Legal Articles

Legalities Contracts The Not So Fun Stuff

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This year has been my most eye-opening year when it comes to the legalities of running a business. In 2005, I celebrated 20 years in business. I believe up until then I just sailed though when it came to the legal aspects. Oh yes, I did everything the best I could. Don't get me wrong and I did most things right. But this year it seemed to all hit. This year I learned the importance of "protecting my business" and this year I learned the true meaning of a "contract." I learned the importance of realizing that it's a business and I need to run it as such in all I do.

Contracts

Criminal Court Records

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There are courts at the municipal, county, state, and federal levels, each with its own set of criminal records. A county may be considered as a province or a specific region, and there are almost 3000 counties in the United States. Each and every county court maintains its own set of criminal records. Normally the cases held at the county level include misdemeanors and felonies that are not reported at the federal level.

Accessibility to county criminal records is relatively fast when compared to the records of state and federal courts. A person called a court record retriever takes 72 hours to retrieve information and search most of these records manually.

Federal court criminal records include the data relating to drug crimes, immigration crimes, and crimes relating to weapons. It is highly difficult to have the accessibility of these records online. Even if a person has the accessibility, he can have the data only to a limited extent not covering the personal information of the accused and the witnesses. In the USA, federal court criminal records are compiled by a very popular agency called National Crime Information Centre (NCIC), which maintains computerized index of the criminal records prepared by the Federal Bureau of Investigation and other agencies. Employers routinely conduct federal criminal checks before employing potential candidates for some of positions.

State court criminal records, on the other hand, have high accessibility via the Internet. Some state courts prescribe a range of fees for accessing their records online and some state courts do not. These records contain the data given by county indexes. These records also exclude the sensitive personal information of defendants like federal court criminal records. The best option in the hands of a searcher is to make countywide and statewide index search combined to have the full spectrum of the criminal record.

Commercial Litigation Financing

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A person who suffers a personal injury caused by another person can go in for litigation cases. Similarly, companies too are often involved in litigation. The reason can be attributed to the competitive market and 'unfair competitions,' too. Here the simple disputes in the conduct of business and commercial transaction sow the seeds for litigation.

The companies may reach a discord due to various factors. These can be a wrongful termination of an employer or employee, breach of contract, disputes of insurance, partnership, shareholders, bankruptcy and so on. Such disputes of commercial transactions can affect the business of that company. For instance, one of the two companies involved in partnership joins hands with a third party clandestinely. There is a breach of trust and related damages caused on the other company. This 'cheated' company can file for litigation against its partner company.

Finally, the disputing companies try to resolve their ongoing case through the court. This is known as Commercial Litigation. The companies, like the individual, take the help of an expert attorney to protect their interest. The attorney files the case for a contingent fee. The company involved in litigation, with the support of the attorney, seeks the Litigation Financing Company for its expenses. The company providing Litigation Financing evaluates the case. If the case appears worthy enough, the company offers an advance, often, termed as litigation loan. These are pre-settlement advances of non-recourse nature. That means the company gets its recovery charges if and only if its client company wins the case. But to ensure proper Commercial Litigation Financing one needs to resort to the attorney.

Women And Divorce

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By Janine A. Barbera Esq. of Law Offices of Barbera & McElhone P.C. - Miller Place, NY

It has been said that Divorce is worse than Death. Death of a spouse is a painful wound that begins to heal after the funeral. A Divorce however, will take months or years to reach closure. Eventually these wounds will heal as well but the mourning period of the death of a marriage can linger on for many years thereafter.

Why is divorce different for women? Whether it was she or her spouse that initiated it, guilt will be a womanÂ

Ataxic Cerebral Palsy Lawyer

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Ataxic cerebral palsy accounts for five to ten percent of all cases of cerebral palsy. In this form of cerebral palsy, there is damage to a part of the brain called the cerebellum that helps maintain balance and coordination. When the cerebellum is damaged, it can result in poor muscle tone or hypotonia, difficulty maintaining balance and a normal gait, tremors, disorders of depth perception and an inability to control the range and motion of voluntary movements. As a result, children with ataxic cerebral palsy often demonstrate a wide-based, unsteady gait. They may also have intention tremors that are tremors that occur while attempting voluntary movements. Voluntary movements are typically clumsy and difficult to perform; finer movements, such as writing, are most severely affected. Coarser movements such as reaching for objects may also be difficult due to altered depth perception. Rapid, involuntary side-to-side movements of the eyeballs, or nystagmus, may also be present. Children with ataxic cerebral palsy may also suffer from several other conditions, such as seizures, mental retardation, and visual and hearing defects.

