test for this case is whether the transfer of relevant interest is represented in a permanent form. An agents or diponers signature, which is also required, is can include any endorsement of the document and it may include initials, voice on tape recorder, and so on. The equitable interest that exists with the individual drawing the instrument purporting to transfer the interest in a property is defined as the overriding interest, and in this case the subsisting equitable interest that exists with the prior beneficiary. Finally, the term disposition is the key feature in the section and it although it has not been defined in the statute; it is defined in Section 205 (1) (ii) of the law of property act[5] as vesting instrument, declaration, disclaimer release and any assurance of interest or property. Romer described disposition in the case of Timpson’s executors v Yerbury as “the equitable interest in property in hands of trustee as disposed by an individual who is entitled to a third party in any of four ways including directly assigning to a third party, directing trustees to hold property in trust for a third party, contracting for valuable consideration, declare oneself as trustee to a third party[6]

The provision for section 53(1)(c) is based on the rationale that where beneficiaries are allowed to transfer equitable rights to third parties orally and without evidence in writing, there would be possibility of fraud. The provision thus aims at stemming fraud by prohibiting such oral or hidden transfers of equitable interests[7]. Another basis for the provision is to ensure that trustees are able to determine where equitable interests subsist in a trust at any given time[8].

The courts have addressed such a scenario, where an individual who holds both the legal and equitable rights such as where a settlor who is an equitable owner as a beneficiary directs the legal owner, the trustee, to transfer his title to a third party and similarly the equitable owner, the settlor orally and with no writing transfers his interest to a third party such as in the case of Vandervell v IRC[9]. In such a case, Vandervell verbally directed his trustees to transfer his bare trust of shares directly to the Royal College of Surgeons. Vandervell intention was that the shares would utterly pass to the college. His trustees transferred the shares but the question of whether such an oral direction qualified as a disposition of his shares or whether it was void for want of writing arose with the assertion that the college merely held the shares on trust for him and not outright as he had sought. The case reached to the House of Lords after the court of appeal found that section 53 (1) (c) was not applicable to the particulars of the case.

The ruling sought to determine whether despite the plainly conveyed intention by the appellant, the lack of verbal directions being accompanied by writing prevented passing of the beneficial interest to the college. The judges argued that the determination of whether the beneficial interest passed to the college was dependent on the true construction of the section of the law. Citing the case of Grey and Oughtred in where legal estate continued to reside with a trustee with the beneficial holder dealing with the equitable estate[10], it was argued that where the construction sought to avoid fraud or where it would make it difficult for the trustee to ascertain as to who are the true beneficiaries at any given time by avoiding concealed oral transactions, it was necessary to observe the section. However, where in a case such as where the settlor is the beneficiary, and where the trustee is instructed to transfer the legal and beneficiary interest as was the case in Vandervell, the fact that he was in a position to give instructions to the trustee on both the equitable and legal interests meant that the need for invoking the section was unnecessary. Consequently, the new beneficial owner would in that case be free to deal with both the equitable and legal aspects of the estate, and this would not amount to creation of a new trust. The overriding opinion was that where the intention was to pass the legal estate to a beneficiary, then no further document would have been necessary unless the beneficiary would expressly need such a document as proof of beneficial interest in case this is challenged in a later date.

In this case, since the testator posses both the legal and equitable interest on the estate, and as the beneficiary to the estate, he does not need to comply with the section requiring that these be in writing. However, if it were that the equitable and the legal interest are possessed by different individuals, then the section would require to be upheld. Considering the issue of justice, upholding section 53 (1) (c) would not deliver its purpose of preventing fraud and ensuring that it is determinable by the trustee where the equitable interest subsists at any given time. In this case, it would be unjust to hold that it should be in writing as it serves none of the established purposes. Quoting Lord UpJohn:

“…where the beneficial owner holds the whole equitable interest in the estate and is in a position to direct his bare trustee concerning the legal and equitable estate, then no justification exists to invoke section s(53)(1)(c) where the equitable owner wants to deal with both the equitable and legal estate.”[11]

In a similar case but where an equitable owner directed the trustees to hold upon trust property for a third party, it was argued that the disposition was void for lack of writing as required in s 53(1)(c). In this case; Grey v. IRC[12] it was decided that the oral directions were void. Disposition would only occur where directions by a beneficiary vests the beneficial interest to a third party through writing and duly signed. In our case, where the settlor who has the sole beneficial interest but with the legal interest subsisting with the trustee, the settlor may not be able to request the trustee to assign the beneficial interest to a third party without observing section 53 (1) (c). This would suffice since the legal title is separate from the equitable title expressed through beneficial interest.

Thus where there is a subsisting equitable interest meaning that the equitable and legal interest are divorced from each other[13], the courts have held that the disposition must be in writing. In this regard, the courts have held that the disposition must be in writing and not just evidenced in writing. This was evident in the case of Re Tyler [1967] [14]and in the case of Danish Bacon v Staff Pension Fund.[15]

 

 

Part B

Question of whether a gift is valid or void often arises in law especially after the death of a donor. In many cases, gifts that are not properly constructed fail when they are unable to satisfy all the requirements of construction of a gift. Over, the years, the decision by the courts in applying whether a gift is void or not has usually based its framework for determining such cases on whether the gift has thus satisfied these requirements. Besides the three certainties; intention, subject matter, and object[16] a gift must be properly constructed by observing various formalities. The intention of the donor must also be clear as to the intention to give the gift. This is intended to ensure that the equity is observed[17]. Still, despite such clear intention, it has often been held that equity may not perfect an imperfect gift[18].

A gift causa mortis is given by a donor when he or she has expectation or has apprehension of her or his impending death[19]. The type of gift in this case is thus a gift causa mortis since Horace Chapelwick, who is expecting that he may die while undergoing a major cancer operation gives her the property, the house and hand her keys to the house on condition that if he was to die, she was to take the house. Determining whether Esther Nortis is entitled to the house will depend on whether her case satisfies necessary requirements in a case of causa mortis. In this case, the donor delivers the gift with an intention that control of the subject of the gift immediately passes to the recipient of the gift but only passing in absolute to the recipient upon death of the donor

Determination of whether Esther North is entitled to the gift is dependent on whether her situation satisfies all the elements under the particular type of law. Intention to create a trust is one of the three certainties and it asserts that an intention to create a trust must be sufficiently shown by the words used[20]. The equitable maxim of equity looking at intention and not form is used to identify the intention of creating trust. Therefore, use of precatory words that either impose moral obligation or give hope have been found not to create trust. Such was evident in cases such as Lamb v. Eames[21] and in Re Adams and Kensington Vestry[22] which marked a shift to the modern approach that looks at the whole document creating trust to identify whether an intention to create trust exists. This approach has been upheld in various cases including Re Diggles (1888) 39 Ch D 253[23], Re Hamilton [1895] 2 Ch 370[24] and in   Comiskey v Bowring-Hanbury [1905] AC 84.[25] In cases where intention to create trust is oral, similar standards are required such that in the case of Jones v. Lock [1865][26], it was held that a cheque to a child that had not been signed by a his father before he died was a failed absolute gift and thus the estate could not claim it on behalf of the child. The courts held that an absolute gift that had failed could not be held as a declaration of trust as no clear intention of creating a trust could be shown. The intention to create a trust thus must was evident by the wording by Horace to Esther. Other certainties include   certainty of subject matter, and the object which includes certainty of property under trust and certainty of beneficial interest[27]. The certainty in the house as property and Esther as the beneficiary also qualifies under this case. Finally,

Firstly, there should be expectation or apprehension of death. Such expectation should be subjective; reasonable expectation or objective expectation of death is not a necessity[28]. In order to determine whether subjective probability of death is present, then facts surrounding the cause of the expectations of death must be analysed. This would require that objectively present factors contributing to expectations of death such as disease, peril; or illness must be objectively present. Hudson, asserts that traditionally insufficient expectations of death have been found in cases of minor surgery, threatened assassination and where a donor voluntarily undertakes a perilous enterprise or journey[29]. On that condition alone, Esther North qualifies for the gift since Horace’s impending major cancer operation is a sufficient subjective reason for him to be apprehensive of an impending death.

Additionally, the donor must have an existing intention to deliver complete control and ownership of a property in future. Consequently, the donor should not make attempt to preserve control of property till death. Where such control is exercised, then the gift is invalidated. This fact results from the presumption that those gifts that are given while death is impending are not gift inte vivos but are gift causa mortis.Thus a proof that it is the donors intention to unconditionally part with the property must be shown[30]. In this case, by handing Esther the house keys in an envelope, before his death is a sign of parting with the control thus satisfying the condition of intention to deliver the absolute control of property in future.

Again, it must also be shown that the gift was delivered. Where delivery is made, acceptance is presumed. Where manual delivery is practical, common law required that it be exercised. However, where it is impractical to deliver manually, symbolic or constructive delivery is sufficient. Constructive deliver involves giving control over the gift and where it is done symbolic delivery it involves giving something that symbolizes the property. In the case, handing over the keys is symbolic delivery. However, taking into consideration section 53(1) (b) of the law of property act, any oral declaration for a trust of land is made void,[31]the oral declaration is thus void based on this aspect.

Since absolute title passes only after the death of the donor, another consideration that must be satisfied before the title passes in absolute to the recipient of the gift is that the cause of death must be the illness, peril or disease that the donor was apprehensive would result o his or her death.[32]Considering that the cause of death was only a proximate death and not the cause expected as an impending threat of death since Horace committed suicide, then the gift is void and it lapses, with the effect that the donor’s estate would be administered according to the will, with Hillary and his attorney as the executors.

In the case of Hillary, various factors would require to be analysed to determine whether she is entitled to the shares. Firstly, considering that the gift by Horace was not given on the basis of an impending death, the gift would be considered as an inter vivo gift, and as such a gift made during the lifetime of Horace. In order to determine whether Hillary was entitled to the gift, considerations on whether the gift was completely constituted and following the required legal formalities would be determined. In a case of inter vivo gift, the principle that equity does not perfect an imperfect gift and the principle that equity wont assist a volunteer show that even where a donor intended to make a gift but fails to comply with formalities, the gift is improperly constituted and it cannot be enforced[33].

Firstly, the gift must satisfy the criteria of constitution. In this regard, the gift in the property must be valid trust declaration and the property must be transferred to the trustee.[34]. To determine whether an intention to transfer the shares to the donee exists, the actual context of the relationship is analysed. In the case of Horace, the issue of share certificate is an indication of an intention to transfer the shares to Hillary.

