Evidence submitted by Mackintosh Duncan
Solicitors
Nicola Mackintosh is widely regarded as a national
expert in community care, health and mental health law. She is
a partner at Mackintosh Duncan solicitors (established in 1999)
which specialises in these niche areas.
Nicola has been instructed in several of the
test cases in the field. Her firm also brought a judicial review
challenge to the Legal Services Commission's contracting regime
in 2000 and the particular effect that this system has upon mentally
disordered and disabled users of the civil justice system. She
has brought many of the challenges in the health and social care
field, particularly in relation to hospital discharge, closure
of facilities and the interrelationship between statutory purchasers
and providers of services. She currently also specialises in incapacity
law and is regularly instructed by the Official Solicitor in best
interests cases.
She is a member of the Editorial Board of the
Community Care Law Reports (Legal Action Group) and is an Honorary
Fellow of the Institute of Advanced Legal Studies in recognition
of her outstanding contribution to legal practice in the field.
She is a long standing member of the Law Society's Mental Health
and Disability Committee and she is co-author of Community Care
Assessments: A Practical Legal Framework. She publishes articles
for practitioners in the field of community care and health service
provision and lectures widely on the subject, including working
with the British Institute of Human Rights on their outreach and
training programme.
Last year she was appointed by the (then)Lord
Chancellor to the Civil Justice Council and is Chair of the Promoting
Awareness of Justice Working Group of the CJC, which is seeking
to improve the civil justice content of the Citizenship Programme
in schools. She sits on the Legal Services Commission's Contract
Review Body as a nominee of the Law Society.
Nicola was awarded Legal Aid Lawyer of the Year
2003 in Civil and Social Welfare Law.
SUMMARY
We are a small two partner practice in London
undertaking legal aid work in the areas of community care, mental
health, employment and public law.
We are submitting this short paper to the Select
Committee as a result of our serious concerns about the effect
of the contracting system on vulnerable people and evidence given
to the Committee by members of the Legal Services Commission.
In particular, we wish to be able to make a
brief contribution to the debate as far as our particular client
group is concerned, namely those people who are least able to
represent themselves—those with physical disabilities, learning
disabilities, older people, children with disabilities and their
carers.
At the end of 1999 we brought a judicial review
of the contracting regime. A copy of the judgment of the Divisional
Court dated 16 February 2000 is attached for the Committee's attention.
Although the judgment is lengthy, we would ask the Committee members
to consider it carefully as it represents an invaluable snapshot
of concerns expressed as to how the new regime would operate with
regard to people with disabilities in particular. The application
was dismissed arising from a concession made by the Legal Aid
Board on the last day of the hearing that in the first six months
of the contracting regime, suppliers would be given as many new
matter starts as were required to meet client demand. The Committee
will know that Matter Starts are now being restricted.
We are of the view that the concerns expressed
by the Divisional Court regarding the impediments to access to
justice inherent in the new system, disincentives to suppliers,
and lack of understanding by the then Legal Aid Board of community
care and mental health clients remain of prime relevance and application.
Indeed over recent years the position has worsened considerably
to a state where positive action needs to be taken as a matter
of urgency to prevent further existing suppliers from leaving
the system and to work with suppliers to ensure that vulnerable
disabled people are not excluded from access to legal advice in
the way they are at present.
There are very few suppliers in the field of
community care (and health) law across England and Wales, those
that remain undertaking the work are deeply disillusioned and
the system militates against new suppliers coming into the system
to provide a quality service. These concerns were all raised by
us in the judicial review. For those disabled clients who recognise
that they have a problem which may have a legal solution (which
is rare), or involves legal rights, the barriers to access to
justice are invariably unsurmountable. The clients therefore disappear
from the system and the system fails those people it is supposed
to serve.