Poor muscle tone, abnormal posture or movements and a delay in achieving the normal developmental milestones of infancy may raise the suspicion of ataxic cerebral palsy. A physician makes a diagnosis of cerebral palsy by combining a careful physical examination of the patient with findings from imaging methods, such as CT scans and MRIs. These findings are collectively used to determine whether the brain is developing normally or not.

Unfortunately, there is no cure for ataxic cerebral palsy. The disease can however be treated. There are people who think that ataxic cerebral palsy was caused because of a doctor's error. In this case, it is definitely advisable to seek the counsel of an expert cerebral palsy lawyer. The lawyer must perform an investigation to gather all the information surrounding the ataxic cerebral palsy incident to first see if a strong case exists.

Ataxic cerebral palsy tends to become progressively worse as the patient ages. An experimental treatment called chronic cerebella stimulation places electrodes on the surface of the cerebellum. It is thought that stimulation of cerebella nerves through these electrodes may improve balance and muscle tone. However, results have been mixed so far. Again, if you are confused or have questions about causes and treatments of this disease, seek legal advice.

Landlord S Corner Apartment Lease Agreement Late Fees In Ohio

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A. Limits As To Amounts

There are two lines of cases in Ohio which deal with whether courts will enforce lease provisions allowing a landlord to charge tenants for late fees. These lines of cases come to slightly different conclusions, but the bottom line is that landlords need to be very careful in charging tenants for late fees.

The first line of cases comes to us from the Eighth Appellate District. In the case of Siara Management v. Nedley, 1992 Ohio App. LEXIS 5265 (Oct. 15, 1992) Cuyahoga App. No. 61433, unreported, the lease called for the tenant to pay $30.00 in late fees if he was late five days, and $70.00 more if he were late ten days. The landlord tried to charge these amounts to the tenant and litigation ensued.

The Eighth Appellate District held that there is distinction between liquidated damages (allowable) and penalty clauses (not allowable) and that the court would use a three part test to distinguish between the two. Late fees would be allowable as liquidated damages if they were designed to compensate the landlord for damages which were:

(1) uncertain as to amount and difficult of proof, (2) the contract as a whole is not so manifestly unconscionable, unreasonable, and disproportionate in amount as to justify the conclusion that it does not express the true intention of the parties, and if (3) the contract is consistent with the conclusion that it was the intention of the parties that damages in the amount stated should follow the breach thereof.

In Nedley, the landlord did not make it past the first hurdle of the test. All that the landlord argued in court was that the late payment by tenants led to late payment charges assessed to the landlord by his creditors. The Court reasoned that "Any party due money could claim that the resultant decrease in cash flow might result in late charges against it. That is unduly speculative." Had the landlord come to the court with evidence that the tenant's late payment had caused him to incur damages in specific amounts, then those specific amounts might have been recoverable.

The Eighth District Court of Appeals also came to a similar conclusion in 200 W. Apartments v. Foreman, 1994 Ohio App. LEXIS 4081 (September 15, 1994), Cuyahoga Co. App. No. 66107 regarding a late fee of only $2.00 per day. In that case the court also found it significant that the landlord had shown no proof of its actual damages.

However, another of Ohio's appellate district treated the matter very differently. In the case of Calabria v. Green, 1995 Ohio App. LEXIS 3903 (September 8, 1995), Trumbull Co. App. No. 95-T-5181, the Eleventh Appellate District Court held that while late charges of $10.00 per day (for 38 days) was not enforceable, "an agreed upon, one-time late fee, that is reasonable in proportion to the rental rate, and that has a rationale basis supporting the imposition of the charge, is proper."

The Eleventh District Court of Appeals again came to the same conclusion in the case of Wadsworth v. Starcher, 1998 Ohio App. LEXIS 2909 (June 26, 1998) Trumbull Co. App. No. 97-A-0054. In Wadsworth, the Court agreed with the trial court that $5.00 per day in late charges over 92 days was not enforceable, and that the trial court's reduction of the late fees to $100.00 was proper.

It is clear that "parties to a lease agreement can agree to anything they wish within the limits of the law." Village Station Assoc. v. Geauga Co. (1992), 84 Ohio App.3d 448 at 451. The real question is: what are "the limits of the law"? R.C. 5321.14 prohibits parties to a lease from agreeing on illegal or unconscionable terms.