Secondly, whether transfer of the property occurs is another question that must be answered. In this case, Horace gives his share certificate to Hillary and the question is whether this constitutes a valid transfer to the trustee. The transfer of the properties to a trustee would only be argued to have occurred where the donor divests himself of the property through passage of legal ownership in a declaration of trust. In this case, handing of the share certificate without the accompanying legal transfer by filling out the necessary transfer certificate makes the transfer to be void as it would be taken to be incompletely constituted.

However, an exception rule exists. It was asserted that some circumstances would render a voluntary settlement to be valid. One such case is that set the precedent was the case of Milroy v. Lord,[35]where it was argued that where the settlor had done all that was required to be done in the particular class of property, the settlement is rendered binding. Equity however does not make the imperfect trust to become a perfect trust even where clear intention was evident as in our case. A similar case to the case given was the case of Re Fry [1946] [36]where a donor who intended to give his shares was unable to effect the transfer of the shares as he had to gain the governments consent before the transfer of the shares. In this case, he managed to get the consent but before he had dispatched the transfer form he died. The court held that the transfer was void. Similarly, the transfer to Hillary on this basis alone is void. Nonetheless, under the Re Rose [1952] case, in a form of strict interpretation of the rule, it was argued that where a donor had done all that was possible to make a valid transfer, but due to a third party this was not possible, then the transfer is valid[37].In this case, only directors were the only ones remaining to authorise the transfer, and it was held that a trust was imposed on the property until when the assignment would be effected by the directors. Equity thus recognises the attempted transfer although the law would only do so on completion of the director’s role affecting the transfer to make it legally binding. However, in the case of Pennington v Waine[38], it was held that where a settlor had executed share transfer to her nephew but leaving the form for the share transfer in the auditors file thus failing to send it for registration, it was held by the court of appeal that such a transfer was valid. This case was criticised strongly for being wrongly decided on the basis that it conflicted with the Re Rose principle that required a settlor to do everything within their power. Critics argued that the settlor had not achieved the strict interpretation required and the case had the consequence of not only leaving the law uncertain but also attempted to indicate that strict rules could be ignored where a donor had acted unconscionably[39]. Considering that no such efforts are evident in the case, Hillary’s gift to that extent is void. Similarly, the share dividends are still legally Horace as no effective transfer has occurred.

Considering that both Hillary and Esther’s gift fail, the Horace estate should be administered based on the contents of his legally binding will. Consequently, since the legally biding will leaves all the estate in the registered local cat’s charity, then the estate should be passed to the beneficiaries in the will as per the wills instructions. However, taking into consideration the rule in Strong v. Bird[40], although the gift is void due to failure to fulfil the legal requirements, where the beneficiary is vested with the administration responsibility, the gift is perfected as long as the will of the donor is unchanged up to the period he dies. Consequently, in this case, Frank Stodega and Hillary west will act as executors to the estate as outlined in the will, with the effect of Hillary being an executor perfecting the gift. Hillary would thus be entitled to the gift.

It is thus clear that a gift is not perfected if it fails despite fulfilling various other requirements such as a clear intention on the donor especially where it is indicated that the donor did not do enough to pass the equitable rights to the done. However, where all obligations are met, the gift is valid and it should thus pass to the donee as is appropriate.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

References

Jones v. Lock (1865) 1 Ch. App 25

Hudson, Alastair. 2005.Equity & Trusts. London: Cavendish publishing.

Hudson, Understanding Equity and Trusts, 2nd ed, 2004, London:Cavendish

Hayton, The Law of Trusts, 4th ed, 2003, London: Sweet & Maxwell

Milroy v. Lord (1862) 4 De.G.F. & J. 264

Paul v. Constance [1977] 1 WLR 527

Pennington V Wainen [1886] Lr 17b

Vandervell v IRC [1967] 2 AC 291

Grety v. IRC [1960]  AC 1

Re Rose [1952] Ch 499

Hanbury, H.G. & Martin, Jill E. Modern Equity. 18th edition. Sweet & Maxwell

Hudson, Alastair, Equity and Trusts 6th Edition. Cavendish 2009
Hayton, David J. and Mitchell C, Hayton and Mitchell Commentary and Cases on the Law of Trusts and Equitable Remedies. 13th edition Sweet & Maxwell, 2010.

Graham Moffay, Gerry, B., John Dewar.

Duddington John, Essentials of Equity and Trusts Law. 6th Edition Pearson Longman 2006
Wort Hanbury & Martin Modern Equity pp 52-53; 64-69

Hington, Sarah, Equity, 2nd edition, Clarendon Law Series, 2006.

Virgo, Graham Maudsley & Burn’s Trusts & Trustees: Cases & Materials.  7^th edition, Butterworths, 2008.

Edwards, Richard and Stockwell, Nigel, Trusts and Equity. 9^th edition. Pearson  Longman, 2009

 

---

[1] Section 53(1) (c) of the 1925 Property act

[2] Hington, Sarah, Equity, 2nd edition, Clarendon Law Series, 2006.

[3] Brown Gordon and Scott Myers. Administration of will, trusts and estate. Cengage. 2003. P. 210

[4] Hayton, David J. and Mitchell C, Hayton  and Mitchell Commentary and Cases on the Law of Trusts and Equitable Remedies. 13th edition Sweet & Maxwell, 2010.

 

[5] Section 205 (1) (ii) of the law of property act

[6] Timpson’s v. Yerbury [1936] IKB 645

[7] Duddington John, Essentials of Equity and Trusts Law. 6th Edition Pearson Longman 2006

[8] Hudson, Alastair. 2005.Equity & Trusts. London: Cavendish publishing

[9] Vandervell v IRC [1967] 2 AC 291

[10] Hudson, Understanding Equity and Trusts, 2nd ed, 2004, London:Cavendish

 

[11] Vandervell v IRC [1967] 2 AC 291

[12] Grety v. IRC [1960]  AC 1

[13] Dudington 20

[14] [1967] 1 WLR 1269

[15] Danish Bacon v Staff Pension Fund [1971] 1 WLR 248)

[16] Oakley, A.J. (ed)  Parker & Mellows: the Modern Law of Trusts.  9^th edition Sweet & Maxwell, 2008

[17] Dudington 205

[18] Hudson, Alastair. 2005. Equity & Trusts. London: Cavendish publishing.

[19] Hudson, Understanding Equity and Trusts, 2nd ed, 2004, London:Cavendish

[20] Edwards, Richard and Stockwell, Nigel, Trusts and Equity. 9^th edition. Pearson  Longman, 2009

 

[21] Lamb v Eames (1871) 6 Ch App 592

[22] Re Adams and Kensington Vestry (1884) 27 ChD 394

[23] Re Diggles (1888) 39 Ch D 253

[24] Re Hamilton [1895] 2 Ch 370

[25] Comiskey v Bowring-Hanbury [1905] AC 84

[26] Jones v Lock [1865] 1 Ch App 25

[27] Edwards, Richard and Stockwell, Nigel, Trusts and Equity. 9^th edition. Pearson  Longman, 2009

[28] Hudson, Understanding Equity and Trusts, 2nd ed, 2004, London:Cavendish

[29] Hudson, Understanding Equity and Trusts, 2nd ed, 2004, London:Cavendish

 

[30] Edwards, Richard and Stockwell, Nigel, Trusts and Equity. 9^th edition. Pearson  Longman, 2009

[31] Section 53 (1) (b) of the law of property Act 1925

[32] Hudson, Alastair. 2005. Equity & Trusts. London: Cavendish publishing.

[33] Wort Hanbury & Martin Modern Equity pp 52-53; 64-69

[34] Hudson, Understanding Equity and Trusts, 2nd ed, 2004, London:Cavendish

[35] Milroy v. Lord (1862) 4 De.G.F. & J. 264

[36] Re Fry 1986

[37] Re Rose [1952] Ch 499

[38] Pennington V Wainen [1886] Lr 17b

[39] Virgo, Graham Maudsley & Burn’s Trusts & Trustees: Cases & Materials.  7^th edition, Butterworths, 2008.

 

 

[40] The rule in Strong v. Bird [1874] LR 18 Eq 315

Introduction

Intellectual property is the recognition that the product of our mental labour and other intangible ideas that results from the creativity of the mind are considered as property that can be owned.[1] Intellectual property is therefore the result of human’s creative genius. According to MacQueen, Waelde, and Laurie the use of “property” depicts the “existence of rights”, which further implies “a system of control to be exercised by the right holder”.[2] This paper, will discuss the protection of copyrights. It will start by clarifying the definition of copyrights based on its history, dimensions, and scope. The copyright law in United Kingdom will be highlighted in contrast to American copyright system. The different international conventions and agreements that synchronize the application of copyright will also be discuss to bring light into its purpose and applicability. In particular, the emphasis will be given on the application of copyrights to jokes. This is based on the statement made by Matthew Harris that jokes are copyrightable.[3] In order to test the validity of this claim, jokes will be categorized as a dramatic work, which reveals artistic originality through the incorporation of the writer’s skill and labour, fixated through performances, and owned by its creator. There will be a discussion about the infringements of the moral rights and economic rights under copyright law. The possibility of applying the copyright law to jokes will further be contended. The possible defence against infringement through the use of fair deal argument will also be discussed. Finally, the remedies and possible reforms for the UK copyright law will be specified.

 

Definition of Copyright Law

Copyright is the prerogative of the creator or author to secure ownership of his or her work and prevent other people from accessing or using the creation freely or without permission[4]. Copyright is a means of protecting intellectual property through its expressions. It is essential to review and clarify the notion of copyright law before subjecting it to further analysis.

History and Dimensions

The origin of the copyright law can be traced back to the Statute of Anne in 1709, which incorporates the rules used in printing patent, Stationer’s copyright, and government press control. According to TB Macaulay “The principle of copyright…is a tax on readers for the purpose of giving a bounty to writers”.[5] TB Macaulay further argued that the author’s copyright must not be inherited. In addition, Macaulay disagreed with Talfourd’s sixty years protection and proposed that protection must be made forty-two years after publication.[6] In 1842, the Talfourd Act or the Copyright Amendment Act was legislated. Starting on 1988, all works published before 1923 were considered as part of the Public Domain.[7]

There are two dimensions in the copyright law: economic and moral rights. The Economic or Propriety Rights refers to the exclusive right of the author or the copyright owner to authorize the production of copies of works, as well as the performance and broadcast of the work to the public.[8] Economic rights make it possible to make money through copyrights.[9] Moral rights refer to the right to be identified as author or director, right to object to derogatory treatment of work, right against false attribution of work, and the right to privacy of certain photographs and films.[10] Through the implementation of moral rights, the author’s personality claims is recognized.[11]

Agreement, Conventions, Directives: Idea/Expression Dichotomy

In article 9 of the Berne Convention, it was argued that “Copyright protection shall extend to expressions and not to ideas, procedures, and methods of operation or mathematical concepts as such”[12] The Berne Convention protects the authors and the copyright of its member nations.[13] Expressions were protected because they are ‘originally’ created by the author whereas ideas, procedures, and mathematical concepts were merely discovered.[14] The TRIPS Agreement supported this claim by applying the same criteria in determining the copyright for computer programs, compilations of data, protection of performers, producers of phonograms and broadcasting organizations.[15] The TRIPs Agreement proclaimed that Intellectual Property Rights are legal rights bestowed to the author(s) or creator(s) of an intellectual property[16].

