Evidence submitted by Mental Health Lawyers
Association (LAR 137)
POST CARTER
PROPOSALS
I am writing further to our recent telephone
discussion, to enclose a copy of the MHLA's written evidence to
the Committee.
You will see that Association's views are that
these proposals are disastrous, and will halt representation for
many of the most vulnerable in our society. The lack of preparation
payments for client's cases before the Mental Health Review Tribunal
if a client remains detained under the Mental Health Act will
particularly put members in an impossible "Catch 22"
position. They will not be paid if they do the work, but will
be negligent and potentially fail the LSC's Peer Review Audit
regime if they do not. Given the very tight margins many members
already operate a large percentage will just vote with their feet.
I have introduced the Association at the start
of the evidence. The Association was formed in 2001, in part to
combat the lack of any specialist representation in this area.
Our active President for the last three years has been Professor
Eldergill, author of the standard work Mental Health Review Tribunals:
Law and Practice. I am Partner in charge of a large Mental Health
Department in the London firm of Kaim Todner, and have practised
in the area for over 15 years. I was selected Legal Aid Mental
Health Lawyer of the Year in 2004, and have been Chair of the
Mental Health Lawyers Association since its foundation. I am also
a member of the Legal Aid Practitioners Group Committee and the
Law Society's Mental Health and Disability Committee. I have given
evidence to the DCA Committee previously, with Richard Miller
and Roy Morgan of the LAPG, regarding the effect of public funding
cuts on representation. I am also a Peer Reviewer in Mental Health
for the Institute of Advanced Legal Studies.
As indicated, we would welcome to opportunity
to add to our written evidence by attending the Committee to give
oral evidence. We do appreciate that the initial focus of the
Committee is on the effect of these proposals on criminal representation;
however we hope that the Committee will be sufficiently concerned
as to the effect on this "core" area that they will
seek further information. The support of the Committee's views
may be the factor which saves representation for some of the most
vulnerable in our society.
INTRODUCTION
1. Members of the Mental Health Lawyers
Association represent arguably the most vulnerable clients of
all, those suffering from a range of mental disorders but also
subject to both the compulsory powers detention and treatment
of the state, and ultimately qualifying for essential, but sometimes
scare, resources to prevent relapse in the community. Most members
of the Association have had no increase in their public funding
rates from the Legal Services Commission since April 2001. The
number of Law Society Panel Mental Health Panel Specialists has
declined by close to 25% since 2000, whilst those mentally unwell
clients requiring representation at Mental Health Review Tribunals
has risen by over 10% in the same period. There are now just a
little over 300 Panel members in active practice, according to
figures produced by the Law Society and the DCA.
2. It is the view of the Association that
if the mental health legal aid proposals suggested by Department
of Constitutional Affairs are introduced, representation, already
in decline, will collapse.
THE MENTAL
HEALTH LAWYERS
ASSOCIATION
3. The Association represents around 80%
of those lawyers who in turn represent clients detained under
the Mental Health Act. They assist particularly clients before
the Mental Health Review Tribunal "MHRT", where legal
aid is without means testing; one of three "core" areas
where this is the case, the others being removal of children by
a Local Authority and arrested suspects for most alleged offences
in the police station. Other work by members includes assisting
clients obtaining proper aftercare support and supervision in
the community.
4. The Association is recognised by the
Law Society and a range of other bodies, including the Department
of Constitutional Affairs, Legal Services Commission and the MHRT
Judiciary.
BACKGROUND
5. The UK has an obligation to arrange regular
review of those detained under the Mental Health Act for compulsory
treatment, not to do otherwise would breach Article 5 of the Convention
on Human Rights (the right to Liberty) and Article 6 (the right
to a fair hearing). Such detention also raises issues of discrimination
(Article 10) in addition to interference with privacy and family
life (Article 8). European Court decisions have made it clear
that for such reviews to be effective, legal representation should
be provided.
6. The Charity MIND indicates that one in
four of the population will suffer from a form of mental disorder.
7. The Judiciary reviewing the role of Mental
Health Lawyers have commented as follows:
8. Mr. Justice Brooke (now Lord Justice
Brooke) in the case of R v Legal Aid Board ex parte Mackintosh
and Duncan (2000) said the view of the Court on that occasion:
9. "We are worried, however, that the
Board (then the Legal Aid Board) has not yet appreciated how difficult
Mental Health Law is, and how generally solicitors cannot pick
up the expertise needed to serve the clients effectively, unless
they have strong and practical grounding in this field of Law.