B. No Late Fees Under Oral Contracts

Where there is only an oral contract between the landlord and the tenant, at least one Ohio Court has held that no late fees can be assessed. Neubauer v. Patzkowsky, 1992 Ohio App. LEXIS 2919 (June 2, 1992) Franklin Co. App. No. 91AP-1236.

C. Waiver of Late Fees

Some landlords will try to collect late fees which have piled up over months and months. In the case of Habegger v. Paul, 2004 Ohio App. LEXIS 1971 (April 30, 2004) Wood Co. App. No. WD-03-038, a landlord sued the tenant for late fees which accumulated over a 14 month period. The Sixth District Court of Appeals held that the landlord waived his right to collect the late fees upon eviction by continuing to accept the tenants' rent payments and not pursuing eviction until approximately 14 months after the first late payment. The Court reasoned that:

A party may voluntarily relinquish a known right through words or by conduct. State ex rel. Ford v. Cleveland Bd. Of Edn. (1943), 141 Ohio St. 124. In Galaxy Development Ltd. Partnership v. Quadax, Inc., 2000 Ohio App. LEXIS 4651 (October 5, 2000) Cuyahoga Co. App. No. 76769, the Eighth District Court of Appeals found that the landlord waived its right to collect holdover rent from the tenant by continuing to accept the original rental payments after expiration of the lease. The Galaxy court cited Finkbeiner v. Lutz (1975), 44 Ohio App.2d 223, wherein lessees failed to make timely payments of rent on numerous occasions and lessors accepted the late payments. The Finkbeiner court held that the failure of the lessors to make timely objection to the late payment of rent amounted to a waiver.

Courts in Ohio will not allow a landlord to collect late fees which have piled up over a significant period of time.

D. Dangers for the Landlord

Where a landlord can get into trouble with late fees is in a dispute over a security deposit. Let's say the landlord has collected a security deposit in the amount of $500.00. The tenant leaves at the end of the lease term. The landlord finds $300.00 in damages at the apartment and also assesses $250.00 in late fees. Perhaps the landlord cannot show the court actual damages in the specific amount of $250.00. Maybe there was only an oral agreement between the landlord or the tenant. Perhaps the $250.00 in fees resulted from the landlord's practice of letting the late fees pile up over time.

If any of these are the case, there is a good chance that even in the more landlord sympathetic appellate districts, the landlord will only be allowed to charge the tenant a greatly reduced amount if the facts fit the first example, and perhaps nothing at all if the facts fit the second or third examples.

This will leave $100.00 or more that should have been returned to the tenant, entitling the tenant to double damages and attorneys fees under Ohio Revised Code Section 5321.16. While double damages in the amount of $200.00 might not be all that big of a deal, wait until you get to the mandatory hearing on reasonable attorneys fees. Now we're talking real money.

If you are trying to evict a problem tenant and your only basis is a failure to pay late fees, then the arguments above may have a bearing upon the issue of who has the right to possession when you get to the F.E.D. hearing. If a tenant can show the court that he stood ready at all times to pay the late fees, but that the landlord was holding out for an unreasonable amount, or if the tenant can show that he and the landlord engaged in a pattern of conduct of acceptance of late payments without protest, this could defeat the eviction action.

E. Lessons to Be Learned

One of the lessons to be learned from all of this is that late fees are something of a minefield when it comes to using them to reduce the amount of the security deposit returned to a tenant. The same is true when we are talking about evictions based upon a failure of the tenant to pay late fees.

Landlords should be aware of the problems that may arise when late fees are argued. Informing your attorney of your past practices with regard to late fees can save you both a lot of embarrassment, and perhaps allow the attorney to alter course in his arguments to get around potential hurdles.

Nursing Home Abuse Lawsuits Lawyers

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With more and more of the United States population aging, nursing home and elderly communities are constantly expanding to help accommodate more patients. Tragically however, nursing home abuse of the elderly is becoming one of the most widespread crimes in America. Nursing home patients are vulnerable from many types of abuse ranging from physical violence to theft of property.

Many common types of nursing home abuse cases have been caused by under qualified and inexperienced staff members. Employees are sometimes unable to handle certain situations and have been known to take out their frustrations on residents of the nursing homes. Studies show that over half of the suspicious deaths researched in nursing homes might have been causes by neglect or negligence including dehydration and malnutrition.