Further clarification of the idea/expression dichotomy was provided by Alan Beckley.[17] As expressed in Berne Conventions, the copyright law protects the expression of the idea.[18][19] Beckley explained that copyright law may only apply to works that “exist in permanent form.”[20] Giving importance to the expression and the form of work shows that originality is not the fundamental basis of copyright protection. Nevertheless, it is important that the work or creation is not an imitation of another author’s work.

The Universal Copyright Convention was created because there were countries that did not agree to the Berne Convention. The national laws of the non-participating countries were not compatible with the tenets of the Berne Convention.[21] This was particularly true with the case of the United States prior to 1989. The UCC required its member states that they must give foreign authors similar protection that the local authors receives.[22] It also required that works must have a formal registration and must always carry the copyright symbol.

UK Requirements for Copyrights

The Copyright, Designs and Patents Act 1988 is the current law on copyright in the United Kingdom. The CDPA 1988 described literary works as any work that are “written, spoken, or sung, and includes a table or compilation, and a computer program”.[23] Dramatic works are those that are portrayed through “work of dance or mime and musical work consists of music.”[24] In the consideration of these terms, jokes can be considered as a literary work or a dramatic work.

There are two lists of works in copyrights: closed lists and open lists. According to Martin Senftleben “whereas continental European countries provide for a closed catalogue of carefully defined exceptions, the Anglo-American copyright tradition allows for an open-ended fair use system that leaves that task of identifying individual cases of exempted unauthorized used to the courts.”[25] Estelle Derclaye argued that the key advantage of the “closed list/catalogue” approach is the presence of certainty and restraint.[26] Since the copyright system in the European Union is governed by the TRIPs Agreement, the copyright law protects the copyright strictly based on statutory definitions. Restraint is shown by the fact that the protection of work was not expanded inappropriately.

Copyrights on Jokes

Matthew Harris commented that jokes can be copyrightable. However, jokes were not included in any of the agreements, conventions, and other statutes that govern copyright protection. Therefore, jokes do not belong in the ‘closed lists’ of the UK law. In the United Kingdom, wherein the ‘closed list’ approach is being used, classifying jokes as a type of dramatic work will not be accepted. This was the case when the decision for the Creation Records v News Group Newspaper held that no copyright can be infringed if the work (photo-shoot scene) cannot be considered as a type of artistic, dramatic, or literary work.[27] Nevertheless, case laws revealed that the definition of work is being expanded to include cases that shows originality as J Peterson dicta denotes “that which is worth copying is prima facie worth protecting.”[28]

In order to recognize whether jokes are worth protecting, consider the case of Norowzian v Arks (No. 2). In this case, the judge argued that the film could not count as a dramatic work because it is not capable of being performed physically. The decision was based on the definition used in court that “dramatic work was a work of action, with or without words or music, which was capable of being performed before an audience.”[29] Since jokes are capable of being performed physically before an audience and jokes are acts with words, then the performance of jokes can count as a dramatic work.[30] By explaining it this way, the copyright protection from dramatic works such as dancing is expanded to jokes. Therefore, jokes do not belong to the closed lists of works under copyright in the United Kingdom. Nonetheless, case laws examine the issues in a case to case basis especially as a part of the harmonizing effort across European Union states. In order to understand whether the copyright law can be expanded and applied to jokes, the works that can be protected by copyright law were discussed below.

The CDPA Article 3 gave the following description of work[31] :

1)      “literary work” means any work, other than a dramatic or musical work, which is written, spoken or

sung, and accordingly includes—

(a)    a table or compilation, and

(b)   a computer program;

2)      “dramatic work” includes a work of dance or mime; and

3)      “musical work” means a work consisting of music, exclusive of any words or action intended to be

sung, spoken or performed with the music.

In determining whether the jokes can be considered as a literary work, consider the case of the University of London Press v University Tutorial Press. In light of this, Judge Peterson defined literary work as “work which is expressed in print or writing, irrespective of the question whether the quality or style is high.”[32] It is further argued that “Copyright Acts are not concerned with the originality of ideas, but with the expression of thought, and, in the case of literary work, with the expression of thought in print or writing.”[33] The two statements suggest that jokes can be defined as literary works if they are written or printed as an expression and not merely an idea. As expressed in the definition from the CDPA 1988, jokes in written form are considered as literary work according to the compilation category.

Duration

According to CDPA 1988 S9, the author or the creator of the expression is the owner of the copyright.[34] Copyright in literary, dramatic, or artistic work is an automatic form of ownership that last during the lifetime of the author and 50 years after the author’s death.[35] Anonymous authors and authors who used pseudonyms are protected 50 years after the first available copy was publicly available.[36] If there is more than one author, the protection will continue 50 years after the last author dies.[37]

Performances are also considered as a type of work. The CDPA 1988 Chapter 48 considered the “performance of the work in public is an act restricted by the copyright in a literary, dramatic or musical work…includes delivery in the case of lectures, addresses, speeches, and sermons, and… any mode of visual or acoustic presentation”.[38]In Part II of CDPA 1988, the rights of performers include “requiring his consent to the exploitation of his performance, and creates offences in relation to dealing with or using illicit recordings and certain other related acts”[39] Jokes are performable acts and can therefore be protected by the rights of performers under the CDPA 1988.

Sound recordings and films are also protected by copyright in a 50 years period after the end of the calendar year when it was created or released.[40] The term “released” implies the initial date when the film or sound recordings were published, broadcast, or shown in public.[41] In connection to this Section 14 of the CDPA 1988 entails that broadcast and cable programmes are also copyrighted for the duration of 50 years starting from the end of the year when the first broadcast was made.[42] The repetition of broadcast does not change or extend the expiration of copyright. This means that the original copyright will apply. Typographical arrangement of published editions is also copyrighted; however, the copyright period is only 25 years after the first publication.[43] Jokes that were broadcasted or were published are therefore protected by copyright law. The act of publishing the jokes in the internet can be considered as an act of copying and broadcasting.[44]

On October 29, 1993, the Council Directive 93/98/EEC harmonizing the term of protection of copyright and certain related acts was created as a result of incorporating more countries in the European Union.[45] The need to harmonize the differences among “national laws governing the terms of protection of copyright and related rights, which are liable to impede free movement of goods and freedom to provide services, and to distort competition in the common market”[46] was acknowledged. As a result, the duration of protecting the copyright was “harmonized at 70 years after the death of the author or 70 years after the work is lawfully made available to the public and for related rights at 50 years after the event which sets the term running.”[47]

 

Originality and the Sweat of Brow Approach

The issue of copying was prominently raised by Designer Guild Limited v. Russell Williams (Textiles) Limited. The issue was regarding the infringement of fabric design in terms of copying the entire design or a substantial part of the design. The similarities include vertical stripes and the presence of scattered fabric flowers and leaves[48]. There are also allegations in copying of the brush strokes, number of shades of the leaves, and the overall effect produced by the design.

The expression of using stripes, flowers, and certain brush strokes depict that the designs were expressions and not merely ideas. The defendants were found to copy a substantial part of the design. The designs differ in color but the technique and the impression which revealed the idea of the original creator were copied. A copyright protection is not granted to a person that did not make effort or exert labor known as the “sweat of the brow”[49] to the work. The UK copyright law argued that the “originality of the copyright work need only demonstrate that he or she has expended a significant effort in creating the work.”[50] The judgment of Walter v Lane [1900] AC 539 states that it will be an injustice if it will be permitted by the law that “one man to make profit and to appropriate to himself the labour, skill, and capital of another.”[51]

Nonetheless, this maxim may sound too restrictive and may give rise to problems. For instance, if the maxim is applied to the possibility of copyright protection of an alphabetical listing such as a grade list of students in a University based on the “sweat of brow” approach. Although a person exerted efforts to produce the compilation, this is not enough to warrant copyright protection. A degree of creativity and originality must be present to be considered as original.[52]

The Mauritius Research Council defined the term ‘original’ pertains that a “sufficient degree of effort and intellect has been used in the creation of a work”.[53] The Council Directive imposes a criterion to originality that the “work should be the author’s own intellectual creation.”[54] Consider the case of Ladbroke Ltd v William Hill Ltd [1964] 1 All ER 465, which showed that although the idea of using fixed odds football coupon was not original, the matter of presenting the idea (expression) through the finish product or through the completed work was not copied.[55] Although the copyright law in the United Kingdom reflects the use of the sweat of brow approach, it is not indicated in any UK legislation. As shown above, the court decision would normally consider the sweat of brow or the labour exerted by the author as a standard of originality if it comes with creative skills and judgment.[56]

The jokes that were used by Keith Chegwin were not originally his creation. They were not products of his creative genius nor are they results of his ‘sweat of brow’. This shows that Keith Chegwin cannot become the copyright owner of the jokes he posted in his Twitter account.

Authorship/Ownership

The term “author” refers to the person that created the work.[57] It could be the producer, the director of a film, the broadcasting network, the publisher, or the performer. A collaborative work between two or more authors is known as joint authorship.[58] In CDPA S 11 (2), it is explained that the first owner of the copyright is the author of the work.[59] Nonetheless, in case that the work is if the employee is working for an employer then the employer is the first owner not the author.[60] This type of ownership was the problem raised in Robin Ray v Classic FM plc [1998] FSR 622 wherein Robin Ray claimed the copyright ownership for a playlist with detailed categorization because it was made outside of requirements of employment.[61] Another relevant problem in the realm of authorship and ownership was the presence of false attribution.

False attribution is one type of moral rights. It can be demonstrated through the case of Noah v Shuba [1991] FSR 14. Dr. Noah was falsely quoted by the Health and Beauty Magazine.[62] The fact that the short passage was not present in any writings of Dr. Noah revealed that he was falsely attributed for something that he did not say. Another example is In Clark v Associated Newspapers Ltd. [1998] 1 All ER 959, Alan Clark sued the Evening Standard newspaper for a parody that could be misinterpreted and may be attributed to Alan Clark[63].

