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What is the Court of Protection?

The Court of Protection was created under the Mental Capacity Act 2005 and has jurisdiction over the property, finances and personal welfare for people who lack mental capacity to make decisions for themselves.  It is a specialist Court which manages a considerably wide range of cases that relate to mental capacity and making decisions for another person.

The most common applications before this Court relate to Deputyship.  A Deputy is needed when a person has lost mental capacity and has not already created a Lasting Power of Attorney.  A Deputy is similar to an Attorney although their monitoring and authority over a person’s estate varies.

Outside of Deputyship, the Court of Protection is commonly used for making one-off decisions on behalf of an incapacitated person where they cannot make the decision themselves.  This may relate to a Deprivation of Liberty (DOLS), a Deputy requesting out of the ordinary authority or settling disputes relating to local decision making. 

If you need advice relating to the Court of Protection and a potential application, call our specialist lawyers on X.

 
 
 
 

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Making decisions as an Attorney or Deputy

Making decisions as an Attorney or Deputy

Being appointed as an Attorney or Deputy can be a daunting and overwhelming task.  You are given a wide range of authority over another person’s estate if they lose mental capacity and you become the decision maker for another person – not an easy task.

When acting as an Attorney or Deputy, it is easy to second guess yourself and take the weight on your shoulders.  One cannot underestimate the hard task of acting on behalf of another person and the constant worry of whether you’re doing right thing.

The Mental Capacity Act 2005 governs how to act as an Attorney or Deputy and sets out golden rules for decision making.  These are:

  1. The person should always make their own decisions until it can be shown that they’re unable

  2. The person should receive all the help and aids they need in order to make a decision themselves

  3. Just because a person makes an unwise decision does not mean that they lack mental capacity, regardless of their circumstances.

  4. All decisions must be made in the persons best interests; and

  5. Anything completed on behalf of an incapacitated person should not restrict their rights to freedom.

In order to make decisions on behalf of another, it is important that you understand the key rule of always acting in their best interests.  The decision making has to be right for the person, regardless of your own personal feelings or to suit other people.  This can be difficult and to ensure you follow this rule, consider:

  1. Did the person leave you any instructions within the Lasting Power of Attorney to assist you with managing their estate? 

  2. Consider the values and wishes of the person, including moral, political or religious views.

  3. Consider the past wishes and feelings of the person – has this situation come before?

  4. Do not make decisions and assumptions based on the persons age, gender, background or behaviour.

  5. Consider whether the persons capacity may regain and if the decision can wait.

The most important rule when acting as an Attorney or Deputy is record keeping (not just financially).  It is best practice to keep records of everything you do – keep notes of why you made a specific decision and how you followed the Mental Capacity Act 2005.

If you need assistance relating to the duties of an Attorney or Deputy, do not hesitate to contact our specialist team of lawyers who would be happy to assist you.

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My first 6 months as a placement student at Kiteleys

My first 6 months as a placement Student at kiteleys.

My legal placement has been an eye-opening journey for me. At the beginning of my enrolment at Bournemouth University, I was unsure whether a placement would be for me. However, I soon came to realise the benefits of a legal placement year such as having first-hand experience with working in a law firm which can benefit your future greatly. Kiteleys have shown me how beneficial a placement year can be and have provided me with a great experience so far.

I am currently based in the litigation department focusing mainly on personal injury matters, however, from time-to-time I will assist in other matters such as disputes. I have the liberty of working on a variety of cases, conducting legal research, drafting pleadings and preparing for court hearings. It is interesting to see that each case requires a unique approach.

As a placement student, I have had the chance to work closely with experienced solicitors who have allowed me to shadow them and have also guided me through the litigation processes. Working in a law firm has enabled me to develop my legal skills such as legal research and effective communication.

One of my favourite experiences was the opportunity to attend a court hearing. It was fascinating to see first-hand each party presenting their arguments and advocating for their clients.

I feel honoured to have been given the opportunity to undertake my legal placement year with Kiteleys and to become a part of their team. I would highly recommend to anyone thinking of pursuing a legal career to consider Kiteleys for a legal placement/ work experience.

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West Moors Office Closure

Closure of West Moors Office with Continued Presence and Home Visits

At Kiteleys Solicitors, we have made the difficult decision to close our West Moors office. However, we want to assure our valued clients that this closure does not mean the end of our commitment to serving the community. While our physical presence may no longer be in West Moors, we are dedicated to maintaining our connection and providing accessible legal services.