Because of conditions such as dementia and Alzheimer's, older adults are very vulnerable to abuse. History of domestic violence may also make certain seniors more susceptible to abuse in a nursing home.

Placing a loved one in a nursing home can be one of the most difficult decisions a loved one is forced to make. Often times this decision is very emotional, and not thought out entirely. When you enroll a loved one into a nursing home you are entrusting the caregivers with more than just money. You are entrusting them with a life of a loved one. In the event that a loved one has been victimized by the actions of a nursing home employee, it is your duty and right to seek legal attention. A compassionate, experienced nursing home abuse lawyer can help you understand your legal rights and guide you towards an appropriate course of action.

In addition to common types of nursing home abuse, there are also several other types of abuse. Mental, physical, neglect and exploitation are all other forms of abuse that can happen in nursing homes. Mental abuse can include fear, depression, withdrawal, behavior changes, weird behavior patterns, unwillingness to communicate and specific complains by the resident. Physical abuse can include cuts, burns, bruises, swelling, broken bones, restraints and other wounds. Neglect can include bed sores, smells of urine and feces, unkempt appearance, untreated medical conditions and other complaints. Explotation / Financial abuse can be the selling of property, missing or stolen property and specific complaints by the resident.

Many times a loved one has been a victim of the terrible and inhumane actions of a nursing home employee or supervisors. If this is the case, it's your main concern to seek immediate and experienced medical treatment and then contact a lawyer. With such emotional conditions, it is often times very hard to remember the legal rights that the victim of the abuse has. The first step in pursuing your neglect case is to contact a qualified attorney. They will determine whether or not a legal claim should be made and whether or not the case should even be pursued. Contact an attorney today.

The Insanity Of The Defense

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I. The Insanity Defense

"It is an ill thing to knock against a deaf-mute, an imbecile, or a minor. He that wounds them is culpable, but if they wound him they are not culpable." (Mishna, Babylonian Talmud)

If mental illness is culture-dependent and mostly serves as an organizing social principle - what should we make of the insanity defense (NGRI- Not Guilty by Reason of Insanity)?

A person is held not responsible for his criminal actions if s/he cannot tell right from wrong ("lacks substantial capacity either to appreciate the criminality (wrongfulness) of his conduct" - diminished capacity), did not intend to act the way he did (absent "mens rea") and/or could not control his behavior ("irresistible impulse"). These handicaps are often associated with "mental disease or defect" or "mental retardation".

Mental health professionals prefer to talk about an impairment of a "person's perception or understanding of reality". They hold a "guilty but mentally ill" verdict to be contradiction in terms. All "mentally-ill" people operate within a (usually coherent) worldview, with consistent internal logic, and rules of right and wrong (ethics). Yet, these rarely conform to the way most people perceive the world. The mentally-ill, therefore, cannot be guilty because s/he has a tenuous grasp on reality.

Yet, experience teaches us that a criminal maybe mentally ill even as s/he maintains a perfect reality test and thus is held criminally responsible (Jeffrey Dahmer comes to mind). The "perception and understanding of reality", in other words, can and does co-exist even with the severest forms of mental illness.

This makes it even more difficult to comprehend what is meant by "mental disease". If some mentally ill maintain a grasp on reality, know right from wrong, can anticipate the outcomes of their actions, are not subject to irresistible impulses (the official position of the American Psychiatric Association) - in what way do they differ from us, "normal" folks?

This is why the insanity defense often sits ill with mental health pathologies deemed socially "acceptable" and "normal" - such as religion or love.

Consider the following case:

A mother bashes the skulls of her three sons. Two of them die. She claims to have acted on instructions she had received from God. She is found not guilty by reason of insanity. The jury determined that she "did not know right from wrong during the killings."

But why exactly was she judged insane?

Her belief in the existence of God - a being with inordinate and inhuman attributes - may be irrational.

But it does not constitute insanity in the strictest sense because it conforms to social and cultural creeds and codes of conduct in her milieu. Billions of people faithfully subscribe to the same ideas, adhere to the same transcendental rules, observe the same mystical rituals, and claim to go through the same experiences. This shared psychosis is so widespread that it can no longer be deemed pathological, statistically speaking.

She claimed that God has spoken to her.