We hope that the Board will now take urgent steps to identify
the really skilled solicitors who are willing to served their
clients in this field at Legal Aid rates of pay.
10. He also commented:
11. "Reading the Report of a psychiatrist,
identifying its areas of weakness, commissioning evidence and
the appropriate expert challenge to it and representing a client
at a Tribunal requires expert professional skills borne, as we
have said, of education and practical experience. It is not like
going down to the Magistrates Court as a Duty Solicitor, arduous
though those duties are."
12. Mr Stanley Burnton J. in KB & Others
v MHRT [2003] made it clear that the Mental Health Review Tribunal
is the most fundamentally important Tribunal in this country in
that it deals with the liberty of the individual in circumstances
where that liberty has been removed without having been sanctioned
by a court.
13. "The issues before Mental Health
Review Tribunals are probably the most important issues decided
by any tribunals. The Tribunals make decisions as to the compulsory
detention and treatment, and thus the liberty, of the individual.
A wrong decision may lead on the one hand to the unnecessary detention
of a patient, and, at the other extreme, to the release of a patient
who is a danger to himself and may present a risk to the public.
A patient will be the victim of a wrongful decision to detain
him. Conversely, however, he may also suffer from a mistaken decision
to direct his discharge.
14. The decisions of the Mental Health Review
Tribunals are as intrinsically important as many of those of the
Crown Court. Their importance is reflected in the different wording
of Articles 5.4 and 6 of the Convention. Article 5.4 requires
that the lawfulness of the detention of a patient "shall
be decided speedily", whereas Article 6 requires a hearing
of a trial in a civil or criminal case only "within a reasonable
time". This difference should be borne in mind when considering
the authorities on delay in the context of Article 6. The importance
of tribunal decisions in restricted cases is reflected in the
qualifications required by the Lord Chancellor of the legal member,
who is almost always a Circuit Judge, a Queen's Counsel and Recorder,
or one of the Tribunal Chairmen."
15. At present members are paid generally
by a hourly rate, depending on type of activity and whether or
not they are based in London. Members reckon the average is around
£45 per hour, this is made up at on end of travel and waiting
(necessary when travelling to detained clients) at around £27
outside London, rising to around £60 for preparation and
£69 for advocacy). A minority of members signed up to the
Tailored Fixed Fee scheme, which was based on assessment of their
previous individual cost per case.
16. The vast majority of work is provided
by private practice, with just a handful of the work provided
by Law Centres.
DCA/LSC PROPOSALS
FOR MENTAL
HEALTH
17. The DCA/Legal Services Commission proposals
for mental health clients are essentially the following:
18. A form of "graduated fee"
system is to be introduced for the majority of mental health work,
including most Mental Health Review Tribunal ("MHRT")
work.
19. Fees are to be set as follows:
(ii) £335 for "negotiation and
preparation"
(iii) £387 for representation before
the MHRT.
20. For the purpose of MHRT initial advice
will cover travel, waiting and attendance on a client in appointment
to discuss whether they should make an application to apply to
the MHRT. This would cover all subsequent work until a client
decides to make application to an MHRT.
21. If a client decides to make an application
to the MHRT, payment then moves to the next stage; negotiation
and preparation. This covers all work up until the MHRT hearing
itself. It therefore includes, letters to the MHRT regarding the
application; chasing up statutory reports, obtaining and examining
section papers; medical records and previous MHRT papers; contacting
family (including the Nearest Relative) and other witnesses as
appropriate; attending section aftercare planning meetings and
making aftercare enquires as necessary, attending and preparing
for a hospital managers' hearing held whilst an MHRT application
is outstanding; considering the need for independent experts and
instructing them as required (the actual payment of independent
experts is outside this fee); attending on the client as many
times as necessary to take instructions on these and advise on
the forthcoming MHRT and its powers; all preparation for the MHRT
itself.
22. However, this fee is only paid "once
and applies to the same episode of illness (in other words if
the patient has not been discharged from compulsion between hearings)".