Despite the evidence from the Commission to
the Committee, the true picture is that the current system is
in crisis with experienced practitioners leaving the system, and
little scope for new blood to be attracted to a regime which is
overly bureaucratic, works against the quality provision of advice,
and where there is an atmosphere of suspicion that every supplier
is seeking to defraud the public purse. Whilst abuse must be rooted
out, the controls are ineffective and only serve to deter existing
quality practitioners from providing a good service, whilst also
deterring new practitioners from entering the system.
There needs to be a fundamental change in approach.
This does not necessarily mean a change in model of provision.
Practitioners have been inundated by changes to the regime, many
of which have been ill thought out, and are saturated with trying
to cope with new systems which are being introduced.
OUR CLIENTS
We provide legal advice and representation to
enable people with mental health problems and learning disabilities
to safeguard and enforce their rights, and also to assist them
to obtain the care and treatment they need from both health and
social services. We do not deal with damages claims—our
aim is to help people obtain the care services to which they are
entitled.
Our clients are disabled people and/or their
carers. Many of our clients are incapable of reaching their own
decisions, and we specialise in incapacity law, particularly undertaking
cases instructed by the Official Solicitor of the Supreme Court.
The clients include physically disabled adults, disabled children,
older people in hospital or at home who need services, people
with autism, head injuries, dementia, mental illness etc.
The types of cases which we undertake include
the following:
— right to an assessment of need for
community care services for adults and children
— rights to services following an assessment
— carers' rights to assessments and
services, including young carers
— need for aids and adaptations (wheelchair,
bathing assistance, rails, lifts etc)
— hospital discharge procedures and
right to services to ensure safe discharge
— eligibility for NHS services, including
medication
— right to psychiatric aftercare services
— right to consultation and assessment
before closure of older people's care homes
— "best interests" cases
regarding adults who lack the capacity to reach their own decisions.
PARTICULAR ISSUES
WHICH AFFECT
OUR CLIENTS
The current system results in impediments to
access to justice which impact disproportionately upon those people
with disabilities/mental health problems and the incapacitated.
Few people who are severely ill or disabled
are aware that they may have legal rights to community care or
health services. Of those who are able to seek initial advice,
the path to obtaining quality legal advice at the right level
is fraught with difficulties.
When contracting was introduced in 2000, there
was already a dearth of community care practitioners. It was hoped
that the serious concerns which were expressed by the Divisional
Court regarding the lack of understanding by the Legal Aid Board
of the nature of community care work would lead to an improved
system and an increasing number of practitioners providing a service.
Although initially discrete issues such as restrictions on travel
times etc were relaxed, the general approach by the Legal Aid
Board to community care and mental health practitioners quickly
reverted to the previous atmosphere of suspicion and is again
restrictive.
Despite several offers to assist with training
possible new suppliers in the field, to discuss ways of attracting
new blood etc the Commission has not responded. Indeed, the system
actively discourages expansion due to the uncertainty in future
funding (we were informed in February 2004 that we had a contract
for April 2004), and actual cuts in payment rates for civil cases
over £25,000 introduced in October 2000. These "high
cost cases" are the subject of considerable concern among
the bar and solicitors. The cuts in payment to £70 per hour
(previously £79.50 plus an enhancement), with only £50
per hour for junior Counsel, for such "high cost" civil
cases, particularly in complex areas of law such as community
care has been a key factor in our decision not to expand our practice
so as to be able to take on more clients. It is also proving to
be increasingly difficult to find suitable Counsel to accept instructions
at such low rates of pay. The result is that in new areas of law,
such as community care and disability rights, there are additional
barriers to suppliers being able to provide clients with a service.
The number of community care suppliers is key
to providing a quality service to clients. There are just over
50 suppliers in England and Wales undertaking some community care
work (the exact figure is not known). Of these, according to a
questionnaire sent by the Community Care Practitioners' Group,
most have one fee earner (or a half fee earner) undertaking the
work. Many suppliers in London restrict themselves to asylum support
work and do not undertaken general community care work in any
event. The number of New Matter Starts in London in 2003-04 was
just over 1,100 in community care. The same number has been allocated
for 2004-05. When compared to the people who suffer disabilities
and who cannot access the services they need, this is simply the
tip of the iceberg.
