Further evidence submitted by Mental Health
Lawyers Association (LAR 137a)
REGARDING THE
ORAL EVIDENCE
SESSION OF
30 JANUARY 2007
Following our recent emails and telephone conversations,
I enclose:
(1) A recent report from the Association
dated 15 December 2006 regarding a decline in the number of specialist
lawyers in the field as against increased legal need for those
vulnerable to mental disorder.
(2) Extracted details from the recent Commons
debate on Legal Aid regarding mental health.
You should now have my autobiographical note.
In addition here is the latest "update."
1. MEETING WITH
CAROLYN REGAN
On 15 December Association representatives had
their first meeting with the new Chief Executive of the Legal
Services Commission, Carolyn Regan. Inevitably the issue of post
Carter changes were discussed and we were, unfortunately, disappointed.
In particular, the Chief Executive indicated
three "certainties":
(1) The proposed fixed fees were here to
stay.
(2) They will be introduced in October 2007(extended
from April 2007).
(3) There will be no more money, notwithstanding
Lord Falconer's earlier indications that this should follow Lord
Carter's review. The last increase in mental health legal aid
rates for Mental Health Review Tribunals was in April 2001.
Whilst we accept that there will be further
discussions, certainties appear to include a lack of payment for
preparation and only one payment for a Tribunal hearing date,
notwithstanding any number of cancellations or adjournments, for
whatever reason. At present hourly rates may be retained for "forensic"
cases, although the Commission does not favour this. However,
the concept of lack of payment for further work "within the
same period of illness" appears to remain. The implications
of this latter proposal are that no preparation work for a Tribunal
will be paid for if a solicitor has represented a client "within
this same period of illness", notwithstanding that a client
makes a fresh application to the Tribunal. This completely ignores
the changes that may occur in a client's detainability as a result
of changing diagnosis, changing medication and other circumstances
(for example obtaining a supported supervised accommodation.
At present we have been unable to convince the
Commission that the current proposals are simply unworkable. Lack
of work to prepare for Tribunals will leave members open to negligence
claims, will cause them to breach their contract with the Commission
(via peer review assessments) and make them liable under the Human
Rights Act. In addition clearly the lack of preparation would
fundamentally affect work which the Tribunal, the Liaison Judge
and Regional Chairs are planning to develop case management.
I am attaching the most recent brief paper which
the Association presented to the Commission. The existing trend
of a reduction in skilled legal representatives continues. Indeed
we took to the meeting with Carolyn Regan a Law Society Panel
member who was leaving the area of law permanently and asked him
to explain why he was doing this. His contribution appeared to
make little impact on the Chief Executive, or the Director of
Community Legal Services, who was also present.
We know the Commission favours the "banding
together" of "small suppliers" who they consider
to be uneconomic in terms of "economies of scale", however
if they think this will happen on any scale before October they
are completely mistaken. Indeed many members would leave the field
altogether rather than merge, even if was economically viable.
Employment law is one of the options most actively being considered
by members.
What the Commission fails to understand is that
there is absolutely no slack in the financial regimes on which
members operate. Many were looking to Lord Falconer to fulfil
what was indicated last year (and what was indicated as one of
the reasons of Lord Carter's review) a transfer of resources from
crime to the civil sector. This, it seems, is no longer forthcoming.
In the meantime, the present system works either because members
are paid for what they actually do ("the hourly rate")
or on the basis of what they individually did in the previous
year ("the Tailored Fixed Fee"), which reflects payment
for each individual "new matter". By combining firms'
very different profiles, the system remains workable, albeit on
ever reducing margins, this fragile regime is broken in the scheme
now proposed.
In addition, the lack of legal representation
will not only stop the development of any form of case management
but also may perhaps prevent the operation of the Tribunal itself.
A lack of representation will also breach the
European Convention on Human Rights at Articles 5 and 6, and therefore
the Human Rights Act 1998. Inter alia the case of Megyeri v
Germany (1993) set out the duty on the state to ensure that
a detained patient was legally represented under the European
Convention on Human Rights.
2. GOVERNMENT
POSITION
We attach details of the recent Parliamentary
debate in Westminster Hall. We were greatly surprised to note
that the Legal Aid Minister, Vera Baird, had indicated to Parliament
before Christmas that we had "no concerns" as to the
current developments, as this is the precise reverse of the position.
The Minister attended our Annual Conference on 3 November 2006
and received an outcry from members who thought Government proposals
completely unsustainable. Following questioning on this point
in the debate she qualified her statement.
At our Conference Vera Baird made it clear that
she would meet with representatives of the Association. Plans
were made to meet with her this month, and a date set, however
we it now appears that the Minister has withdrawn her invitation.