To compensate for the closure, we are excited to announce that we will continue to offer home visits to those who find it challenging to travel to our other offices. We understand that some clients may have mobility issues, time constraints, or simply prefer the convenience of consulting with us from the comfort of their homes. Our team of experienced solicitors will be glad to schedule appointments and deliver personalized legal advice directly to your doorstep.

By offering home visits, we can ensure that the high standard of service we are known for remains accessible to all, regardless of their location. Whether you need assistance with family law matters, conveyancing, wills, or any other legal issues, our dedicated professionals will be there to guide you through the process, taking the time to understand your unique circumstances and tailor our services accordingly.

Although we appreciate the convenience of a physical office, we believe that evolving to meet the needs of our clients is essential. We are confident that our decision to close the West Moors office and provide home visits will allow us to offer even more personalized and customer-focused services, further strengthening our commitment to the community.
The closure of our West Moors office is not the end, but rather a new beginning. Our commitment to providing reliable legal advice and support remains steadfast, and we are excited to embark on this new chapter, bringing our expertise to your doorstep. We sincerely thank you for your continued trust and support and look forward to serving you in your home and beyond.

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Kiteleys Charity of the year 2023

Kiteleys Charity of the year 2023

Kiteleys Solicitors Selects Dorset Mind as Charity of the Year

Kiteleys Solicitors, a law firm known for its commitment to community engagement, is proud to announce its selection of Dorset Mind as its Charity of the Year for 2023/2024. As a local legal practice with a focus on social responsibility, Kiteleys Solicitors has a longstanding tradition of supporting charities in their effort to make a positive impact on society.

Dorset Mind, a highly regarded mental health charity, was chosen by Kiteleys Solicitors due to its outstanding work in promoting mental well-being within the Dorset community. With a mission to educate, support, and raise awareness about mental health issues, Dorset Mind's objectives align closely with Kiteleys Solicitors' core values. This partnership aims to drive forward positive change and reduce the stigma surrounding mental health.
Throughout the year, Kiteleys Solicitors will work closely with Dorset Mind to raise funds and increase awareness for mental health initiatives across Dorset. The law firm plans to organize a variety of exciting events and activities.

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Kiteleys Gains Cyber Essentials Plus Accreditation

Kiteleys gains cyber essentials plus accreditation

Kiteleys is pleased to announce that this month it has passed the cyber essentials plus accreditation. This proves that as a firm we are dedicated to protecting our clients data. Kiteleys is dedicated to invesiting in the security of our IT systems and are always keeping upto date with the ever changing cyber security world to make sure that we are protecting your data as best as we can.

Cyber Essentials is an official UK Government backed scheme that encourages organisations to adopt best practice in information security and ensures they take sufficient measures to prevent against the risks of possible cyber attacks. Threats to cyber security come in many shapes and sizes and Cyber Essentials Plus is a certification that acknowledges protection against these attacks as well as our our strong security management ethos and procedural framework.  The Cyber Essentials Plus Certification is the highest level of accreditation and is awarded by means of an independent assessment of the business security controls and processes.

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Kiteleys Celebrates Living Wage Commitment

Kiteleys Celebrates Living Wage Commitment

The Living Wage Foundation is pleased to announce that Kiteleys, has today accredited as a Living Wage employer.

The Living Wage commitment will see everyone working at Kiteleys, regardless of whether they are permanent employees or third-party contractors; receive a minimum hourly wage of £8.45 – significantly higher than the national minimum wage of £6.95 and the new minimum wage premium for over 25s of £7.20 per hour introduced this April.

The Living Wage is an hourly rate set independently and updated annually. The Living Wage is calculated according to the basic cost of living using the ‘Minimum Income Standard’ for the UK. Decisions about what to include in this standard are set by the public; it is a social consensus about what people need to make ends meet.

Employers choose to pay the Living Wage on a voluntary basis. The Living Wage enjoys cross party support, with public backing from the Prime Minister and the Leader of the Opposition.

Living Wage Foundation Director, Katherine Chapman said: “We are delighted to welcome Kiteleys to the Living Wage movement as an accredited employer.

 “The best employers are voluntarily signing up to pay the Living Wage now. The Living Wage is a robust calculation that reflects the real cost of living, rewarding a hard day’s work with a fair day’s pay.

“We have accredited nearly 3,000 leading employers, including Kiteleys, ranging from independent printers, bookshops and breweries, to well-known companies such as Nationwide, Aviva and SSE. These businesses recognise that clinging to the National Living Wage is not good for business. Customers expect better than that.”