In our view, it is important to appreciate that
simply because the Legal Services Commission received more bids
for contracts commencing 2004 than it anticipated, this does not
mean that there is "adequate supply" or even "oversupply"
of legal services. This would be based on an assumption that existing
supply meets demand. It does not, certainly in respect of community
care law.
Our clients are referred from other solicitors,
advice agencies, national charities with whom we work, professionals
within the health and social care field, and MPs.
We receive in the region of 8-10 referrals of
new clients each day, without any advertising for our services.
Most are turned away as we cannot take on the work. We regularly
receive reports from clients who have telephoned several other
suppliers but have been unable to find a supplier to take on the
case. It is not known what happens to such clients.
Clients are therefore faced with the problem
of having to search for one of the few suppliers able to accept
their case. Realistically, as the Divisional Court recognised,
they are deterred from seeking advice. In the main, people who
are ill do not have the energy to overcome barriers which are
immediately placed in their way at the very start of the process
of seeking advice. There is a real issue as to whether there is
an obligation to remove the existing impediments to access to
legal advice, and to facilitate the provision of such advice on
an active basis. For those who are severely disabled or incapacitated,
it is nigh impossible to access advice without a great deal of
hard work and external assistance.
The judgment in the case of A,B,X and Y v East
Sussex County Council (no.2), 18 February 2003 is about access
by two severely disabled young women to care services, and to
the community in general. Mr Justice Munby focused on the core
value of society being that of the right to dignity. He then stated
that:
[the need for disabled people to be treated differently
from other people because of their disabilities] "brings
out the enhanced degree of protection which may be called for
when the human dignity at stake is that of someone who is, as
A and B are in the present case, so disabled as to be critically
dependent on the help of others for even the simplest and most
basic of tasks of day to day living. In order to avoid discriminating
against the disabled . . . one may . . . need to treat the disabled
differently precisely because their situation is significantly
different from that of the able bodied. Moreover, the positive
obligation of the State to take reasonable and appropriate measures
to secure the rights of the disabled under Article 8 . . . and,
in particular, the positive obligation of the State to secure
their essential human dignity, calls for human empathy and humane
concern as society . . . seeks to ameliorate and compensate for
the disabilities faced by persons in A and B's situation."
Access to legal advice is a fundamental right,
from which all other rights flow. If there is no access to legal
advice, or such access is impeded, the enforcement of all other
rights is theoretical and illusory. For those with disabilities
or mental health problems, the barriers are obvious.
In the Mackintosh Duncan judicial review, the
Divisional Court commented that:
"There was, in our judgment, a good deal
of force in Mr Gordon's argument that a vulnerable client of the
type vividly described in Ms Mackintosh's evidence needs a good
deal of courage to approach a solicitor with a legal problem,
and particularly a problem of an intimate kind. The prospective
client is likely to be bewildered if the solicitor has to say
that he/she would like to advise, is willing and competent to
advise, but cannot advise . . . That solicitor would not necessarily
know what other solicitor or Not for Profit agency still had a
case start (or a tolerance) available in the relevant field of
law, particularly in the closing months of a legal year when the
state of the Board's budget might not permit it to respond immediately
to a solicitor's request for a new case start to be allocated."
Whilst the Divisional Court urged the Board
to take prompt action in the early days of the contracting scheme
to remedy defects which became apparent, it also stated (at para
572):
"In the fairly near future the demands made
on skilled solicitors in this field are going to increase exponentially
. . . The rights and freedoms identified in the Convention may
not be limited or restricted or interfered with except on one
or more of a number of clearly identified grounds, and any such
restriction or limitation will have to be objectively justified
. . . Unless the Lord Chancellor tells the Board that it need
no longer concern itself with the provision of legal services
of high quality to these socially disadvantaged people, a lot
still needs to be done to empower premier league mental health
solicitors to expand their practices and to make their skilled
services more readily available without the present constraints
whose existence these proceedings have illuminated."
