Archive for month: May, 2018

Last week marked Dementia Action Week, a disease that affects 1 in 6 people over the age of 80 (and over 40,000 people under the age of 65), and which should therefore be more often discussed.  Alzheimer’s disease is the most common form of dementia, but not the only one.  Dementia describes a set of symptoms that can include memory loss, difficulties with thinking and problem solving, and generally affects a person’s day to day life.  Once a person starts suffering with dementia, their family members often wonder what can be done to safeguard their health, and to avoid any unnecessary difficulties in the future.

Following a diagnosis of dementia, it is important to ensure that the person who is suffering (the “donor”) puts in place a Lasting Power of Attorney (“LPA”) which enables that person to appoint loved ones to make certain decisions on their behalf.  An LPA can only be put in place where that person still has mental capacity, so the sooner it is put in place the better.

An LPA is a formal document, registered with the Court of Protection and governed by the Mental Capacity Act 2005, thereby ensuring that the best interests of the donor are safeguarded.  A person would usually appoint their friends or loved ones to act on their behalf in the event that they lose capacity, however they can also appoint a firm of solicitors or a trust corporation.

The LPA will enable the attorney to make decisions, as the donor would have done, provided they are made in the best interests of the donor.  It means that bills can be paid, decisions as to care can be made, and property can be dealt with on the donor’s behalf.

Previously Dementia Awareness Week, “Dementia Action Week” seeks to encourage more people to take action in raising awareness of this terrible disease.  This could be through raising money for charities supporting dementia, or by becoming a “Dementia Friend”. A Dementia Friend learns a little more about what it is to live with dementia, and turns that understanding into action – by telling more people about it or by visiting those living with the disease and helping out in small ways around the house.

As the charity is very close to my heart, I will be raising money for the Alzheimer’s Society in September 2018 by taking part in the Nuclear Race (mud run) with a number of other colleagues from Meaby&Co.  Any support is of course very welcomed! https://uk.virginmoneygiving.com/fundraiser-display/showROFundraiserPage?pageId=942764

For information on setting up a Lasting Power of Attorney, please contact me at Laura@meaby.co.uk, or on 0207 703 5034

New laws come into force this Friday in the UK (25 May 2018) known as the General Data Protection Regulations (GDPR) and are applicable across the European Union.   The new Regulations represent a wholesale update of the current UK laws on data protection which date back to 1998.

For many organisations the mere mention of ‘GDPR’ fills many with complete dread. Recent statistics show that less than a third of organisations feel that they are ready for GDPR and half who know that GDPR will apply to them admit a lack of understanding of the data that they collect and process.  Other problems include gaps in employee training with many not understanding the new responsibilities that come with GDPR.

More worrying for organisations are the massive financial penalties that they could face if they are found to be in breach of the new GDPR laws.  The maximum penalty is 20 million Euros or 4% of global annual turnover.  Although this is worrying for many organisations there is a lower tier fine of 10 million Euros or 2% of global turnover.

It is however likely that higher tier fines will be reserved for the more serious infringements and that for the vast majority of organisations fines will be issued by the Information Commissioner’s Office (ICO) on a case-by-case basis in the spirit of being ‘effective, proportionate and dissuasive’.

The reality however is that the ICO will continue to operate in a similar vein to how it has been doing and that fines will be a last resort. This has been confirmed by Elizabeth Denham – the current Information Commissioner although she has dismissed predictions that there will be a period of grace where the ICO will be more lenient, as she believes that businesses have had two years to prepare for GDPR.

The good news is that if you are currently compliant with data protection requirements then it shouldn’t be too traumatic to extend compliance to the new GDPR requirements.

This article is therefore designed to gently point you in the right direction and to highlight the main changes that you need to be aware of by way of assisting with updating any policies and procedures and to promote general compliance with GDPR.

There is a lot of information out there on all things GDPR however the Information Commissioner’s Office (ICO) has set out some useful guidance and has made reference to 12 steps that it recommends that organisations should adopt.   These 12 steps are common-sense but there are some new steps that organisations need to take to ensure compliance.

1. Awareness

Organisations need to ensure that decision makers and key personnel are aware of the new legislative requirements that are GDPR, their likely impact and to identify areas that are likely to cause difficulties and to review any resourcing difficulties that prevent compliance.  The implementation of GDPR could have significant resource implications for larger organisations if left to the last minute.

2. The Information that is held

Organisations need to document the personal data that they hold and where that data has come from and with whom it is shared.  By way of example when recruiting candidates for employment a record should be kept of CV’s received and where they came from and with whom they are shared.   Other personal data can include employee bank account details, national insurance numbers, and sensitive data for example sex race and ethnicity.   It is a good idea to organise an information audit across the organisation or within particular business areas.