The owner of the jokes that Keith Chegwin posted in his Twitter account were the rightful author or the employer of the authors for whom the jokes were written. Keith Chegwin lifted many of the jokes from other peoples’ shows and performances. The jokes were not written for Keith Chegwin by an employee. In this case, Keith Chegwin is neither the owner nor the author of the jokes.

Fixation

The above case is related to the concept of fixation. Fixation implies that the idea is fixed in a material form. In Section 3(2) of the CDPA 1988 it is clear that copyright will not exists unless it is recorded in writing, which includes different notations or codes.[64] The Mauritius Research Council discussed that “for purposes of copyright, creation has to include fixation.”[65] Walter v Lane [1900] AC 539 recognized fixation as “a literary work has no copyright protection unless and until it is recorded, in writing or otherwise.”[66]The issue revolves on the copyright of the speech given by the Earl of Roseberry, written by note-takers hired by The Times Newspaper and later published in a book. The court ruled that the copyright belongs to the Newspaper according to Section 11 of CDPA 1988. [67] As explained above, the CDPA assert that “Where a literary, dramatic, musical, or artistic work is made by an employee in the course of his employment, his employer is the first owner of any copyright in the work subject to any agreement to the contrary.”[68] In connection to Keith Chegwin’s case, some of the jokes were broadcast; other jokes were written in scripts. Since the jokes were fixated, then the jokes were protected by the copyright laws.

Infringements

Infringements are made through unauthorized extractions and re-utilization of a substantial part of a work[69]. According to the BBC article Who, What, Why: Can a joke be copyrighted? Keith Chegwin posted “other comics’ material on his Twitter feed and passing it off as his own”[70]. In response, Matthew Harris argued that if the jokes are short such as one-liner jokes or if the joke used generic ideas, then it will be problematic to assess infringement[71] Matthew Harris further stressed that if there is a substantial similarity between the allegedly plagiarized jokes and the jokes that are originally written or printed by the authors, then the burden of proof will be on the person that plagiarized.

The Berne Convention affirmed that a person can be permitted to reproduce the copies of literary and artistic works if it passes the requirements set by Article 9(2). The Berne Convention requirements argued that reproduction is permitted if it will be use in “certain special cases, which does not conflict with normal exploitation of the work, and does not prejudice the legitimate interest of the author”.[72] This is known as the three-step-test.

If the jokes that Chegwin used were originally from Milton Jones, Jimmy Carr, and The Simpsons.[73] Then, what Chegwin did was to reproduce and post those materials in his twitter account. Is this an infringement of the Berne Convention? Considering the requirements, Chegwin had obviously exploited the work when he claimed that most of the jokes were originally his creations. The broadcast the jokes in the internet violated the second requirement as well, because the jokes loses their appeal to the people and the original authors need to create new jokes for their next show. This shows injustice toward the real author especially since they were not credited for their works.

Economic Rights

There are six economic rights: reproduction, distribution, rental, public performance, public communication, and adaptation rights. Reproduction involves the copying of the work. For example, producing a new copy of a file by creating a new copy to another hard drive is a form of reproduction. Nonetheless, reproduction through copying can go beyond simple imitation. In Mazer v. Stein [1954], Stein copyrighted statuettes were copied by Mazer and made into a functional lamp. Mazer argued that changing the function of the work removes it copyright protection. Nevertheless, the Court favored Stein by maintaining that changing the manner of expression does not remove copyright.[74] In King Features v Kleeman [1941] similar change in medium of copyrighted material was made when Kleeman created a three-dimensional doll by copying the two-dimensional artistic work of King Features. The Court maintained that changing the medium of work does not account for originality. This discussion revealed that whenever a substantial part is copied, infringement of copyright results. It is in accordance with the copyright law in UK that defines substantial parts based on “the nature and objects of selections…the quantity and value of materials, and the degree of similarity with the original work.”[75] To further clarify, consider Corelli v Gray (1913) wherein Corelli wrote a novel and holds it copyright; whereas George Gray created a dramatic sketch that has the same plot as the novel.[76] The similarity reveals that infringement must correspond to a substantial part. Substantial part is determined by the quality of similarities and not the quantity. Quality refers not to the amount of similarity but in the manner of its imitation.

Moral Rights

The discussion of moral rights will center on the right to be identified as the author or “paternity rights” and the right of such authors and directors to prevent derogatory treatment of their work or “integrity rights”.[77] In UK moral rights apply for the same duration as economic rights. The moral rights are not transferable to others and can be waived through a signed writing.[78] In order to be granted with paternity rights, the work must be copyrightable, published commercially, and the author must assert (waived) his right through a signed writing.[79] Paternity right is not the same as copyright and can be owned by two different people.

The second right is the integrity right, which includes the right of the author to object to any distortion or mutilation of his or her creation especially those that will “be prejudicial to the honour or reputation of the creator”. Unlike the paternity rights, integrity rights need not to be asserted but can be waived through a signed writing. In Morrison Leahy Music Ltd v Lightbond Ltd [1993] EMLR 144, parts of five compositions made by George Michael and owned by Morrison Leahy Music was mixed together by Lightbond Ltd into a single recording called “Bad Boys Megamix”.[80] The court argued that Lightbond Ltd infringed the integrity rights of Morrison Leahy Music by distorting or mutilating the five compositions.[81]

Performers Rights

Performers or people who conduct a performance are also protected by Under CDPA 1988 S180. The consent of the performer is required prior to using or exploiting his performance.[82] There are two categories of performer’s rights: property rights such as “authorized copies of performances” and non-property or recordings of live “performances without the need for performer’s consent.”[83] In general non-property rights can only be transferred after death whereas property rights which can be transferred and assigned. Under the UK copyright law, a performance includes a live performance and a recording of the performance. The performer’s right is infringed if consent of the performer is not given before the performance is transmitted, recorded, and imported.[84]

Fair dealings

Aside from infringements, there are also permitted acts such as fair dealing for “private and educational purposes, for criticisms or review of works, and for reporting of events, provided that the author is identified.”[85] Fair Dealings is defined by CDPA 1988 Section 29 (1) as “Fair dealing with a literary, dramatic, musical or artistic work for the purposes of research or private study does not infringe any copyright in the work or, in the case of a published edition, in the typographical arrangement.” In the case of Keith Chegwin, if the claims of the other comedians were true and Chegwin indeed knowingly copied the jokes from other comedians, then he could not argue that he merely applying or using the notion of fair deal. Fair dealing can apply to Chegwin’s case only if he can prove that the jokes that he posted in Twitter were “remembered from old”.[86].

Chegwin could also argue that he is merely reporting what he heard from someone else. According to Section 30 of the CDPA 1988:[87]

(1) Fair dealing with a work for the purpose of criticism or review, of that or another work or of a performance of a work, does not infringe any copyright in the work provided that it is accompanied by a sufficient acknowledgement.

(2) Fair dealing with a work (other than a photograph) for the purpose of reporting current events does not infringe any copyright in the work provided that (subject to subsection (3)) it is accompanied by a sufficient acknowledgement.

(3) No acknowledgement is required in connection with the reporting of current events by means of a sound recording, film, broadcast or cable programme.

Notice that in all of the listed use of fair deal, it is stressed that infringement is not made if it is “accompanied by a sufficient acknowledgement”.[88]If Chegwin will argue that he is merely reporting a current event, it will be useful to understand the concept by reviewing the case of Hyde Park residence v Yelland 1999 RPC 655.The issue of current event was raised by the fact that the copies of stills from a video system was published without authorization from the owner and that the act depicted in the event happened over a year prior to the publication[89]. The contention is based on the fact that the issue resurfaced and new allegations were being discussed, the stills can be considered as a reporting of current events. Nonetheless the presentation of stills in this case was not fair deal because the information was manipulated and used to spread inappropriate rumors[90].

If the definition of current events will be the reporting of currently relevant issues, then certainly jokes are not part of current events. In association to this fact, if Chegwin is merely reporting a current event, then there must be an acknowledgement of the authors and the shows from whom or from where the jokes were lifted. Chegwin did not make any acknowledgements.

Chegwin can also argue that the jokes were used for non-commercial purposes. If the case will be considered as a part of non-commercial purposes, then it must not be displayed in a blog that many people can access. With this respect the CDPA 1988 section 195[91] explained that,

“Commercial publication”, in relation to a literary, dramatic, musical or artistic work

means—

(a) issuing copies of the work to the public at a time when copies made in advance of the receipt of orders are generally available to the public, or

(b) making the work available to the public by means of an electronic retrieval system;

and related expressions shall be construed accordingly

If this will apply to Chegwin’s case, the publication of the jokes that made it available to the public through his Twitter blog showed that the material was published for commercial purposes (according to the CDPA definition above). Commercial infringements like the one committed by Chegwin is treated with criminal penalties.[92] Therefore, the fair-dealing that applies to “non-commercial purposes” will not apply to Chegwin’s case. The jokes are also not use for educational or criticism purposes since there are neither academe nor criticism involved in the published jokes.

Remedies

According to Section 96 of the CDPA 1988, “In an action for infringement of copyright all such relief by way of damages, injunctions, accounts or otherwise is available to the plaintiff as is available in respect of the infringement of any other property right.”[93] These remedies depend upon the significance of the damage or infringement made. For example, if the defendant can prove that he did not know that the work is protected by copyright, then the “plaintiff is not entitled to damage against him, but without prejudice to any other remedy.”[94] If the defendant benefited from the infringement, then the court can award damages. The owner of copyright is also entitled for “order for delivery up” CDPA 1988 S99 wherein the owner can ask the court to deliver to him the infringing copies of copyrighted material.[95] In addition, CDPA 1988 S100 asserts the” right to seize infringing copies and other articles…when it is found or is exposed or otherwise immediately available for sale or hire.”[96] This is where the Anton Piller order may apply. The Anton Piller order “authorizes the plaintiff to…secure evidence of infringement which would otherwise probably be destroyed by the defendant prior to trial.”[97] Through these remedies the copyright owner can be compensated for the damages that includes “lost profits, a national royalty rate…compensation for personal suffering, humiliation, and personal distress.”[98] The types and amount of remedies depends on the claim/s put forward by the owner of copyright. Nevertheless, the final decision will rest on the judgment of the court.