Plainly, therefore, the Divisional Court was
of the view that the contracting regime had resulted in impediments
to access to justice for the public, but it gave the Board one
last opportunity in the months leading to October 2000 (with the
implementation of the Human Rights Act 1998):
"This is not to say that a court would necessarily
be disposed to be so charitable if similar complaints were made,
say, in the autumn, and if there was evidence to show that the
sort of matters of which Ms Mackintosh now makes complaint were
still impeding her service to her clients". (para 578)
EQUALITY OF
ARMS
It is our submission that the current system
militates against the provision of an adequate system of the provision
of quality legal advice to people with disabilities. At the same
time, the statutory agencies whose role it is to ensure provision
of care and health services have ready access to publicly funded
legal advice. There is a fundamental imbalance between the disabled
person (already at a disadvantage due to his/her situation) and
the public bodies.
The public bodies (Strategic Health Authorities,
local authorities etc) are able to access, at short notice, lawyers
at a high rate of remuneration whereas the individual applicant
not only has to find a skilled solicitor willing to undertake
legal aid work in this area, but also one whose quota of "new
matter starts" has not been exhausted. Even then, there are
many restrictions on the circumstances in which the applicant
may continue to receive advice from public funds, whereas the
statutory authorities are not subject to the same restrictions.
There is no equality of arms in this regard.
FUNDING AND
SOCIAL EXCLUSION
The Government is publicly committed to battling
social exclusion. Such matters are at the heart of the Woolf reforms
and the Lord Chancellor's Directions. Enormous sums have been
committed to community regeneration projects, when at the same
time, publicly funded legal service in some areas of law have
not been given the importance which is required.
The cost of providing early interventions is
miniscule when compared to the social and financial cost to other
areas of the welfare state which result if timely legal advice
is not provided. Thus, publicly funded legal services are an essential
element of the battle against social exclusion.
For example, the cost of providing a hospital
inpatient bed can be as much as £3,000 per week. If a person
is not provided with suitable community care services to enable
discharge from hospital to take place, the cost to the National
Health Service is considerable. Legal advice and liaison with
the local authority regarding its obligations to provide services
can achieve the release of a hospital bed for another patient
and the provision of a more independent environment for a disabled
person. It also avoids the unnecessary cost of providing inappropriate
care, not to say reducing the distress of a vulnerable person.
CONCLUSION
We are extremely concerned that disabled people
have been, and continue to be disproportionately affected by the
shortcomings and restrictions in the current contracting scheme.
People with disabilities are far less likely
to be in employment and have the means to pay for legal advice.
They will experience deprivation and more legal problems. In reality,
they are therefore much more likely to require advice. If the
system does not enable them to access such advice, then this is
likely to be discriminatory under Article 14 ECHR. It also runs
contrary to the Government's stated objectives of tackling social
exclusion.
Our experience is that people with disabilities
are in increasing need of legal advice, as social services departments
cut their budgets. Clients are being left in dire circumstances,
without basic facilities such as regular bathing, pad changes,
food, or access to the wider community. At the same time, they
are largely unaware of their legal rights.
Those disabled clients who are able to seek
advice are deterred by the way in which the system operates. Thus,
the contracting system militates against access to justice for
this client group.
As the Court made clear in the A,B,X and Y v
East Sussex County Council case, the State is under an obligation
to take positive steps to ensure that disabled people have the
same access to the wider community (including, we would argue,
access to legal advice) as others without disabilities.
Unless urgent action is taken to rectify the
situation, further existing practitioners with the skill to operate
in a niche field, will leave the system. It is incumbent on those
responsible for ensuring the provision of services that disabled
people, who are least able to represent themselves, are actively
and positively assisted to obtain quality advice regarding their
legal rights. This involves taking action to preserve the existing
practitioners, build on their expertise and utilise their experience
to be able to expand provision of services to the most vulnerable
in society.
Mackintosh Duncan
26 April 2004
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