As do numerous other people. Behavior that is considered psychotic (paranoid-schizophrenic) in other contexts is lauded and admired in religious circles. Hearing voices and seeing visions - auditory and visual delusions - are considered rank manifestations of righteousness and sanctity.

Perhaps it was the content of her hallucinations that proved her insane?

She claimed that God had instructed her to kill her boys. Surely, God would not ordain such evil?

Alas, the Old and New Testaments both contain examples of God's appetite for human sacrifice. Abraham was ordered by God to sacrifice Isaac, his beloved son (though this savage command was rescinded at the last moment). Jesus, the son of God himself, was crucified to atone for the sins of humanity.

A divine injunction to slay one's offspring would sit well with the Holy Scriptures and the Apocrypha as well as with millennia-old Judeo-Christian traditions of martyrdom and sacrifice.

Her actions were wrong and incommensurate with both human and divine (or natural) laws.

Yes, but they were perfectly in accord with a literal interpretation of certain divinely-inspired texts, millennial scriptures, apocalyptic thought systems, and fundamentalist religious ideologies (such as the ones espousing the imminence of "rapture"). Unless one declares these doctrines and writings insane, her actions are not.

we are forced to the conclusion that the murderous mother is perfectly sane. Her frame of reference is different to ours. Hence, her definitions of right and wrong are idiosyncratic. To her, killing her babies was the right thing to do and in conformity with valued teachings and her own epiphany. Her grasp of reality - the immediate and later consequences of her actions - was never impaired.

It would seem that sanity and insanity are relative terms, dependent on frames of cultural and social reference, and statistically defined. There isn't - and, in principle, can never emerge - an "objective", medical, scientific test to determine mental health or disease unequivocally.

II. The Concept of Mental Disease - An Overview

Someone is considered mentally "ill" if:

His conduct rigidly and consistently deviates from the typical, average behaviour of all other people in his culture and society that fit his profile (whether this conventional behaviour is moral or rational is immaterial), or

His judgment and grasp of objective, physical reality is impaired, and

His conduct is not a matter of choice but is innate and irresistible, and

His behavior causes him or others discomfort, and is

Dysfunctional, self-defeating, and self-destructive even by his own yardsticks.

Descriptive criteria aside, what is the essence of mental disorders? Are they merely physiological disorders of the brain, or, more precisely of its chemistry? If so, can they be cured by restoring the balance of substances and secretions in that mysterious organ? And, once equilibrium is reinstated - is the illness "gone" or is it still lurking there, "under wraps", waiting to erupt? Are psychiatric problems inherited, rooted in faulty genes (though amplified by environmental factors) - or brought on by abusive or wrong nurturance?

These questions are the domain of the "medical" school of mental health.

Others cling to the spiritual view of the human psyche. They believe that mental ailments amount to the metaphysical discomposure of an unknown medium - the soul. Theirs is a holistic approach, taking in the patient in his or her entirety, as well as his milieu.

The members of the functional school regard mental health disorders as perturbations in the proper, statistically "normal", behaviours and manifestations of "healthy" individuals, or as dysfunctions. The "sick" individual - ill at ease with himself (ego-dystonic) or making others unhappy (deviant) - is "mended" when rendered functional again by the prevailing standards of his social and cultural frame of reference.

In a way, the three schools are akin to the trio of blind men who render disparate descriptions of the very same elephant. Still, they share not only their subject matter - but, to a counter intuitively large degree, a faulty methodology.

As the renowned anti-psychiatrist, Thomas Szasz, of the State University of New York, notes in his article "The Lying Truths of Psychiatry", mental health scholars, regardless of academic predilection, infer the etiology of mental disorders from the success or failure of treatment modalities.

This form of "reverse engineering" of scientific models is not unknown in other fields of science, nor is it unacceptable if the experiments meet the criteria of the scientific method. The theory must be all-inclusive (anamnetic), consistent, falsifiable, logically compatible, monovalent, and parsimonious. Psychological "theories" - even the "medical" ones (the role of serotonin and dopamine in mood disorders, for instance) - are usually none of these things.

The outcome is a bewildering array of ever-shifting mental health "diagnoses" expressly centred around Western civilisation and its standards (example: the ethical objection to suicide). Neurosis, a historically fundamental "condition" vanished after 1980. Homosexuality, according to the American Psychiatric Association, was a pathology prior to 1973. Seven years later, narcissism was declared a "personality disorder", almost seven decades after it was first described by Freud.