Conclusion

Copyright protects the expression of ideas. As it turned out, the statutory definitions of copyrighted works does not mention explicitly that jokes are or can be protected. Nonetheless, jokes can be considered as a part of literary, dramatic, artistic, and performance works depending on the medium in which jokes were expressed. This denotes that Matthew Harris is correct in arguing that jokes are copyrightable under the English Law. If copyright law applies to joke, then Keith Chegwin is liable to copyright infringement because he failed to attribute the works of other writer and he even claimed that he was the original owner of the jokes that he posted. In this respect, the jokes were not produce out of the skills, labor, and creativity of Keith Chegwin. In addition, Keith Chegwin was not the author or creator of the jokes. As mentioned above, the jokes were lifted from other performances and works. The ownership of the jokes does not belong to Keith Chegwin either because he was not the employer of the authors of the jokes. The jokes were already fixated through broadcast (Simpsons) and written scripts. Therefore, Keith Chegwin cannot claim that he fixate the jokes into material form. In terms of fair dealings, Keith Chegwin did not acknowledge the authors of the jokes. Nevertheless, the copyright law in UK did not specify any guidelines on the copyright of Jokes. If UK will remain its closed list approach in categorizing copyright, then it is inevitable that jokes will not be copyrighted because it is not mentioned in the statutory definitions of copyrighted expressions. Furthermore, it is hard to protect jokes because they can be too short. It will be impractical if all short phrases or jokes will be monopolized by a single author. Moreover, the vagueness and ambiguity that revolves around UK Copyright Law can be use by Chegwin to argue that he is not aware that jokes are copyrighted. This is a possible rebuttal if Keith Chegwin did not assert that the jokes were his original creations, implying the claim that whether or not there is copyright protection Chegwin will not acknowledge the original writers because he claimed that he is the creator of the jokes. The Copyright law should be reformed with consideration of these problems. The remedies for the infringement of copyright depend on the damages that the real author and owner incurred.

 

 

 

 

 

 

 

Bibliography

Books

Chandler, P.  An A-Z of Employment law: a complete reference source for managers, Kogan Page Limited. 2003.

Davison, MJ. The legal protection of database. Cambridge University Press. 2003.

Davison, MJ.,  Monotti, AL., and  Wiseman, L. Australian Intellectual property Law. Cambridge University Press. 2008.

Derclaye, E. Research handbook on the future of EU copyright. Edward Elgar Publishing. 2009.

Groves, P. Intellectual property rights and their valuation: a handbook for bankers. Woodhead Publishing Ltd. 1997

Hoffman, J. Introducing Copyright: A plain language guide too copyright in the 21^st century. Vancouver: Commonwealth of Learning, 2009.

Jones, H. and Benson, C. Publishing law. Taylor and Francis. 2006.

MacQueen, HL., Waelde, C., and Laurie, GT. Contemporary intellectual property: law and policy. Oxford University Press. 2007.

Patterson, LR. Copyright in Historical Perspective. Vanderbilt University Press. 1968.

Schiavone, JJ. A guidebook for developing and sharing transit bus maintenance practices. Transportation Research Board. 2005.

Schwabach. A. Intellectual Property; a reference book. ABC-CLIO, 2007. p. 20.

Sherman, B. and Bentley, L. The making of modern intellectual property law: the British experience, 1760-1911. Cambridge University Press. 1999.

Spilsbury, S. Media Law. Routledge. 2000.

Sumpter, P. Intellectual property law: Principles in practice. CCH New Zealand Limited. 2006.

Takagi, Y.,  Allman, L., and Sinjela, MA. Teaching of intellectual property: principles and methods. Cambridge University Press. 2008.

 

Articles

BBC News. “Who, What, Why: Can a joke be copyrighted?” Retrieved on November 29, 2010 from http://www.bbc.co.uk/news/magazine-10725773

Beckley, A. “Copyright law: monopoly or  monstrosity?” History of Copyright law. February 09, 1996.

Drassinower, A. “Sweat of the Brow, Creativity, Authorship: On Originality in Canadian Copyright Law.” University of Ottawa.  Law & Technology Journal. 2004. 106-121

MPhil, JP. “Criminal Actions-Copyright in the Digital Age”. Reed Elsevier (UK) Ltd 2010.

Pila, J. “Copyright and Its Categories of Original Works.” Oxford Journal of Legal Studies. Issue 2. June 1, 2010.

Senftleben, M. The International Three-Step test: A Model Provision for EC Fair Use Legislation. JIPITEC. 2010. p. 67-80.

World Trade Organization. Dispute Settlement Reports 2000, Volume 8. Cambridge University Press, 2003.

 

Legislation

Copyrights (Designs Patents), Act, 15/11/88. WIPO Database of Intellectual Property Legislative Texts.

Council Directive 93/98/EEC.

TRIPS Agreement

Berne Convention for the Protection of Literary and Artistic Works (Paris Text 1971).

 

Cases

Clark v Associated Newspapers Ltd. [1998] 1 All ER 959

Corelli v gray 1913

Creation Records Ltd v News Group Newspapers Ltd [1997] EMLR 444

Designers Guild Ltd V Russell Williams (Textiles) Ltd [2001]

Hyde Park residence v Yelland 1999 RPC 655

Ladbroke Ltd v William Hill Ltd [1964] 1 All ER 465

Mazer v. Stein [1954]

Noah v Shuba [1991] FSR 14

Norowzian v. Arks Limited (No. 2)

Robin Ray v Classic FM plc [1998] FSR 622

University of London Press Ltd v University Tutorial Press Ltd .

 

Other Sources

Macaulay, TB. Speech Delivered in the House of Commons on the 5^th of February 1841. Retrieved on November 29, 2010 from http://yarchive.net/macaulay/copyright.html.

www.ipo.gov.uk. Intellectual property Explained. Intellectual Property Office.

www.wto.org. Uruguay Round Agreement: TRIPS.

 

 

 

 

 

 

---

[1] Brad Sherman and Lionel Bently, The making of modern intellectual property law: the British experience, 1760-1911. Thomas Webster wrote in 1853 treatise on designs and patents, that the products of the mind or intellectual labour when embodied in a practical form.

[2] Hector L. MacQueen, Charlotte Waelde, and Graeme T. Laurie, Contemporary intellectual property: law and policy. page 7.

[3] BBC News. Who, What, Why: Can a joke be copyrighted?

[4] Hector L. MacQueen, Charlotte Waelde, and Graeme T. Laurie, Contemporary intellectual property: law and policy. page 7.

[5] Ibid. Macaulay insisted that copyright is a form of monopoly by the authors that negatively affect the society.

[6] Ibid.

[7] Copyrights (Designs Patents), Act, 15/11/88. WIPO Database of Intellectual Property Legislative Texts. p. 27.

[8] Peter Groves, Intellectual property rights and their valuation: a handbook for bankers.

[9] Hector L. MacQueen, Charlotte Waelde, and Graeme T. Laurie, Contemporary intellectual property: law and policy. page

[10] Copyrights (Designs Patents), Act, 15/11/88. WIPO Database of Intellectual Property Legislative Texts. p. 37-44.

[11] Hector L. MacQueen, Charlotte Waelde, and Graeme T. Laurie, Contemporary intellectual property: law and policy. page

[12] www.wto.org. Uruguay Round Agreement: TRIPS.

[13]Margreth Barrett, Intellectual Property, p. 196. The Berne Convention requires that member nations protect the right of reproduction, the right of translation, the right of adaptation, the right of public performance, the right of public recitation, the right of broadcasting, and the film right in connection with various types of works.

[14] Ibid

[15] TRIPS Agreement

[16] TRIPS Agreement

[17] Alan Beckley, Copyright law: monopoly or  monstrosity? History of Copyright law. February 09, 1996.

[18] Lyman Ray Patterson, Copyright in Historical Perspective. Vanderbilt University Press. 1968.

[19] Berne Convention for The Protection Of Literary And Artistic Works (Paris Text 1971)

[20] Alan Beckley, Copyright law: monopoly or  monstrosity? History of Copyright law. February 09, 1996.

[21] www.wto.org. Uruguay Round Agreement: TRIPS.

[22] Ibid

[23] Copyrights (Designs Patents), Act, 15/11/88. WIPO Database of Intellectual Property Legislative Texts. S. 3. p. 11

[24] Ibid.

[25] Martin Senftleben, The International Three-Step Test: A Model Provision for EC Fair Use Legislation,

1 (2010) JIPITEC 67, para. 1

[26] Estelle Derclaye,, Research Handbook on the Future of EU Copyright. p. 68

[27] Creation Records Ltd v News Group Newspapers Ltd [1997] EMLR 444

[28] University Of London Press v. University Tutorial press [1916] 2 Ch 601

[29] Norowzian v. Arks Limited (No. 2)

[30] Justine Pila, Copyright and Its Categories of Original Works. Oxford Journal of Legal Studies. Issue 2. June 1, 2010.

 

[31] Copyrights (Designs Patents), Act, 15/11/88. WIPO Database of Intellectual Property Legislative Texts.

[32] University of London Press Ltd v University Tutorial Press Ltd [1916] 2 Ch 601 .

Copyright Acts are not concerned with the originality of ideas, but with

the expression of thought, and, in the case of “literary work,” with the expression of thought in

print or writing. The originality which is required relates to the expression of the thought.

[33] Ibid.

[34] Peter Chandler, An A-Z of Employment law: a complete reference source for managers, p. 361.

[35] Copyrights (Designs Patents), Act, 15/11/88. WIPO Database of Intellectual Property Legislative Texts. S. 12 p. 14

[36] Ibid.

[37] Ibid.

[38] Copyrights (Designs Patents), Act, 15/11/88. WIPO Database of Intellectual Property Legislative. p. 17

[39]Ibid., p. 86

[40] Ibid., p. 15

[41] Ibid.

[42] Ibid.

[43] Copyrights (Designs Patents), Act, 15/11/88. WIPO Database of Intellectual Property Legislative. p. 16

[44] Ibid.,. p. 36

[45] Alan Beckley, Copyright law: monopoly or  monstrosity? History of Copyright law. February 09, 1996.

[46] Council Directive 93/98/EEC. p. 2

[47] Ibid., p. 3

[48] Designers Guild Ltd V Russell Williams (Textiles) Ltd [2001]

[49] Stephen M. McJohn, Copyright: Examples and Explanation. p. 43-44.

[50] Mark J. Davidson, The legal protection of databases. p. 14

[51] Walter v Lane [1900] AC 539

[52] Abraham Drassinower. Sweat of the Brow, Creativity, Authorship: On Originality in Canadian Copyright Law, University of Ottawa Law & Technology Journal, 2004. p 108.

[53] Mauritius Research Council. draft Guidelines on Intellectual Property Rights. October 2008.

[54] Alan Beckley, Copyright law: monopoly or  monstrosity? History of Copyright law. February 09, 1996.