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Negligence and Damages Bill – A step in the right direction?

A Private member’s Bill, The Negligence and Damages Bill, has been put forward to the House of Commons and seeks to address the current issues and shortfalls with Bereavement Damages and Psychiatric injuries for secondary victims.

The current law on psychiatric harm is based on case law and victims have found it has fallen short on many occasions, such as the families of the victims of the Hillsborough disaster. As it stands a claim for psychiatric injury arising from witnessing a loved ones injury or death can only be made by a person with a close tie of love and affection. The only relationships assumed to have this tie are those between a parent and a child, spouses or fiancés. Anyone else seeking to make such a claim has the burden put upon them to prove this tie existed.

Injured parties would still have to show that they have suffered a recognised psychiatric injury but the pool of potential claimants would be significantly increased to include those such as friends and colleagues of the injured party who would no longer have to prove the tie of love and affection. The new Bill seeks to abolish the need for a Claimant to have been shocked by the incident, thus potentially including those who develop a psychiatric injury having watched a loved one die slowly as a result of medical negligence. Additionally, it would end the need for a Claimant to have been sufficiently close in time and space to the incident. This would mean that those who arrive at hospital to see a loved one following a serious accident or find out about a death over the phone, could potentially bring a claim though they did not witness the incident itself.

For those who unfortunately loose a loved one as a result of a negligent act a claim can be made against the Defendant for the Statutory Bereavement Award. In England and Wales this is set at £12,980 and can only be claimed by: the spouse or civil partner of the Deceased or by the parents of a Deceased minor. The child of a Deceased parent would therefore be unable to make a claim for this. The modern family structure has changed in recent years however thus far the law in England and Wales has been slow to reflect this. Judges in Scotland already have the power to decide on the level of bereavement damages and the parties to which these can be awarded.

The proposed Bill would do away with the set award instead giving power to the Court to decide on the sum to be awarded, based on a number of prescribed factors. These would include the distress and anxiety endured by the relative in contemplation of suffering before the loved ones death; the grief and sorrow caused by the death and; the loss of non-pecuniary benefits. The new Bill would also significantly increase the number of potential Claimants, so that this could include children over 18 and siblings as well as step children, fiancés and ex-partners. Further progress would have been to expand the scope of the Bereavement award so that parents of stillborn infants, whose death has occurred by virtue of negligence, would be able to bring a claim under this provision. However, this is something that we can perhaps hope for in the future.

The new Bill shows a greater understanding of the affect psychiatric injuries or bereavements can have on loved ones and a better understanding of the changing nature of relationships and family structures. The Bill has gained support from APIL (The Association of Injury Lawyers) and is a step in the right direction to addressing the need for loved ones to get their lives back on track.

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Family Law Update – The Importance of a Written Agreement

Family Law Update – The Importance of a Written Agreement

A recent case concerning a couple who live in Poole, Dorset, highlights the importance of making sure any agreement reached when a couple split up is properly recorded within a legally binding agreement.

The case concerning Mr Ely and Ms Robson was considered by the Court of Appeal on 26 July 2016 and the main points were:

  • In 1986, Mr Ely moved in with his girlfriend Ms Robson to live together in her home on Ashley Road in Poole.

  • In 1987, Mr Ely purchased a property on Torbay Road in Poole, which Mr Ely and Ms Robson moved into to continue living together. However, that new home was owned only in Mr Ely’s sole name with a mortgage in his sole name. Ms Robson made no financial contribution to the purchase of their Torbay Road home.

  • By 2005, Mr Ely and Ms Robson had 2 young children together, but their had relationship broken down. However, they remained living separate lives under the same roof at Torbay Road property.

  • In 2007, there were court proceedings to sort out who was entitled the equity in the Torbay Road property. Mr Ely claimed that he should have 100% of the equity, whereas Ms Robson claimed the right to 50% of the equity.

  • In August 2007, Mr Ely and Ms Robson met together in Poole Park in an attempt to try and resolve their differences before an expensive final court hearing was due to take place in September 2007. No one else was present at that meeting, but an unwritten (oral) agreement was reached (or was it?).

  • Shortly after the meeting in Poole Park, Mr Ely’s solicitor wrote to Ms Robson’s solicitor, setting out what Mr Ely thought had been agreed, which amongst other terms included that the equity in the Torbay Road property would be split 80% to Mr Ely and 20% to Ms Robson when the property was sold at a future date.

  • As a result of the agreement, the solicitors for both Mr Ely and Ms Robson wrote to the court asking for the hearing due to take place in September 2007 to be put back to later date, whilst the precise details of the agreement were recorded in a legally binding document.