III. Personality Disorders

Indeed, personality disorders are an excellent example of the kaleidoscopic landscape of "objective" psychiatry.

The classification of Axis II personality disorders - deeply ingrained, maladaptive, lifelong behavior patterns - in the Diagnostic and Statistical Manual, fourth edition, text revision [American Psychiatric Association. DSM-IV-TR, Washington, 2000] - or the DSM-IV-TR for short - has come under sustained and serious criticism from its inception in 1952, in the first edition of the DSM.

The DSM IV-TR adopts a categorical approach, postulating that personality disorders are "qualitatively distinct clinical syndromes" (p. 689). This is widely doubted. Even the distinction made between "normal" and "disordered" personalities is increasingly being rejected. The "diagnostic thresholds" between normal and abnormal are either absent or weakly supported.

The polythetic form of the DSM's Diagnostic Criteria - only a subset of the criteria is adequate grounds for a diagnosis - generates unacceptable diagnostic heterogeneity. In other words, people diagnosed with the same personality disorder may share only one criterion or none.

The DSM fails to clarify the exact relationship between Axis II and Axis I disorders and the way chronic childhood and developmental problems interact with personality disorders.

The differential diagnoses are vague and the personality disorders are insufficiently demarcated. The result is excessive co-morbidity (multiple Axis II diagnoses).

The DSM contains little discussion of what distinguishes normal character (personality), personality traits, or personality style (Millon) - from personality disorders.

A dearth of documented clinical experience regarding both the disorders themselves and the utility of various treatment modalities.

Numerous personality disorders are "not otherwise specified" - a catchall, basket "category".

Cultural bias is evident in certain disorders (such as the Antisocial and the Schizotypal).

The emergence of dimensional alternatives to the categorical approach is acknowledged in the DSM-IV-TR itself:

"An alternative to the categorical approach is the dimensional perspective that Personality Disorders represent maladaptive variants of personality traits that merge imperceptibly into normality and into one another" (p.689)

The following issues - long neglected in the DSM - are likely to be tackled in future editions as well as in current research. But their omission from official discourse hitherto is both startling and telling:

The longitudinal course of the disorder(s) and their temporal stability from early childhood onwards;

The genetic and biological underpinnings of personality disorder(s);

The development of personality psychopathology during childhood and its emergence in adolescence;

The interactions between physical health and disease and personality disorders;

The effectiveness of various treatments - talk therapies as well as psychopharmacology.

IV. The Biochemistry and Genetics of Mental Health

Certain mental health afflictions are either correlated with a statistically abnormal biochemical activity in the brain - or are ameliorated with medication. Yet the two facts are not ineludibly facets of the same underlying phenomenon. In other words, that a given medicine reduces or abolishes certain symptoms does not necessarily mean they were caused by the processes or substances affected by the drug administered. Causation is only one of many possible connections and chains of events.

To designate a pattern of behaviour as a mental health disorder is a value judgment, or at best a statistical observation. Such designation is effected regardless of the facts of brain science. Moreover, correlation is not causation. Deviant brain or body biochemistry (once called "polluted animal spirits") do exist - but are they truly the roots of mental perversion? Nor is it clear which triggers what: do the aberrant neurochemistry or biochemistry cause mental illness - or the other way around?

That psychoactive medication alters behaviour and mood is indisputable. So do illicit and legal drugs, certain foods, and all interpersonal interactions. That the changes brought about by prescription are desirable - is debatable and involves tautological thinking. If a certain pattern of behaviour is described as (socially) "dysfunctional" or (psychologically) "sick" - clearly, every change would be welcomed as "healing" and every agent of transformation would be called a "cure".

The same applies to the alleged heredity of mental illness. Single genes or gene complexes are frequently "associated" with mental health diagnoses, personality traits, or behaviour patterns. But too little is known to establish irrefutable sequences of causes-and-effects. Even less is proven about the interaction of nature and nurture, genotype and phenotype, the plasticity of the brain and the psychological impact of trauma, abuse, upbringing, role models, peers, and other environmental elements.

Nor is the distinction between psychotropic substances and talk therapy that clear-cut. Words and the interaction with the therapist also affect the brain, its processes and chemistry - albeit more slowly and, perhaps, more profoundly and irreversibly. Medicines - as David Kaiser reminds us in "Against Biologic Psychiatry" (Psychiatric Times, Volume XIII, Issue 12, December 1996) - treat symptoms, not the underlying processes that yield them.