 

[55] Ladbroke Ltd v William Hill Ltd [1964] 1 All ER 465 Lord Evershed in page 471 explained that the originality lies on the presentation or expression of the idea: I conclude that there was present here the requisite degree of skill, judgment and labour not only in selecting out of the vast possible total of wagers those which should be offered but also in the way in which the result of the selection was presented to the customer, including particularly the arrangement of the document and of its component headings and the way in which such headings were described and were coloured and also in the way in which, in the appropriate notes underneath the headings, the punter was informed of the possibilities open to him under each heading

[56]Mark J. Davison, The Legal Protection of Database, p. 14

[57] Copyrights (Designs Patents), Act, 15/11/88. WIPO Database of Intellectual Property Legislative. 13.

[58] Ibid., p. 14.

[59] Ibid.

[60] Ibid.

[61] Robin Ray v Classic FM plc [1998] FSR 622

[62] Noah v Shuba [1991] FSR 14

[63] Clark v Associated Newspapers Ltd. [1998] 1 All ER 959

[64] Hector L. MacQueen, Charlotte Waelde, and Graeme T. Laurie, Contemporary intellectual property: law and policy. page 7.

[65] Mauritius Research Council, Draft on Intellectual Property Rights, p. 10.

[66] Paul Sumpter, Intellectual property law: principles in practice. p. 12

[67] Copyrights (Designs Patents), Act, 15/11/88. WIPO Database of Intellectual Property Legislative Texts.

[68] Copyrights (Designs Patents), Act, 15/11/88. WIPO Database of Intellectual Property Legislative Texts.

[69] Paul Sumpter, Intellectual property law: principles in practice. p. 12

[70] BBC News. Who, What, Why: Can a joke be copyrighted?

[71] BBC News. Who, What, Why: Can a joke be copyrighted?

[72] Copyrights (Designs Patents), Act, 15/11/88. WIPO Database of Intellectual Property Legislative Texts.

[73] BBC News. Who, What, Why: Can a joke be copyrighted?

 

[74] Mazer v. Stein [1954] We find nothing in the copyright statute to support the argument that the intended use or use in industry of an article eligible for copyright bars or invalidates its registration. We do not read such a limitation into the copyright law.

[75] Martin Senftleben, The International Three-Step Test: A Model Provision for EC Fair Use Legislation, p. 69.

[76] Corelli v Gray 1913, In my judgment the similarities and coincidences in this case are such as, when taken in combination, to be entirely inexplicable as the result of mere chance.

[77] Copyrights (Designs Patents), Act, 15/11/88. WIPO Database of Intellectual Property Legislative Texts. P. 37-39

[78] Hector L. MacQueen, Charlotte Waelde, and Graeme T. Laurie, Contemporary intellectual property: law and policy. Page 99.

[79] Hughes Jones and Christopher Benson, Publishing law. Taylor and Francis. 2006. P. 44-45

[80] Hector L. MacQueen, Charlotte Waelde, and Graeme T. Laurie, Contemporary intellectual property: law and policy. Page 103

[81] Hughes Jones and Christopher Benson, Publishing law. Taylor and Francis. 2006.p. 49 The judge, at first, argued that “it is self-evident that taking parts of five different works and putting them together necessarily involves a change of character or modeification.”

[82] Copyrights (Designs Patents), Act, 15/11/88. WIPO Database of Intellectual Property Legislative Texts. p 86.

[83] Hector L. MacQueen, Charlotte Waelde, and Graeme T. Laurie, Contemporary intellectual property: law and policy. page 212..

[84] Copyrights (Designs Patents), Act, 15/11/88. WIPO Database of Intellectual Property Legislative Texts. CDPA 1988 S182-84. p. 86-87.

 

[85] Peter Groves, Intellectual property rights and their valuation: a handbook for bankers.

[86] BBC News. Who, What, Why: Can a joke be copyrighted?

[87] Copyrights (Designs Patents), Act, 15/11/88. WIPO Database of Intellectual Property Legislative Texts

[88] Ibid

[89] Hyde Park residence v Yelland 1999 RPC 655

[90] Sally Spilsbury, Media Law, p. 262.

[91] Copyrights (Designs Patents), Act, 15/11/88. WIPO Database of Intellectual Property Legislative Texts. p. 81

[92] Hector L. MacQueen, Charlotte Waelde, and Graeme T. Laurie, Contemporary intellectual property: law and policy. Page 190.

[93] Copyrights (Designs Patents), Act, 15/11/88. WIPO Database of Intellectual Property Legislative Texts . p 46

[94] Ibid.

[95] Ibid., p. 47

[96] Copyrights (Designs Patents), Act, 15/11/88. WIPO Database of Intellectual Property Legislative Texts . p 7

[97] Mark J. Davison, Ann Louise Monotti, Leanne Wiseman, Australian Intellectual property Law, Cambridge University 2008. Press, p. 596.

[98] Ibid., p. 268

Strategic_Accounting_for_decision-making

Abstract

There are five questions in this article. Question1 deals with the profit and loss account and the balance sheet of the Taff View Pool. Question2 has two parts; part1 is the numerical representation of the ratio analysis, furthermore, in part2 the same analysis is represented theoretically. Question3 is the comparison of profits of the two parts of the business. While question 4 and 5 relates to theory regarding sources of finance and the budgetary planning advantages. The profit and loss account also known as the income statement, show the financial performance of a business in a period. The balance sheet, on the other hand, is the picture of the financial position of the business for a specific period. There is also the ratio analysis, which is the financial analysis for the business, demonstrating the performance of the business as a whole. A business when in need of capital goes for the different sources of finance to meet its needs. The budgetary system provides us with a clear roadmap to the goals set by the organization for the period specified.

 

Strategic Accounting for decision-making 88

The Fairvalue Leisure Ltd, located in the South Wales, is a leisure providing business at the core. The company’s main emphasis is on the business of the swimming pools, but on the side it also runs the canteen and the catering part of the business. The company’s huge amount o revenue is thus generated from the swimming pools.

Fairvalue recently acquired two more extensions for the company, the Central Pool and The Cardiff and Taff View Pool. They were purchased from the Mid Valleys Local Authority. For reasons unknown, the previous finance director of the Fairvalue Leisure opted for these new acquisitions without going into their financial analysis.

So, in the following article we will look into the financial analysis from different aspects of the business needs.

Question 1: solution:

The profit and the loss (P/L) account, also known as the statement of financial performance, give us the fore front of the business. It shows the financial position of the business in the said period.

Management prepares the P/L account for the business to analyze the ongoing work and to make decisions of the said analyses. The P/L account shows the profits or the losses, the expenses incurred, and the inventory position of the business in the said period.

The profit and loss account of Taff View Pool for the Fairvalue Leisure Ltd has been provided below showing its expenses incurred less the sales revenue, resulting in the profit generated for the period end of 2010.

 

 

Fairvalue Leisure (South Wales) Ltd

Profit and Loss Account of Taff View Pool for the year end

31^st December 2010

	£	£	£
Revenue:			1570000
less:
Expenses:
Employee costs:
– Current cost	840000
– Over time	3000	843000
Material costs:
– Cleaning	54000
– Chemicals	111000	165000
Heat and Light:
– Electricity	48000
– Gas	45000	93000
Catering costs:		162000
Depreciation:
– Buildings	92950
– Machinery	33000
– Sundry Equipment:	13000	138950	(1401950)
Operating Profit:			168050

 

After the results calculated in the profit and loss account we now move on to the balance sheet for the period end of December 2010.

Balance sheet is basically the method of studying the financial position of the business in the said period. Managers study the assets, liabilities and the financial means for the business. The balance sheet not only gives us the said figures, but also shows us the real picture of the business performance by showing us the net assets and its values.

The balance sheet of the Taff View Pool for the Fairvalue Leisure Ltd has been provided below. It clearly shows what the performance of Taff View has been.

Balance Sheet of Taff View Pool for the year end

31^st December 2010

Assets:	Cost:	Depreciation:	NBV
	£	£	£
Fixed Assets:
Land and Building:	929500	92950	836550
Machinery:	330000	33000	297000
Sundry Equipment:	130000	13000	117000
Total Fixed Assets:			1250550
Current Assets:	£	£	£
Stock:		17000
Debtors:		3000
Cash:		19000
Total Current Assets:			39000
Total Assets:			1289550
Liabilities:
Long Term liabilities:			120000
Equity:
Reserves:		20500
Capital A/c:		895000	915500
Current Liabilities:
Creditors:			53000
Liabilities not written off:			201050
Total Liabilities:			1289550
Net Asset:			1035500

Question 2: Solution:

Ratio analysis is the analysis of the performance of the business that the management uses to help in their decision making. The ratios help in giving the management the scenario of the ongoing business by comparing the figures calculated with those in this period and also with those in the future and the past. The ratios can also be used to compare with the ratios publicized by the competitors. This in turn lets the business decide much easily, the goals to achieve.

The ratios calculated for the Fairvalue Leisure Ltd shows the same story. The ratios are calculated for both the Central Pool and the Cardiff and Taff View Pool, individually.

a)

Ratios for Central Pool:
Operating Profit/Operating Assets	0.02
Operating/Profit Sales	0.01
Sales/Operating Assets	1.32
Expenses/Sales	0.99
Sales/Fixed Assets	1.14
Sales/Current Assets	3.14
Sales/Stock	46.55
Sales/Debtors	675.00
Current Ratio:	0.91
Gearing Ratio:	14.90%

Ratios for Central and Taff View Pools:
Operating/Profit Operating Assets	0.16
Operating/Profit Sales	0.11
Sales/Operating Assets	1.52
Expenses/Sales	0.89
Sales/Fixed Assets	1.26
Sales/Current Assets	40.26
Sales/Stock	92.35
Sales/Debtors	523.33
Current Ratio:	0.15
Gearing Ratio:	13.10%

 

b)

The key ratio shows the performance picture of a business. The ratios calculated for the Field Park and the Central and Taff View will help us analyze the performances and hence give us a clear comparative situation of both the businesses.

Ratio analysis of Field Park and Central and Taff View

The first ratio shows the comparison between the profit earned and the assets available. Taff View having only 16.23% ratio, compared to Field Park’s 21.28%, is very low which needs to be addressed and improved.

The next three ratios compare the business’s performance with regard to its sales revenue.

The operating profit to the ratio of sales shows that the Taff View has 10.70% compared to the 7.60% of the competitor, which defiantly is a healthy sign showing that the profit is being earned as revenue flows in. Even the comparison of the expenses with the ratio shows a good prospect for the Taff view as the expenses are not taking its toll on the revenue, that is, it’s a burden that can be managed easily, compared to the Field Park’s ratio. The ratios of the current assets, fixed assets, stock and the debtors compared with the sales are also showing good and healthy results when analyzed with the competitor’s results to the ratios. Most notably, the gearing ratio has provided with the result that can bring comfort to the organization, and be a reason of worry for the Field Park.