3. Update and communicating Privacy notices

It is a good idea to review and update privacy notices and to plan ahead in time for the implementation of GDPR.   In particular organisations should set out in their privacy notices the legal basis for processing personal and other data, how long such data is retained and also to clarify the right to complain to the ICO.    It is important for information to be provided in  concise, easy to understand and clear language.

4. The rights of individuals including employees

Individuals including employees have many rights under GDPR including the following:-

.  The right to be informed

.  The right to access data held on themselves

.  The right to  have inaccuracies corrected

.  The right to have information erased known as the right to be forgotten.

.  The right to restrict processing

.  To right not to be subject to  automated decision making and profiling.

.   To right to prevent data being sent to third parties for the purpose of indirect marketing.

.   The right to object and

.   The right to data portability

5. Changes to Subject Access Requests (SAR’S)

There are changes in this arena with the abolition of the £10 fee although organisations can charge for excessive requests or even refuse such requests.   There will also be a month within which to respond to such requests in place of the current 40 days time limit.  There is also the obligation to provide data subjects such as employees with additional information, for example data retention periods and on their legal right to have data corrected that is inaccurate.    Organisations should consider whether it is feasible or desirable to develop systems that allow individuals to access information on-line which should prove less cumbersome than having to provide and arrange large volumes of physical data.

6. Lawful basis for processing personal data

The ICO recommends that organisations should review the types of data that they are processing and to document the legal basis for carrying out each type of processing.  These should also be set out in privacy notices.    It should be possible to review the types of processing activities carried out and to identify the lawful basis for doing so.

7. Consent

Consent to process data must be provided freely and explicitly and the ICO guidance suggests that organisations should review how they are seeking, obtaining and recording the consent of individuals including employees.  The GDPR standards for consent are that it needs to be specific, granular, clear, prominent, opt-in, properly documented and easily withdrawn.  In an employment context this can be done as a separate letter for an employee to sign when they agree to any offer of employment which does not form part of any contract of employment.   Consent cannot be inferred from silence, inactivity or pre-ticked boxes it must be explicit consent from data subjects.

8. Children

This is a new requirement under GDPR.   ICO guidance indicates that the UK is likely to legislate to provide for anyone under 13 to be classified as a child and to provide for special protection for children’s personal data especially relating to commercial internet services.  GDPR requires organisations to introduce systems for verifying individual’s ages and to obtain parental or guardian consent.   Any privacy notices also need to be in clear simple language that children will understand.

9. GDPR breaches

There will be a general duty to notify the ICO of certain breaches for example any breaches resulting in damage such as identity theft or breaches of confidentiality.  The ICO recommends that procedures are in place to detect, report and investigate any personal data breaches.  Breaches should for example be notified to the ICO which result in discrimination, damage to reputation, financial loss, loss of confidentiality or any other significant economic or social disadvantage to an individual.

10. Data Protection by design and data protection impact statements

It is recommended that organisations familiarise themselves with the ICO’s Code of Practice on Privacy impact statements as well as the latest guidance from the Article 29 working party and to establish how to work out how and when to implement them within your organisation.   A privacy impact statement is required in situations where data processing is likely to result in a high risk to individuals for example:-

.  Where new technology is being deployed

.  Where a profiling operation is likely to significantly affect individuals; or

.  Where there is processing on a large scale of special categories of data

It is therefore vital that all organisations address any high risks involved in the processing of data to ensure that they can address those risks.

11. Data Protection Officers

It is important that organisations designate someone to take responsibility for data protection compliance and to clarify where they will sit in the organisations structure for example in the legal department or regulatory affairs by way of example.   Consideration should be given to formally designating a Data Protection Officer.

12. International

If the organisation operates in more than one EU member state with cross-border processing then a lead data protection supervisory authority is recommended.  A supervisory authority must also be identified in the State where the main organisation’s establishment is located.

Time is ticking for organisations to get their houses in order and it is hoped that this article will prove useful in addressing some of the concerns and to pinpoint what is important in complying with the GDPR.

Steven Eckett is Head of Employment at Meaby&Co etc for timely advice: seckett@meaby.co.uk or call 0207 703 5034.

Meaby&Co teamed up with Haven House Children’s Hospice https://www.havenhouse.org.uk at the Chigwell Fayre on Sunday 20th May.

We ran a competition to win a luxury Fortnum & Mason hamper. In order to be in with a chance to win, members of the public had to guess how many balloons were in the Meaby Mini. The correct answer was 174, no one guessed 174 on the nose, however we did have two guesses at 175 who we are now contacting to tell them the good news, that they will each be getting a Fortnum & Mason Hamper sent to them.