V. The Variance of Mental Disease

If mental illnesses are bodily and empirical, they should be invariant both temporally and spatially, across cultures and societies. This, to some degree, is, indeed, the case. Psychological diseases are not context dependent - but the pathologizing of certain behaviours is. Suicide, substance abuse, narcissism, eating disorders, antisocial ways, schizotypal symptoms, depression, even psychosis are considered sick by some cultures - and utterly normative or advantageous in others.

This was to be expected. The human mind and its dysfunctions are alike around the world. But values differ from time to time and from one place to another. Hence, disagreements about the propriety and desirability of human actions and inaction are bound to arise in a symptom-based diagnostic system.

As long as the pseudo-medical definitions of mental health disorders continue to rely exclusively on signs and symptoms - i.e., mostly on observed or reported behaviours - they remain vulnerable to such discord and devoid of much-sought universality and rigor.

VI. Mental Disorders and the Social Order

The mentally sick receive the same treatment as carriers of AIDS or SARS or the Ebola virus or smallpox. They are sometimes quarantined against their will and coerced into involuntary treatment by medication, psychosurgery, or electroconvulsive therapy. This is done in the name of the greater good, largely as a preventive policy.

Conspiracy theories notwithstanding, it is impossible to ignore the enormous interests vested in psychiatry and psychopharmacology. The multibillion dollar industries involving drug companies, hospitals, managed healthcare, private clinics, academic departments, and law enforcement agencies rely, for their continued and exponential growth, on the propagation of the concept of "mental illness" and its corollaries: treatment and research.

VII. Mental Ailment as a Useful Metaphor

Abstract concepts form the core of all branches of human knowledge. No one has ever seen a quark, or untangled a chemical bond, or surfed an electromagnetic wave, or visited the unconscious. These are useful metaphors, theoretical entities with explanatory or descriptive power.

"Mental health disorders" are no different. They are shorthand for capturing the unsettling quiddity of "the Other". Useful as taxonomies, they are also tools of social coercion and conformity, as Michel Foucault and Louis Althusser observed. Relegating both the dangerous and the idiosyncratic to the collective fringes is a vital technique of social engineering.

The aim is progress through social cohesion and the regulation of innovation and creative destruction. Psychiatry, therefore, is reifies society's preference of evolution to revolution, or, worse still, to mayhem. As is often the case with human endeavor, it is a noble cause, unscrupulously and dogmatically pursued.

Employment Law Claims Overseas Worker

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In the case Saggar v Ministry of Defence [2005] , it was held that an overseas based employee of a British business, who was a UK resident when recruited or at any time during the course of the employee's employment, is entitled to bring a discrimination claim in the UK . The claim can be brought even if the employee did no further work in Britain after the move overseas.

After 16 years at a Ministry of Defence base in Britain , Lieutenant Colonel Surinder Nath Saggar was permanently stationed in Cyprus from 1998 and was still there when he made a claim for race discrimination.

The Employment Tribunal decided that Lieutenant Saggar worked wholly outside Britain and could not file a race discrimination claim in Britain . He appealed against this decision to the Employment Appeals Tribunal ("EAT").

The EAT dismissed the appeal and held that:-

In order for Lieutenant Saggar's claim to succeed, the EAT would have to look at the whole of his employment from 1982 onwards, and that would be "absurd";

The EAT was bound by the decision of the Court of Appeal in the case of Carver v Saudi Arabian Airlines [1999] where for the purposes of establishing whether or not a tribunal has jurisdiction to hear a claim, it is necessary to consider whether, at the time of the alleged discrimination, the claimant was wholly or mainly working in Great Britain;

Accordingly, at the time of the alleged discrimination, Lieutenant Saggar worked wholly in Cyprus .

The case went to the Court of Appeal and it was decided that: -

The relevant period for determining whether a claimant worked wholly or mainly outside Great Britain is the whole period of employment;

This approach was supported by the wording in s 8(1) of the Race Relations Act 1976; and

This decision applied equally to all employees even though a person serving in the Armed Forces is not an employee as there is no contract of service.

The matter was remitted to a different tribunal to determine the issue of jurisdiction in accordance with the Court of Appeal's judgment.

Comment: This is a significant decision in favour of employees. This means that in many cases where employees are posted abroad they are entitled to bring employment claims in the UK . In practice, as well as complying with the rules of the country where employees are working, it would be sensible for employers to apply English employment law standards as well.

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