It is clear therefore that where a client has been previously
subject to an unsuccessful assessment Section 2 Mental Health
Act ("MHA") MHRT and a subsequent treatment Section
3 MHA detention follows (although the DCA seem to incorrectly
assume that the MHRT authorises this transfer) then no further
fee is payable, notwithstanding changes of diagnosis or treatment
that may occur. Of even further significance, however, is that
this fee, it seems, will never again be payable to a firm who
has previously been paid this, whilst the patient remains detained
even if a client has been detained for, say, 10 years.
23.The third and final stage is for representation
before the MHRT. This is only paid normally if the hearing goes
ahead (although it seems might be paid if it is just cancelled,
or perhaps withdrawn, on the day itself). However, it is also
only paid once. If therefore, there was not an MHRT Panel on the
day in question, but the lawyer attended then, only to have to
attend on a further occasion when there was a full Panel, only
one fee would be paid. Similarly if the MHRT adjourned, any number
of times, only one fee would be payable.
24. There are "escape" clauses
in the scheme. If costs go over four times the total fee (not
including VAT or the cost of experts), then the case will become
"exceptional" and will be charged at the "old rate",
that is the "hourly rate" that has been in existence
since April 2001. However, all such cases will be individually
audited by the LSC and should it be said, for example, that too
much time was spent with the client a re-assessment may place
the costs of a case below the level of four times so that the
"standard fee" only is payable.
25. It also seems that if a client transfers
to a new firm of solicitors that the three stages outlined above
can be charged again.
26. In addition the DCA is particularly
consulting on what it calls "forensic work", that is
all cases where client are either detained under a court hospital
order (including both restricted and unrestricted cases under
s41 MHA) or transferred by Home Office warrant. Here three possible
schemes are proposed:
(i) That the main "graduated fee"
proposed for all other MHRT work applies to these cases (the DCA's
preferred option)
(ii) That there be an increased fee for such
work, however the fee for other MHRT work would be proportionally
decreased.
(iii) The present "hourly rate"
scheme continue as before.
27. All mental health work outside MHRT
preparation, which would include aftercare and community care
advice and assistance together with all work under the new Capacity
Act, to assist a mentally incapacitated person would be paid at
£90. However if this work was more than four times this
fee, it would become "exceptional" and it seems again
payment would revert to hourly rates, although this would be subject
to individual audit by the LSC. The requirement of a means test,
and evidence for this, for detained patients is abolished.
28. The payment of higher London rates,
to reflect increased costs there, is abolished.
29. The costing of the scheme is said to
cost neutral.
MENTAL HEALTH
LAWYERS ASSOCIATION
CONCERNS
30. One irony that stands out is that some
areas where members are being penalised in current ongoing LSC
audits, for attending aftercare meetings, hospital managers hearings
and representing detained patients who cannot easily produce proof
of means, these areas of work are now particularly encouraged
post Carter by the DCA, but for far less money than most members
are carrying out the work already.
31. A further issue is that the DCA indicates
that consultation has occurred prior to these proposals. This
is certainly not the case and, as indicated above at paragraph
21, the DCA would not have misunderstood the law relating to MHRTs
if this consultation had taken place.
32. Members have responded quickly to the
MHLA's request for their views: almost without exception replies
been strongly negative, with many saying they will have no alternative
but to leave the field forever.
33. Following consultation with members
the following points have emerged:
34. For those who signed up to the previous
round of fixed fees (a minority of members—as the LSC was
forced to make the scheme voluntary when a majority of members
refused to sign up to the scheme) the new graduated scheme will
make most worse off. Almost all others who were not signatories
to the earlier fixed fee scheme similarly see enormous difficulties
in continuing much of their representation at these fees.
35. The failure to pay for MHRT adjournments
separately is grossly unfair, particularly given that many adjournments
are caused by the MHRT. The administration of the Tribunal is
still in a state of flux and members will be asked to pay for
these problems created within DCA organisation, a cost that many
just cannot afford.
36. Removing means testing for all detained
patients is of potential benefit; however this does not compensate
for the lack of payment to do this work.
37. Many members are instructed after clients
have made applications, which would potentially mean they lose
the "initial fee" although initial instructions still
involve discussions as to MHRT powers and strengths and weaknesses
of application etc.