  • However, by 2014, the agreement had still not been recorded within a legally binding document and there had been no further court hearing to finalise the case. It seems that neither Mr Ely nor Ms Robson thought recording their agreement in writing was important! (a decision they would soon come to regret)

  • During the seven years from 2007 to 2014, Mr Ely had continued to conduct himself as if there was a legally binding agreement in place; he allowed Ms Robson and other members of her family to live there.

  • In 2014, Mr Ely wanted the property to be sold so that he could recover his 80% of the equity and pay only 20% to Ms Robson. However, she refused to accept that there had been any agreement in August 2007 and insisted that she received 50% of the equity.

  • Ultimately, the Court of Appeal decided in July 2016 that Ms Robson was bound by the terms of the oral agreement reach at the meeting in Poole Park in August 2007. Therefore, Ms Robson was entitled to only 20% of the equity. (but had they got married, the outcome on divorce could have been very different)

The lessons to be learnt from this case are:

  1. The laws which apply to married and unmarried couples concerning money and property when they split up are very different.

  2. Whilst unromantic, a written financial agreement at the start of a relationship can save a lot of heartache and legal cost later, if things don’t work out as planned. (hope for best, but plan for the worst)

  3. Dialogue between a couple who split up can be very useful to avoid the expensive legal bills and uncertainty of going to court. Whilst meeting in a public place is one option (so long as doing this is safe), other options for constructive and non-confrontational dialogue include support from specially trained family lawyers and mediators, who consider that going to court is very much a last resort for resolving a family dispute.

  4. When an agreement is reached, it should be recorded in a legally binding document. Whilst an oral agreement might be upheld in a court, a lot of stress and legal cost can be avoided by having a legally binding document prepared by a family law solicitor. (you might not be as lucky as Mr Ely)

If you or someone you know wishes to discuss a family related problem, please make contact with a member of Kiteleys Family Team via any one of Kiteleys’ offices, for an initial free telephone assessment.

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Bailiffs- Goods Owned By Other People

Proving who owns the items

Should bailiffs turn up at your home and some of the items on your driveway or in your home do not belong to you, it is up to you to prove this to the bailiff.

You can prove that they do not belong to you by:

  • Making a list of all the items that do not belong to you to give to the bailiff

  • Make it clear to the bailiff who the belongings actually belong to

  • Show proof that these belongings are not yours

  • Warn the bailiffs that they will be liable for costs should the goods be wrongly taken.

Can bailiffs take goods that belong to other people?

The bailiff can only take control of the goods if they belong to the person named on the notice of enforcement, i.e. the person who owes the debt.

If the possessions are jointly owned by another person and you, the bailiff can take these items. The bailiff will need to ask the other owner what percentage of the goods they hold. The goods can then be taken and sold, the proceeds of the sale will then be split.

Conditional sale items and hire purchase

As the items do not belong to you the bailiff cannot take possession of any goods on hire, hire purchase, or conditional sale, until the final payment has been made on the agreement.

Goods purchased on credit, by way of personal loan or credit card, or credit agreement, can be taken from you as technically they belong to you.

 

Goods belonging to someone else are taken by the bailiff

If the bailiff is unsure whether the goods belong to you or someone else they should not take the goods.

If the bailiffs do take goods that do not belong to you, known as a third party, either you or the person they belong to can complain to the bailiffs firm, asking for the goods to be returned.

The following process should be adopted when making a complaint to the bailiff:

  • Within 7 days of the goods being taken either you or the person the goods belong to need to write to the bailiff to claim the goods back

  • Within 3 days of receiving your letter the bailiff must contact the creditor to get their opinion

  • From the date of being contacted the creditor then has 7 days to decide whether the goods were correctly obtained

  • Should the creditor agree that the goods were wrongfully taken they will instruct the bailiff to return the goods

  • The claim will be rejected if the creditor confirms the goods were correctly taken

Should the claim prove to be unsuccessful the owner of the goods can apply to get the belongings back at court. When the owner of the goods applies to the court claiming ownership of the goods, the bailiff will be notified of the application. Once the bailiff is in receipt of the notification they are unable to sell or dispose of the goods until the court orders otherwise.

At the hearing the court will decide whether to order the bailiff to return the goods back to the rightful owner, they may also award damages if the actual owner of the goods suffered a financial loss as a result of the goods being taken.

The goods belonging to someone else have been sold

If the goods belonging to someone else have been sold whilst that person is taking legal action to regain possession, the bailiff must hand the proceeds of the sale over to the court.