Although the Central and Taff View ratios, when compared to the competitors ratios, are very positive, there is still more room for improvement. Steps are to be taken to improve income so as to further reduce the gearing ratio, so as to divert difficulties in the future.

Question 3: Solution:

As mentioned before, that the Fairvalue Leisure Ltd has its business divided into two parts, the pool and the catering. After the analysis of the whole business with its ratios, profit and loss account and the balance sheet, now we discuss the profitability of the parts of the business individually.

The management of the Fairvalue Leisure Ltd has to take into the consideration both the catering and the pool business; so, as to keep a closer eye on the different parts of its business. The profitability of both, the swimming pool and the canteen, can be judged by this small table of profit and loss account for both of the parts individually.

	Swimming Pool:	Canteen:	Total:
	£	£	£
Revenue:	1003690	566310	1570000
Expenses:
Employee costs:	(417110)	(264290)	(681400)
Equipment and Materials:	(369000)	(54000)	(423000)
Heat and light:	(74380)	(18620)	(93000)
Catering Costs:		(162000)	(162000)
Profit for the year:	143200	67400	210600

From the profitability table above managers can clearly highlight that the swimming pool is earning a lot more revenue and the profit compared that to the canteen. Management should concentrate on reducing the costs of both the canteen and the swimming pool so as to get much better profit figures. Cost should be apportioned properly. Overhead absorption method should be highlighted and followed so as to allocate costs to relevant part that has incurred it and divert unnecessary cost allocations.

The company should start thinking and acting professionally so as to meet up all these setbacks and the hurdles.

Question 4: Solution:

Organizations all around the world go for different methods of raising capital. Raising capital mostly comes into consideration when a company has change of plans, from that of the original one; or when the company plans to implement something new inside the organization.

Raising finance is one of the key decisions the management has to take in order to meet its going concern concept. The way management decides its capital inflow can have a great impact on the way the business works, its target of meeting its goals and also the market image that it has built.

“Since the declaration of the MDGs, a number of attempts have been made to estimate the financing requirements.” (A. B Atkinson)

Sources of Finance, with relative advantages and disadvantages

The company now wants to convert the two newly bought parts into fitness clubs, for which it needs to raise capital.

The management will have to take every aspect of its project and its overall business workings into consideration. The method that it chooses to apply for the build-up of the capital will have to be according to its needs, not more neither less. Sources outlined bellow can be used for the purpose of converting its newly bought pools, which are costing more than its benefits earned, into fitness clubs. The new project can pave the path towards a better, more profitable source of income.

Following three sources can be used to finance this project:

• Loans:

The company can easily raise its capital by going to a bank for a loan. The bank will charge interest on the amount of money loaned, which will have to be paid as the loan is returned of the period of time.

Advantages:

o   The most widely available source of finance.

o   It’s quick and easy to process for borrowing and payment.

o   The trust of the bank on the business can help in proving the market image of the organization.

Disadvantages:

o   Business will be burdened with the cost of interest

o   Gearing ratio will increase

o   In the long run cash out outflow will surpass the cash inflow.

“An important vehicle for financing development is ODA (Official Development Assistance).” (A. B Atkinson)

• Overdraft:

Overdraft facility can be availed by the company’s existing current account in its bank. The company goes to its bank and requests for the overdraft, the request is processed and then accepted. There is an interest payable on the overdraft. It can be very helpful for the short termed projects.

Advantages:

o   Easily available

o   Low interest cost compared to the loan

o   Beneficial for short-term projects.

Disadvantages:

o   Can’t be availed when it comes to projects having long term durations

o   Has a limit to the amount that can be borrowed as an overdraft

o   Gearing ratio increases

o   Future cash outflows surpass the cash inflows.

• Venture Capital:

It’s one of the most modern preferred techniques of raising finances for the business. The company is helped by another company or a firm which invests in the project of the company, which needs the capital. The company or the firm that invests in the project owns that part of the business and has its full say in it. It can even over rule the decisions made on it.

Advantages:

o   More management is involved

o   Pool of expertise

o   Another company’s involvement will result in a better image in the market for that project

o  People will prefer the project that has been approved by an external source.

Disadvantages:

o   The company loses its grip on the project

o   It will have to first consult with the investor before it takes any step in regard of that project even though it’s part of its own business.

A company has many doors to knock on when it’s in need of capital, in this world of modern business. The only need for it to take care of is to choose the right door to knock on, considering for which purpose its availing the capital.

Question 5: Solution:

Implementing budgeting systems in an organization is very important for a business to function successfully. Having a budget gives the management a clear picture of how and what to do in the future and, the present. Not only that, it also helps in analyzing the past data, letting the management take steps towards achieving much better results in the future.

Budgeting planning and control will help the management to enhance the performance of the Central and Taff View Pools. It will ensure that the goals set are met and further developments are made to ensure that it keeps on being a profitable business for the organization

“Budgeting is the process of preparing, compiling and monitoring financial budgets.” (Stephen Brookson).

Benefits of budgetary, planning and control system

The modern business environment is very different from what we had in the past. The number of overheads in the past used to be very limited, having mostly labour and the machine costs as its main theme. Now the modern era has brought in new technologies and a higher sense of market competition, thus, introducing many more number of overheads and expenses for the business to deal with. The role of the budget in such scenario becomes very vital, as a good budget will control the costs from exceeding than required, paving the path towards a successful and prosperous future for the business.

“It (budgeting) is a key management tool for planning and controlling a department within an organization.” (Stephen Brookson).

Advantages that a company can get by introducing the budgets:

§  Planning and co-ordination:

The employees get a sense of professionalism; they work according to the plans and make sure nothing goes astray.

§  Authorizing and delegating:

Employees feel more boosted up morale as authorities are delegated down to them especially when departmental budgets are prepared.

§  Evaluating performance:

The sense of responsibility evolves in the employees as they find out that their performances are being under check, bringing in better fruitful results.

§  Identifying trends

Budgets help in identifying what the world outside the organization is going through, it helps in highlighting the changes that need to be adopted and customs that needs to be let go.

§  Communicating and motivating:

Budgeting will bring in better communication structure for the organization, as managers will have to rely on the information from different departments and other branches of the organizations network. This in turn motivates the employees who lower at the lower parts of the hierarchy when they are asked and consulted during data collecting.

§  Control:

Budgets will ensure better control management as it provides opportunities to compare performances with the actual and the budgeted ones, helping in making better decisions and hence good control.

“A budget is more than just numbers; it supports success and team work for you and your department.” (Sid Kemp and Eric Dunbar).

Conclusion

The Fairvalue Leisure (South Wales) Ltd should now have its management study these figures calculated and make stern decisions in order to pull the business on the path of profitability. Its decision on buying the new extensions for the company has brought little benefit to the business but instead has been the source of a high expense of money.

The company not only needs to work on making the current financial position better but also to have strict code of conduct for its employees in the organization. The performance of the managers should be kept under constant evaluation so in order to divert the blunders for the future such blunders, which have been made in the past.

The status of the two newly bought extensions are clear in the financial statements, that is, they are not earning revenue to meet up the high costs and in the end provide the sufficient profit for the business.

Cost management should be made efficient so as to part away from the unnecessary expenses and use those costs for something much better and profitable.

The company should be serious about implementing the budgetary system in organization, as it’s going to bring definite results towards the profitability and the efficiency of the whole organization.

If the company is planning on converting the part of the business into fitness clubs, then it should take full care and responsibility when it opts the most preferable mode of capital inflow.

Overall the company’s performance is not what could be called great. The company needs to think seriously on reducing the costs and making the management start working efficiently and responsibly.

Reference

A. B. Atkinson (Jan 27, 2005). New Sources of Development Finance (W I D E R Studies in Development Economics).

A. E. Baum and Neil Crosby (Nov 20, 2007). Property Investment Appraisal

Dan Nahorney and Vicki Lankarge (Mar 13, 2006). How to Get Started in the Real Estate Appraisal Business

Dileep Rao (Apr 1985). The Handbook of Business Finance & Capital Sources.

Don Dayananda, Richard Irons, Steve Harrison, and John Herbohn (Nov 18, 2002). Capital Budgeting: Financial Appraisal of Investment Projects.

Götze,Uwe, Northcott, Deryl and Schuster Peter. (Nov 10, 2010). Investment Appraisal: Methods and Models

Jeffrey D. Fisher and Robert S. Martin (Oct 1, 1994). Investment Analysis for Appraisers (Appraisal Continuing Education).

Kenneth C. Wenzer (Feb 2000). Land-Value Taxation: The Equitable and Efficient Source of Public Finance.

Lumby, Steve and Christopher, Jones. (Dec 3, 1998). Investment Appraisal and Financial Decisions

Lumby, Steve. (Mar 1995). Investment Appraisal and Financial Decisions

Lumby, Steve. (Mar 1995). Investment Appraisal and Financial Decisions: A First Course in Financial Management (The Chapman & Hall Series in Accounting and Finance)

Moran, Kate. (July 1997). Investment Appraisal for Non-Financial Managers: A Step-By-Step Guide to Profitable Decisions (Financial Solutions)

Mott, Graham. (Oct 1987). Investment Appraisal for Managers: A Guide to Profit Planning

P. C. Kumar (Dec 30, 1994). Internal Sources of Development Finance: Concepts, Issues, and Strategies.

Philip Holmes (May 7, 1998). Investment Appraisal

Shannon P. Pratt and Alina V. Niculita (Dec 21, 2007). Valuing a Business, 5th Edition: The Analysis and Appraisal of Closely Held Companies (McGraw-Hill Library of Investment and Finance)

Sokeiprim M. O. Amachree (Nov 1988). Investment Appraisal in Developing Countries

Takashi Kubota (Dec 18, 2007). Cyberlaw for Global E-business: Finance, Payment and Dispute Resolution (Premier Reference Source).

Who did you interview?

The purpose of this paper is to conduct an interview to better understand the roles of a professional nurse.  I interviewed Candy, a registered nurse working in a pediatric unit, and asked her nursing-related questions that is essential to the development of this interview.  The goal of my interview is to achieve a coherent and effective communication between the nurse and myself, as well as to further know the roles of a professional nurse that is essential to their field of expertise.

How did you prepare for the interview?

