![handle is hein.journals/medlgjr76 and id is 1 raw text is:
Medico-Legal Journal (2008) Vol. 76 Part 1, 1
© Medico-Legal Society 2008
Changes to Bereavement
and Mental Health Law
Diana Brahams
Editor
Bereavement Damages Increased
On 1 January 2008, statutory bereavement damages
in England and Wales and Northern Ireland were
increased from £10,000 to £11,800 for deaths occur-
ring on or after this date. No doubt convincing statis-
tical data could be produced to justify the increment
of £1,800 at this point in time, but it remains a mean
sum for a human life extinguished by negligence,
gross or otherwise. The group of dependants who
qualify for such an award has not been expanded.
Mental Capacity Act 2005 (MCA)
The MCA came into force on 1 October 2007. It
replaces Part VII of the Mental Health Act 1983 and
states at s 1(2) that a person must be assumed to have
capacity unless it is established that he lacks capacity
to make a particular decision. Accordingly, a person
will not come within the jurisdiction of the new
Court of Protection unless an application has been
made on his behalf in respect of a specific matter.
The new MCA operates on the basis that the
condition of a person who is mentally ill or incapable
may be variable and that he/she may be capable of
consenting to some transactions and decisions if not
all. It requires a person's capacity to be assessed on a
decision and time-specific basis. By contrast, under
the 1983 Act people diagnosed as mentally incapable
who were patients of the Court of Protection
remained under its jurisdiction in respect of all their
property and affairs and it became routine practice
for the civil court to informally ask for the Master of
the Court of Protection's approval when it was
dealing with litigation that involved a patient or
before the court approved a final settlement. This
practice resulted from guidance given by the Court
of Appeal in Re E (Mental Health Patient) [1985] 1
All ER 609 and will cease as agreed by the Civil
Procedure Rules Committee.
However, and notwithstanding, Part 21 of the
Civil Procedure Rules requires civil courts to
approve settlements in civil litigation involving
people who lack capacity in order to provide appro-
priate protection for them and a litigation friend has
to be appointed to take charge of proceedings on
behalf of any party who lacks capacity to conduct
his/her own affairs. A new practice direction supple-
menting Part 21 has been drafted (see in particular
paragraphs 5.6 and 6.5) and amendments made to the
paragraphs containing provisions about the seeking
of the court's approval of settlements involving
protected parties and investment of those funds
(paragraphs 5, 6, 8,10).
In this issue Dr Brendan Kelly considers the
wretched lot of the mentally ill, incapable and desti-
tute poor who lived in Ireland during the nineteenth
century and how governments and the law of the day
dealt with them. Why did their numbers apparently
increase with dismaying and disproportionate
rapidity when compared with statistics for England?
From dying in the street with their rights on they
soon over filled the public and private asylums built
around the country from which they were decanted
to and from houses of industry (workhouses) and
prisons and criminal asylums. Are there any lessons
to be learned from this and the tensions between the
law, administrators and doctors in charge?](ViewImageLocal?handle=hein.journals/medlgjr76&div=1&collection=&method=preview&ext=.png&size=3)
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