However, the bailiff can only be liable for the mistake if either of the following apply:

  • The bailiff knew the goods belonged to someone else at the time they were sold

  • Prior to the goods being sold the bailiff had been notified that a third party had applied to the court to regain possession.

The belongings have been given away

Once the bailiffs are involved with the enforcement proceedings, belongings cannot be given away. If the belongings are given away in this time the bailiff can still take them.

Should you decide to give any of your possessions away, it must be an unconditional gift. If you decide to make a gift on the condition that the other person returns it once the bailiffs have gone, you face the possibility of being held in contempt of court.

If you feel you could benefit from some advice relating to anything in this article, contact our Dispute Resolution Solicitors today to turn your dream into a reality:

Telephone - 01202 393506

Email - Litigation@kiteleys.co.uk

Or fill out the form below and our team will be in touch!

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Mental Health Targets Not Being Met

In April 2016 the Government promised to give mental health referrals the same priority as cancer referrals, this being 2 weeks.

Freedom of information figures infer that nearly a quarter of all clinical commissioning groups across England are ignoring this referral target. NHS England has responded by confirming that they will be looking into investing more money into these services in order to meet the demand.

The referral target requires that any patient experiencing their first episode of psychosis, aged between 14 and 65, should receive treatment within 2 weeks of the referral being made.

The freedom of information request was sent to the 209 Clinical Commissioning Groups in England, only 170 of these groups responded to the request. Out of those groups that did respond, 23% of them confirmed that they do apply the 2 week referral target, but only to those aged 14-35. More than 75% of the groups that apply the target have no plans to extend it to 65 years old.

The referral is for intensive treatment, also known as early intervention in psychosis (EIP), which includes giving support to patients from a variety of healthcare professionals, including social workers, mental health nurses and psychiatrists. This support should match the best practice guidance laid down in the NICE Guidelines.

Documents seen by the BBC suggest that the majority of the mental trusts in England were unable to confirm whether their particular package is delivered in line with the NICE Guidelines.

It has been estimated by NHS England that the cost to the NHS of EIP would be in the region of £8250 per year, per patient. Approximately 64% of the clinical commissioning groups that replied to the freedom of information request could not say how much they were spending on this treatment. On average 29% of the groups were spending below the recommended £8250 per patient.

Previous studies have concluded that early treatment intervention can improve educational attainment, physical health and job opportunities.

A representative from NHS England confirmed that there will be extra funding for 10% more people to be treated within the 2 week proposed referral from 2017-2018, increasing to £70 million per year by 2020-2021.

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Divorce Law Update – Guidance on “Financial Needs”

The Family Justice Council have recently published their Guidance to help family lawyers work out how to meet a families financial needs at the time of a divorce:

https://www.judiciary.gov.uk/wp-content/uploads/2013/04/guidance-on-financial-needs-on-divorce-june-2016-2.pdf

 

However, that 64 page Guidance is primarily intended for judges and legal advisers.

Therefore, Kiteleys Family team hope that this brief summary is easier to understand:

 

  • When a couple divorce and cannot decide how their property, savings/investments, pensions and income should be divided between them, they can ask specially trained family lawyers to help them short this out.

  • There are different ways for family lawyers to help a divorcing couple, which might include working with a mediator or arranging a “roundtable” meeting.

 

  • Asking to a Family Court judge to make a decision is the last resort.

 

  • All family lawyers and judges must apply the law, which states that any decision must have regard to all the circumstances of the case, first consideration being given to the welfare of any child aged under eighteen.

  • These legal rules allow a broad discretion on how the available family assets should be shared between the divorcing couple. There is no precise way to calculate who should get what. Every case is different.

 

  • As a result, the Guidance is intended to help family lawyers work out the best way for a divorcing couple to move on with their lives separate and apart, with a focus on those cases where the available assets do not exceed the parties’ needs.

 

  • Whilst there is the starting point of equality, needs commonly provide a justification for a departure from the principle of “equal sharing”.

  • “Needs” in most cases, mean the need for housing and also paying a mortgage and domestic bills (aka “income needs”). However, future income needs can also be relevant, such as the need for an income in retirement

 

  • To measure “need”, both parties should produce detailed budgets. “Need” will then be measured by assessing available financial resources and also the standard of living enjoyed during the relationship.

  • Family lawyers will strive to stretch finite resources, but where resources are modest, meeting the children’s needs will usually be given priority.