We have yet to receive the reasons for this. This lack of information
only further exacerbates the intense uncertainty members have
in developing any plans for their future.
We are aware that the Legal Services Commission
are conducting a new "survey" of our work. Files are
being selected by staff for study. Unfortunately, members have
been contacting the Association to say they are concern that the
files selected are unrepresentively small. They fear that this
is another statistical device by the Commission to slant figures
in their favour. We assume these figures will be used in an attempt
to "inform" any further changes to the contact.
3. EXISTING "TAILORED
FIXED FEES"
The Legal Aid Minister as made reference to
"fixed fees" working to date for half suppliers in mental
health law; this is unfortunately misleading. As outlined above,
there is a system of "tailored fixed fees" operating
at present. Two years ago the Commission attempted to impose this
scheme on all members, however two thirds refused to sign to the
new contract. As a result the Commission made it voluntary, with
the remaining members continuing to be paid at the old hourly
rate. There was considerable pressure for members to sign to this
fixed fee system, and once signed up members could not leave.
The Minister has suggested that members have "chosen"
not to leave, but quite simply the contract does not allow them
to do this, and requests of members to leave has been turned down.
However, "tailored fixed fees" have
suited some members; although the Association understands that
it remains closer to a third rather than a half suggested by the
Minister, of all those provided legal representation in this field.
Tailored fixed fees are completely different from the "rigid"
fixed fees proposed and those members signed up to tailored fixed
fees are vocal that the new system would not work for them either.
The exchange in the Westminster Hall debate with the Minister
regarding the firm Burke Niaizi reflects this point.
4. JUDICIARY
We understand the judiciary administering much
of our legal work has met with Government representatives and
written to the Legal Aid Minister stating their own view that
these plans are unworkable.
CONCLUSION
The conclusion remains that representation will
melt-down in October of this year if this system is imposed: this
will not be industrial action, these will simply a completely
unworkable proposals for our members who will be unable to sign
up.
Please let me know if you require any further
details.
Best Wishes.
Richard Charlton
Chair
Report of Mental Health
Lawyers Association Decline in Representation
This summary report is the responsibility of
the Mental Health Lawyers Association. Figures are compiled from
Law Society sources and an Association survey conducted earlier
in 2006. The Law Society figures are current to November of 2006.
DECLINE IN
NUMBER OF
LAW SOCIETY
MENTAL HEALTH
REVIEW TRIBUNAL
PANEL MEMBERS
The number of Mental Health Review Tribunal
Panel Members has changed as follows:
1999 451
2000 478
2001 485
2002 460
2003 436
2004 446
2005 416
2006 364
These figures represent the highest number of
Panel members in any one year. The 2006 figures includes a minimum
of 30 members who have recently surrendered their practising certificates
and 13 members who have had their membership suspended for "good
reason", such as maternity leave.
Membership of the Panel is normally for a period
of three years and therefore there would be a "time lag"
of members' intentions accordingly.
AGE PROFILE
OF PANEL
MEMBERS
The figures below represent to ages of Panel
Members.
In the statistical basis of this graph at the
end of 2005, 45% of MHRT Panel members were women and 55% were
men.
It will be seen, especially amongst men, that
the highest proportion of members is in the older age range, indicating
that fewer are apparently intent on making such specialism their
career.
MHRT ACTIVITY—NOW
AND IN
THE FUTURE
According to the MHRT Review of Activity April
2001 to March 2005 there was just under a 3.5% increase a year
in both applications and hearings. Thus applications arose from
around 20,000 to 22,000 a year in this period and full hearings
from around 11,000 to 12,000. Information provided to the Mental
Health Lawyers Association by the MHRT Secretariat indicate that
this rate of increase has continued through 2006, implying that
applications will be close to 24,000 in April of next year.
In addition to the current MHRT activity, the
recently introduced Mental Health Bill provides for Community
Discharge Orders with new MHRT reviews both for when the new Orders
are given and if a patient is subsequently recalled to be an in-patient
again. These are new rights. In their impact assessment the Department
of Health have indicated that they foresee that they will be a
further increase of 2% in MHRT hearings as a result of these proposals.
However, on direct questioning by Association representatives
it is clear that this is a very rough estimate which may well
be an underestimate. In addition the Bill provides a power for
Ministers to bring forward the "automatic referral"
to a MHRT for unrestricted detained patients. The Association
understands that this power will be exercised when resources allow.
It is assumed that this includes adequate legal representation
for such patients.
CONCLUSION
These figures show a confirmation of the decline
in Panel members, as against a rise in MHRT activity, both current
and forecast. Furthermore, the age profile of Panel members clearly
indicates that fewer lawyers are taking Panel membership as part
of their future career.
December 2006
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