Preparations for this interview include gathering data about the relevant specialty of the nurse.  For example, a pediatric  nurse has a varied job description so, therefore, it is important to adhere to the qualifications of the job description to attain relevant questions and maintain coherence of the topic.  As a result, I prepared several questions to be asked for Candy since it is important for me to know how she applies all the relevant nursing theories into practice.

Describe what you observed in the interview?

I observed in this interview that nurses still need to develop their skills in order to adopt to the growing and ever-changing trends of the profession.  Although they have already graduated at their respective schools, continuous education is still a must for all professional nurses.  This observation is important for giving the optimum quality of care and maintaining a healthy life for all the patients.

Another thing that I observed in this interview is the importance of the concepts of nursing theories.  When these concepts are applied into practice it could result to a great outcome not only for the patient care, but also for the health care providers as well.  Further explanation regarding the importance of the concepts of theories will be discussed on the last part of this paper.

How would you describe the nurse?

Cathy is a highly skilled nurse in her specialty.  For her, continuous education is important to learn more and stay advance in the health care trend – the desire for ongoing learning is a process that is important when helping others.  This ongoing learning gives her the drive and desire to continue with her profession to become a better nurse, especially during tough calls.  Sometimes, it is hard to agree with a doctor’s order when they are not on the physical site so, therefore, Candy makes life-saving ethical decision skills that the doctors do not usually recognize.

How does the actual job compare to the job description?

Basically, the job description of pediatric nurses is to provide support and care to the children as well as their families.  They assist patients and their families in dealing with the various problems encountered in a pediatric setting.  Aside from hospitals and clinics, they also work at the patient’s home.  As I interview Cathy, I can say that she has complied with all the job descriptions of a pediatric nurse in all aspects: she has properly delivered a blend of the art and science of nursing.  Cathy is trained to assist patients regarding their condition and, moreover, to administer medications as well as emergency treatment whenever necessary without the help of the pediatrician. They can also interpret blood glucose readings and lab tests.

Other duties of heath provider involve supervising the regular check up of healthy children and ensuring that they are given immunizations on time. Besides medical knowledge, a good pediatric nurse requires qualities such as patience and understanding because dealing with children is no easy task.  They are also tasked to evaluate the total health care needs of patients as well as make referrals to community pediatrician, family practice physician and or specialists when necessary.  With these, the qualifications and qualities are effectively attributed to Cathy’s skill set, experience, background, as well as actual intelligence contributed marked by maturity, integrity and capacity for self-critique.

What did you learn?

There are various things learned from the interview with Nurse Cathy.  First, the importance of nursing theories and how it is applied into practice in the contextual setting of pediatrics.  Second, the importance of adhering to the job description in relation to the chosen field of nursing.  Third, the values and skills that a professional nurse must encompass when rendering care to a patient. Finally, the benefits of continuous education to ensure that a nurse is always on the right track with regards to the changing trends of the nursing profession.

What were your final impressions or reactions to the interview?

For me, the interview has been very effective, providing me with the knowledge that I must learn in the field of nursing.  It is important that the theories and skills learned from school are properly applied into practice, as well as to have good decision making skills.  My interaction with Nurse Cathy also gave me some insights on how to conduct an effective interview, in which good communication exchange where undertaken by both the interviewer and interviewee.

How did this compare/contrast to your original “preflection”?

Prior to the interview, the preflections include organizing my thoughts regarding the specific task that I want to accomplish, and these include: planning who will be interviewed, identifying a nurse’s educational background, obtaining job description of a specific job, as well as formulating questions that are related to the topic of interest.  Taking these preflections into consideration, it can be inferred that such were properly conducted during the course of the interview.  Nurse Cathy was able to provide the necessary answers to all of the questions, which gave enlightenment and added knowledge to me.  Therefore, the preflection as well as the outcome of the interview are properly correlated with each other.

Looking ahead to the weekly course objectives, what concepts from the theory course do you think can apply to this assignment?

The interview has demonstrated the essential role of the nursing profession as a model of science. It also has a more comprehensive discussion and broader points that affords an overall view or perspective, as of a place or situation.  Four concepts common in nursing theory are also tackled in the interview and these include: the person, the environment, the patient and the healthcare provider.  Also, nursing ethics are applied in this assignment – the importance of knowing what is right and wrong, as well as observing the rights of the patient to be given the appropriate treatment needed.

State of Union Address

Running Head: State of Union Address

 

 

 

State of Union Address

 

Name

University

Course

Instructor

Date

 

 

 

 

 

 

Abstract

America as perceived by many in other nations is considered a successful nation with no problems worth being discussed and perceived as problems. However, to the contrary, America like any other nation, has is fair share of problems ranging from political to economical problems which if not dealt with can affect the continent negatively. This paper seeks to illuminate on two major challenges, economic and political problems and how they illuminate on their state, how they affect the citizenry, what the government is doing and what it has done to avert these challenges.

 

 

 

 

 

 

 

 

 

 

 

Introduction

The US, the world over is considered as an economic ‘heaven’. Many people of the world call it the ‘land of milk and honey; the land of opportunities’’. This has it may, does not necessarily represent the US today. There are many problems this great nation is experiencing ranging from political to economical. There’s the rising level of unemployment, a politicized health care system, insecurity issues many emanating from immigration cases where our nation’s security has been compromised mainly by the growing threat of terrorism, drug trafficking into the US through its borders, rocketing fuel prices and the competition we are facing from other countries who are determined to be super-powers among other problems.

The US is both the economic and the political world super power and also the most world democratic society. It has the highest GDP per Capita. However, despite its position as the most powerful (economically and politically), it now faces many economic as well as political problems, some short term and others long term. Employment has been and still is a major setback in our country. We are a working nation and my government is doing its best to see to it we restore our status quo and stamp out this crisis that is threatening our economy. The relevant ministry is working towards jobs creation which will be witnessed in next quarter of the year, both in the public and private sector.

Another such problem is the fear of terrorism which poses not only political concerns but economic ones as well. Morella, (2009, 25-27), observes that ‘’ terrorism-related fears make the American public more distrustful of their neighbors and minority groups, more receptive to charismatic political leaders, and more willing to allow the erosion of their civil liberties in return for their security. More than this, terrorism is also an economic problem. Because of terrorism, the US spends a good deal of tax-payers money to solve it and heightened security concerns. This eats up on our economy and the threat shakes the political arena with the impact being felt by the citizens of this country. Peace and security are vital requirements in our country and any breach has huge consequences both in our economy and political arenas. The troops sent to Afghanistan attest to this.

Fear of terrorism led many Americans to see the rights of Arab and Muslim Americans as less than absolute and this attitude even extended to immigrants and gays. The researchers also found that during the 2004 presidential election more fearful Americans were more likely to perceive President George W. Bush as more charismatic and stronger than non-fearful Americans. This held true for more fearful Americans, regardless of their political affiliations. Morella and Zechmeister found that the terrorist threat made people more welcoming of policies to protect the homeland even if those policies infringed on civil liberties. While the US is said to be the land of the free and home of the brave individuals who should have the right to believe in their religion of choice, this democracy has been eroded, at least in recent times (Jeffrey 2010, 78).

How do we fix this problem? Jeffrey (2010, 78), postulates that the world is in a constant conflict situation involving the two opposing end. He calls one end the ‘thesis’ and the opposing side the ‘’antithesis’’. According to him, the former is the status quo and the latter the one opposing it. These two fight to form the agreed position he calls the ‘synthesis’’. Karl Marx uses the idea of Hegel to construct the conflict theory. According to him, conflict involves the bourgeoisie and the proletariat. Conflict Theory can be used in understanding and providing a solution to this problem. There is need to have a synthesis position.

Many should be reminded those responsible for the rise of American Slavery embraced Christianity. For centuries an African people were treated as sub-humans where Christianity was utilized as tool for cementing and justifying the oppression of imported Africans. In short, it wouldn’t be accurate to suggest most Christians are evil because of how followers utilized religion as a tool in oppression: Therefore it’s not fair to suggest Muslims should be deprived of their rights because of 9/11. Even though many seem to oppose my stance as the president on this particular issue, I believe it’s the right stance (Ottosen and Thompson 2010, 75).

The other problem facing the American Society is politics of Health care system. For many years, politicians and insurance compananies could profoundly proclaim the U.S had the best health care system in the world, but today Americans have found it harder to ascertain this assertion (Ottosen and Thompson 2010, 78). Regardless, the search of proper policy interventions has not been easy either. It is no wonder that Obama’s Administration constructed a radical reform in health care provision.  This has in recent times raised both economic and political concerns. To the democrats and its sympathizers, this has a lot of political undertones. Some pundits have argued that the health care system as brought to the fore by the Obama administration, will cost him a second term and reduced his popularity among the rich as and some middle class. Health care insurers also have a beef with the system. Many see it as turning America into a Socialist state, away from the capitalistic state it is (Ottosen and Thompson 2010, 80).

But what is the ultimate solution? Is it correcting perception or addressing certain fundamental gaps. First there is need to have a clear mind on what a good health care system is. A number of recent studies have compared the health care systems of various countries. Using information and concepts from these studies, it is possible to understand and recommend what the ideal American Health care system should have (Jeffrey 2010, 78).

The world Health Organization (WHO) released a ground breaking report in 2000 with data on health care systems in 191 countries.  In this report, there are three primary goals for what a good health care system should entail. One is good health, which is making the health status of the entire population as good as possible ‘’across the whole life cycle’’ and two is responding to people’s health expectations of respectful treatment and client orientation by health care providers. Third, is fairness to financing and this is ensuring protection for everyone. These are certainly what the Obama’s health care policy is postulating (Ottosen and Thompson 2010, 95).

Moreover, other reports indicate that the US a few years ago, had the most expensive health care system in the world. This meant that the poor could not afford proper health care. Therefore, it is important to note that those against the current policies have either their interest ‘tampered with’ or have a wrong perception. The approach the current administration has been advocated by health workers, among them expanding health care and Medicare, an existing and highly successful public program which could is extended beyond the elderly to the entire population (Ottosen and Thompson 2010, 101).

Conclusion

It is indeed true that the US is facing a myriad of challenges but while some of these are real, others are more compounded with politics and perception. While a number of solutions already exist to problems of terrorism and others under the strain of political decision making rather than analyzing the system itself as a whole, so that where is a problem, there is need to search for longer term solutions.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

References

Jeffrey C. Merrill. The road to health care reform: Designing a System That Works. New York

and London, Plenum press, 2010.

Morella, Zechmeister. Democracy at Risk: How terrorist Threats affect the public.

Washington: Washington Publisher, 2009.

Ottosen, G. K., and Thompson, D. N. Reducing Unemployment: A Case for Government

Deregulation. Westport, CT: Praeger, 2010.