 

  • A party may be expected to suffer some reduction in their standard of living, if that is necessary in order for both parties to gain independence from each other as part of a “clean break”

  • However, in some cases a complete or immediate “clean break” will not be appropriate if it will cause one party “undue hardship” in the future.

 

If you or someone you know needs to discuss a family law problem in strict confidence, please make contact with a member of Kiteleys Family team via any one of Kiteleys’ offices.

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Are children receiving the recommended diabetes checks?

A study of just over 27,000 young people, and children, showed that only around 25% of people over the age of 12 received all 7 of the annual checks, such as eye exams. These missed checks have been deemed “very worrying” by Diabetes UK.

The National Institute for Health and Care Excellence produced guidelines which state that all children with diabetes should have their blood sugar levels checked every year, and those over the age of 12 should also have 6 other health checks. Included in these health checks are: growth measurement, blood pressure, kidney function, cholesterol checks, eye screening and foot examinations.

Out of the recommended checks the most commonly missed are cholesterol testing, eye screenings and foot examinations.

The purpose of these checks is to aid the spotting of diabetes causing harm to organs, which if spotted early enough be less severe.

A Consultant in Paediatric Endocrinology and Diabetes, Dr Justin Warner, is of the opinion that it is “completely unacceptable that some of these checks were being missed, or not recorded”. He goes so far as to say that “health staff should strive further to ensure all checks take place and are recorded, and commissioners should provide adequate resources”.

The Director of Policy and Care Improvement at Diabetes UK, Bridget Turner, confirmed that “there remains considerable variations in the levels of care provided. This is very worrying because if children and young people are not supported to manage their diabetes well in early life, they are more likely to be at risk of debilitating and life threatening complications in adult life, such as, amputations, blindness and the possibility of a stroke”.

From the study NHS England will now be working closely with clinical commissioning groups to improve the provision of effective integrated diabetes services.

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Exciting New Acquisition for Kiteleys

Kiteleys Solicitors are delighted to announce their acquisition of Morris, Scott & Co Solicitors.  Ian Richards and Andrea Rohr have been retained by Kiteleys as Consultant Solicitors, with Ian commenting “This is a hugely positive move for the Highcliffe office and will, for the benefit of all of our clients, add strength in depth to the resources at Highcliffe in the increasingly regulated environment that law firms now operate.” Kiteleys now have 9 offices across Dorset and Hampshire, but retain an ongoing appetite for discussions with likeminded, profitable firms who may wish to become part of a larger commercial organisation.  Mark Kiteley, announcing the merger, said “Our agreement with Morris, Scott and Co is an exciting step forwards for Kiteleys.  We are an ambitious company committed to offering a network of accessible branch offices, where clients may expect to receive expert legal advice from an experienced and professional team.  This new acquisition reflects that commitment.  Ian, Andrea and their team enjoy a superb reputation for client service, and we look forward to working with them to realise the opportunities that our agreement presents.

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Should Mediation Become Compulsory In Disagreements Over Patient Care?

Should Mediation Become Compulsory In Disagreements Over Patient Care?

An anaesthetist at the Royal Berkshire Hospital in Reading is of the opinion that mediation should be made a legal requirement throughout England and Wales to settle disputes surrounding patient care.

During his speech at Euroanaesthesia 2016 Mr Danbury was quoted as saying the following:

“Mediation can be done informally, perhaps by asking another clinician within the institution to act as an honest broker. If this fails, then a formal mediation process can be initiated with legal representation on both sides. Mediation costs a great deal less than going to court and often preserves the relationship between the clinical team and their patient/representatives, which can otherwise be severely damaged by the rigors of court proceedings”.

Some see mediation as a form of allowing the relationship between the medical team and the patient and or the families to continue. However, not all families wish to be persuaded by mediation and would prefer their thoughts to be voiced in court, where they feel that all steps have been taken to ensure the right decision has been made.

Not all disagreements are over a difference of opinion, some are simple misunderstandings. Mr Danbury went on to say:

“Sometimes misunderstandings can occur very easily, one doctor may not explain something very well to a family, but then once a colleague intervenes, the situation can be calmed down very quickly. But if this should fail, then the default option should be to go to formal mediation by an independent third party. It is never too late to talk, and the cost savings to the NHS would be immense”.

Mediation is not suited to all patients and their families involved, they are often in an extremely vulnerable state and mediations would not be fair in all situations, they may feel bullied into accepting treatment that they do not wish to receive.

Whatever the outcome families need to know that they have done all they can, and sometimes this means pursuing matters through the court.

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