Haven House ran a “Play your Cards Right” competition. There were also games for the children and special Meaby cakes and balloons. All those who attended had a great time and we raised a considerable amount and raised awareness of Haven House Childrens Hospice.

We hope to see you all there next year.

 

 

The Irish Court of Appeal has deemed a key provision of the Mental Health Act 2001, which governs the long term detention of up to 100 people in psychiatric institutions and the Central Mental Hospital in Ireland, to be unconstitutional.

However, due to the “potentially chaotic and catastrophic consequences” of the finding, the court has suspended the declaration of unconstitutionality for a period of 6 months so that appropriate laws can be enacted to address the fallout position.

The finding arose on an appeal by the State against findings of the High Court in proceedings taken by a man who was detained in a psychiatric hospital in May 2015 on foot of an admission order after he suffered a serious psychotic episode. The detained man was automatically entitled to a review of his detention six weeks later and again after 3 months. In November 2015, a doctor deemed him to have recovered sufficiently to be discharged if he was to get the appropriate residential support, however funding for supported accommodation was not provided for him until 2017, which effectively meant that the man was detained indefinitely in a psychiatric ward.

The High Court ruling in May 2017 held that a person detained under the provision of the Act for a lengthy period was entitled to challenge the lawfulness of their continued detention at appropriate intervals before the Courts.

The State appealed the High Court decision and the Court of Appeal concluded that Section 15.3 of the Mental Health Act 2001 was unconstitutional, which provides for the making of orders extending periods of detention by up to 12 months. The Court said that the section meant that there was no effective procedure or method whereby an involuntary patient detained for extended longer periods could seek an independent review of their detention within a reasonable time.

The outcome of the finding means that the Court has found the State to be failing in its duty to vindicate the detainee’s right to personal liberty, amounting to a breach of Article 40.1 of the Constitution.

A finding of unconstitutionality demands an “immediate and imperative response” by the Oireachtas and Government to legislate in relation to the issue, hence the decision to postpone the finding. The Court learned that there are currently 78 patients who are the subject of the long term detention orders, with a further 15 patients at the Central Mental Hospital. If the affected patients were released as a result of the finding of unconstitutionality of their detention at this time and without the appropriate measures being out in place to safeguard them, it could have very unfortunate consequences for their safety and personal welfare.

Our Irish qualified solicitor Caoimhe Boyce keeps her eye on the legal news in Ireland. For further discussion or to get her views on any matter, contact her on cboyce@meaby.co.uk.

Clients frequently say to me that they just want what they are entitled to  – and therein lies the problem. As the law currently stands, there is no such thing as strict entitlement in family law and no legal adviser can tell you exactly what the outcome of an application for financial remedies, within divorce proceedings, will be.

Instead, the Judge must act fairly between the parties and take account of the checklist of factors set out in Section 25 of the Matrimonial Causes Act 1973. These are as follows:-

• the income, earning capacity, property and other financial resources of each of the parties;
• the financial needs, obligations and responsibilities of each party;
• the standard of living enjoyed by the family before the breakdown of the marriage;
• the age of the parties and the length of the marriage;
• the contributions of each party (both financial and other contributions, such as caring for children);
• any benefits that will be lost by a party as a result of the divorce;

The Judge must also take into consideration the principles which have been established through previously decided cases (known as precedents). The two main principles are “equality/sharing” and “need”. The principle of equality/sharing means that in the vast majority of marriages which have lasted for more than around five years, or any marriage where there are children, the starting point will be an equal division of the matrimonial assets. The principle of need means that in cases where a party (particularly a party who has the care of minor children) is able to demonstrate that half of the matrimonial assets will not be sufficient to meet their reasonable needs and/or the needs of the minor children, that party may be able to persuade the Court that they should receive more than half of the matrimonial assets.

Aside from this, the Judge has a very wide discretion as to the orders s/he deems to be appropriate.

An experienced solicitor will be able to give their client a good idea of the range of likely outcomes of an application but will not be able to give their client a definitive answer as to outcome.

This uncertainty causes difficulties for clients and lawyers alike. Clients are not able to plan for their future with any sense of security and lawyers are not able to meet their clients’ expectations with regard to clear and firm advice.

There are calls from many quarters, including Resolution (the leading organisation of family law solicitors in England and Wales)  for the law to be made more clear.

If you would  like further guidance regarding property and financial settlements upon divorce, it is recommended that you contact Head of Family  Law, Joanna Toloczko at Meaby&Co for timely advice: jtoloczko@meaby.co.uk   or call 0207 703 5034.