38. Any "exceptional case" criteria
is far too high at four times that of the graduated fee. Indeed
many complex S3 MHRT hearings, say with a lengthy history, diagnostic
issues and perhaps some impairment hindering instructions, will
come at two to three the figures in the new "fees".
Other cases, reaching say 4.5 times the rate, could well be reduced
on audit assessment to just below the four times level returning
the payment to the flat level fee.
39. The LSC has failed to understand the
difference between S2 and S3 of the Mental Health Act and thinks
that the MHRT can "transfer" patients and the subsequent
lack of preparation apparently allowed reflects an impossible
position for members. The proposal that only one preparation fee
be allowed in the "same episode of illness" gives rise
to the prospect that a patient detained for 20 years will only
be allowed one payment for preparation, which will then have been
"used up" for separate hearings. Solicitors will face
negligence claims if they fail to do this work, but will receive
no payment if they do. Furthermore, they will fall foul of the
LSC's own Peer Review audit regime sponsored through the Institute
of Advanced Legal Studies, if they do not complete preparation
work, which requires a series of meetings and preparation steps,
failure to do this will potentially lead to a withdrawal of the
contract.
40. Travelling and waiting has not been
properly assessed given the necessity for this in visiting detained
patients. As the proposal stands some hospitals, especially in
rural areas, will cease, for this reason alone, to have representation.
£90 for an initial visit is completely unfeasible.
41. Most members, especially in smaller
firms which sometimes include experienced practitioners who also
work as MHRT Presidents, will cease work for the LSC.
42. "Attaching" community care
work is simply a cynical sham, as it will not be financially possible
in most cases at the rates within the proposed scheme. The MHLA
has produced a paper Social Exclusion & Mental Health (2004)
to show how the delivery of rights at this level to ensure proper
services ultimately makes enormous financial gains, as well as
in gains human terms. This has received no acknowledgement from
DCA.
43. Standards of legal representation, where
it continues to exist, will inevitably fall further, adding to
the near impossibility of obtaining new specialists in the field
as a career. The fall of Law Society MHRT Panel members of close
to 25% since 2000 (the introduction of the LSC Contracting regime)
is therefore likely to continue, with the age range of lawyers
further showing the majority in mid years to retirement ages (currently
based on Law Society figures). This directly corresponds to Lord
Justice Brook's concern in the R v Legal Aid Board ex parte Mackintosh
and Duncan case quoted above.
44. There is to be no "new money"
despite the promise of the Lord Chancellor to the MHLA last year
that this would be now possible after the Carter review. Indeed,
as outlined above, the calculations behind the apparent "cost
neutrality" of these figures are seen as very suspect, including
those representing the costs of an initial visit. None of us can
estimate how this would generally be possible for £90. The
result appears to be far less money for more work.
REACTIONS FROM
OTHERS
45. The Judicial Chairs and the MHRT Liaison
Judge of the MHRT have written to the DCA indicating that these
proposals are likely lead to a reduction in the quality of representation
for vulnerable applicants, at a time when they were hoping to
use our members to assist in the stream lining of the MHRT system.
46. The mental health charity MIND has indicated
that they strongly oppose the implications of the proposals on
legal representation and are expected to respond shortly to the
DCA.
47. The Association understands that both
the Legal Aid Practitioners Group and the Law Society also strongly
oppose the provisions and are making representations to that effect
to the DCA.
CONCLUSION
48. The view from members is that the proposals
are disastrous for not only the quality of mental health representation,
but also the continuance of any representation in some areas.
Many members already feel a combination of anger and demoralisation
from their experiences with the LSC's new Mental Health Unit and
waiting for an increase in payment which never comes; these members
were already thinking of walking away from this work: if these
proposals go ahead most will have no choice but to leave.
49. The right for a detained person said
to be suffering from mental disorder to have their case appropriately
examined and to be represented in this examination is properly
a core right protected in the European Convention. Psychiatry
is not a certain science, yet psychiatrists are effectively given
powers of detention and the right to administer mind-altering
drugs. If a friend or relative of ours was subject to such measures
we would want to ensure his, or her rights were properly represented
in review of the need of compulsory treatment. The implication
of these proposals is that such representation will cease to exist.
50. We would welcome the possibility of
expanding on this evidence by answering questions from members
of the Committee.
October 2006
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